Difficult Conversations

John G. Simon
BAMSL President, 2018-19
Managing Partner, The Simon Law Firm, P.C.

There are many wonderful things about living in modern day America, but it is getting difficult to ignore one of our less appealing trends: the breakdown of public discourse. To a degree we have never seen before, we struggle to talk productively with each other about important issues.

We always have had disagreements, for sure. In the not-to-distant past, though, we were more able and willing to hash out our differences and move on. In recent times, too many of our conversations have become combative and accusatory. Too often we hear raised voices and harsh words, especially on social media and public media. You would think we would be at our best when we are out in public, but it often seems like that is where we are at our worst. It has gotten so bad that when someone posts a photo of a puppy on Facebook, a political fight might break out in the comments.

The news media seems to be leading the way. Many television "news" shows present us with talking heads who have no interest in listening to each other. They hurl their talking points at each other and accuse each other of being the devil. The guests and "experts," many of them politicians and their paid hacks, excel at slapping labels on each other to sharpen the conflict. This, we are told, is a "discussion." These guests are purportedly on these shows to weigh in on complex issues. However, the more complex the issue, the harder it is to understand the facts, the more heated the conversation seems to get, especially when the guests are forced to jam their thoughts into a 5-minute segment. When is the last time you saw any of these guests pause to recognize the overwhelming complexity of the issues they are discussing? They are there to present simple solutions to complex problems, with certitude. No wonder mass media discussions are increasingly resembling professional wrestling matches.

Never will you hear any of the guests admit to the opposing guest, "What you just said is interesting and it is causing me to re-think my position." The host's job is to stir up this acrimony until the commercial break, which leads one to suspect that the profit motive is driving this process. This brings to mind Upton Sinclair's observation: "It is difficult to get a man to understand something when his salary depends on his not understanding it." One also is tempted to postulate a "broken windows" theory of conversation, in that dysfunctional conversations seem to beget ever more of the same.

Writer Matt Taibbi is dismayed by the current state of conversation. He writes: [T]he easiest media product to make is called, This Bad Thing That Just Happened Is Someone Else's Fault. It has a virtually limitless market... To make money, we've had to train audiences to consume news in a certain way. We need you anxious … addicted to conflict ... We've discovered we can sell hate, and the more vituperative the rhetoric, the better. This also serves larger political purposes. It is my suspicion too that when viewers become angry when watching angry discussions, it is difficult to turn off their TVs. Taibbi has thoughtfully distilled the current state of affairs into a set of observations he terms the "Ten Rules of Hate" (https://taibbi.substack.com/p/chapter-1-part-ii-the-ten-rules-of). Taibbi's Rules are well worth a read.

Many of us are concerned that these nasty national news media conflicts are increasingly serving as role models for local person-to-person conversations we are having with each other. What can we do to reverse this trend? What can any of us do to encourage civility, politeness and productive conversation?

It is a very good thing that the government is prohibited from stepping in to attempt to enforce politeness. We are lucky to have the First Amendment to protect even our boorish utterances, because that is the (small) price we pay for allowing the marketplace of ideas to produce the best ideas. That is the theory, and it has worked well for centuries, but many of us are dismayed with the current state of political discourse, and we are looking for solutions on how to get back on track. I have no simple solutions, of course, but I would like to offer two things as food for thought.

First, imagine two of the most politically diametrically opposed Justices of the U.S. Supreme Court in modern times. That is right, you are thinking of Antonin Scalia and Ruth Bader Ginsberg. You can justifiably imagine them going head-to-head during deliberations because they quite predictably endorsed opposite sides of many cases.

Now I would like you to try to imagine them going to the opera together, seated next to each other as friends. That actually happened on many occasions. "Call us the odd couple. She likes opera, and she's a very nice person. What's not to like — except her views on the law," Scalia has said.

They sometimes traveled together. They once traveled to India where they shared a most unusual mode of transportation. You need to see this image. Simply Google "Scalia Ginsburg elephant" and enjoy the photo. After Justice Scalia died, Justice Ginsberg noted, "It was my great good fortune to have known him as working colleague and treasured friend."

It is difficult to conceive of a better illustration of the following principle: People are highly capable of maintaining deep and meaningful friendships despite substantial disagreements on many issues.

The second thing might initially seem esoteric, but I find it profound. Do liberals, progressives, Republicans, Democrats, Socialists, Libertarians and humans from every demographic and fringe group have anything in common? Yes, many hundreds of things. In 1991, anthropologist Donald Brown wrote a book called Human Universals in which he compiled hundreds of features of human culture, society, language, behavior, and psyche for which there are no known exception. I invite you to take a look at an excerpt of his lengthy list for yourself: http://condor.depaul.edu/mfiddler/hyphen/humunivers.htm. It is amazing how much every one of us has in common.

My takeaway from reading Brown's immense list is this: No matter how many differences are alleged between any two people, no matter how many labels are hurled about, each of us shares deeply and inextricably in the same human condition. This thought should help keep alleged differences in perspective whenever a conversation goes south.

I will continue this discussion in upcoming columns because I consider this issue to be one of our most important concerns. But I am mostly done with the gloom and doom. I believe that there are things we can do to improve the quality of our conversations. Further, I believe that there are things that excellent lawyers do that can serve as good examples for moving all conversations forward productively.