Truth and Evidence: NOMOS LXIV 9781479811618

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TRUTH AND EVIDENCE NOMOS

LXIV

NOMOS Harvard University Press I Authority 1958, reissued in 1982 by Greenwood Press The Liberal Arts Press II Community 1959 III Responsibility 1960 Atherton Press IV Liberty 1962 V The Public Interest 1962 VI Justice 1963, reissued in 1974 VII Rational Decision 1964 VIII Revolution 1966 IX Equality 1967 X Representation 1968 XI Voluntary Associations 1969 XII Political and Legal Obligation 1970 XIII Privacy 1971 Aldine-Atherton Press XIV Coercion 1972 Lieber-Atherton Press XV The Limits of Law 1974 XVI Participation in Politics 1975 New York University Press XVII Human Nature in Politics 1977 XVIII Due Process 1977 XIX Anarchism 1978 XX Constitutionalism 1979 XXI Compromise in Ethics, Law, and Politics 1979 XXII Property 1980 XXIII Human Rights 1981 XXIV Ethics, Economics, and the Law 1982 XXV Liberal Democracy 1983 XXVI Marxism 1983

XXVII Criminal Justice 1985 XXVIII Justification 1985 XXIX Authority Revisited 1987 XXX Religion, Morality, and the Law 1988 XXXI Markets and Justice 1989 XXXII Majorities and Minorities 1990 XXXIII Compensatory Justice 1991 XXXIV Virtue 1992 XXXV Democratic Community 1993 XXXVI The Rule of Law 1994 XXXVII Theory and Practice 1995 XXXVIII Political Order 1996 XXXIX Ethnicity and Group Rights 1997 XL Integrity and Conscience 1998 XLI Global Justice 1999 XLII Designing Democratic Institutions 2000 XLIII Moral and Political Education 2001 XLIV Child, Family, and State 2002 XLV Secession and Self-Determination 2003 XLVI Political Exclusion and Domination 2004 XLVII Humanitarian Intervention 2005 XLVIII Toleration and Its Limits 2008 XLIX Moral Universalism and Pluralism 2008 L Getting to the Rule of Law 2011 LI Transitional Justice 2012 LII Evolution and Morality 2012 LIII Passions and Emotions 2012 LIV Loyalty 2013 LV Federalism and Subsidiarity 2014 LVI American Conservatism 2016 LVII Immigration, Emigration, and Migration 2017 LVIII Wealth 2017 LIX Compromise 2018 LX Privatization 2018 LXI Political Legitimacy 2019 LXII Protest and Dissent 2020 LXIII Democratic Failure 2020 LXIV Truth and Evidence 2021

NOMOS LXIV Yearbook of the American Society for Political and Legal Philosophy

TRUTH AND EVIDENCE Edited by

Melissa Schwartzberg and Philip Kitcher

NEW YORK UNIVERSITY PRESS

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New York

NEW YOR K UNI V ERSIT Y PR ESS New York www.nyupress.org © 2021 by New York University All rights reserved References to Internet websites (URLs) were accurate at the time of writing. Neither the author nor New York University Press is responsible for URLs that may have expired or changed since the manuscript was prepared. Library of Congress Cataloging-in-Publication Data Names: Schwartzberg, Melissa, 1975– editor. | Kitcher, Philip, 1947– editor. Title: Truth and evidence / Edited by Melissa Schwartzberg and Philip Kitcher. Description: New York, N.Y. : NYU Press, 2021. | Series: Nomos; LXIV | Includes bibliographical references and index. Identifiers: LCCN 2021009012 | ISBN 9781479811595 (hardback) | ISBN 9781479811601 (ebook) | ISBN 9781479811618 (ebook other) Subjects: LCSH: Political science—Philosophy. | Truth—Political aspects. | Political ethics. Classification: LCC JA71 .T788 2021 | DDC 320.01—dc23 LC record available at https://lccn.loc.gov/2021009012 New York University Press books are printed on acid-free paper, and their binding materials are chosen for strength and durability. We strive to use environmentally responsible suppliers and materials to the greatest extent possible in publishing our books. Manufactured in the United States of America 10 9 8 7 6 5 4 3 2 1 Also available as an ebook

CONTENTS

Preface Melissa Schwartzberg

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Contributors

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Introduction Philip Kitcher and Melissa Schwartzberg

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PART I: THE VALUE OF TRUTH FOR DEMOCRACY 1. Truth as a Democratic Value Michael Patrick Lynch

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2. Response to Michael Patrick Lynch’s “Truth as a Democratic Value” John Sides 3. Pursuit of Truth Is a Steep and Thorny, Uphill Battle Michael J. Saks

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PART II: EVIDENCE AND TESTIMONIAL BELIEF: WHAT DOES IT MEAN TO #BELIEVEWOMEN? 4. #BelieveWomen and the Presumption of Innocence: Clarifying the Questions for Law and Life Kimberly Kessler Ferzan 5. #BelieveWomen and the Ethics of Belief Renée Jorgensen Bolinger

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Contents PART III: SHOULD WE SPEAK TRUTH TO POWER?

6. Post-Truth Bernard E. Harcourt

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7. Nothing Scoundrelous about Truth Cheryl Misak

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8. Response to Bernard E. Harcourt’s “Post-Truth” Jasmine B. Gonzales Rose

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9. Democratic Lies and Fascist Lies Jason Stanley

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Index

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PREFACE MELISSA SCHWARTZBERG

This volume of NOMOS—the sixty-fourth in the series—emerged from papers and commentaries given at the 2019 annual meeting of the American Society for Political and Legal Philosophy (ASPLP), held at Princeton University on September 27, 2019. The conference was hosted by the University Center for Human Values and co-sponsored by the Department of Philosophy, the Department of Politics, and the Program in Law and Public Affairs. Our topic, “Truth and Evidence,” was selected by the Society’s membership. The ASPLP conference consisted of three panels, representing the traditional three contributing disciplines: political science, philosophy, and law. The first panel featured Bernard E. Harcourt, who presented the paper from the field of political science, “The Last Refuge of Scoundrels: The Problem of Truth in the TwentyFirst Century,” now titled “Post-Truth.” Jasmine Gonzales Rose (law) and Cheryl Misak (philosophy) provided commentaries. The second panel, from the field of law, featured Kimberly Ferzan’s paper, “#BelieveWomen and the Presumption of Innocence: Clarifying the Questions for Law and Life.” Renée Jorgensen Bolinger (politics) and Jason Stanley (philosophy) served as commentators. The final panel featured Michael Lynch’s paper from the field of philosophy, “Truth as a Democratic Value,” with commentaries from Michael Saks (law) and John Sides (political science). This volume includes revised papers and commentaries from all the participants. We are grateful to all the authors, and to Benjamin Hofmann of Princeton University for his excellent work on the index. I would like to thank the editors and production team at New York University Press, particularly Ilene Kalish, Alexia Traganas, and Sonia Tsuruoka, for their help throughout the production of this volume. On behalf of the ASPLP, I would also like to express our gratitude to the Press for its ongoing support both for the NOMOS series and for the tradition of interdisciplinary scholarship that it ix

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represents. The ASPLP is also grateful for subventions from Brown University, Duke University, New York University, Princeton University, and Stanford University in support of this and future NOMOS volumes. Finally, I would like to thank the members of the ASPLP council—President Stephen Macedo, Vice Presidents Derrick Darby and Yasmin Dawood, at-large members Michael Blake and Ekow Yankah, and Immediate Past President and SecretaryTreasurer James Fleming—for their ongoing support and guidance. I also want to thank Philip Kitcher for his willingness to serve as co-editor of this volume. It has been an honor, as well as a great pleasure, to work with him on this project.

CONTRIBUTORS

Melissa Schwartzberg Silver Professor of Politics, New York University Philip Kitcher John Dewey Professor Emeritus of Philosophy, Columbia University Renée Jorgensen Bolinger Assistant Professor of Politics and the Center for Human Values, Princeton University Kimberly Kessler Ferzan Earl Hepburn Professor of Law, University of Pennsylvania Carey Law School Jasmine B. Gonzales Rose Professor of Law, Boston University School of Law Bernard E. Harcourt Isidore and Seville Sulzbacher Professor of Law and Professor of Political Science, Columbia University Michael Patrick Lynch Board of Trustees Distinguished Professor of Philosophy, University of Connecticut Cheryl Misak University Professor and Professor of Philosophy, University of Toronto Michael J. Saks Regents Professor, Sandra Day O’Connor College of Law, Arizona State University

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Contributors John Sides William R. Kenan, Jr. Professor of Political Science, Vanderbilt University Jason Stanley Jacob Urofsky Professor of Philosophy, Yale University

INTRODUCTION PHILIP KITCHER AND MELISSA SCHWARTZBERG

Ever since Plato, it’s been clear that central issues in political and legal theory are intertwined with questions about truth and knowledge. Plato famously took democracies to be doomed because the lack of native intelligence among the citizens would lead them to choose disastrous policies. Thinkers more sympathetic toward democratic government have exonerated the citizenry from the charge of widespread idiocy, while worrying that ignorance can be as toxic as stupidity. Hence, democratic societies have recognized the importance of educating the electorate, preparing them to think through debates about policy, and providing sources of information capable of guiding them to wise decisions. Unless systems for achieving these goals are in place, democracies are likely to fulfill Plato’s gloomy prediction. As is happening in our own time—or so many commentators believe. The twenty-first-century world seems awash in misinformation, and in disinformation as well. The condition is by no means restricted to the Anglophone world, but it is particularly evident there. Opposition to the invasion of Iraq was surely dampened by the prevalent belief that Iraqis had played a major role in the terrorist attacks of September 11, 2001. The sluggish response to climate change, continuing today and echoed in later skepticism about the extent and severity of COVID-19, was caused by wellfunded campaigns of deception, enabled in part by reputable newspapers whose reporters failed to recognize an overwhelming scientific consensus and opted for pusillanimous exercises in “balanced treatment” long after the “controversy” had been settled. Similarly, the British electorate was hoodwinked into thinking of withdrawal from the European Union as an economic panacea, despite the clear-headed warnings of all those in the best position to forecast

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the likely effects. As Michael Gove memorably said, “We’ve had enough of experts in this country.” When experts go unheeded, ignorance often abounds—and many scholars argue that it is in the darkness of this ignorance that voters go to the polls. On this account, voters select candidates and policies opposed to what they most deeply and centrally hope for, at the very moment in which they are expressing their political freedom. Plato would have appreciated the irony of this situation. Yet, we must ask: Are these concerns warranted? What constitutes political knowledge? Who counts as expert? How do we weigh evidence? What can be done to address the challenges not merely of deep disagreement but of disinformation? These questions stand behind the present volume, prompting our discussants to investigate issues about truth and knowledge in contemporary law and politics. Whether or not our age is unusual in the range of the factual disagreements complicating legal and political life—that is a matter that would require detailed historical research—the fractures in the body politic are numerous enough to merit concern. When a senior White House advisor can casually defend against criticism by invoking “alternative facts,” the time has surely come to consider the possibilities of truth and of achieving social consensus on the truth. What motivates talk of “alternative facts”? How should that talk be understood? In what domains might it be reasonable— and important—to seek agreement on a single truth? What social pathologies might currently divert us from engaging in or completing that quest? Are there ways of curing, treating, or managing the diseases that ail us? The conference from which this volume descends was directed toward finding answers, or, at least, to making progress on these issues. *** In the chapters of this volume, the participants wrestle with a number of fundamental issues. First and foremost among these is whether we should continue to talk about truth, and, if so, how we should do so. Some take the importance of seeking and claiming truth for granted. Often they adopt, explicitly or implicitly, the oldest conception of truth, the Correspondence Theory of

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Truth. According to that conception, sentences in a language (or, in some versions, the propositions that sentences express) are considered true if they “fit the facts” or “correspond to the way the world is.” Although philosophers have worried for centuries about the ontological presuppositions of the Correspondence Theory— does it require, in addition to the familiar inhabitants of the world, a realm of special entities, facts?—those doubts were assuaged by developments in formal logic. During the 1930s, the Polish logician Alfred Tarski offered a theory of truth for formalized languages. In effect, he showed how truth for sentences could be generated from the referential relations between their elements and items in the world. So, to take a very simple example, if “Donald Trump is a narcissist” is true in English (as one Republican senator has recently alleged), its truth is understood as follows: The expression “Donald Trump” refers to a particular individual; the predicate “is a narcissist” picks out a set whose members are fascinated to the point of infatuation with themselves; the sentence is true just in case that individual is one of the members of that set. No odd extra entities are required. Tarski cleared up one concern about the Correspondence Theory. But there have been others. From ancient times, people have worried about our ability to recognize the correspondence between bits of language (or elements in thought) and parts of nature. The theory has frequently been viewed as opening the door to skepticism. The most sophisticated development of the ancient line of thought interprets it as recognizing the difficulties of using the concept of truth. We should not become skeptics, but we ought to ask how we properly reconcile the correspondence conception with our inquiries and with our justified practices of claiming some statements as true. In short, we need an exposition of the concept of truth (as Charles Sanders Peirce, the first of the great trio of classical American pragmatists, pointed out). Neither Peirce nor William James abandoned the correspondence theory. Instead, both proposed to show how to make it useful (and not an inert piece of arcane and empty philosophy). What is often regarded as the pragmatist theory of truth should be regarded as an attempt to provide a “user’s manual.” On Peirce’s approach, inquiry begins with genuine doubt, and when we arrive at statements that resolve our

