Thursday, May 26, 2016

The Leo Soell Doctrine: Palpable Punishment for Intangible "Harm"

Two Democratic congressmen, always seeking madder music, stronger wine, and new ways to punish people for holding opinions they despise, have introduced a bill they call the
 “Do No Harm Act.” The purpose of that measure is to abolish the religious liberty and free speech rights of business owners who hurt the feelings of those who belong to “specially protected groups.” This would be done by weaponizing a legal concept called “dignitary harm.” The case of Leo Soell, which we will examine anon, offers a perfect example of that concept in action.

The “Do No Harm Act” is, in part, a reaction to recent Supreme Court rulings protecting the rights of business owners against Obama administration policies that would require them to violate their religious convictions. Those rulings have cited the 1993 Religious Freedom Restoration Act, which was intended to buttress the putative protections offered by the First Amendment. 

 Section 2 of the “Do No Harm Act” stipulates that “the Religious Freedom Restoration Act of 1993 should not be interpreted to authorize an exemption from generally applicable law that imposes meaningful harm, including dignitary harm, on a third party.” (Emphasis added.) “Dignitary harm” does not involve fraud, failure to honor contractual obligations, or injury to person or property. To paraphrase the familiar song, it is nothing more than (hurt) feelings.

In what is probably the definitive treatment of the concept, Cristina Carmody Tilley of the Northwestern University School of Law contends that infliction of emotional distress “does more than inflict property damage or even physical injury that the modern man is expected to rationally commodify. Instead, it invades an individual’s sense of worth and dignity, important values in a relational society.” 

To substantiate that astonishing claim, Tilley cites a passage from sociologist Erving Goffman’s book Interaction Ritual: Essays in Face to Face Behavior: “[T]he individual must rely on others to complete the picture of him of which he himself is allowed to paint only certain parts.”

Assuming that this means anything intelligible, it appears to be a claim that refusing to indulge someone’s preferred “picture” of himself violates the supposed victim’s right to be validated, thereby undermining his or her “sense of self-worth and dignity.” Tilley invites us to pretend that this gives rise to a valid civil claim under the Ninth Amendment to the US Constitution. 

Properly understood, that amendment was intended to protect un-enumerated individual rights from abridgment by the federal government. Tilley, a cultural Marxist by inclination if not by overt profession, treats that amendment – and the Constitution in general – as a license for limitless state intervention in private affairs for the purpose of creating an egalitarian social order. This will require the use of state coercion to equalize the “power deficit” that occurs when a “privileged” individual inflicts “dignitary harm” on an officially designated victim.

The most interesting element of Tilley’s essay is her insistence that redress of hurt feelings through state action is necessary to prevent “violent self-help” on the part of the supposed victim. Slights to a person’s sense of dignity, she writes, “are more likely to incite vengeance” than physical injury or damage to personal property. What she calls “civil recourse theory” allows for the state’s judicial system to address “injuries to personality in a way that might now be true for injuries to property or body.” Through “the provision of a state-sponsored forum for vindicating the dignitary interests invaded by these wrongs,” the need for vengeance will be addressed without violence, according to Tilley.

Blinded by ideology, Tilley either doesn’t see, or will not admit, that her prescription legitimizes violence and vengeance to the extent they are carried out in the name of the fictive entity called the State – and that she approves of violent punishment of people who have inflicted no tangible injury on anyone. Political government, after all, is nothing but the praxis of violence. 

The legal doctrine described by Tilley, and embedded in the “Do No Harm Act,” has led to a string of administrative rulings punishing businessmen – florists, bakers, photographers, innkeepers -- who have declined to participate in same-sex weddings. None of those cases involved actual harm to the purported victims, or a refusal by the defendants to carry out the terms of a contract. A recent case in Gresham, Oregon expands the concept of “dignitary harm” to include the use of pronouns that offend someone designated as part of a “specially protected class.” 

Brina Soell, a fifth-grade teacher who had her given name legally changed to Leo, was born a biological female. A year ago, she “came out” as transgender after surviving breast cancer and undergoing a bilateral mastectomy. She remains otherwise anatomically female. Rather than “identifying” as male, she insists on being treated as “transmasculine” and “gender-queer,”  and demands that others address her as “they” rather than “he” or “she.”

