Open Letter on the Leonard Kaplan Case

What follows is a letter to the university community and the world beyond from a campus group to which I belong, the Committee for Academic Freedom and Rights (CAFAR). I will add a comment about it later, when I get time.

The Committee for Academic Freedom and Rights at the University of Wisconsin-Madison has followed with deepening concern the process and news coverage surrounding the accusations by some students against Professor Leonard Kaplan of the Law School. Given that Professor Kaplan has not publicly commented on what he said in class, we refrain from commenting on any other details of the case at this time. That said, it is important to comment on a fundamental principle that is at the heart of the controversy. Namely, academic freedom.

There is a distinct possibility that the emotion and pressures surrounding this case—especially after the public meeting at the law school the evening of March 1—will have a chilling effect on honest and good faith discussion of racial and cultural issues in class and on campus. While good teaching requires that students be treated with respect, undue sensitivity and fear of accusations can cause professors and instructors to steer clear of controversy or uncomfortable truths that need to be discussed and faced if we are to improve as a society. Such pursuit of truth is the university's special charter and reason for existence.

Nothing in this statement is intended to justify the use of gratuitous offense or personal insult as an element of public discussion, whether inside or outside the classroom, and whether directed from faculty members to students or from students to members of the faculty. The university must be a place in which no member of the community has reason to fear expressing his or her ideas and feelings honestly and sincerely, within the bounds of civil discourse, very broadly defined. The university cannot accept efforts by any members of its community to silence others through intimidation, just as the university cannot accept the use of personal insult or denigrating stereotypes in the presentation of arguments.

There is a fundamental distinction between causing offense gratuitously and invidiously, and causing offense as the by-product of the fair-minded pursuit of truth or constructive criticism. A university of the caliber of UW-Madison, with its long history and tradition of protecting academic freedom in the "fearless sifting and winnowing of ideas" for the pursuit of truth, must take this distinction seriously, lest it surrenders its intellectual integrity.

We fear, however, that the crucial distinction between gratuitous offense and provocative argument has been lost in the public furor over the Kaplan case. We are dismayed at the Law School’s public response to this dispute, as it has addressed only the school's commitment to sensitivity and diversity, while saying nothing about that institution's fiduciary obligation to train minds to grapple with various sides of controversial and difficult issues. Without serious consideration of the importance and meaning of academic freedom on campus among the members of the university community, how can freedom prevail in the face of pressures from both left and right to make universities conform to one or another model of political correctness? We urge that the principles of academic freedom and fairness be a serious part of our community's response to the allegations that have been made concerning Professor Kaplan.

Signed by members of the Committee for Academic Freedom and Rights, UW-Madison

Ann Althouse, Mary Anderson, Anatole Beck, Michael Chamberlain, Donald Downs (President), Michael Fox, Robert Frykenberg, Lee Hansen, Lester Hunt, Larry Kahan, Anatoly Khazanov, Kenneth Mayer, Marshall Onellion, Dietram Scheufelle, Howard Schweber, John Sharpless, Kenneth Thomas, Steven Underwood (Legal Counsel)

I Stand Corrected on the Leonard Kaplan Case

First of all, I would like to thank the people who posted on the comments page of my original post on L'Affaire Kaplan. Though they vigorously disagreed, they expressed themselves with civility and made some good points. One person, writing anonymously, said something I think I should put in the foreground by featuring it here. The reason is that it requires that I qualify or take back some of the things I said. Here is what anonymous said.

FYI, the students did not first go public with their complaints. They sent a letter to the Dean. The Dean asked their permission to share the letter with Professor Kaplan, which they granted. Once shown the letter, Kaplan then spoke with the students but, in that exchange, appears to have left them more upset rather than less upset. It was only after these events took place that the students chose to organize a Wednesday night meeting, which is the first time that this matter went public. It seems a shame that the private conversation between Professor Kaplan and the students was not managed in a way that led to this being settled at that time. Even with all of that, the students have never called for censorship or discipline of Professor Kaplan. They have consistently sought a venue to teach the law school community about today's Hmong community.

In "Thing Two" in my original post, I said that KaShia Moua (and by implication the other students who initiated this public discussion) should have figured (as I did and do) that there must be some sort of misunderstanding here. Now of course it appears that they did talk to Prof. Kaplan and for whatever reason were not satisfied with what he said to them. This makes it difficult, if not impossible, (for me, at the moment) to second-guess what they did in going public with the "racism" charge. If they did some checking and still believed what they said, it's pretty hard to say that they shouldn't have acted on it.

