On intent, and how (and why) I think it matters

I think intent matters. I think the reasons why we do something are relevant in assessing how we should be judged on what we do. I think some of the factors that are important in determining intent (and these do not limit any other factors that may arise in a particular context) are—
(a) what the person thought they were doing:
(b) what they were trying to achieve:
(c) whether they were acting in good faith:
(d) what they actually knew about the situation they were in:
(e) what they could be reasonably expected to have known about the situation they were in.

I think intent matters because I dislike the idea that someone is just as culpable for being accidentally offensive as they would have been if the offense had been malicious and intentional. That doesn't sit comfortably with how I think about morality: surely hurting people on purpose is worthy of more blame than doing so accidentally?

Most of the discussions I have seen about intent have been in the context of someone being offensive and then saying that they didn't mean to be, as a kind of excuse for the harm they have caused. For better or for worse, it usually comes along with an apology. On the side of whoever has been harmed, someone (quite rightly) points out that the fact that the harm wasn't purposefully caused doesn't mean that it didn't happen or wasn't real.

Where I break with both sides is that I just don't find a lot of the claims of complete innocence very credible.

An example of something that I do think was done innocently—and it's kind of a ridiculous example, but I think I can use it to make the particular points I want, so I'm going to run with it:

A few weeks ago I went to the birthday party of a good friend. There I met a friend of hers, who was a very good costumer. We got to talking about corsets (as you do), and she said to me that corsets were better than bras for large breasts, because they give better support and take less pressure off the spine.

I wasn't offended by this, but it did sting a little and it is one of the things I carried away from the evening. It fits in with a whole lot of stuff I have going on about body image and the curse of shopping and what expectations my professional career will place on how I look and dress.

The first point I want to make with that example is that I can't infer any sort of purposeful or reckless attempt to upset me or poke at wounds from that conversation.

The second is one about words having meanings and meanings being contextual: if I had been in the midst of a conversation with that same person about body image and the curse of shopping and what expectations my professional career will place on how I look and dress, and she had said the same thing, I would have been much more upset and I would not have found a claim that she meant to do no harm particularly convicing. This is because I work in a fairly conservative office and suggesting that I wear corsets would clearly not be a reasonable response to me talking about how difficult I find buying work clothes.

I think it is fair to expect that people who are debating things in good faith will pay attention to the conversation they are having, and take contextual clues from that conversation (rather than from how they talk to other people in their lives). I think it is reasonable to expect that people will turn their minds, even if only briefly, to thinking about what the likely sore spots are for whoever they're talking to and then (if they are determined to continue the discussion in good faith) not say things that are likely to poke those sore spots.

There is, of course, a limit to what a person can be reasonably expected to know about a particular thing (either a topic, or what the sore spots are of the person they're talking to).

But, for example, I think it can be taken as read that someone who identifies as leftish and who is bothering to engage in explicitly feminist discussion should be aware of basic dialogue about how women are (often) treated in discussions (hysterical! irrational! devoid of reason and unable to make coherent points! simply ignored!); and therefore if that person should choose to use argumentation techniques which rely on ad hominim attacks like "calm down, you're being irrational" they have absolutely no basis on which to claim that they are totally innocent and had no idea that their words could give offence when, inevitably, someone is offended.

This is what I mean when I say that I think intent is important, but that claims of a lack of intent should be critically examined.

I think part of my problem with the discussions about intent that I've read is that they almost invariably take place in a context where (at least initially) everybody is acting in good faith and nobody is trying to be malicious and hurtful. In that context it isn't so much that intent isn't important as that if everybody is claiming that they genuinely had no idea they were giving offence and there's no reason to doubt that, the conversation must of necessity move to what the person should have known.

And maybe "you ought to have known X and Y and Z; these concepts should have been familiar to you as a regular commenter on this forum/a member of Group B/a resident of this country/a citizen of the world" is a tougher sell than "your motivations are irrelevant", I don't know. Whatever else it is, communication is complicated.

a defence of your right to be a doucheknob

EXECUTIVE SUMMARY:
1. People should know what the rights they're talking about are BEFORE they claim to have them and try to apply them to situations.
2. Law school ruins lives.
3. ???
4. Profit.

One of the things that really, really annoys me when I'm lurking in discussions is the freedom-of-expression card.

It annoys me for a lot of reasons, namely—
1. as far as I can tell, people using it are usually (in a New Zealand context) assuming a number of things about rights jurisprudence that aren't actually true. I think people get confused with the way the Supreme Court in the US seems to uphold their constitution all the time. We don't have a written constitution in the same way; specific to human rights, the rights are different, the court's definition of who can breach a right is different, and the court's ability to respond to breaches is different.

2. Freedom of expression in the New Zealand context (as per section 14 of the New Zealand Bill of Rights Act 1990 (BORA)) is stated simply as "Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form." This is a really broad right; case law on the subject says things like "as wide a right as human thought and expression."

3. But there's more to BORA than just what the rights are. BORA only applies to acts done—
"(a) By the legislative, executive, or judicial branches of the government of New Zealand; or
(b) By any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law."
(See section 3 of BORA at the link above if you don't believe me.)

That means that the right is only actionable against things done by the state. You can't enforce your section 14 freedom of expression rights against an individual you're debating with on the internet, because that individual isn't a branch of government or a person exercising public functions, duties, or powers.*

Which. Someday I'm going to actually engage in that argument with someone, saying things like "section 3 of BORA states that the Act only applies to acts done by the legislature, executive, or judiciary (or various other public sector bodies). I do not fall within that category. Therefore you have no rights under BORA as against anything I might do or say to you. I think you're thinking of the Human Rights Act, but that doesn't protect freedom of speech per se. There are protected grounds of discrimination, but your personality isn't one of them."

4. I don't think that freedom of expression, at least in the broad sense of A Thing That Is Good And Should Be Protected, stops existing because it can't be actioned or enforced in some situations. People being able to state their views openly IS a good thing, even if those views are subjectively (or objectively!) wrong.

As Voltaire said (and this gets quoted on the interwebs a LOT): "I disapprove of what you say, but I will defend to the death your right to say it."

But—if you're going to accept that (and I think we should), then you have to go back to that niggly little first word of section 14 of BORA, "Everyone", and think about that—
(a) a defence of your right to say something is not a defence of the statement itself; and
(b) if the right applies to everyone (and it must necessarily do so to be meaningful), then that must include the right to disagree; and
(c) if you are going to make public statements about something, then surely disagreement is part of the discourse; and
(d) sometimes disagreement is painful and offensive, but then sometimes the initial statements are as well.

I'm totally unconvinced by the suggestion that public disagreement with a postion taken on an issue somehow constitutes a stifling of the original statement, or an effort to shut it down, or an infringement of the original speaker's right to free speech. If anything I think that public disagreement upholds the right by validating the original speaker's right to take a position, even if it is objectionable to the respondant.

5. But I don't think that the above is necessarily what people mean when they cite their rights under BORA. Often the subtext is that you're a PC Nora-No-Friends who can't take a joke, and you want to shut them down so that we can all live in an idyllic world of sunshine and rainbows (but not the gay kind).

In which case I think the correct answer is probably to ask them why they find disagreement so hurtful and dangerous.

(There is in that last point a really interesting debate about intent, but I think at the point you're citing BORA to back up whatever you've said, you (a) are now aware that people have found it offensive, and (b) might well have known that people would find it offensive before you said it. Also I'm not willing to talk about intent and how I think it plays into debate until I've thought about it a lot, lot more.)

*Though it'd be really interesting to see what would happen if you were having a debate with, say, a Minister of the Crown online, and they tried to shut you down.