Most of Soell’s colleagues have done what they can to accommodate her desires, albeit at severe expense to the proper English they are supposed to be teaching their young students. On occasion, however, some have referred to her has “she,” “lady,” or “Miss Soell,” and one of them expressed a candid disagreement with Soell’s “belief system.”

All of this resulted in “dignitary harm” to Soell’s incomparably precious feelings. As an accredited member of a specially protected class, she threatened to file a harassment complaint with the Oregon Bureau of Labor and Industries. 

Brad Avakian, the BOLI’s chief commissar, is the same unaccountable functionary who imposed a $135,000 punitive judgment on a Christian couple who declined a request to bake a cake for a lesbian wedding ceremony – and a $400,000 judgment on a bar owner who had politely asked a group of transgender males not to monopolize his Friday night business. Contemptuous of due process and unhindered by conscience, Avakian considers his will to be law – which is why the mere threat of filing a complaint with his agency was sufficient to induce capitulation on the part of the school district.

On May 20, a few weeks after the Obama administration effectively re-wrote the federal Civil Rights Act to include “gender identity” as a protected category, the Gresham-Barlow School District agreed to pay a $60,000 tax-subsidized settlement to Soell, and to enact policies intended to teach grade school students that “gender identity” is infinitely customizable – and that the English language is subject to modification at the whims of “specially protected” people and the bureaucrats who exploit their contrived grievances.

In a career otherwise devoted to polluting the air with foolishness, Eleanor Roosevelt said one unambiguously wise thing: “No one can make you feel inferior without your consent.” Each of us is the exclusive owner of his personality and self-concept, and any “dignitary harm” that results from words spoken to or about any of us is purely consensual.
"Trigglypuff" expounds on the evils of "dignitary harm."
As Thomas Jefferson might put it, someone accused of “dignitary harm” has neither picked his neighbor’s pocket, nor broken his leg. The “social recourse” approach to such disputes socializes violence by unleashing state-licensed pickpockets and leg-breakers to punish people who have not injured the property rights of anybody.

Where redress is demanded for perceived harm of this kind, it should be pursued privately. Tilley, interestingly, acknowledges that “early Anglo-Saxon law [treated] dignitary interests as compensable in private actions until the Norman conquest of England in 1066.” One lamentable consequence of that conquest was the imposition of the “King’s Peace” doctrine, under which all disputes were to be considered offenses against the “sovereign,” rather than a specific injured party.

Prior to 1066, perceived injuries to personal honor and reputation were often settled through trial by single combat, a tradition that persisted, in the form of dueling, in the United States until the early 20th Century. If we are to treat “dignitary harm” as a matter of public concern, the most rational approach would be to restore and update that tradition.

This wouldn’t necessarily involve pistols at dawn, or bare-knuckle boxing. It could be a formal challenge for a mediated debate before a jury of one’s peers, who could rule in favor of either the plaintiff or the defendant. Plaintiffs who prevail would see their self-image fully restored, which we are supposed to believe is the only thing they really want. A defendant who refused a summons to single combat would lose a default judgment, thereby producing the same outcome.

Of course, as the accused party, the defendant would have the right to decide the form of single combat. Social Justice Warriors who seek palpable punishment for intangible “dignitary harm” revel in vicarious violence committed on their behalf in the name of the State. For the most part, they would melt into puddles of pathos at the prospect of participatory violence.

This week's Freedom Zealot Podcast examines the imprisonment and official persecution of a man who was a peacemaker at Bunkerville in April 2014:


Dum spiro, pugno!


liberranter said...

Oregon seems determined to usurp the title of "Land of Fruits, Nuts, and Flakes" from its southern neighbor.

Anonymous said...