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doubts, we are entitled to hail them as true—provisionally. As collective inquiry proceeds, truth is what emerges in the ideal limit of collective inquiry. James’s exposition is slightly different: We have the same provisional right to endorse what rigorous inquiry yields; what counts as true is what survives the further challenge of experience “in the long run and on the whole.”1 Pragmatists disagree about whether the Peirce-James approach should retain a connection to the Correspondence Theory (and, if so, on whether that should apply to all domains in which people talk about truth). Some would suggest simply forgetting about truth entirely, focusing on practices of inquiry and the beliefs that emerge from our investigations. That attitude—putting “truth talk” behind us—is sometimes championed by scholars who aim for a view more radical than pragmatism. Inspired by Foucault (and perhaps by a Nietzsche read through a Foucauldian lens), they are concerned that the obsession with truth leads to oppressive “regimes,” from which we would do well to liberate ourselves. Many philosophers regard such endeavors as confused, resting on a conflation of epistemological and semantic questions. They view attacks on “Truth with a capital ‘T’” as confusing truth with certainty. To declare a particular claim to be true, they suggest, is by no means to treat it as fixed for all time, as beyond revision. Thus, “critical” approaches to truth contain a mistake at their core. Insofar as the critical theorist wants to prevent the “assertion of Absolutes,” the insight would be better expressed by articulating a form of pragmatism. Defenders of the “critical” turn are likely to reply that assuming a clear separation of epistemological and semantic issues is itself a distortion of the history of inquiry, overlooking the social forces and the power dynamics that are always in play. We shall not attempt to pursue this defense—and the ensuing debate—since it figures in some of the exchanges that follow. Nevertheless, to understand the possible entanglement of questions about truth with questions of what people reasonably claim to know (and what—if anything—they can know for certain) leads to a second issue: What is evidence and how does evidence properly bear upon belief? Ever since Descartes, there have been concerns about how people can obtain evidence for various types of claims. Most of the discussion, following what the founder of the tradition

Introduction

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explicitly saw as a simplifying assumption, has posed the question as one about what an individual investigator (a “lone knower”) should believe. Philosophers easily forget that Descartes was one of the major figures in a methodological revolution, that he wanted to replace what he saw as a crumbling Aristotelian edifice with sciences that would endure—and that (arguably) his emphasis on immunity to doubt emerges from his hopes for future inquiry. Thanks to Descartes and others (Galileo, Bacon, Huygens, Boyle, Newton), methods for inquiry into aspects of the physical (inorganic) world were elaborated and refined. Darwin and Mendel showed how such methods could be further extended to tackle questions about living organisms. Today, a variety of sciences, many completely unanticipated by the early pioneers, have arrived at procedures they employ to yield reliable conclusions. Those successes have not, of course, been fully extended into domains where many people thirst for answers—most prominently areas in which we try to work out, individually or collectively, what we should do and how our societies should evolve. Yet all is not hopeless. With respect to law and political organization, contemporary human beings are not entirely clueless. It’s entirely reasonable to think of some kinds of legal procedures as likely to work better than others, and of particular changes in political institutions as good responses to current flaws. On the whole, however, views about values, law, and politics are properly more tentative. Dogmatism appears mistaken—or, at least, premature. One of Descartes’s successors offered a way of conceiving states of uncertainty. Hume famously contended that “[a] wise man . . . proportions his belief to the evidence.”2 Thanks to the elaboration of probability theory, Hume’s advice can be developed in formal epistemology. Instead of thinking of ourselves as either believing or not believing a proposition, we can talk of degrees of belief, or credences. Thus, in light of the evidence available to me, I might assign a “subjective probability” of 0.5 to the claim that a particular (ordinary looking) coin will land heads if tossed—or, based on my analysis of the polls, have a credence of 0.89 (as of this writing) with respect to the hypothesis that Joe Biden will be elected president on November 3, 2020. Credences are reflected in willingness to accept particular bets as fair. So I ought to be willing to bet on the

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coin toss as even odds, and to stake $8 while only claiming $1 if Trump should be the victor. Our assignment of credences may also be affected by our perception of the credibility of testifiers, as the second section of this volume will discuss. Social epistemology attempts to understand the ways in which people properly adjust their credences when they can recognize people as having particular characteristics or histories. Your estimate of the chances that the COVID-19 pandemic will subside soon is modified when Dr. Anthony Fauci offers his views about the likely course of infection; the adjustment will be shaped not only by what he says but also by your assessment of his track record in making judgments about infectious diseases. How exactly should such revisions be made? Talk of credences allows a more fine-grained approach to questions about belief, one that proves valuable when people can arrive at firm judgments about probabilities. That condition is, unfortunately, often forgotten, and, in many discussions, probabilities are conjured out of thin air to advance some conclusion about belief or revision of belief. Writers confidently assign probabilities to theories or to claims about the chances of particular findings if a theory were to be false. Not only are the alleged probabilities unknown— they are also often not well-defined. The formal extravagances should be distinguished from the genuine help that credences can sometimes offer. That help is especially evident in certain types of policy decisions. Statistics sometimes enable reliable judgments about whether a course of action will have various effects. If, when that happens, the values of the various outcomes can be measured on some common scale, the stage is set for applying cost-benefit analysis. Policymakers can compute the expected utility of the proposed action and, assuming that the measurement of value is sensitive to all relevant considerations, arrive at a judgment about whether going ahead is a good idea. Consideration of when to approve a new drug provides a classic type of example. After trials reveal high chances of effective relief and low probabilities of relatively minor side effects, it seems reasonable to release the drug for widespread use. Once again, however, it is right to be cautious about applying cost-benefit considerations. Sometimes the spectrum of potential outcomes is hard to define, or there are reasons to wonder whether the values

Introduction

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assigned to consequences take all pertinent considerations into account, or probabilities cannot be assigned to the individual scenarios. In the case of climate change, for example, nobody can claim to identify all the ways in which various levels of emissions will affect the future of our planet, or to fix the costs of those trajectories that can be foreseen, or to specify probabilities for any possible future. A responsible judgment must be minimal and comparative: more emissions now will likely make life in the future worse. Hume’s characterization of the wise thus delivers two ethical judgments, one that is widely appreciated and one that tends to be overlooked. The more obvious one rebukes the overconfident. People whose credences exceed the value supplied by the evidence have violated “the ethics of belief.” Their overconfidence is likely to be reflected in their actions, so that they are inclined to put themselves, and others, at risk. For some of those who have recognized an ethical obligation to conform to the evidence, however, the principal damage is that done to the “republic of letters.” Sloppy acceptance of poorly confirmed hypotheses is likely to be transmitted through the community of inquirers, leading eventually to a state in which misinformation is so prevalent as to make reliable evaluation of new ideas impossible.3 The second is Hume’s recognition of the many and varied sources of evidence, especially in the major decisions confronting us. One of the welcome trends in contemporary epistemology has been the recognition of the social character of knowledge. Descartes’s lone subject battling against the wiles of a deceptive evil genius is appreciated for what it is: a simplifying assumption. We never do—and never can—shuck off what we have inherited from others. To think at all is to adopt a framework of concepts, instilled in us by the tradition in which we grow up. The task (as pragmatists like Peirce, James, and Dewey have emphasized) is not to build up a sturdy structure of beliefs, but to improve what we have acquired. Moreover, the work of renovation must itself constantly be aided by concepts and claims transmitted to us by others. So we return to the issue with which this introduction began. How, in a world with enormously enhanced potential for information—as well as for misinformation and disinformation—should people chart a good course? Faced with highly consequential decisions, about how to act during a pandemic and how to secure a habitable planet for

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our descendants, for example, what criteria can be used to separate what is genuinely helpful from what is misleading and destructive? In the case of democratic societies, the problem seems especially acute. For it is not only a matter of installing a wise manager, a Platonic “guardian,” who will lead all of us to a safe and happy future. A large and diverse population must be helped to find its way. The chapters that follow are attempts to respond to this urgent problem. *** The first section of the volume analyzes the value of truth for democracy. The section focuses on Michael Lynch’s chapter, “Truth as a Democratic Value,” which raises foundational questions about why we should care about knowledge as such. Lynch asks whether democracies have a special interest in their citizens holding true beliefs. He argues that democracies ought to value not the distribution or possession of true beliefs as such, but rather the widespread availability of the means by which citizens can pursue truth. Specifically, democracies must fairly distribute access to reliable socialepistemic practices, lest they violate the fundamental value of basic epistemic respect—respect for citizens in their capacity as knowers or inquirers. In Lynch’s view, key threats to the democratic value of truth so understood include disagreement about which practices are in fact reliable, intellectual arrogance, and contempt for the value of truth. Both commentaries on Lynch’s chapter draw on empirical research, from political science and cognitive psychology respectively. In his response, John Sides argues that Lynch is wrong to set aside the value of true beliefs or “factual knowledge,” given the importance of such facts for informed political decision-making. The quality of citizens’ decision-making rests on their factual knowledge, and the opinions they form provide some guidance to policymakers. As such, it will not suffice to focus on epistemic practices, because dispensing with factual truths may directly harm citizens’ welfare, as the case of COVID-19 makes tragically clear. Michael Saks turns to cognitive and social psychology to demonstrate the pervasive incentives people have to refrain from sharing true information, and to avoid learning uncomfortable truths. We

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design institutions to try to remedy these failures and to promote the reliable social-epistemic practices that Lynch defends. Saks invokes as exemplary, if fallible, the rules of evidence and procedure governing legal trials that help jurors to reach verdicts based on relevant factual information and emphasizes the need for further innovations to meet new challenges. But how should we treat testimonial evidence as a source of beliefs, both in the legal context and in ordinary circumstances? The second section, featuring an exchange about #BelieveWomen on questions of credibility and the ethics of belief, sheds light on these questions. In her chapter “#BelieveWomen and the Presumption of Innocence: Clarifying the Questions for Law and Life,” Kimberly Kessler Ferzan argues that in our everyday life, we often gain beliefs based on testimony, on just people’s say-so. One important way to understand #BelieveWomen is that we should take women’s testimony with the respect they are due as moral and epistemic agents. Although we need not accept testimony when there are relevant “defeaters,” such as contradictory evidence and well-founded views about the speaker’s credibility, a speaker’s credibility should not be diminished by her identification as a woman nor her claim to be a victim of sexual violence. In the legal context, though, the question is different: Jurors are not asked which witnesses they believe, but whether their confidence level meets the relevant legal standard. Ferzan argues that jurors can increase their credence of witnesses without taking on full belief, and indeed, such a move is consistent with respectful treatment for those who provide testimonial evidence in ordinary life. But the standard of proof in criminal cases—proof beyond a reasonable doubt—does not migrate beyond that domain; similarly, that we owe men accused of sexual violence and misconduct outside of the criminal domain respect and consideration does not mean that we owe them the presumption of innocence. In “#BelieveWomen and the Ethics of Belief,” Renée Jorgensen Bolinger argues that #BelieveWomen calls attention to the way in which women are wronged when they are not believed. Speakers are entitled to reasonable trust, and an entitlement to be believed—to have their assurances treated as evidence—when we lack specific reasons to doubt their reliability as testifiers. To believe a person who asserts some proposition is to take the fact that they testify

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to that as giving us reason, proportional to our view of their trustworthiness, to increase our credence in that proposition. From an ethical standpoint, this should lead us to revise our views of the likelihood of alternative explanations, and of what default assumptions we adopt when we are confronted with testimonial evidence by women. Further, when people in ordinary contexts invoke the presumption of innocence in response to an accusation, they sometimes mean that we should have full confidence that the accused is innocent until presented with overwhelming evidence to the contrary. But this suggests that the testimony possesses little to no evidentiary value. If women are treated as reliable sources of information, and if we accept that false accusations are uncommon, we wrong them when we inappropriately reject their testimony. As such, Bolinger argues that #BelieveWomen urges us to place reasonable trust in women when they provide first-person testimony, particularly in cases of sexual assault. The third section of the volume focuses sharply on these questions of the relationship between power and truth. It begins with Bernard E. Harcourt’s chapter, “Post-Truth.” When a jury returns a guilty verdict, this means no more that the jury “believed” some witnesses than that the verdict is “true,” despite the etymology of the term. Rather, it means—as both Ferzan and Saks suggested— that the prosecutor has presented sufficient evidence to satisfy the standard of proof beyond a reasonable doubt. As those prior chapters suggested, both in the life and the law, we render judgments as to whether evidence should increase our credence to attain some threshold, and revise those views when countervailing evidence emerges. But Harcourt argues that this means that we can dispense almost entirely with the language of truth. Indeed, he suggests, the claim to truth is merely an assertion of power in the realm of political debate—and a futile one, at that, as it seeks to ground an argument on a solid foundation that it almost surely lacks. It is, he suggests, a scoundrel’s game. Partially inspired by Foucault, Harcourt characterizes his project instead as a critical philosophy of “illusions”—of how concepts such as order and internal enemies are illusions with significant distributive consequences. Harcourt argues that he does so not to claim truth, but to propose better interpretations of practices and institutions that will be subject to revision—not as a means of approaching, but of proposing

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provisional ethical judgments. He characterizes this, in a way akin to Saks’s characterization of the trial, as a rough-and-ready juridical model, one that emphasizes the relevant evidentiary standards and burdens of proof in rendering decisions. Cheryl Misak challenges Harcourt’s argument, holding that the concept of truth is indeed necessary for us to articulate and defend ethical and political claims. Misak argues that we do not need a concept of truth that is ahistorical, transcendental, or ontological, whether in the domains of morality or in science, but that this does not mean we can dispense with truth claims altogether. It may sometimes be helpful to resist invoking truth in complex, uncertain circumstances, yet in the face of profound injustice, Misak insists that we should not shy away from invoking truth and from characterizing it as something more than mere temporary judgments. Instead, Misak draws on the pragmatist tradition, notably Peirce, Lewis, and Ramsey, to defend a theory of truth that relies on predictions about the resilience of our beliefs in light of experience and argument. Like Lynch, Misak holds that truth constitutes an ineliminable part of our practices of inquiry and assertion. In her response to Harcourt, Jasmine Gonzales Rose links truth and evidence through the prism of race. She argues that the law constitutes a distinctive source of “racialized truth,” demonstrating that white supremacy constituted such a known and accepted certainty that it was “judicially noticed” by the Supreme Court and recognized without formal presentation of evidence. Here, Gonzales Rose draws on her concept of racialized reality evidence subject to implicit judicial notice, as accepted certainty on the basis of white beliefs and experience. To demonstrate the significance of racialized reality evidence, Gonzales Rose argues that Latinx flight from US Immigration and Customs Enforcement agents would constitute relevant evidence of undocumented status that would likely receive implicit judicial notice. In contrast, demonstrating that Latinx US citizens might avoid ICE due to the likelihood of timeconsuming and potentially denigrating encounters would require the introduction of costly expert witness testimony: White reality itself possesses evidentiary value. Those who speak the “truth” of white racial supremacy will have little difficulty finding a receptive audience. This is, in no small part, why ongoing critical inquiry into such truth is essential.

