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Toledo Legal News - Editorial List Table

 

Why trust matters

 

To me, it was a thunderclap. Years ago, when I was in Congress, we were in the midst of a tense, contentious debate. Members had gotten irritated, levying charges back and forth, and tempers were rising. It was starting to look like we might just go off the rails. Then one member stood up, asked for our attention, and said to us, “Let’s remember: trust is the coin of the realm.”

His statement at that moment hit me broadside: If we were to have any hope of progress, we had to have some faith in one another — even our opponents. Apparently, other members of Congress came to that same realization. The debate got back on track, with less acrimony and mean-spiritedness.

It was a lesson I’ve never forgotten. Our system rests on all sorts of values: open-mindedness, an informed citizenry, honesty, civility, competence. But at its heart, representative democracy is about how we resolve our differences in order to move the country forward, and if the parties lack trust, then it becomes hugely more difficult to do so. In many ways, trust is at the center of this democratic experiment.

A representative democracy rests on a straightforward premise: Because nothing gets done without others, whether in our communities or our legislatures or in Congress, you have to have confidence in people and believe that they will do what they say they will do. Without that trust, you simply can’t engage productively in negotiations, compromise, debate, and all the mechanisms we use to resolve differences in our society.

As the country has grown bigger, more complex, and more diverse in all sorts of ways, and as the changing media world has given us all our own echo chambers and undermined the shared sources of information on which we once relied, resolving conflict has become much tougher. When we don’t trust one another — or don’t trust one another’s facts — reaching agreement and drafting laws becomes infinitely more difficult. Governing becomes fraught with complexity, as efforts to implement and enforce laws, regulations, and standards come under constant fire. The result is that often, cynicism, suspicion, and lack of confidence in the system hamstring our democracy.

To be sure, it’s pretty much impossible to deal with people you don’t know well without wondering about their integrity, honesty, and motivations. It’s what you’ve got to work through when you’re trying to resolve differences. Healthy skepticism about adversaries is natural and appropriate, but you can’t let it override everything and bring progress to a screeching halt.

Both nationally and internationally, we manage this by striving to tie things down: by law, by regulation, by treaty, and above all by verification. Nonetheless, some measure of trust is required. And when it’s missing…. Well, I would argue that one reason our government no longer works as well as it once did and should now, is that our trust in one another has diminished.

So what can we do about this? In the end, I believe that building — or rebuilding — trust is both a human and a systems issue. On the large scale, government has to be effective at meeting the needs of citizens, delivering the goods, services, and protections that people expect. But I also think it’s vital that elected officials — especially of opposing parties — spend time with one another, learning to see one another as human beings who all, regardless of party, care deeply about the country. Similarly, the more ordinary people participate regularly in organizations, political parties, and even ad hoc efforts to improve their communities and states, the more likely they are to learn the fundamental importance of trust. In short, the more interaction you have with others, even with your adversaries, the more common ground you can find, and the more confidence you can have in them — and the more likely you can move forward.

The fact is: In a system that depends on negotiation, compromise, and cooperation to achieve our goals, finding ways to build trust is essential. Without it, our democracy simply won’t work.

Lee Hamilton is a Senior Advisor for the Indiana University Center on Representative Government; a Distinguished Scholar at the IU Hamilton Lugar School of Global and International Studies; and a Professor of Practice at the IU O’Neill School of Public and Environmental Affairs. He was a member of the U.S. House of Representatives for 34 years.

Lee Hamilton, Center on Representative Government

When words speak louder than actions

 

Picture this scenario: A woman contacts a hitman. She tells him she wants her husband dead and promises to pay him $5,000 once the job is done. But the police find out about the plot before the murder can take place and the woman finds herself under arrest. Her defense? She never actually did anything to hurt her husband. All she did was exercise her freedom of speech by having a conversation with a contract killer.

Does that argument work?

You don’t need to be a lawyer to know that it doesn’t. The First Amendment may protect our right to speak freely, but it does have limits. In many cases, we encounter those limits when our speech becomes conduct — when our words go beyond merely expressing our thoughts and feelings and become actions in and of themselves.

Hiring — or attempting to hire — someone to commit a crime on your behalf is the most obvious example of this, but there are others. Speech that intentionally incites others to commit immediate acts of violence isn’t protected by the First Amendment. Neither is speech that conveys nuclear codes to a country at war with the United States, or speech that’s meant to make someone fear for his or her life. Or, to look at an example from last week, neither is speech that’s intended to intimidate witnesses. President Trump was accused of doing this when he posted tweets attacking former U.S. Ambassador Marie L. Yovanovitch during her testimony at the impeachment inquiry. Trump’s response to reporters was, “I have the right to speak. I have the freedom of speech just as other people do.”

Whether that argument works or not depends on what the president’s intentions were when he sent out those tweets. If he simply wanted to express his opinion about a former employee, even if it was ill-timed and inappropriate, that’s not illegal. But if he intended to discourage Yovanovitch or other potential witnesses from testifying against him during the impeachment inquiry, that moves his tweets out of the cozy realm of protected speech and into the land of punishable conduct. Put another way, it would need to be more than just an expression of what’s on his mind, but rather be an action taken to achieve an illegal outcome (in this case, obstruction of justice). Incidentally, even though this would be a felony, Trump can’t be prosecuted for this while he’s a sitting president — although it is something that could be added to his impeachment charges.

Courts are often reluctant to consider speech as conduct unless there’s a good deal of context supporting that the speaker had unlawful intentions. For instance, when it comes to that aforementioned crime of intentionally inciting others to commit immediate acts of violence, you’ll only be charged with it if your speech was directed towards a specific person or group and you had an expectation that the speech would actually lead in short order to lawless action. That’s a pretty narrow exception to the First Amendment, which is as it should be. That’s why calls for laws that criminalize hate speech, with the rationale that people who hear it may go on to commit violent acts, don’t sit well with me. While there are times when words themselves can be criminal, there’s something very discomforting about drawing a line linking one person’s speech and someone else’s uncoordinated and independent actions.

Lata Nott is executive director of the First Amendment Center of the Freedom Forum Institute. Contact her via email at lnott@freedomforum.org, or follow her on Twitter at @LataNott.

Lata Nott, Freedom Forum Institute

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