It also makes me a good deal less sure (Things Four and Five) that Dean Davis failed to handle this well. He did try to start a productive dialogue, and I applaud that. I just wish he had said something publicly about the importance of freedom of speech and academic freedom at some point.

I am tempted to go back to my original statements and silently revise them, but that would be a little too George Orwell, wouldn't it? (Down the memory hole! Never happened!) I hope this correction is good enough.

There is a meeting at the Law School about this incident this evening at 7:00. I will attend at least part of it and try to find time to blog about it afterward.

Written later: I later heard that this meeting would just be another meeting between university representatives and students, this time to arrange some sort of meeting with the Hmong community outside the university. Figuring that this would not be an informational meeting, I missed it. (Actually, I went home, exhausted after the work I'd done for a talk by Lawrence Harrison, fell asleep, woke up at midnight to get ready for class, ... it was a busy day is what I'm saying.) But now it sounds, from one of the comments on this post (see below), like some new information might have come out at this meeting after all.

Another @#!&%*# Speech Case at UW!

First, if you haven't already heard about it, you need to read the article, "Professor Accused of Racial Slurs," from last Thursday's Capital Times. It tells of a recent firestorm sparked when a UW student alleged in effect that a Prof. Leonard Kaplan went all Michael Richards during a lecture on inter-ethnic relations.

Next, here are excerpts from a statement, placed on interesting page of the Badger Herald web site, by Nam Dao, a UW student who is enrolled in Kaplan's legal process class and, unlike a lot of people who have weighed in on this issue, was actually present at the now-notorious lecture:

... Though I was not offended by Kaplan’s use of the Hmong stereotypes, I felt a bit uncomfortable mainly due to the delivery of the stereotypes, which were shrouded in Kaplan’s trademark style of humor that can be quite polarizing. Yet at the same time, I realize that law school is not about being in your comfort zone all the time. Many times, we discuss delicate issues that affect everyone including gender, race, and sexual orientation.

... The subject matter in our Legal Process class was about the role of cultural values in formulating law. Kaplan used Hmong stereotypes, particularly the dowry system and the gang problem, to illustrate two points. With regards to the dowry system, if a women does not consent to sex, the man will be charged with rape in America. However, in criminal cases involving ethnic minorities, there exists the cultural defense argument—essentially, “in my culture this is not a crime.” Kaplan noted that the cultural defense argument is used by people from other cultures as well, such as Muslims. Regarding the gang problem among the Hmong population, Kaplan used it to illustrate the point that the state of Wisconsin is not doing a good job of providing educational opportunities and job training to the Hmong. Thus, the state of Wisconsin is not doing a good job of embracing cultural differences and helping a section of the Hmong to assimilate into mainstream culture. Kaplan noted that the second generation of immigrant groups usually contain a criminal element, using Meyer Lansky, who was Jewish, to illustrate that point.

I think it is clear that Kaplan is not a racist, but nonetheless some of my friends and classmates were offended by his use of Hmong stereotypes to illustrate an academic point. ... I feel that the classroom is a place to discuss stereotypes, especially in law school. Society does not have too many forums where we can discuss stereotypes openly. Kaplan, I think thought that these stereotypes were based on empirical observations. I don't think that Kaplan was trying to make a value-judgment about Hmong people. I think a reason why people were offended was because of his unconventional style, and couple that with the fact that the Hmong are under the microscope in WI and we have the volatile situation we see here. I think this incident can be a springboard to promote thoughtful and productive dialogue about race consistent with the teachings of Grutter. ...

I was not there and have not heard Prof. Kaplan's own account of what he said, so I will just say six things about this already-sorry tale. Keep in mind that all six are offered from the I-wasn't-there perspective:

Thing one: I have known Len Kaplan for over twenty years, and if I thought I heard him say some of the bizarre things alleged in law student Kashia Moua's defamatory email about him -- eg., that young Hmong men have no talent for anything but to commit murder -- I would sooner believe that I was hallucinating than that Len said and meant them. He is not a racist. As Hume said, in a conflict like this, always reject the greater miracle.

Thing two: As odd as this might seem, I think Moua should have thought something like that as well. It's more likely that there is a misunderstanding here than that a highly educated person who has spent a lifetime thinking about these matters would say such utterly wacked-out things as expressions of his/her own opinions. Get a grip, people!