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Finally, Jason Stanley’s chapter returns us to the themes with which the volume began: the connection between truth-telling and political communities. Stanley argues that all governments lie, but the nature of their lies differs across regimes. Reason is central to liberal democracies, and so when a leader lies to the people in a democratic society, the act of lying nonetheless retains a trace of respect for these citizens as fellow reasoners: They must be persuaded even if by means of deception. But fascist lying has no such need. Rather, the aim of fascist rhetoric is to reshape reality around the distinctions between friend and enemy. Fascist lies are mere exercises of power—they do not even pretend to be true—and do not respond to citizens as potential reasoners. The current political moment calls for us to reassert the importance of truth against efforts to turn it into yet another tool of political power. Notes 1 William James, Pragmatism (Cambridge, MA: Harvard University Press, 1975), p. 106. The (slight) differences between Peirce and James might best be understood with a mathematical analogy. Peirce characterizes truth by deploying the Cauchy concept of a limit for a convergent series; James appeals to the Cauchy criterion for convergence. Since a familiar criticism of Peirce’s approach maintains that “the ideal limit of inquiry” is as inaccessible as “the correspondence between signs and things,” James can be seen as going further in the direction Peirce marked out, seeking to help people use the concept of truth. 2 David Hume, Enquiry Concerning Human Understanding, §X, in L. A. Selby-Bigge and P. H. Nidditch, eds., Enquiries Concerning Human Understanding and Concerning the Principles of Morals (Oxford: Clarendon Press, 1975), p. 110. 3 This, for example, is the stance of William Kingdom Clifford’s seminal paper, “The Ethics of Belief,” reprinted in W. K. Clifford, The Ethics of Belief and Other Essays, Timothy Madigan (ed.) (Amherst, NY: Prometheus Books, 1999), pp. 70–96. Clifford’s essay prompted William James to write “The Will to Believe” (in The Will to Believe, Cambridge MA: Harvard University Press, 1979, pp. 13–33). James argues that value-theoretic considerations can sometimes warrant beliefs that go beyond the evidence. His concern lies with individual action, rather than the prospects for collective inquiry that worry Clifford.

PART I

THE VALUE OF TRUTH FOR DEMOCRACY

1 TRUTH AS A DEMOCRATIC VALUE MICHAEL PATRICK LYNCH

What has truth to do with politics?1 Common sense, not to mention the depressing detritus of lies, deceit, and propaganda strewn about by governments everywhere, suggests the answer is, “not much.” As Hannah Arendt dryly noted, “no one has ever doubted that truth and politics are on rather bad terms with each other.”2 Arendt, in her classic essay on the topic, worried that it might be in the “nature of the political realm to be at war with truth in all its forms.”3 And she suspected that this war was getting more intense and in an unexpected way. Even though, she noted, she lived at a time and place that was uniquely tolerant of religious and philosophical diversity, the value of truth seemed particularly under threat: “factual truth, if it happens to oppose a given group’s profit or pleasure, is greeted today with greater hostility than ever before.”4 If it was a war between truth and politics, truth was losing, and in a way that seemed particularly dangerous to democracy. By now it is a banality to point out that most of us feel similarly about our own political moment. Indeed, one suspects that if Arendt were alive today, she would be dismayed to see that the war seems all but lost. We live at a time when a world of information is literally at our fingertips, where knowledge is in some ways easier to attain than ever before, but where we can also find instant confirmation for any belief—no matter how bizarre. Even ideas such as the COVID-19 pandemic is a hoax, or that ingesting disinfectant might ward off the virus, or that the earth is flat, are given credence in some quarters. Moreover, and especially in the case of the first two examples, these blatant falsehoods have been promulgated by some in the halls of power—perhaps not because they are 15

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believed, but in the hope that others may give them credence. And, more alarmingly, the very “democratization” of knowledge that the Internet had briefly promised to bring has been weaponized. Our online life, and hence our political life that largely lives there, has become toxic, and its poison is spread by, and contributes to the spread of, tyrants and authoritarian leaders across the globe. Those of us who find ourselves on the losing side of this battle between truth and an increasingly authoritarian politics may find it strategically useful, therefore, to revisit some basic questions. This chapter aims to answer two: First, what makes truth a democratic value? And second, what are the most pressing threats to that value? *** In wondering about truth’s democratic value, what we are wondering about is whether, and how, democracies qua democracies have a special political interest in truth. By that, I don’t mean that democracies have a special interest in truthfulness—in government, and in citizens. I think that might be so, and it is an important question, but it isn’t the one that concerns me here.5 I’m concerned not with truthfulness but with true belief—that is, whether and why democracies might have a special interest in their citizens believing what is true. Understood in the very minimal sense of “knowledge” where knowledge is just true belief, I’m asking about the value of knowledge in a democracy. Here too some clarifications are in order. The question of whether democracies have a special interest in true belief isn’t the question of whether democracies benefit from citizens having answers to life’s persistent questions. Obviously, they do. The government, for example, has an interest in its citizens knowing about the danger of a virus, how it spreads, and how to minimize that spread. But the question at hand is not about the value of any particular true belief or beliefs; it is about the democratic value of true belief as such, independent of content. Relatedly, the question is not about the epistemic value of true belief. True belief, by definition, is an epistemic good, given that it is a necessary component of knowledge. And one might think that what justifies democratic authority is that democratic politics is the best way of achieving that good.6 That too may be so, but it is

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not our question here. Our question concerns not truth as an epistemic value but as a political value. It is whether democracies have a special political interest in their citizens believing what’s true as such. I think that the answer to that question is clearly yes. But the reason why is both more and less obvious than we might think. It is less obvious because the most straightforward answer turns out, surprisingly, to be a non-starter. Consider, for instance, the following proposal: True belief is politically valuable in a democracy the same way wealth or income is. It is a primary social good.7 In other words, it is the sort of thing that is needed by free and equal citizens and that should therefore be protected and fairly distributed in any democratic state. Other possible examples of such social goods would include items like health and basic freedoms of movement and assembly. To the extent a society loses such goods, it is worse off; to the extent it makes them more difficult to acquire fairly, or to put them in only the hands of a few, means it is, to that extent, less democratic. Or so one might argue. Could true belief be such a good? One might think this follows the timeworn and honorable belief that an informed citizenry is essential for democracy to flourish. In order to act—individually or collectively—you need to know your options. Reasonable political action requires a reasonable amount of political knowledge. If citizens are going to make even indirect decisions about policy, they need to know at least some of the facts both about the problems the policy is meant to rectify, and some understanding about how effective that policy would be. And they need to know what their government is already doing to address the problems at hand and how its current policies affect their interests. This is the danger presented, one might think, by fake news, deep fakes, and other forms of digital information pollution. The more people are actively misled by false information and propaganda, the more their epistemic bubbles are reinforced by misinformation tailored to fit their preexisting biases, the less real political knowledge citizens will have. The social good of true belief, one might think, is being drained away. There is something right about this thought of course. But it won’t get us far, because true belief as such is simply a poor candidate for a primary social good in the first place. Primary social goods are those goods that democracies have a vested interest (qua democracy) in fairly distributing. But true

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beliefs can’t be directly distributed, fairly or otherwise. To imagine otherwise is to pretend true beliefs are like gold coins. But true beliefs are mental states, arguably dispositional, often not conscious, and indefinite in number. These facts complicate the analogy with wealth. To consider just one point: A person who adds by one all day long every day of the week will have more true beliefs than most. But he hardly increases his stock of a social good worthy of the name. Put differently, knowledge, unlike wealth, is not a pie that can be divided. Moreover, even if this were not so, it would be unclear how to fairly divide true beliefs among citizens. Giving everyone the same number of true beliefs (again, assuming that even makes sense) is a non- starter. That’s because not all truths are created equal (knowing about the coronavirus is more likely to be useful than knowing that 245719 + 1 = 245720, for example). It is similarly unclear how society can legally protect true beliefs. One’s right to believe can be protected perhaps, but it is unclear how laws could be constructed to further protect just the true beliefs— where again, we are not talking about some particular belief or set of beliefs, but true beliefs as such, no matter what their content. Finally, true belief is an unlikely candidate for a primary social good for democracies because it is contentious matter who has it. The finer points of tax law aside, it is not difficult to agree on what counts as wealth or income. But what counts as true—that is, what counts as something really known in the minimal sense—is itself going to be a point of contention in any plural society. As a result, it is difficult to see how any democratic government in a plural society could protect and fairly distribute in the manner of other primary goods.8 At this point, it should be clear things have gone awry, since there seems to be something right about the idea that democracies have a special political interest in true belief. So where did we go wrong? The clue to our mistake lies in the obvious: When truth is obscured or its pursuit undermined, or the institutions that protect it threatened, democracy is harmed. What this should tell us is that we’ve started the wrong way around. It is as if we were wondering about the value of climbing a mountain and started out by asking what’s so great about being on the top. That’s a natural strategy, obviously. But it isn’t the only way. Perhaps we need to ask about

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what would allow us to get to the top in the first place. That means starting not at the top of the mountain but with the climbing itself; that is, not with the value of truth, but with the valuing of it. *** The claim I want to defend can be stated thus: The democratic value of true belief is derivative of the value of its pursuit. More precisely, it is in a democracy’s interest, qua democracy, to protect and fairly distribute the means by which citizens can pursue true beliefs. And it is this fact—that democracy has a special interest in the pursuit of truth—that historically has made democracies vulnerable to certain epistemic threats. Hence, it is also what we need to understand if we wish to counter those threats in times, like our own, when they loom large. Before I say why I believe this, let me pause to marvel at the fact that we are living in a time when, for reasons I’ll try to make clear later in the chapter, we can no longer take such seemingly obvious claims as “democracies have interest in the pursuit of truth” for granted. That’s what happens when you begin to lose the war of truth against politics. Ground that once seemed wholly in one’s possession has been ceded, and one must fight to get it back. That said, it is hardly difficult to make a prima facie case for the idea that democracies have a political interest in promoting, protecting, and fairly distributing the means by which we pursue truth. More difficult is making that case without relying on an antecedent political value of true belief as such. The prima facie case is simply this: Democracies have a political interest in promoting deliberative decision-making procedures such as rational legislative processes and participatory politics.9 To achieve those ideals clearly requires promoting and protecting the means by which people can come to have true beliefs. We cannot rationally legislate or meaningfully participate if we lack access to the means by which we can come to know. This may seem as if we are justifying deliberative democratic procedures by appealing to their ability to get us an epistemic good—truth. But the point I am making here is different (if consistent). It is that protecting and providing fair access to the means by which we pursue truth is politically valuable in itself—because it

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is demanded by one of the most fundamental, and least controversial, democratic values: basic respect for persons. Basic or “recognition” respect is to be distinguished from what Stephen Darwall has called appraisal respect.10 That’s the kind of respect we give someone for accomplishing something difficult. Recognition or basic respect, on the other hand, is the kind of respect they are due just by virtue of their place in the realm of reasons. Or, to put it differently, just by virtue of being a person. When we think of basic respect for persons, we are typically thinking of moral respect—that is, respect for someone as a potential moral agent. But we can also respect or disrespect each other as epistemic agents. Here too there is a difference between respecting someone for being epistemically accomplished—for being learned, intellectually careful, curious, or open-minded. That would constitute epistemic appraisal respect in the terms of Darwall’s distinction. We don’t owe epistemic appraisal respect to anyone in particular. They must earn it. To give a fellow citizen basic epistemic respect, on the other hand, is to treat them as someone who is a potential participant in what Robert Brandom memorably called the game of giving and asking for reasons.11 To the extent that we don’t protect and fairly distribute the means by which citizens can pursue truth, we don’t accord them basic epistemic respect. We don’t do so because to the extent that citizens are unfairly barred from utilizing the resources by which they can form judgments about what is or isn’t the case, to the extent to which they are unfairly denied the educational means, including the relevant concepts, to understand the problems before the body politic—to that extent they are not being treated with the respect due a potential participant in the space of reasons. A just democracy must provide its citizens with the means to figure out what to believe—not just because doing so helps them to get food on the table, but because it is demanded by basic epistemic respect. To see democracy in this light is to regard it, with Hannah Arendt and John Dewey, as aspiring to a kind of common space—a space where disagreements can be navigated without fear of violence or oppression. Democracies, we might say, are spaces of reasons. To see democracy as a space of reasons is to regard the ideals of democratic politics as requiring a commitment to not just practical but

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epistemic rationality—that is, to the employment of practices that aid us in pursuing truth. “The essential need, in other words, is the improvement of the methods and conditions of debate, discussion and persuasion,” Dewey noted. “That is the problem of the public.”12 The Deweyan ideal that democracies are spaces of reasons can be put quite generally. Because of the value of basic epistemic respect, democracies must encourage, protect, and fairly distribute access to reliable social-epistemic practices.13 These are practices that (a) aim at producing true belief; (b) are, overall and in the long run, more reliable than not in accomplishing that aim; and (c) are distinctively social in that they involve public interactions between agents. These are the kinds of practices we aspire to employ, for example, in scientific, historical, educational, journalistic, and legal institutions. We aim to use such practices when teaching students, engaging in archival research, investigating a crime, replicating an experiment, employing blind review, and independently confirming a source. Individually speaking, reliable social-epistemic practices help us get what we want out of life. But politically speaking, encouraging, protecting, and fairly distributing access to such practices facilitates an informed public, allows for more effective deliberation, and promotes epistemic justice. That’s why the pursuit of truth is a central democratic value. It helps us realize the ideal of democracy as a space of reasons.14 Where it seemed strained to talk of legally protecting and providing fair access to true beliefs directly, we are already familiar with doing just this with social-epistemic practices—for example, by providing primary education to all citizens, protecting free assembly, speech, a free press, and the norms of academic freedom.15 And while we may disagree over exactly how to fairly distribute access to the institutions that enshrine reliable social-epistemic practices, it is clear that no such distribution can be fair if it favors certain races, classes, gender preferences, or religious affiliations over others. The conclusion I draw from these reflections is that the means by which we pursue truth via reliable social-epistemic practices are a primary social good, and the defense of the value of truth consists in the defense of those practices. This conclusion has two significant explanatory advantages. First, far from ruling out true belief as a democratic value, it shows