Good points Will, but it's just not OR that is caught up in this kind of nonsense. My point is, many conservatives are behind this social justice agenda as much as the Loony Left is, but their backing is through keeping to themselves. Here is a golden example of that. Men are now going into the woman's restrooms, an act that not long ago could have got a man arrested. The fact of the matter is, men being allowed into woman's restrooms has turned over Roe v Wade. The cornerstone of Roe v Wade is, "a woman right to privacy". Never mind the word "privacy" is nowhere to be found in the US Constitution, a new Constitutional Right was created by the high court. That right to privacy is not a Constitutional right that can be used once in a while. A Constitutional Right can be used every minute of the day 24/7, 365 days a year. Being said woman have the Constitutional Right of privacy which would include the Constitutional Right of privacy in the woman's restroom. If not than Roe v Wade is nil and void. This is known but is not part of the rest room debate, which clearly shows the collective attack on this country from within.

kirk said...

another day, another load of crap from those who masquerade as 'caring' for the 'victimized groups' when the reality is they USE these groups for their megalomaniacal and self - aggrandizement aims.

we have become an absurd nation full of silly, stupid people who can no longer tell fact from fiction, lie from truth, or reality from propaganda.

Frank said...

Just another tactic to violate peoples rights!

Unknown said...

In response to anonymous... Rights are not rights if they can be taken away... We have privileges that have been disappearing for years... Ask Japanese Americans from 1942 about their precious rights... Privacy??? With big brother listening and reading everything?... Our rights are gone and given to all the degenerates...

Thanks Will, for another piece on the collapse of an America that maybe only really ever existed in my mind...

Ronald Thomas West said...

@ anonymous's comment incorporating the patent nonsense "Never mind the word "privacy" is nowhere to be found in the US Constitution"

There is this thing called a synonym, you can look it up. If that idea hurts your clearly anonymous feelings, you can always run to Ms Tilley for a law referral. Meanwhile, check this out:

"The Fourth Amendment of the U.S. Constitution provides, "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized"

"The ultimate goal of this provision is to protect people’s right to privacy and freedom from arbitrary governmental intrusions. Private intrusions not acting in the color of governmental authority are exempted from the Fourth Amendment.

"To have standing to claim protection under the Fourth Amendment, one must first demonstrate an expectation of privacy, which is not merely a subjective expectation in mind but an expectation that society is prepared to recognized as reasonable under the circumstances. For instance, warrantless searches of private premises are mostly prohibited unless there are justifiable exceptions; on the other hand, a warrantless seizure of abandoned property usually does not violate the Fourth Amendment. Moreover, the Fourth Amendment protection does not expand to governmental intrusion and information collection conducted upon open fields. An Expectation of privacy in an open field is not considered reasonable. However, there are some exceptions where state authorities granted protection to open fields.

"A bivens action can be filed against federal law enforcement officials for damages resulting from an unlawful search and seizure. States can always establish higher standards for searches and seizures than the Fourth Amendment requires, but states cannot allow conduct that violates the Fourth Amendment.

"The protection under the Fourth Amendment can be waived if one voluntarily consents to or does not object to evidence collected during a warrantless search or seizure"


Or if you prefer an explanation specifically mentioning Roe v Wade, I recommend you copy this link and paste it into your browser's url bar:

The beauty in what William writes about in his excellent piece on political correctness run amok is, when these social morons go public (talk to media) with their (imagined) 'hurt', they open themselves to public lampooning specific to the issue on account of having voluntarily become a public figure. It follows, the First Amendment's speech clause can only be called dead when John Oliver has been banned (although just now in Oregon, speech rights might be on life support...)

It would require some highly twisted reasoning for the 'do no harm act' to pass a pretense of constitutional muster but we've seen some stark idiocy from both wings of SCOTUS, so one never knows -

Anonymous said...

William's remedy almost brought tears to my eyes. Simple, logical, elegant and sure to be rarely used, it would change society for the better. Well done!

Anonymous said...

Hello Mr. West. Please allow me to explain to you that the Fourth Amendment has nothing whatsoever to do with privacy. The Fourth Amendment is all about putting limits on the actions of government. For the high court to take clear worded restrictions on government and coming up with a way a parent can legally murder their own child because woman have a Right of Privacy in such matters, is more than a reach. Limits on the action of government and a woman's right to commit legal murder are worlds apart. Nevertheless out of such crackpot high court rulings come new rights that the Founders never intended, like men who identify as woman can barge into a woman's restroom.
Mr. West, Next time ask one to explain, after we are all on the same side.

Ronald Thomas West said...