Thing three: In some incidents like this one, including possibly this incident itself, people show a very poor grasp of what analytic philosophers call the use/mention distinction. If I quote someone else using the N-word, I am not using the word. I am mentioning it. This is a big difference. Shakespeare did not say "Life is a tale told by an idiot." MacBeth said it. Mark Twain did not say "Give a nigger an inch and he'll take an ell." Huck Finn said it. If I use a word, that supports your making some direct inferences about my beliefs and feelings. If I only mention it, matters are more complex. Shakespeare and Clemens did not agree with the the statements their characters were making. Their motives in constructing these sentences were rather more complicated and roundabout than direct self-expression. What were their motives? This is where you have to be complex yourself, and do some interpreting. The trouble is, today we are getting to be so sensitive to the power of certain words and locutions, that this complexity is becoming impossible. Mentioning them at all tends to be somewhat unsafe. This is not a good thing. We have to be able to mention them in order the rationally check and improve our opinions.

Thing four: From all the accounts I have seen, it looks like Dean Davis of the Law School has handled this incident very badly, from the point of view of the need to maintain a climate of rational discourse at the university. He has repeatedly apologized in Kaplan's behalf, expressed disapproval of him, and never said one word, as far as I know, that reflect an appreciation of Kaplan's rights of free speech and academic freedom. It looks like his only concern throughout has been to soothe the angry, and to assure them that at all events they should not be angry at the law school or at him. If that is indeed true, he should do something to correct this situation, right away.

Thing five: Professors and deans should think of incidents like this as "teachable moments," as opportunities to get the message across that, in any conversation, you have an obligation to make a good-faith effort to understand what the other person is saying. This is one of the most profound life-lessons you can get from a liberal education. It looks like this was very far indeed from what the Dean was thinking in this case.

Thing six: Some people who have weighed in on this have said that whether comments are racist need not depend at all on the speaker's intent. The impact of the comments, or the speakers lack of care about their impact, can be sufficient. I think this is a very serious error. The only thing that can ever give meaning to any comment is speaker-intent, the human thought behind the sounds. Impact can be ethically very important, but it is important in a completely different way. To say the impact alone can give meaning, is to say that you can can grasp meaning without bothering to interpret your fellow human beings. It is to say that your anger over the impact is a good-enough substitute for understanding.

The Ethics of Artistic Hoaxes: Part II, the Sequel

"Anonymous" has posted an interesting comment on my post about "The Ethics of Artistic Hoaxes," and I thought I should put it, with my response, here. My response got too long to be a "comment," plus I ended up revising my position! Here is what Anonymous said:

Some thoughts on your very interesting post on "Bride Wigout."

I tend to think of hoaxes as generally suspect because they're unannounced deceptions and therefore liable to be taken the wrong way or to get out of hand. Think, for example, of Orson Wells' War of the Worlds.

The difference between hoaxes and art is that art is known to be art before we decide to avail ourselves of it. We pick up a novel or go to a play fully prepared to allow our imaginations to be led by the artist's controlled illusions. We want his fabrications to take us "away" and we freely and eagerly give ourselves up to them. A hoax, by contrast, is sprung on us unawares. We have no idea that it's coming, and its whole point is literally to assault us with something that seems entirely real. A hoax isn't revealed as a hoax until the "game" is played out, often scaring, insulting, or injuring its victim(s) in the process. An "artful" hoax, though often terribly convincing, isn't art in the same way that a novel or play is precisely because we are ignorant of the "art" until it is too late and we find ourselves the butt of a joke. Or worse.

If there were an ethically valid criticism of "Bride Wigout" (I say if there were) it might be, simply, that it was a hoax, morally suspect for that reason alone. Of course, anyone who accesses the internet, and especially Youtube, unprepared to be fooled is obviously ignorant of the medium. Besides being an echo chamber of rumors and misinformation, the internet is a screening room for every amateur in the world to try his hand at putting something over on a credulous public. The very first question almost anyone viewing this clip would ask himself is: "Is this real or fake?" The context tends to rob the would-be hoax of its deceptive force. For this reason alone, it seems to me, "Bride Wigout" is not a real hoax and is in no sense blameworthy. A true hoax slams its victim with the sensation that this is real and no mistake.