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us how and why it is one. Truth derives its political value from the value of its pursuit.16 Call this the bootstrapping argument. Truth may be worth valuing intrinsically. But it can also be worth valuing because the very act of valuing of it is itself valuable. To appeal to a previous analogy: It can be valuable to climb the mountain because of what is on top; but there is also worth in the climb itself. So too with the political value of truth. The argument here is simple and depends on a link between what is worth valuing and what is worth pursuing. To say that something is valuable means that it is worth valuing. And it is worth valuing if it is worth pursuing. As a result, we can say that true belief as such is politically valuable in a democracy if it is politically worth pursuing. But the reason it is politically worth pursuing is because that pursuit is itself a democratic value—more precisely, the means by which we pursue it are a primary social good. In this way we pull the alethic boot up by its social-epistemic straps. Second, our conclusion sheds light on certain distinctive epistemic threats historically faced by democracies. These threats are both philosophical and existential. They are philosophical because, if realized, they undermine, in various ways, our claim that reliable social practices are a social good. They are existential because they are not idle. They emerge out of real concerns pressing upon the health not just of our democracy but of many others worldwide. *** The first threat we could call the problem of epistemic disagreement. This is what happens when we disagree not only over values— which is healthy in a democracy, and not only over the facts—which is inevitable, but over which sources and methods we should trust for figuring out what the facts are. This is disagreement over how best to pursue the truth, or over which social-epistemic practices are reliable. Like the other threats we’ll discuss, epistemic disagreement is not a new phenomenon. Nor is it peculiar, in its most general form, to democracy. It crops up whenever epistemic norms and principles are unsettled, whenever there are competing methods for getting at the truth. It was, for example, a central cause of strife during the reformation and counter-reformation, which saw widespread

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disagreement over the best methods of achieving religious truth. And epistemic disagreements were central to the intellectual debates of the late Renaissance and the Enlightenment, with their battles between science and religion. Epistemic disagreement has long been regarded as a serious philosophical challenge. As the Pyrrhonean skeptics, Sextus Empiricus, David Hume, and Michele de Montaigne all noted, the challenge becomes more difficult the more basic the socialepistemic practices in question happen to be. How do I rationally defend my most basic practices for determining what is rational without at some point relying on those very practices? When we try to defend our most fundamental practices for determining what to believe, it seems like, in Wittgenstein’s words, our spade is turned on bedrock.17 Reasons run out. That’s the classic skeptical problem: You can’t give reasons for your most basic standards of reason without ending up in a circle. And it invites the classic responses: (a) just dig in—dogmatically cling to one’s own standards; (b) embrace the circle and hence convince no one; or (c) just shrug and admit that no epistemic practice can be shown to be reliable. In terms of our discussion, growing disagreement over which social-epistemic practices are reliable threatens the idea that such practices form a collective social good in a democracy. We noted above that such goods presumably must be ones that reasonable citizens not only recognize as such but can agree on whether they’ve been achieved. Health and wealth are clear examples. True belief, on the other hand, did not seem to meet that test, but we hoped that which social-epistemic practices are reliable might. Increasing disagreement over social-epistemic practices threatens that possibility. How serious a threat this is might seem to depend on how common such disagreement really is. And one might think it is not that common. Perhaps we actually agree more than we disagree over how to pursue truth, and many apparent disagreements could be resolved with enough time and patience. After all, you might think, most people still implicitly seem to accept standard medical and engineering practices—they go to doctors, trust engineers to build safe bridges, rely on computer science to construct their digital devices, and so on. I am less optimistic. Brexit, the 2016 US election, and the COVID-19 pandemic have made it clear that the Internet is fueling

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a do-it-yourself approach to inquiry and disagreement over whether and where scientific practices are reliable. But more important for the present context, actual epistemic disagreement isn’t necessary to threaten democracies’ ability to hold the pursuit of truth as a social good. That just requires the widespread perception of epistemic disagreement. That people perceive there is epistemic disagreement is consistent with recent research on political polarization.18 While clearly there is significant disagreement between the Right and the Left on any number things, it also appears that ordinary Americans would actually support many of the same policies, no matter what the party affiliation. Yet that same research indicates that we are polarized in a very different way—in our perceptions of those with different political viewpoints. And this kind of polarization—what is sometimes called attitude or affective polarization—does seem to be on the rise. We increasingly perceive those in the other political party with deep suspicion, as untrustworthy and relying on bad sources. It is likely, I suggest, that this polarization in perception carries all the way to how we perceive the other party’s attitudes toward truth and the practices they use to pursue it. Think, for example, about how debates over the spread of COVID-19 played out differently on television news networks FOXNews and CNN during the spring of 2020. Each side invoked its own experts (or “experts”) and derided the other side’s methods as flawed and unreliable. And similar disagreements over how seriously to take climate change are familiar. Even were there not widespread epistemic disagreement, the perception that there is turns out to be dangerous enough. That’s because that perception is itself sufficient to encourage mistrust in experts. They go hand in hand: If A perceives that she disagrees with B over which source information or practices are reliable, then A is not going to trust B’s experts who rely on such practices. And vice versa. Moreover, widespread mistrust in specific experts has a way of encouraging a kind of cynicism about expertise itself. It can engender the idea that there really are no experts on some matter, and hence that maybe there are no reliable practices for pursuing the truth on that matter either. That in turn can threaten a society’s commitment to protecting and fairly distributing access to reliable

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social epistemic practices. When people come to perceive (even mistakenly) that no one really knows what those practices are, then the idea that we should protect and promote them will become less compelling. And that in turn threatens to remove something essential to deliberative democracy—a common currency of reasons in which we can trade. Currencies hold value only when they are commonly perceived to do so. And without a common currency of reliable social epistemic practices, debates over what to do can hardly be settled by appeal to the facts—because such appeals hold little weight if we don’t agree on how to determine what the facts even are. The practical upshot is hardly unfamiliar to us: It is that debates over policy are decided by fact-free means. *** If the first threat to democratic value of truth is disagreement over how best to pursue truth, the second is the attitude that we already know what is true, so we have no need to pursue it. This is the problem posed by intellectual arrogance, the psychosocial attitude that you have nothing to learn from anyone else about some subject or subjects because you know it all already. Such arrogance isn’t simply about misplaced overconfidence; it involves a self-delusion about that confidence’s basis. While the intellectually arrogant think their felt superiority is due to their knowledge, it is more likely compensation for insecurity due to a perceived threat.19 The idea that this attitude is bad news, both personally and psychologically, also isn’t new. Michel Montaigne, the sixteenth-century French philosopher, was convinced it led to dogmatic extremism and that it could result in political violence. Dogmatic zeal, he famously said, did wonders for hatred but never pulled anyone toward goodness; “there is nothing more wretched nor arrogant than man.”20 Montaigne knew what he was talking about, having lived through religious wars that littered France with corpses from end to end. He was so disgusted by the dogmatism of his day that he retreated to a literal ivory tower and tried to isolate himself with books. I don’t recommend that strategy. For one thing, it didn’t work out for Montaigne—who found himself dragged back into politics.

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For another, in a democracy, we need citizens to engage, to participate. But I do think Montaigne’s warning about factional intellectual arrogance is worth heeding, particularly because it poses a clear threat to a democracy’s ability to value the pursuit of truth via reliable epistemic practices. That’s because factional arrogance at root is an epistemically unhealthy attitude. The intellectually arrogant are not motivated to pursue truth; indeed, they can be motivated to resist it. As Montaigne knew, intellectual arrogance becomes a real social problem when the attitude becomes factional—or indexed to a group whose members share a self-identity.21 When this happens, members of the group begin to think “we” know and “they” don’t. When convictions that are central to the group’s identity become part of its shared cultural narrative, it is more likely for the members of the group to be intellectually arrogant about them, simply because any threat to those convictions threatens the group identity. It is perceived as a threat to “who we are.” As a result, such convictions become immune from revision by members of the tribe and protected at all costs from counter-evidence. This unwillingness, when expressed as a form of widely shared intellectual arrogance, results in what is sometimes called active factional intellectual arrogance; it is typically directed at other groups and the sources of information that are associated with those groups. As a result, someone who is arrogant toward African Americans and Latino immigrants will dismiss sources perceived to be friendly to those groups—for example, CNN and the New York Times—as “fake news.” But factional or group-based intellectual arrogance isn’t just about “us” versus “them.” It is about “us” over “them.”22 This fact is most apparent in the factional arrogance involved in racism, since racists think not only that they are superior to other races but that the others are somehow at fault. People can be factionally arrogant but not racist, but it is difficult for them to be racist without, at least on some level, being factionally arrogant—without thinking, in other words, that their capacities for knowledge are superior and that they are to be morally commended, and the others morally blamed, for this fact. This holds generally for the intellectually arrogant, whether their arrogance is racist or not: Their knowledge is superior, they know the secret truths. And they think this means

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that their humanity, too, is morally superior. They are better people because they know what’s what; the “others” are responsible for just not keeping up. Intellectual arrogance is, in general, a human problem; it does not stay within the political lines. But, I believe, there is also no doubting that, at this political moment, it is the far Right that most embodies this attitude. We need look no farther than the conspiracy theories concerning the COVID-19 epidemic—such as claims that it is a hoax, that Bill Gates created it, that the Chinese pulse it into bodies through 5G networks, or that it can be treated by various vitamins or by injecting disinfectant. As often happens where factional arrogance is concerned, such claims are frequently made from a position of defensiveness—accompanied by accusations that it is the scientific experts that are arrogant, that “they” are the ones who are not listening to reason. This is all weird enough—after all, this is an actual global disaster and one would hope our responses to it would be data-driven. But the advocacy of similar wild theories by political leaders—including at points the president himself— indicates they are not one-off throwaways. Such conspiracies are driven by narratives of factional arrogance—a sense that “we” are the ones that really know the truth, and that licenses, even encourages, denials of obvious facts. *** The two epistemic threats I’ve outlined—the problems of epistemic disagreement and intellectual arrogance—can interlock and amplify each other. When they do, as they are doing now in our society, they give rise to a third epistemic threat: What we might call contempt for truth. The most notable sign of this contempt is the uptick in political statements that simply fly in the face of an obvious matter of fact—the bald-faced political lie. As a number of commentators have noted, bald-faced lies are on the uptick by political leaders in democratic countries worldwide. In the United States, for example, we are becoming numb not only to outrageous falsehoods, but to the bizarre self-assurance with which they are pronounced. We were told crowds were bigger than they were, that the sun shined when it didn’t, that Trump won in a landslide—and that was just in

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the first few days after his election. What has shocked so many is the fearlessness in the face of the facts, the willingness to simply deny reality outright, and the apparent toleration, even joy, with which his followers greet the practice. By a bald-faced political lie, I am talking about the overt assertion of an obviously false proposition—one where there is overwhelming evidence of its falsity that is directly available to almost anyone. I am not talking about claims that, while false, require some expertise or research to see they are false. I’m talking about the political equivalent of saying that you didn’t eat the chocolate cake when it is all over your face. Or, to put it differently, they are the political equivalent of being told it isn’t raining by someone standing with you in pouring rain. Bald-faced political lies are puzzling because, unlike normal lies, their function isn’t to deceive. While some outrageous bald-faced lies might fool some of the people some of the time, it is implausible to think that this is their primary communicative purpose. After all, there are time-honored and much better ways of deceiving the public, including spin and the implantation of false stories in the media. Simply denying what is obviously false isn’t, in contrast, particularly effective. You won’t generally convince someone it is not raining when the raindrops are sliding off their nose. Similarly, while bald-faced political lies may sometimes be intended as sarcasm or jokes, that doesn’t seem to be their function either. Indeed, I doubt most bald-faced political lies are actually meant to be humorous. And I think one sign of this fact is that these sorts of explanations are often trotted out in a politically self-serving attempt to explain away, for example, tweets that are outrageously false or offensive. Jokes you have to explain as jokes aren’t generally meant to be jokes the first place. An analogy can help us see what is really going on. Imagine that during a football game, a player steps way out of bounds and sprints down the sidelines with the ball. The referee blows the whistle. But the player—still standing out of bounds—declares that he is in bounds and insists on continuing to play. He isn’t fooling anyone, but as his actions suggest, he isn’t joking either. What he is doing is pretty clear: He is expressing his contempt—his contempt for the referee, the other team, and perhaps for the very idea that the rules apply to him.