“Wherever the real power in a Government lies, there is the danger of oppression. In our Governments, the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from the acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the constituents.” - James Madison, author of the 4th Amendment. It would appear his point was privacy -

'next time' I will again make my points as I please, no different to last time & this time -

Anonymous said...

Not so, his and the other Founder wanted to control the power of government by placing limits on government. The wording is clear in the Forth Amendments, is limiting the actions of government. Remember what the Founder had just gone through with the King. They wanted to stop power by placing limited on that power. It's the words of the Constitution that matter not what one of the authors wrote outside of their words they put down on the paper of the Constitution. The Founders signed the Constitution and not a letter or a statement but they agreed with the very words of the Constitution. A classic example is the words, "a separation of church and state". Those words are not in the First Amendment, but in a letter that Mr. Jefferson wrote to a friend. To bring this up to highest level, makes it absolutely wrong to read beyond the exact words the Founders put into the Bill of Rights. Knowing how the Bill of Rights came about. In short was to protect the citizens against wordsmiths. The Founder wanted the exact wording to be taking exactly as they rote it. Not how wordsmiths made it out to be in their reasoning. When the wordsmiths started wordsmithing the Bill of Rights the founders passed the Thirteen Amendment, which was ratified in 1819 with VA being the 13th state need to ratified the new Thirteen Amendent. This latest Amendment was printed on all of the state's copies of the Constitutions as well as all US territories. That was until Abe the atheist had it removed. In fact the war of 1812 was all about England wanting to burn the library of congress to destroy the records of the Thirteen Amendment. Which took away citizenship from lawyers for taking an oath to a foreign enity, the BAR, British Acreditadion Regerstery. In fact it took away citizenship from the bankers which the lawyers were doing the dirty work for by undermining the Constitution. If you are not in full understanding of what I am saying. Look into the, organic Thirteen Amendment.
Bottom line, the Founders were brilliant men who very well knew how to say what they intended. They all agreed on the exact wording and they signed their names to that wording.

Anonymous said...

However, in all fairness to you Mr. West. If there was one underlying word the Constitution screams out it's, "Justice". Justice is the bedrock to a civilized society, not "privacy".

Ronald Thomas West said...

You sound ('anonymous') as though you'd been infected with the late Justice Scalia's
'original intent' nonsense. I say nonsense because his idea comprised an oxymoron; Scalia denied legislative history when sticking to his insistence any law must be applied solely as read, no matter different persons would see the same text meaning different things. So, how can you have original intent if you're not allowed to consider legislative history, i.e. know what the authors of a law were thinking?
That's called 'having your cake and eating it too.' Another way of looking at this is, Scalia insisted on reading 'original intent' (sans legislative history) solely as HE would interpret the law. Of course people of patent intellectual dishonesty would never admit the contradiction ... recalling I once heard a black woman comedian state 'denial ain't just a river in Egypt.'

Sure, you're correct our Bill of Rights protects (or was meant to protect) from government over-reach and intrusion, and that's why little Joey can send his parent to jail when he brings mom's (warrant-less) bag of weed to school in his day pack. No constitutional protection there. But if you think the principle of protection from government excises privacy from the 4th Amendment, I don't know how you would square your thinking with, say, a prohibition on government listening to a discussion on whether to have a vasectomy or get your tubes tied (or acts intimately related thereto) in the privacy of your bedroom.

Anonymous said...

Funny stuff, not. Frankly you can't stay on the subject matter whatsoever. You're still smarting over, privacy, so you bring Little Joey into the topic. But you forgot to say what state he and his mom lived in, the laws have changed in some places and will change in others. But last and then I'm done with you. I sure hope you now understand that the underlying point of not just the Forth Amendment but the whole Bill of Rights is justice. No where is the word privacy found or is intended in the Constitution. And the proof of that, the tens of millions of babies that have been murdered, with some even having their body parts sold, have been by passed for any kind of Justice. Please remember the bedrock to anyplace a decent people can live free and decent lives must be based on sound Justice. Good luck to you Mr. West.

Unknown said...

You guys really believe you have rights?....


Anonymous said...

Stevo Van Damm ,next time you leave your house and belongings alone, I will occupy your house,use and take what I want and depart before your return.


Wam bam vann damm

Unknown said...

Exactly.... You sound just like the federal government... Now you are learning my mental midget friend....