Can there be morally justified hoaxes; for example, to teach a malicious hoaxster a good lesson? Or is it always wrong to teach with a lie? And what about harmless hoaxes such as the old Alan Funt Candid Camera programs? I would suggest that the motive of the perpetrator has a lot to do with the moral status of the hoax, whether its malicious, thoughtless, or just for laughs. Also, the nature of the hoax itself, what we might call the seriousness of its matter, has an important bearing on its moral quality. Faking murder or suicide is always extremely bad. Finally, morally acceptable hoaxes tend to be carefully thought out and highly controlled, with a very high probability that the "victim(s)" will be as entertained as the perpetrator(s) once the hoax is revealed.

I'm not sure how much any of this disagrees with what you've said. Thanks again for your always-engaging blog.

Anonymous: Thanks for your thoughtful comment, whoever you are.

The one thing you say that comes closest to clashing directly with the position I've taken here is the suggestion that hoaxes are "morally suspect" as such. By "artistic hoax" (a term that unfortunately I failed to define explicitly) I meant an artistic work, depicting imaginary events, which work is presented in such a way as to implicitly claim that the fictional events are real. It's a novel presented as an autobiography, a fiction film presented as a documentary or home video, etc. What I was thinking was that since the deception is only about the fictional world, and not about the real world of the viewer, it can't possibly have the features that make a standard-case lie immoral. As I watched "Bride," I was decieved about everything that Jodi was doing, but since I had no possible contact with her, the deception had no more effect on my own control of my life than if I had not been deceived at all.

Unfortunately for me, your example, "War of the Worlds" broadcast of 1939, really is a counterexample to this view. As a matter of historical fact, I think the broadcast was not actually a hoax. Despite coy hints dropped by Welles in later life, the deception was accidental and unforseen. But if it had been deliberate, it would have been immoral by my standards: it would have been an attempt to feed people false information which they would forseeably use in managing their lives. Even if no one was physically injured in the ensuing panic, thousands were embarassed or humiliated by their hysterical behavior -- certainly a bad thing to subject thousands of innocent strangers to!

Of course it was also what I'm calling "an artistic hoax." The reason it can be both -- an artistic hoax and immoral -- is that in this case the fictional world of the artwork overlapped with the real world of the viewer. In the fictional world of the broadcast, vicious Martians invade planet Earth. Well, the audience happens to live on planet Earth. Thus the relation between the audience and the Martians in the show was completely different from my relation to Jodi as I watched "Bride". This is a situation I had not thought of when I was formulating the position I took in the earlier post.

So I guess what I should do is to carve out some suitably-defined exception to my claim that artistic hoaxes are per se not morally wrong: it doesn't apply to cases where the imaginary world in the artwork overlaps in this way with the real world of the audience. "Artistic immunity," as you might call it, is not defeated by just any overlap whatsoever. The fictional world of the artwork must overlap with the audience's world of things that are of practical concern to them (their world of what Ortega y Gasett called pragmata). As I watched "Bride," I thought that Jody had a real hair meltdown somewhere on Earth, the same planet I live on. However, although I was emotionally engaged with her, and thought that she lives somewhere on my planet, there was no way Jodi could be of any practical concern for me. Immunity is defeated in such cases because the overlap results in false information that make a forseeable difference to the audience's future choices.

I think this is ordinarily not what artistic hoaxes are like, which is why I think of this as a revision of my position, and not an ignominious retreat from it.

Anyway, way to go, Anonymous! (Love all those folksongs you wrote, too!)

The Ethics of Artistic Hoaxes

Unless you live at the bottom and an ancient mineshaft, you have seen the notoriousHaircut Video and heard that it was subsequently revealed to be a hoax. Bridezilla was and actor (talented Canadian Jodi Behan) and the haircut was a wig (though it appears Behan was hacking off some of her own hair in the film).

I was one of the lucky two million people who saw it when they thought it was genuine. I found it amazingly funny and at the same time really disturbing. After the first viewing, I was shaken, but compulsively watched it again, like the guy who can't take his eyes off the car wreck. Both times, I laughed until I cried. I showed it to Nat, our 17 year old son, and I think he found it actually too frightening to be funny.

What I found a little odd was the moralizing tone of some of the comments after the hoax was exposed. The actor who played Jodi (which is also her real name) was asked by the Toronto Star if she "regretted" what she had done. Since it was obvious that the video made her instantly famous and will probably help her career immensely, it was clear that moral regret is what was meant.

My first reaction was, What the Hell? Is putting something on Youtube supposed to be some kind of sacred trust?