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If the game is a normal one, he’ll be thrown out. But if he—or his team—hold some power (perhaps he owns the field or brought the ball), then he may be able to compel the game to continue. Imagine his fans, all of whom know he stepped out of bounds, cheering him on anyway—let him play, they yell. The video, they might say, can’t be trusted anyway. It is controlled by sinister forces out to get their team. And so on. Meanwhile the player continues to insist that he never stepped out of bounds in the first place. If the game continues, the other team might start flouting the rules as well. The referees’ calls will be increasingly moot. It may be unclear that they are even playing the same game—or any game at all. Perhaps everyone will take their balls and go home; or fights will break out and the game will end very badly indeed. Bald-faced political lies are like the player’s insistence that he was in bounds when he deliberately stepped out. And they serve the same function. They are deliberate expressions of contempt meant to display power. As our imagined football player expresses his contempt for the rules of the game, so the bald-faced political liar is expressing contempt for the rules or norms that govern those social-epistemic practices that help us to know what’s true. These are the rules that govern truth-seeking in law, journalism, education, and science. They include, for example, the rules that journalists should use more than one source, that teachers should use accurate textbooks, that detectives need to collect evidence against the accused, or that judges should recuse themselves when their personal interests are at stake. All of these rules are all examples of professional norms aimed at helping the profession consume and transmit justified information in line with their professional goals. This is why we say that such institutions are “evidence-based.” They are institutions that employ social-epistemic practices, and are aimed, at least in part, at pursuing truth. Thus, bald-faced political liars, in expressing contempt for the rules that govern such practices, also express contempt toward the means by which we pursue truth in normal democratic societies. By the terms of our discussion, this means that such contempt can be properly called contempt for the value of truth. The social impact of this contempt, however, depends on the power of the contemptuous. It depends on the politician’s own

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institutional power—his position of authority, his influence on the media and his political allies, and so on. It also depends on his social power—whether, and to what extent, he can rely on his followers to cheer him on. Given sufficient institutional and social power, expressions of contempt for social-epistemic rules can encourage widespread questioning of the value of even following the rules. This is particularly so if, as in our football example, the rule-breaker gets away with it—where the “it” is both the rule violation and the assertion that no such violation occurred. The rule begins to seem less important—not just to the liar, but to the other team and the people in the stands. Perhaps most insidiously, the bald-faced political lie can cause people to treat the lie as if it were true. The football analogy helps to illustrate how this might happen. The rule-breaker who also owns the field can force the game to go on under the assumption that he didn’t step out of bounds. Likewise, given sufficient power, the political bald-faced liar can bring into being not the truth of what he says, but its passing for truth.23 In short, he can make people treat what he says as true—to treat it, in other words, as a goal of inquiry, an answer to a question. One way this can happen is when the lie is adopted as a means of identity expression. In a recent study, Brian Schaffner and Samantha Luks asked 700 Americans about two well-known and highly discussed photos of the crowds attending the Obama and the Trump presidential inaugurations.24 Both photos are taken from the same vantage point; each shows throngs of people assembled in front of the Washington Monument for the inauguration. But one photo (Obama) clearly has more people in it than the other (Trump). The researchers asked a simple question: Which photo has more people in it? The results were revealing. Trump supporters were six times more likely than Clinton supporters or nonvoters to say that the half-empty photo contains more people. This might suggest that Trump supporters are twisting their beliefs into knots. That’s possible, but I think a more likely suggestion is the one made by Schaffner and Luks themselves: Some Trump supporters have come to treat a bald-faced lie as true not because they believe it, but because doing so is an act of identity expression. This is how the bald-faced political lie functions to demonstrate power. The rule-breaker aims to show that he has the power to

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break or flaunt rules and to make others go along with, or at least ignore, that fact. In the case of the powerful football player, the rules that are flaunted are basic rules of the game; in the case of the political bald-faced liar, the rules are rules of assertion and the rules that govern our social-epistemic life. In both cases the aim is similar: to demonstrate or affirm power that is greater than any rule. And such demonstrations, as just noted, can have dangerous downstream effects. They can, as the Schaffner study suggests, cause people to take the expression of the lie on board as a part of their factional political identity. The phenomenon of bald-faced political lying illustrates how the problems of disagreement and arrogance form the ground from which the poisonous flower of contempt for truth grows. Epistemic disagreement—or the perception that it exists—makes political parties suspicious of each other’s sources. And arrogance convinces us that “we” are always right. Together that can lead to contempt. Hannah Arendt was chillingly clear on this point: “The chief qualification of a mass leader has become unending infallibility; he can never admit an error.” That’s because to admit an error is to admit that there is something more powerful than you, that your triumph—and hence your group’s—may not be inevitable. As a consequence, Arendt writes, speaking across the decades, “before mass leaders seize the power to fit reality to their lies, their propaganda is marked by its extreme contempt for facts as such, for in their opinion, fact depends entirely on the power of the man who can fabricate it.”25 *** The problems we’ve just canvassed are at the same time both practical and philosophical. They are philosophical because they are normative; they stem from a loss of value. But they are practical because they bear on our immediate lives. They cannot, if I am right, be ignored if we are committed to the health of democracy. Some readers may wonder why, in my defense of the value of the pursuit of truth, I haven’t paused to consider two well-known, one might even say tired, objections to that value. The first, best expressed by Richard Rorty more than twenty years ago, is that truth is not really a goal of inquiry because “we can’t aim at that which

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we don’t know whether we hit.”26 This is the idea that truth is too difficult to obtain, and thus we should re-conceive of inquiry as aiming at something else, like agreement. The second objection, also endorsed by Rorty but also a host of other philosophers, is that truth itself is simply an uninteresting concept, unfit to bear much theoretical weight and certainly not that of normative political theory.27 I have ignored these two arguments in part because I have had much to say about them elsewhere.28 Knowing whether we’ve succeeded in hitting the target of truth is indeed difficult, but so is knowing whether you’ve actually achieved agreement, or mere capitulation or obedience to those with the guns. Moreover, what we agree on today we may not agree on tomorrow, and we should look to our social-epistemic practices for more reliability than that. To the idea that truth is an empty concept, devoid of theoretical interest, I respond that interest is often a matter of need. The global political order of the latter half of the twentieth century led not only to complacency about our political institutions and their viability (History has reached its glorious neoliberal end! We are the last Men!) but complacency about the philosophical concepts that underwrote them—including concepts like equality and, yes, truth. What we need now is less talk about truth’s relative unimportance and more talk about its role in our democratic enterprise. Yet I confess that in the end, I’ve really ignored such objections because paying much attention to them now, in our current political moment, seems akin to worrying about whether you watered the plants when your house is burning down. There are other things to attend to of a more urgent nature. One of those urgent matters—and one I have not directly attended to here—is that democracy itself is less and less valued across the world. We are at a stage now where we can no longer take it for granted that everyone agrees that democracy is “the worst form of government except for all the others.” But the devaluing of democracy, the sense by many that there may be better worst forms of government, is not unrelated to the topic discussed in these pages. If the above argument is correct, if the pursuit of truth is something like a primary good for any democracy, devaluing it can only bring with it a devaluing of democracy itself.

Truth as a Democratic Value

33 Notes

1 Thanks to audiences at the University of Binghamton, University of Connecticut, the University of London, and the NOMOS Conference at Princeton University; special thanks to my helpful commentators Michael Saks and John Sides and to comments from Melissa Schwartzberg. 2 Hannah Arendt, Between Past and Future: Eight Exercises in Political Thought (New York: Penguin, 2006), p. 223. 3 Ibid., p. 235. 4 Ibid., p. 231. 5 For more on this question, see Bernard Williams, Truth and Truthfulness: An Essay in Genealogy (Princeton, NJ: Princeton University Press, 2002), and Lynch, True to Life: Why Truth Matters (Cambridge, MA: MIT Press, 2004). 6 Various arguments for this (I think basically correct) position can be found in Elizabeth Anderson, “The Epistemology of Democracy,” Episteme 3 (2006): 1–2, 8–22; David Estlund, “Beyond Fairness and Deliberation: The Epistemic Dimension of Democratic Authority,” Deliberative Democracy: Essays on Reason and Politics (Cambridge, MA: MIT Press, 1997), pp. 173–204; and Robert Talisse, Democracy and Moral Conflict (Cambridge: Cambridge University Press, 2009). 7 Here I draw on Rawls’s notion of a primary good. I do not claim to be using the notion in exactly the same manner. See John Rawls, Political Liberalism (New York: Columbia University Press, 2005), p. 180. 8 It may be for this reason Rawls didn’t include knowledge or true belief among his own list of primary goods. According to Rawlsian doctrine, in a liberal democratic society, the government attempts to remain neutral with regard to different visions of the good life, or comprehensive doctrines. 9 One can presumably endorse this thought even if you don’t think, with deliberative democrats, that democracy is defined in terms of such practices. 10 Stephen L. Darwall, The Second-Person Standpoint: Morality, Respect, and Accountability (Cambridge, MA: Harvard University Press, 2006). 11 Robert Brandom, Making It Explicit: Reasoning, Representing and Discursive Commitment (Cambridge, MA: Harvard University Press, 1998), p. xxi. 12 John Dewey, The Public and Its Problems: An Essay in Political Inquiry (Athens, OH: Swallow Press, 1927/2016), p. 224. 13 Alvin Goldman, Knowledge in a Social World (Oxford: Oxford University Press, 1999), pp. 4–5. Goldman would call such practices “veritistic”— that is, practices that aim at truth.

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14 Here I am influenced by Philip Kitcher’s claims concerning the overlap (and tension) between democratic and scientific aims in Science, Truth and Democracy (Oxford: Oxford University Press, 2001), as well as by Anderson, “The Epistemology of Democracy.” 15 For development of this point with regard to academic freedom, see Michael P. Lynch, “Academic Freedom and the Politics of Truth,” in Jennifer Lackey, Philosophy and Academic Freedom (Oxford: Oxford University Press, 2018). 16 For a related argument, see Lynch, True to Life, and Chase Wrenn’s Truth (Cambridge: Polity, 2015). 17 Ludwig Wittgenstein, Philosophical Investigations (New York: MacMillan, 1958), §217. 18 See, for example: Pew Research Center, “Partisan and Political Animosity in 2016,” www.people-press.org/ 19 This point was first made by Alessandra Tanesini’s important paper, “‘Calm Down, Dear’: Intellectual Arrogance, Silencing and Ignorance,” Aristotelian Society Supplementary Volume 90, no. 1 (June 2016), pp. 71–92. 20 The Complete Essays, translated and edited by M. A. Screech (London: Penguin, 2003), p. 495 and p. 693, respectively. 21 A fuller statement of this point can be found in Michael P. Lynch, Know-It-All Society: Truth and Arrogance in Political Culture (New York: Norton, 2019). 22 Jason Stanley, How Fascism Works: The Politics of Us and Them (New York: Random House, 2020), pp. 21–22. 23 See Don Fallis, “Are Bald-Faced Lies Deceptive after All?” Ratio 28, no. 1 (2015): 81–89. 24 Brian Schaffner and Samantha Luks, “Misinformation or Expressive Responding? What an Inauguration Crowd Can Tell Us about the Source of Political Misinformation in Surveys,” Public Opinion Quarterly 82, no. 1 (2018): 135–147. 25 Hannah Arendt, The Origins of Totalitarianism (New York: Houghton Mifflin Harcourt, 1973), p. 350. 26 Richard Rorty, “Is Truth a Goal of Enquiry? Davidson vs. Wright,” Philosophical Quarterly (1950–) 45, no. 180 (1995): 281–300. 27 This a leading point of the deflationary approach to truth as advocated by Paul Horwich, Truth (Oxford: Oxford University Press, 1999). 28 See, e.g., Lynch, True to Life, and Michael Patrick Lynch, Truth as One and Many (Oxford: Oxford University Press, 2009).

2 RESPONSE TO MICHAEL PATRICK LYNCH’S “TRUTH AS A DEMOCRATIC VALUE” JOHN SIDES

The important thing in democracies, argues Michael Lynch, is not that citizens acquire the truth, or “true belief,” but merely that they pursue it. Thus, democracies need only protect and distribute the means by which citizens do so—what he terms “reliable socialepistemic practices.” Democracies must therefore protect civil liberties, institutions such as the news media, and norms such as academic freedom. Lynch then identifies current threats to these practices, all of which will be familiar to anyone who has seen the president of the United States holding a map of a hurricane’s path that has been altered with a Sharpie.1 The importance of reliable truth-seeking practices cannot be denied. The question, however, is whether the value of actually acquiring truth can so easily be set aside, especially in democracies. By “truth,” I mean facts, not moral truth. In other words, my interest is in whether citizens are knowledgeable, meaning that they know factually true things. My argument is that factual truths are distinctively valuable in democracies. We have reason to be concerned not just about the process of acquiring truth—climbing the mountain, as Lynch puts it—but about getting to the summit. Here is why.

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John Sides Democracies Expect More of Citizens

Lynch argues that whether citizens know factual truths or are knowledgeable is not distinctively valuable to a democracy. That is, democracies do not have a “special political interest in their citizens believing what’s true.” But compared to other kinds of political systems, democracies are distinctive in the role that they give to citizens. In their defense of why knowledge is important to democratic citizenship, Delli Carpini and Keeter list the “wide array” of things citizens are asked to do in democracies: select qualified representatives  .  .  .  ; serve as the pool from which representatives are selected; reward and punish officeholders for their past performances; vote directly on policy issues through initiative and referenda; fill the thousands of voluntary, appointed, and bureaucratic civic roles required for the machinery of campaigns, elections, and government to work effectively; help shape local, national, and political agendas through numerous outlets from public opinion polls to public demonstrations to direct contact with public officials; support and cooperate with the implementation of public policies; navigate government bureaucracies for information, goods, and services; attend local government and civic meetings; and more.2

This is a far longer list than one might expect in an autocracy, where citizens cannot choose leaders in free and fair elections or otherwise participate in politics or government, save for their “freedom” to attend rallies and cheer on Dear Leader. For this reason, the empirical literature on public opinion has long focused on what voters do and do not know about politics. The literature has focused on a wide range of facts. As Barabas et al. note, some facts are static because they concern durable features of political institutions or public policy.3 Many of these come from the typical civics class, such as the length of a senatorial term or the number of US Supreme Court justices. Other facts are changeable and require ongoing “surveillance” of politics—such as which people hold which political offices or the positions of political candidates.

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Of course, in democracies citizens do not necessarily pursue or know factual truths. Lynch notes as much, and certainly political science research has documented this again and again.4 It is easy to find evidence that many citizens appear ignorant of facts that, on their face, seem important for democratic citizenship. To pick one example from many, fewer than half of Americans know enough to vote based on even salient political issues—that is, to choose the candidate who most closely shares the voters’ own policy goals.5 One reason is that many voters do not know where the candidates stand. Such lack of knowledge stems from variation in both citizens’ motivation to learn and the opportunities they have for doing so.6 Not all citizens are interested in politics and, moreover, have other important things to occupy their time—jobs, family, and so on. Moreover, even if citizens are motivated, opportunities to learn may be limited. For example, candidates often take vague positions in electoral campaigns,7 making it hard for citizens to learn where the candidates stand and then vote accordingly. Thus, debates among the political scientists who study citizens are often not about whether citizens need to know factual truths, but about which truths they need to know. Although most scholars would agree that citizens generally lack detailed, “encyclopedic” knowledge of politics, they disagree on whether citizens can compensate with smaller nuggets of knowledge that constitute decisionmaking “shortcuts.” For example, one study of the 1988 California election shows that citizens who knew only a few key facts about several initiatives on the ballot—namely, which interest groups supported which initiatives—had similar preferences to those with more extensive knowledge about the initiatives.8 Another argument is that citizens’ decision-making is simplified because many political choices are highly structured.9 For example, in the United States, the two major parties often take opposing positions, and thus voters need only know where the parties stand to take the “correct” position (for them). Disagreements among the parties thus provide the shortcuts. Others are more skeptical of the value of decision-making shortcuts.10 Many citizens will not know even the tidbits of fact that a shortcut requires. Nor will shortcuts always bring citizens to the “correct” decision.

