CCR Symposium: Rhetoric and the Audience Problem

by Orin Kerr · April 16, 2009

Deven is surely right that rhetoric isn’t necessarily a bad thing. After all, we’re all lawyers here, and every lawyer uses rhetoric to frame arguments. It’s a basic tool of persuasion.

At the same time, rhetoric can be highly audience-dependent. Consider Republican politicians. These days, almost every Republican politician uses the rhetoric of Reaganism to appeal to the base. The GOP loves Reagan, and most GOP politicians who need the base (which is most of them) try to create the impression that they are just like Reagan. The idea is to trigger the positive associations that the GOP base has about Reagan and to try to transfer that same passion and enthusiasm for the candidate. But that message is audience dependent, because different groups react to different rhetroic in different ways. If you’re running for elected office in San Francisco or New York, you wouldn’t want to wrap yourself in Reaganism: That audience has mostly negative associations of Reagan, so the rhetoric would be counterproductive.

In this case, I wonder if the”civil rights” rhetoric has a narrower audience than some of us think. The rhetoric may have a great deal of power to some audiences, be more or less neutral to other audiences, and even perhaps have a negative connotation to others. That isn’t necessarily criticism, of course, any more than it’s criticism to point out that so many GOP politicians are painting themselves as the next Ronald Reagan. Each advocate can pick her or her audience. But to the extent the use of rhetoric is designed to persuade a particular audience, I think it’s worth asking how broad the group is that is likely to be persuaded by the use of that particular rhetoric.

A.J. Sutter says:

April 17, 2009 at 12:10 am

Which do you think are the audiences that should be considered? It sounds like you have some in mind that aren’t going to find a civil rights-based argument appealing. I could guess that some prosecutors and even more juries, though, might find the civil rights notion makes sense.

OTOH, I think it would be even more persuasive if there were some way that not just suspect classifications could enjoy these civil rights protections, as your Berkeley email example illustrates. I recall there were a bunch of early civil rights cases imposing private liability on people who attacked some motorists on their way to vote — an element was that there had to be some intent to deprive the victims of their Constitutional rights. In the present context, I wonder if the notion of being attacked for exercising one’s right to free speech might do. (I left a comment to Nathaniel Gleicher’s post, suggesting a possible framework to help distinguish between attackers’ and victims’ free speech rights. But I’m sure there are much more sophisticated legal arguments on point.)

If I’ve made a howling mistake in thinking there might be some relevant civil rights statutes (either in their current form or as analogues for new legislation) available to deal with private action and free of the suspect classification requirement, I welcome being set straight about that.