Now that I've thought about it a little more, I have to admit that I am a bit of a rigorist about deception in general. I don't like lying or liars. I don't claim to be perfect in this respect myself, but I generally regard any lie I catch myself telling as a case of abject, crawling weakness. Nothing to brag about. The main reason, I think, is that liars are losers. Typically people lie because they feel (perhaps rightly) that they cannot get by on their merits, so they invent fake ones. So why do I applaud a hoax like "Bride Has Massive Hair Wigout"?

I think it begins with the axiom is that art is not life. It isn't a coincidence that "art" sounds like "artificial." Art projects unreality on the screen of imagination, where we treat it for the moment as if it were real, sympathiizing with or fearing in behalf of characters who never did exist. As many people, beginning with Plato, have pointed out, creating a fictional narrative, wheter written, enacted, or narrated around a primeval campfire, is perilously close to lying already. This makes it, Plato thought, ethically dubious from the gitgo. Or you can see it as a sort of holiday from the ethics of deception.

That is of course how I see it. In real life, a lie is not generally a victimless offense.

There are two sorts of immoral lies in real life. One might be called the exploitative lie. This is the case of someone who lies to you in order to get something from you under false pretenses: approval, escape from deserved punishment, permission to conduct a war, etc. The enchantments worked by the artist differ from exploitative lies in virtue of the fact that they are for your benefit. The artist is trying to entertain you or possibly to enlighten and instruct you. I think this is directly relevant to the deceptiveness of the "Bride" video because I doubt if it would have been as funny as it was if I had known up front that it was fictional. And I am sure that the mirth would have been piquantly, so memorably mixed, as it was, with sheer horror. So I am grateful to the makers of this video for having fooled me.

The other sort of immoral lie that we encounter in real life is not "selfish," like the exploitative lie, but "altruistic." This is the paternalistic lie. In this sort of case, someone lies to you for your own good. Perhaps you have a terminal illness and the Doctor, thinking you cannot handle the truth, tells you that you will be ill for a long time, but that your prospects for recovery are good. Despite the "good" intentions behind it, the paternalistic lie commits the same wrong that the exploitative one commits: it is an active attempt to prevent you from rationally controlling your own life by deliberately feeding you false information, which you will then use as if it were true. It is an attempt to hijack your life. To this injury, the paternalistic insult adds an insult -- the judgement that you cannot adequately control your own life by weighing and acting on the truth.

Artistic hoaxes like "Bride" differ from both sorts of immoral lies: they do not feed you information that you will use to make choices regarding the real world. The deceptions involved are only about the fantasy-world projected in the art-work itself. They do not affect the real world outside this fantasy-world.

Things are very different when a hoax is presented, not as a narrative for your entertainment, but as a real-world event. The Piltdown Man hoax caused real scientists to waste their real and valuable time proving that it was a fake. The Donation of Constantine helped real-world Popes to establish themselves as predatory temporal princes, bringing centuries of shame down on the Christian church. But "Bride" exploited and insulted no one, and delighted millions.

Caption This!

As you may already know, Catallarchy has a "Caption the Pic" thread about this photo.

So far, most of the posts about it are hilarious.

Maybe I should add, by way of caveat, that I find Al Gore himself screamingly funny in the first place. He tickles my funny-bone. If I had been present at the execution of Savonarola, I might have laughed myself sick. So consider the rather demented source, is what I'm saying.

My Excellent Italian Adventure

It was grueling. No sooner had I returned from the Workshop on Equal Respect in Italy than I had to rush off to a Liberty Fund in San Diego on the aethetics of Friedrich Schiller. I figured out that in less than a week I crossed nine time zones! I learned a lot at both conferences, but I'm very glad I can stay put for a while.

After the Pavia workshop, my friend Valeria Ottonelli showed me around the Genoa and Rapallo area. Here is a picture of a partly Romanesque church in Valeria's neighborhood in the medieval part of Genoa. I think it is called San Donato. Here we sat and listened to a choir, evidently visiting from France, that was rehearsing a mass. It was a beautiful nineteenth-century composition (my favorite era!) but I didn't recognize it.

As Valeria pointed out to me, this building is asymmetrical: the right side has shallow alcoves with huge paintings in them, while the left side has deep recesses with an individual chapel in each one. Most of these old churches seem to be aesthetically clashy. They were built, remodeled, added to over a period of centuries, with little thought for values like stylistic coherence and consistency. I guess that is one difference between making something that serves a serious purpose and making "art."