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Nevertheless, underlying these debates is a shared sense that the quality of citizens’ decision-making depends in part on whether those decisions are grounded in facts of some kind.11 And even if citizens fall short of whatever standard, an imperfectly knowledgeable public is not evidence against knowledge’s distinctive value in democracy—any more than my son’s imperfect ability to chew with his mouth closed is evidence against table manners’ distinctive value at mealtime. Democratic Governments Take Citizens’ Views Seriously Regardless of citizens’ imperfections, their political attitudes have consequences—and these consequences are only magnified in democracies. The political scientist V. O. Key put it bluntly: “Unless mass views have some place in the shaping of policy, all the talk about democracy is nonsense.”12 There have been centuries of debate about exactly what “some place” should mean, but certainly few would argue for “no place.”13 More important, decades of research in the United States show that there is a clear correlation between citizens’ views and both legislators’ views and government policies at the national, state, and local levels. This correlation is evident in studies of “dyadic” representation that compare the views of citizens to those of their representatives in Congress;14 in studies of policymaking that compare policies across states or cities to the views of citizens in those places;15 and in studies that track changes in public opinion and policy over time at the national level16 and state level.17 There is at least some evidence that this correlation reflects causation.18 What facilitates those correlations is that, in the aggregate, public opinion is often stable and, when it does change, it is responding to salient events in an arguably sensible fashion.19 Thus, policymakers can extract signals from public opinion and not worry that changes merely constitute capricious noise. Certain qualifications are definitely in order. The connection between public policy and public opinion is inevitably imperfect and varies with the structure of the electoral system20 as well as the wealth of citizens, although that is debated.21 Policymakers may also

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misperceive public opinion22 or prefer to try and change opinion rather than follow it.23 But despite those qualifications and debates, the views of citizens do matter for policymaking. Democracies Have an Interest in the Quality of Citizens’ Views If citizens’ views do affect policy—even in a qualified fashion—then democracies have a real interest in the quality of those views. “Quality” is a tricky concept, to be sure, which is why there are extensive debates over what constitutes a “good” political decision, a “correct” vote, or a “competent” voter.24 But a key component of “quality” is whether citizens’ views have some basis in factual truth. The importance of factual truth is at least fourfold. First, political attitudes can change when citizens acquire greater knowledge of politics generally25 or knowledge of specific policy-relevant facts.26 Some policy-relevant facts are without a doubt more persuasive than others. For example, citizens routinely overestimate the size of minority populations such as African Americans and immigrants, and those misperceptions are more prevalent among those with hostile attitudes toward those populations. But actively correcting those misperceptions does not actually change attitudes,27 suggesting that misperceptions may be more a consequence of attitudes than a cause. With regard to immigrants, facts that combat particular stereotypes—such as the idea that immigrants tend to be unemployed or violent—more readily change attitudes.28 Second, knowledge or factual truth can lead citizens not only to change their attitudes, but to change them in ways that are more in line with their interests. Delli Carpini and Keeter document that politically informed people manifest stronger linkages between their political attitudes and their demographic characteristics and political values. In their telling, knowledge about politics creates “enlightened preferences.”29 To give a more precise example, citizens often overestimate the likelihood that they will be subject to the federal estate tax. But when told that only very wealthy estates are subject to this tax, citizens—and especially those with lower incomes—are more likely to support it.30

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Third, in some cases, factual truth may help citizens form preferences that minimize externalities for others.31 In other words, an “uninformed” preference may be inimical not only to citizens’ own interests but to the interests of others.32 If citizens ignore or deny the evidence that wearing a face mask and avoiding crowded indoor gatherings minimizes the transmission of COVID-19, they may not wear a mask or may oppose local laws that require masks or ban such gatherings. Through their personal choices as well as their potential influence on pandemic policymaking, these citizens are endangering the health and lives of others. Fourth, factual truth helps citizens hold elected leaders accountable. It is not always easy for to citizens know what leaders stand for, or to attribute policy outcomes to the leaders responsible for them.33 When citizens lack this information, then leaders have more latitude to pursue policies that do not serve citizens’ interests. Democratic Governments Have Their Own Interest in Factual Truths To further demonstrate the value of truth in a democracy, we can set citizens’ decision-making aside and focus instead on leaders. For leaders in democracies, attendance to factual truths has both normative and strategic value. It has normative value because democratic governments are supposed to promote the welfare of their citizens. Making policies without regard to factual truths— for example, ignoring or downplaying the fact that lead is leaching into a city’s water supply—risks making citizens worse off. This leads to the strategic value of factual truths: Policymaking that engages factual truths may benefit leaders too. After all, citizens angry about their contaminated water are more likely to vote leaders out of office. This fact helps explain why democratic governments have created modern bureaucracies populated with experts. The job of doctors at the National Institutes of Health, scientists at the Centers for Disease Control, analysts in the Congressional Budget Office, and political scientists serving at the National Security Council is to use their expertise to create policies grounded in factual truths. These are, of course, also examples of what Lynch might consider good social-epistemic practices. But the point is that democratic

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governments don’t merely want processes for generating expert knowledge. They want the knowledge itself. This motivation is evident in the many state and local officials looking to experts at the CDC and NIH for guidance about the COVID-19 pandemic. Needless to say, there are cases where experts got it wrong and misapprehended “the truth.” There are also very many cases where democratic leaders, much like citizens, chose to ignore the truth— especially in cases where policymaking based on factual truths actually angers influential people. The COVID-19 pandemic has no shortage of such cases—such as the reluctance of Republican officials, including President Trump, to embrace masks or stay-athome orders. As always, the mere production of factual truths in government neither resolves political debates nor guarantees that those facts will ultimately hold sway. Nevertheless, policymaking divorced from facts seems to pose risks that are magnified in democracies—suggesting that truth has some distinctive value in these systems. Two Possible Objections I can see at least two objections to my argument, based on what Lynch writes. First, Lynch rightly notes that “what counts as true . . . is always going to be up for contention in any plural society.” This raises the question: Do we have to agree on what is true in order for truth to have distinctive value in democracy? I think the answer is no. Almost no democratic good is uncontested, after all.34 Lynch’s preferred democratic good—social-epistemic practices—is an excellent example. Lynch believes that the types of epistemic practices common in “scientific, historical, educational, journalistic and legal institutions”—doing rigorous research, providing education to citizens, guaranteeing civil liberties like free speech—are distinctively valuable in democracies. And clearly these things are valuable. But as Lynch’s subsequent discussion of “epistemic disagreement” suggests, social-epistemic practices are subject to at least as much contestation as certain factual truths. Studies of US public opinion show that many Americans will readily abrogate free speech rights, especially for groups they dislike.35 Commitment to a free press is also tenuous: In a 2018 survey, 26 percent agreed

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that “the president should have the authority to close news outlets engaged in bad behavior.”36 And debates about higher education likely reflect differing conceptions of what “academic freedom” means.37 Ultimately, I do not think we should count on, or wait for, consensus on any defensibly democratic good. For this reason, I think the mere presence of contestation about truth does not complicate its distinctive value to democracy. Second, Lynch says that true beliefs cannot be “directly distributed, fairly or otherwise” and that true beliefs, unlike “gold coins,” cannot be counted. But we routinely evaluate the status of truth in democratic societies by counting. Most prominently, we conduct surveys, count how many respondents know the correct answer to factual questions, and use those statistics to characterize the broader population. (Lynch cites one such survey, about the size of the crowds at Donald Trump’s and Barack Obama’s inaugurations.) If an increasing number of citizens give the correct answer, we think of a “true belief” as being more widely distributed throughout the population. Lynch also argues that knowledge cannot be divided like a pie, but I am not sure that is the right metaphor. There is not a finite supply of factual truths that can be given to some but then not to others. Factual truths are not zero-sum—and my ability to be “fed” with sweet and tasty truths does not mean someone else will go hungry. I do recognize that factual truths cannot be directly “distributed” to citizens in that governments cannot force truths in our heads the way that they can put money in our bank accounts. I also recognize that there is still the question of what constitutes a “fair” distribution—which I am simply punting on for now. That said, I do not think that concerns about distributing and counting truths are necessarily as complicating as Lynch suggests. Two Remaining Questions If one sees truth as distinctively valuable to democracies, there are still tough questions that must be answered—at least for democratic practice. And for two of these questions, there are, as yet, no clear answers in the political science literature.

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The first question, noted earlier, is: Which facts should people learn? It is one thing to say that factual truths are generally important, or to put some factual questions in a quiz that many citizens will fail. It is another thing to articulate which facts are important for democratic citizenship.38 Must citizens have some basic grasp of civics? Must citizens know facts about the current government? Must citizens know facts about the candidates they are choosing among in elections? Must citizens know certain facts about public policies— such as who benefits and what they cost? All of the above? Some? Moreover, there is a real risk in the typical schoolbook conception of relevant political facts. This conception ignores the important knowledge that comes from the lived experiences of individuals.39 For example, racial and ethnic minorities in highly policed communities gain significant knowledge of the practices of policing and its significant deviations from the ideal of liberal democracy.40 This knowledge does not push people toward the kind of democratic political engagement that textbook accounts of democracy frequently laud. Instead, it leads them to disengage with aspects of the state that are arguably quite undemocratic. There is, once again, no consensus on what the public “needs to know.” The second question: How do we make citizens attend to facts and incorporate them into their thinking? The political science literature has identified plenty of cases where uninformed or misinformed citizens are told “the facts” and . . . nothing changes.41 Another example to add to the earlier ones: Correcting underestimates of the number of casualties in the Iraq War did not change support for the war—apparently because citizens simply rationalized this inconvenient fact in ways that maintained their preexisting view of the war.42 Making the facts persuasive to citizens can thus be challenging. Unsurprisingly, it helps if the facts come from a source that citizens already find credible. But sometimes the sources that people find credible, like politicians in their preferred party, are the very ones misrepresenting the facts. Thus, even if there was consensus on important facts for citizens to know, there would not necessarily be any simple way to convince them of these facts or help them see why believing these facts implies a change in their political views.

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John Sides Conclusion

After President Trump tweeted inaccurately and later repeated that Hurricane Dorian would hit Alabama, the scandal was not just that he, or someone in the White House, altered a map of the hurricane’s projected path three days later to make it seem like Alabama could have been affected. It was that senior Trump administration officials, including White House Chief of Staff Mick Mulvaney and Secretary of Commerce Wilbur Ross, pressured the National Oceanic and Atmospheric Administration to back up Trump’s story.43 This led to an unsigned NOAA press release that contradicted a tweet by National Weather Service officials in Alabama saying that the state was not at risk. Internal reviews would later fault the acting NOAA administrator for violating the agency’s scientific integrity policy.44 This was, in other words, a textbook example of threats to good social-epistemic practices in a democracy. Politics trumped science. But the outrage over this incident was not just about whether socialepistemic practices designed to discover truth had been threatened. It was about threats to the truth itself. After all, would people have been so outraged if the hurricane had taken an unexpected turn toward Alabama after all? Or if Wilbur Ross had threatened to fire NOAA personnel if they did not issue a statement supporting the NWS office in Alabama and contradicting Trump? What bothered many people about Trump’s tweet and its aftermath was not just that politicians wanted to meddle with a scientific process, but that the politicians were factually wrong and willing to defend the mistruth for days. Now, of course, the COVID-19 pandemic makes this example seem quaint. The resistance of politicians, including the President, to the best science about the novel coronavirus has had far more serious consequences. It has helped sow division among the public, particularly along partisan lines.45 This has weakened some citizens’—and politicians’—commitment to measures that have been shown to reduce infections and deaths.46 Here again, it is important not just that politics compromised the scientific process, but that it mitigated the impact of scientific facts themselves. After all, back in March 2020, even Dr. Anthony Fauci, Director of the National Institute of Allergy and Infectious Diseases, initially said that ordinary Americans who were not healthcare providers did not need to wear masks to mitigate the spread of COVID.47 His

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view, along with that of many others, shifted as scientists learned more about how the virus spreads. Had Trump objected to Fauci in March and insisted that Americans wear masks, he would have been meddling with science, but in a way that we would now see as far less objectionable—because Trump would have been right. There is every reason for democracies to defend social-epistemic practices that are conducive to producing factual truths. But in democracies, those truths are distinctively valuable in their own right. Notes 1 John Wagner, “Trump Suggests Media Should Apologize to Him for His Erroneous Alabama Claim,” Washington Post, September 6, 2019. 2 Michael X. Delli Carpini and Scott Keeter, What Americans Know about Politics and Why It Matters (New Haven, CT: Yale University Press, 1996), p. 4. 3 Jason Barabas, Jennifer Jerit, William Pollock, and Carlisle Rainey, “The Question(s) of Political Knowledge,” American Political Science Review 108, no. 4 (2014): 840–855. 4 For a review, see Donald R. Kinder, “Opinion and Action in the Realm of Politics,” in Daniel T. Gilbert, Susan T. Fiske, and Gardner Lindzey (eds.), The Handbook of Social Psychology (New York: McGraw-Hill, 1998), pp. 778–867. 5 Michael Lewis-Beck, William G. Jacoby, Helmut Norpoth, and Herbert F. Weisberg, The American Voter Revisited (Ann Arbor: University of Michigan Press, 2008). 6 Barabas et al., “The Question(s) of Political Knowledge.” 7 Benjamin I. Page, Choices and Echoes in Presidential Elections: Rational Man and Electoral Democracy (Chicago: University of Chicago Press, 1978). 8 Arthur Lupia, “Shortcuts versus Encyclopedias: Information and Voting Behavior in California Insurance Reform Elections,” American Political Science Review 88, no. 1 (1994): 63–76. 9 Paul M. Sniderman and Matthew S. Levendusky, “An Institutional Theory of Political Choice,” in Russell J. Dalton and Hans-Dieter Klingemann (eds.), The Oxford Handbook of Political Behavior (Oxford: Oxford University Press, 2007), pp. 437–456. 10 James H. Kuklinski and Paul J. Quirk, “Reconsidering the Rational Public: Cognition, Heuristics, and Mass Opinion,” in Arthur Lupia, Mathew D. McCubbins, and Samuel L. Popkin (eds.), Elements of Reason: Cognition, Choice, and the Bounds of Rationality (New York: Cambridge University Press, 2000), pp. 153–182.

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11 I say “in part” because there are other standards one could use, such as whether citizens’ views cohere to the liberal- conservative ideological framework or whether their views are linked to a set of broader principles. For the former, see Philip Converse, “The Nature of Belief Systems in Mass Publics,” in David E. Apter (ed.), Ideology and Discontent (New York: Free Press, 1964), pp. 206–261. For the latter, see Paul Goren, On Voter Competence (New York: Oxford University Press, 2013). 12 V. O. Key, Public Opinion and American Democracy (New York: Alfred A. Knopf, 1961), p. 7. 13 And even those who express particularly deep skepticism of citizens’ abilities (e.g., Joseph Schumpeter, Capitalism, Socialism, and Democracy (New York: Harper & Row, 1942); Jason Brennan, Against Democracy (Princeton, NJ: Princeton University Press, 2016), would typically empower a subset of more knowledgeable people, which would only make their continuing acquisition of factual truths more consequential. 14 Warren E. Miller and Donald E. Stokes, “Constituency Influence in Congress,” American Political Science Review 57 (1963): 45–56. 15 Robert S. Erikson, Gerald C. Wright, and John P. McIver, Statehouse Democracy: Public Opinion and Policy in the American State (New York: Cambridge University Press, 2010); Chris Tausanovitch and Christopher Warshaw, “Representation in Municipal Government,” American Political Science Review 108, no. 3 (2014): 605–641. 16 James A. Stimson, Michael B. Mackuen, and Robert S. Erikson, “Dynamic Representation,” American Political Science Review 89, no. 3 (1995): 543–565. 17 Devin Caughey and Christopher Warshaw, “Policy Preferences and Policy Change: Dynamic Responsiveness in the American States, 1936– 2014,” American Political Science Review 112, no. 2 (2018): 249–266. 18 Daniel M. Butler and David W. Nickerson, “Can Learning Constituency Opinion Affect How Legislators Vote? Results from a Field Experiment,” Quarterly Journal of Political Science 6 (2011): 55–83. 19 Benjamin I. Page and Robert Y. Shapiro, The Rational Public (Chicago: University of Chicago Press, 1992). 20 G. Bingham, Powell, Jr., “Political Representation in Comparative Politics,” Annual Review of Political Science 7 (2004): 273–296. 21 For instance, see Martin Gilens, Affluence & Influence: Economic Inequality and Political Power in America (Princeton, NJ and New York: Princeton University Press and Russell Sage Foundation, 2012), and Christopher Wlezien and Stuart N. Soroka, “Inequality in Policy Responsiveness,” in Peter K. Enns and Christopher Wlezien (eds.), Who Gets Represented? (New York: Russell Sage Foundation 2011), pp. 285–310.

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22 David E. Broockman and Christopher Skovron, “Bias in Perceptions of Public Opinion among Political Elites,” American Political Science Review 112, no. 3 (2018): 545–563. 23 Lawrence R. Jacobs and Robert Y. Shapiro, Politicians Don’t Pander: Political Manipulation and the Loss of Democratic Responsiveness (Chicago: University of Chicago Press, 2000). 24 James H. Kuklinski and Buddy Peyton, “Belief Systems and Political Decision-Making,” in Russell J. Dalton and Hans-Dieter Klingemann (eds.), The Oxford Handbook of Political Behavior (New York: Oxford University Press, 2006), pp. 45–64. 25 Scott Althaus, “Information Effects in Collective Preferences,” American Political Science Review 92, no. 3 (1998): 545–558; Larry Bartels, “Uninformed Votes: Information Effects in Presidential Elections,” American Journal of Political Science 40, no. 1 (1996): 194–230. 26 For instance, see Martin Gilens, “Political Ignorance and Collective Policy Preferences,” American Political Science Review 95 (2001): 379–396; John G. Bullock, “Elite Influence on Public Opinion in an Informed Electorate,” American Political Science Review 105 (2011): 496–515. 27 Eric D. Lawrence and John Sides, “The Consequences of Political Innumeracy,” Research and Politics 1 (2014); Daniel J. Hopkins, John Sides, and Jack Citrin, “The Muted Consequences of Correct Information about Immigration,” Journal of Politics 81, no. 1 (2019): 315–320. 28 Alexis Grigorieff, Christopher Roth, and Diego Ubfal, “Does Information Change Attitudes towards Immigrants?” Demography 57 (2020): 1117–1143. 29 Delli Carpini and Keeter, What Americans Know about Politics, ch. 6. 30 John Sides, “Stories or Science? Facts, Frames, and Policy Attitudes,” American Politics Research 44, no. 3 (2016): 387–414. 31 Jason Brennan, The Ethics of Voting (Princeton, NJ: Princeton University Press, 2011). 32 There are of course many cases in which a policy is in some citizens’ interest but creates externalities for others. But the point is that factual truths should inform citizens’ preferences and therefore political debates, not resolve those debates. 33 Suzanna Linn, Jonathan Nagler, and Marco A. Morales, “Economics, Elections, and Voting Behavior,” in Jan E. Leighley (ed.), The Oxford Handbook of American Elections and Political Behavior (New York: Oxford University Press, 2010), pp. 375–396. 34 That said, we should also not lose sight of the fact that many truths are not (or no longer) meaningfully contested. Our attention is naturally drawn to the truth-deniers, with their Sharpies, their unvaccinated children, and

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their frame-by-frame analyses of the Zapruder film. But democratic decisionmaking is grounded in a huge number of agreed-upon factual truths. 35 John L. Sullivan, James Piereson, and George E. Marcus, Political Tolerance and American Democracy (Chicago: University of Chicago Press, 1982). 36 Ipsos, “Americans’ Views on the Media,” 2018. www.ipsos.com7 37 Karen Fischer, “For a Dissatisfied Public, Colleges’ Internal Affairs Become Fair Game,” Chronicle of Higher Education, February 18, 2019. 38 Arthur Lupia, Uninformed: Why People Know So Little About Politics and What We Can Do About It (New York: Oxford University Press, 2016). 39 Katherine J. Cramer and Benjamin Toff, “The Face of Experience: Rethinking Political Knowledge and Civic Competence,” Perspectives on Politics 15, no. 3 (2017): 754–770. 40 Vesla Weaver, Gwen Prowse, and Spencer Piston, “Too Much Knowledge, Too Little Power: An Assessment of Political Knowledge in Highly Policed Communities,” Journal of Politics 81, no. 3 (2019): 1153–1166. 41 Jennifer L. Hochschild and Katherine Levine Einstein, Do Facts Matter? Information and Misinformation in American Politics (Norman: University of Oklahoma Press, 2015). 42 Adam J. Berinsky, “Assuming the Costs of War: Events, Elites, and American Public Support for Military Conflict,” Journal of Politics 69, no. 4 (2007): 975–997; Brian J. Gaines, James H. Kuklinski, Paul J. Quirk, Buddy Peyton, and Jay Verkuilen, “Same Facts, Different Interpretations: Partisan Motivation and Opinion on Iraq,” Journal of Politics 69, no. 4 (2007): 957–974. 43 Christopher Flavelle, Lisa Friedman, and Peter Baker, “Commerce Chief Threatened Firings at NOAA After Trump’s Dorian Tweets, Sources Say,” New York Times, September 10, 2019. 44 Christopher Flavelle, “NOAA Chief Violated Ethics Code in Furor over Trump Tweet, Agency Says,” New York Times, June 15, 2020; Andrew Freedman and Jason Samenow, “Investigation Rebukes Commerce Department for Siding with Trump over Forecasters during Hurricane Dorian,” Washington Post, July 9, 2020. 45 Cindy D. Kam and John Sides, “Symptoms Vary: Understanding Americans’ Differing Views on COVID-19, Ebola, and Zika.” Report for the Democracy Fund Voter Study Group, 2020. 46 Charles Courtemanche, Joseph Garuccio, Anh Le, Joshua Pinkston, and Aaron Yelowitz, “Strong Social Distancing Measures in the United States Reduced the COVID-19 Growth Rate,” Health Affairs 39, no. 7 (2020); Solomon Hsiang et al., “The Effect of Large-Scale Anti-Contagion Policies on the COVID-19 Pandemic,” Nature 584 (2020): 262–267. 47 Brit McCandless Farmer, “March 2020: Dr. Anthony Fauci Talks with Dr. Jon LaPook about COVID-19,” CBS News. www.cbsnews.com

3 PURSUIT OF TRUTH IS A STEEP AND THORNY, UPHILL BATTLE MICHAEL J. SAKS

Professor Lynch has made persuasive arguments for the value of truth in political discourse—most specifically, protection of the process of meaningful participation in that discourse: “[T]he defense of the value of truth consists in the defense of the social-epistemic practices that are the means to its pursuit.”1 I will offer reinforcement and several related thoughts. My reinforcement begins with an anecdote. Quoting Jason Stanley, Lynch emphasizes that direct denial of reality contributes to an atmosphere where, “‘claims in the public domain are . . . routinely treated as intentional distortions of facts to promote ideologies.’ More precisely, they erode public discourse by making it more difficult for public political claims to function as assertions.”2 Lynch adds that direct denial “therefore erode[s] public political discourse by setting up an expectation that such discourse never serves to convey knowledge or truth.”3 Illustrating his point, my neighbor, a lovely person, and a Trump supporter, when asked what she thinks of the President’s ceaseless, blatant lying, responded: “They all do that.” Is Un- Truth the Aberration? An unstated assumption in most discussions of “truth” seems to be that truth-telling is the normal way we engage with each other and that lying is an aberration. Of course, lies cover only a portion of the terrain over which people pursue or promote something other 49

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than truth. That is to say, the opposite of truth is not necessarily lie. One can fail to advance the search for truth in a variety of ways, and lying is only one of those ways. We can (and often do) withhold known truths; refrain from taking steps to pursue truth; pursue truth ineffectively (such as using research designs unlikely to find correct results);4 be utterly indifferent to whether one is contributing to the pursuit of truth or not (that being the definition philosopher Harry Frankfurt has given of “bullshit”);5 we can impede the pursuit of truth by others; we can muddy the water to create uncertainty (as, for example, have many tobacco executives, a strategy apparently adopted by climate-change deniers), and so on. But let’s leave truth, lies, and everything in between to the side for a moment, and just talk about “information.” We are cognitive beings. We give each other information. The principal concern many people have is with the utility of that information: What can it do for me? What effects can it produce? That, I suggest, is for most people most of the time the main concern of putting forward information. Not to seek and to spread truth for its own abstract sake. (Academics might be an exception to the rule.) We want mates, money, mouse clicks, jobs, higher grades, respect, influence, audience size, to sell things, to appear correct, to be agreed with (so we seek and offer comforting assertions), and countless other goals. Police use both true and false information to try to elicit confessions from suspects; suspects use both true and false information to try to deflect suspicion. We try to convince people concerning religion, vaccines, politics, sports, the value of a product or service. Sometimes we want to helpfully explain the world or share admonitions—and urban legends abound to help serve those purposes.6 All of these persuasive efforts usually involve less than the whole truth: We include, we omit, we spin. Information is the major way that we influence the beliefs and the behavior of others. Sometimes truths advance the pursuit of those goals, sometimes non-truths do the job. Humans manipulate information all the time to try to achieve the effects we desire. Deception—not necessarily lying—is not abnormal. All humans engage in it some or much or most of the time. Humans are not alone in this. Many animals provide misinformation to each other to gain advantages. Blue jays imitate the calls of hawks to scare off others competing for food. The Eastern gray squirrels dig decoy

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holes—empty holes covered over to look like a cache of nuts—so that other squirrels will have a harder time figuring out where their acorns really are stashed. A male cuttlefish can assume the appearance of a female in order to evade competition with another male, and then quickly resume his maleness to mate with a female. Note that in each of these examples, the animal is deceiving a conspecific, much as humans do. Countless human examples of refraining from pursuing or sharing true information, in one way or another, could be offered. Here are a few: • The developer of a 58-story building knows that buyers prefer, and will pay more for, higher floors—so he fakenumbers the floors: floor 58 magically becomes floor 68.7 • For many years, the American Medical Association refrained from putting its voice behind what was known about the connection between smoking and lung cancer so that the trade association could stay on the good side of tobacco-state senators, whose votes the doctors needed to oppose Medicare.8 • Behavioral economist Dan Ariely has conducted many studies of dishonesty.9 In one series of experiments he had students solve math problems, grade their own tests, and claim cash payments based on the number of problems they got correct. In one variation, some students had to turn in their exams to the professor, while others were allowed to report their own achievements and place their answer sheets in a shredder. But the shredder was rigged so that the identity of the student and the actual answers only appeared to be destroyed. You can guess which group of students inflated their scores to claim higher payments. More important for present purposes is what Ariely reports about the overall level of deception: “Across all of our experiments, we’ve tested maybe 30,000 people, and we had a dozen or so bad apples and they stole about $150 from us. And we had about 18,000 little rotten apples, each of them just stole a couple of dollars, but together it was $36,000. [That’s] actually a good reflection of what happens in society.”

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Michael J. Saks • Social psychologists Carol Tavris and Elliot Aronson wrote a book titled, Mistakes Were Made (but not by me).10 In it they collected examples and sought to describe and explain the phenomenon whereby people seek to evade responsibility when things turn out badly. A recent illustration in the news is the crisis and scandal of finding lead in the water of Newark, New Jersey. According to the New York Times: “[A]s the crisis has grown in recent weeks, officials have turned on one another, in an apparent effort to shift blame.”11 • Consider what the mere existence of rules of ethics, laws, the Ten Commandments, and so on, suggests about human behavior. Those codes are created as a counterweight to what the group’s members have a tendency to do, and which the group’s leaders would prefer they do less. Thus, if you turn the “shalt nots” around you will know what the people who are the audience for the code characteristically do, or at least do more often than the group finds acceptable. For example, psychiatrists are warned not to have sex with patients. Lawyers are cautioned not to misappropriate money from client trust accounts. And, most relevant to the present discussion: Forensic scientists are admonished not to offer courts the results of unvalidated testing. Physicians are advised to “be honest in all professional interactions.” • Asked by a BBC reporter whether it was not reprehensible to be flooding American social media with fake news, especially during the 2016 presidential election, provoking anger and then mobilizing those aggrieved voters, one of the infamous Macedonian disinformation artists replied, “You are asking that question a thousand years too late.”12

Why, then, if truth and honesty are not the norm, should we be making a fetish of them? Lynch makes a convincing case that for purposes of living in and conducting political life in a democracy, truth has an essential value: “[I]t is in a democracy’s interest . . . to protect and fairly distribute the means by which citizens can pursue the truth.”13 That is so because citizens “need to know what their government is already doing to address the problems at hand and

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how its current policies affect their interests.” In a democracy we are engaged in “a joint effort to understand the world and solve problems jointly.” Let me offer a homely illustration. Imagine a group of old and new friends on a camping trip together in an unfamiliar woodland. In various ways each tries to look enviable in the eyes of others or to sell or acquire something from another. They pursue those goals by subtly boasting, telling self-serving stories, exaggerating (let us suppose) in socially appropriate ways about their backgrounds, achievements, experiences; trying to promote a favorite candidate; trying to sell a used car or persuade a potential investor; whatever. In other words, behaving as people often do. But, when it is time to head for home, they all soon realize they are lost in the woods. And that the food supply is running low. They need to solve the problem of finding the way out. They have different ideas about how to find the correct route. They disagree. But it is in everyone’s interest to collectively find a safe return route. Because of the problem they all face, they need to be candid, constructively critical, honest, truthful—for the best interests of them all. They must engage in “a joint effort to understand the world and solve problems jointly.” They need to work together, not against each other, to save themselves from the risky situation they’re in. The same is true for the rest of us in the larger society dealing with far larger and risker problems. Persuasion by Less than Factual, Rational Means Writing elsewhere than in his present essay, Professor Lynch discussed the post-truth attitude. He noted that, “Only a few days after the 2016 presidential election, the Oxford English Dictionary crowned its international word of the year: post-truth. The dictionary defined it as ‘relating to or denoting circumstances in which objective facts are less influential in shaping public opinion than appeals to emotion and personal belief.’”14 The editors of the OED seemed to think that a new phenomenon had emerged, whereby people had become less interested in facts than they were in how they felt about something. The implication is that at one time we were largely rational and interested in true facts above all else, but something has changed. Has

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it? Our technology has enhanced and expanded our ability to use various manipulations on each other,15 but have we humans changed? Reviewing a book by Trish Hall, a former editor of the New York Times op-ed page, Patricia O’Connor notes: The most sobering truth in this book is that truth is not persuasive, because beliefs are impervious to facts. “It’s not realistic to think that if only people knew the truth, they would do the right thing,” Hall says. And no, this state of affairs did not arrive with the present administration. Hall, a former editor of The Times’s OpEd page, convincingly demonstrates that beliefs always outweigh facts, whether the believers are educated or uneducated, liberal or conservative “or something else altogether.” That’s the human condition.16

Learning the facts of vaccines, of the need for herd immunity, of the real but tiny risks of harmful reactions, is itself unlikely to reverse the opinions of anti-vaxxers. Jonathan Haidt has argued that “moral reasoning is usually a post hoc construction, generated after a judgment has been reached. [The social intuitionist model being argued for] is a social model in that it deemphasizes the private reasoning done by individuals and emphasizes instead the importance of social and cultural influences. The model is an intuitionist model in that it states that moral judgment is generally the result of quick, automatic evaluations (intuitions).”17 Haidt is alluding to two different modes of thinking that all of us engage in. As described by Daniel Kahneman, one of those systems involves fast, effortless, intuitive responses to information. The other system is slow, effortful, and requires contemplation.18 Table 3.1 lists more of the features that differentiate these two different cognitive systems. System 1 is our immediate reaction to information presented to us. If our needs or circumstances require and permit, we will subsequently engage the issue further using System 2, perhaps reconsidering our initial responses—but as or more likely we will work out justifications for the initial “gut” reaction.19

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Table 3.1. Characteristics of the Two Systems of Reasoning System 1

System 2

Nonconscious

Conscious

Implicit

Explicit

Intuitive

Reflective

Emotional

Rational

Heuristic

Reasoned

Peripheral

Central

Fast

Slow

Automatic

Controlled

Effortless

Effortful

Does Not Require Working Memory/ Attention

Does Require Working Memory/ Attention

“Old Mind”

“New Mind”

Evolved Early

Evolved Late

Similar to Animal Cognition

Distinctively Human

Think about how political and policy issues are responded to, especially when they arise in an interacting social group, or are presented via conventional media or social media, perhaps through brief online exchanges. Before there is given more than cursory consideration to a matter, the next comment or tweet or email has grabbed our attention and calls forth another System 1 reaction. The Internet age seems remarkably well designed to arouse System 1 thinking, and to prevent System 2 thinking from taking place. Other psychological concepts and research findings take into account related features of how our minds help and hinder the search for factual truth. For example, when other people say something, we typically believe what they tell us, especially if they are similar to ourselves, such as by being members of our own tribes. Assertion by others usually is sufficient proof of the validity of the matter (termed “social proof”). In a happy, if not virtuous, cycle, we tend to like people whose beliefs and opinions agree with our own, and we are more readily persuaded by people whom we like. People are motivated to seek accuracy and truth, but we often are satisfied we have found the truth when we hear what pleases us. We

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also tend unconsciously to process information in a way that leads us to evaluate evidence and reach conclusions that are consistent with our preexisting preferences or goals (“motivated reasoning” and “confirmation bias”).20 Research on the psychology of persuasion has found many phenomena whereby persuasive communications can be made more persuasive using means other than the substance of the information. Those extra-content means include features of the source, the medium of communication, emotional appeals, association with conditioned responses (e.g., symbols),21 repetition, group identification, and much more.22 Some of these devices were recognized as long ago as Aristotle’s Rhetoric. Robert Cialdini zeroed in on what he concluded were the six most potent “weapons of influence” that humans use to change each other’s minds and behavior.23 These are: • Reciprocity—we more readily comply with the requests of someone who has first done something for us. • Commitment and consistency—we tend to change our beliefs and behavior in a direction consistent with an existing recent commitment (which we can be lured into making). • Social proof—as noted above, we tend to accept as true what other people tell us, and we are inclined to follow a course of action we see others taking. • Authority—we even more readily accept as true the assertions of persons we perceive as having authority in the subject matter. • Scarcity—we place higher value on information and activities, as well as objects, that we perceive as scarce or declining in availability. • Liking—as mentioned earlier, we are more inclined to comply with the wishes of people we know and like than of strangers or people we dislike. All of these “weapons” involve harnessing feelings and intuitions rather than rational persuasion based on factual information. David Hume, the Scottish Enlightenment philosopher, beat all modern researchers to it when he argued, in the eighteenth century, that

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“Reason is, and ought only to be, the slave of the passions, and can never pretend to any other office than to serve and obey them.”24 The challenge for us today, and always, is how to maximize the role of evidence and truth when so much else is driving beliefs, choices, and policy preferences. Truth—or, more correctly, the pursuit of truth—is always fighting a difficult uphill battle. Helping the Pursuit of Truth in Its Uphill Battle Michael Lynch focuses on the need for reliable social-epistemic practices. These “are practices that (a) aim at producing true belief; (b) are, overall and in the long run, more reliable than not in accomplishing that aim; and (c) are distinctively social in that they involve public interactions between agents.” He suggests that those are the “kinds of practices we aspire to employ, for example, in scientific, historical, educational, journalistic and legal institutions.”25 In efforts to give us the means to find more dependable truths with which to inform our endeavors to solve society’s problems, various human institutions have been developed to create the kinds of processes that Lynch has alluded to. Science, for example, has created a whole array of methods designed to maximize the contribution of reality and minimize the contribution of bias, preconceptions, and preferences in learning about the world and what makes it tick. And the effort to improve those methods is ongoing because the methods are not perfect.26 To demonstrate further what Lynch is talking about, I would like to illuminate in greater detail one of those institutions: the courtroom trial. Anglo-American trial procedures are designed to enable fact finders to reach evidence-based conclusions in circumstances that are inherently conflicted and contested. The fact finder—judge or jury—wants to discover accurate facts leading to a correct and just verdict. The lawyers who are presenting the evidence and making arguments for the conclusions they wish fact finders to draw from that evidence are motivated to win, not to assist the fact finder in finding truth. But the institution has evolved to deal effectively with those inhospitable realities.27 Consider the rules of evidence and procedure that govern the conduct of trials. They limit the misleading kinds of persuasion lawyers might engage in, thereby preventing counsel from

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bamboozling the fact finders. Unlike the “weapons of influence” described earlier, which are deployed in many social interactions outside of the courtroom, the procedural rules of trials prevent lawyers from using the most effective of the weapons. Reciprocity, commitment, and scarcity; or imbalanced social proof, authority, and liking, are either banished or greatly weakened as tools that litigators can employ.28 The tools of persuasion available for use in trials are focused on presentation of information, exposure of weaknesses in that evidence, and competing arguments about the most sensible inferences that might be drawn from the evidence. The result is a process that forces advocates to rely most heavily on factual information and gives jurors mainly facts with which to reach their decisions. It maximizes the role of relevant evidence in pursuit of the right answers and minimizes the space for extraevidentiary influences. The institutional design of trials differs considerably from other fact- finding settings. 29 In other fact- finding settings, decision-makers often have strong preferences or prior commitments, and even when they do not, they are usually subjected to pressures applied by interested parties who have their eyes on the outcomes they desire, and who sometimes (or often) provide unsound facts, non-facts, and twisted interpretations of the facts. In courtroom trials, jurors and judges are selected for their disinterest as to which party should prevail. Prospective jurors are subject to being excluded for bias or interest, and judges are expected to recuse themselves from cases in which they might be deemed biased toward one side or the other. It is worth noting that, aside from voting, service on juries is the only other formal activity in our democratic society in which citizens are asked to play a direct part. Other procedural and evidentiary rules designed to help assure that sound facts are presented, or at least that whatever facts are presented are subjected to scrutiny, include oaths, penalties for perjury, cross-examination, lawyers’ arguments—all in aid of the good sense of jurors, allowing them to benefit from the testimony of interested parties while intelligently discounting exaggerations and falsehoods. The inherent structure of the adversary system ensures that counterarguments will be provided for every important claim made by opposing advocates or their witnesses. Ideally,

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the judge and the jury hear controverted accounts, consider the competing factual claims and interpretations urged upon them, and then do their best to reach the verdict that best fits the facts they deem most likely to be correct. None of us has a magic pipeline to the truth. The best we can do is to infer from evidence. The rules of procedure and evidence try to create a situation that facilitates the presentation of relevant evidence, tries to ensure that the adversarial battle is a fair fight, and gives the fact finders their best chance to figure out what the true facts of the dispute are. Despite their imperfections, compared to many other settings for fact-based resolution of contested issues, trials are among the most rational of society’s institutions for making those decisions. Conclusion I am not holding trials, or the scientific method, out to you as the model for the effective pursuit of truth-seeking in the political or policy world. I am suggesting a broader point: that people have been able to develop methods and institutions adapted to pursuing truth in a variety of different kinds of situations and subject matters, “for example, in scientific, historical, educational journalistic and legal institutions.”30 In the past we might have thought that unfettered communication in and surrounding the political process was sufficient for the facts to be sorted out and the truth found. Today that seems a less successful strategy, perhaps because of the technological innovations of the Internet (e.g., social media), or changes in legal rules (e.g., concerning campaign contributions), or the advent of cable news commentary and talk radio, or the well-fed polarization of political tribalism, or all of those working together. Moreover, we can expect the not-distant future to present significantly greater challenges than the world we currently occupy. We know that the stories that go viral are more likely to be falsehoods and exaggerations, and we should expect future falsehoods and exaggerations to be even more compelling, and more viral, than the ones that have fooled so many of us already. Deepfakes threaten to exploit the most fundamental basis all of us rely on to evaluate what is true and what is not: our own eyes and ears.

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Human ingenuity needs to turn its attention to innovating and disseminating new and effective “social-epistemic practices that are the means to [truth’s] pursuit.” Those innovations might be technological, institutional, social, psychological, or most likely an amalgam of those. But whatever they are, the search for such innovations is urgent. Because, without them, the future belongs to whoever has the best disinformation artists. Notes 1 Michael P. Lynch, “Truth as a Democratic Value,” this volume. 2 Ibid., citing Stanley. 3 Lynch, “Truth as a Democratic Value.” 4 For example, consider research on the effects of estrogen replacement therapy. Less rigorous research designs (observational) led to the belief that hormone replacement was beneficial. Better research design (experimental) later revealed that such treatment was dangerous, but not before decades of misguided estrogen replacement had caused tens of thousands of unnecessary breast cancers, heart attacks, and strokes in women. Jerry Avorn, Powerful Medicines: The Benefits, Risks, and Costs of Prescription Drugs (New York: Knopf, 2004), p. 23–38. 5 Harry G. Frankfurt, “On Bullshit,” in The Importance of What We Care About (New York: Cambridge University Press, 1988), p. 117. 6 E.g., Jan H. Brunvand, Encyclopedia of Urban Legends (Santa Barbara, CA: ABC-CLIO, 2012). 7 David Cay Johnston, The Making of Donald Trump (Brooklyn, NY: Melville House, 2016). 8 Paul Starr, The Social Transformation of American Medicine: The Rise of a Sovereign Profession and the Making of a Vast Industry (New York: Basic Books, 1983). 9 Dan Ariely, The (Honest) Truth About Dishonesty (New York: HarperCollins, 2012). 10 Carol Tavris and Elliot Aronson, Mistakes Were Made (but not by me) (New York: Harcourt, 2007). 11 Nick Corasaniti, Corey Kilgannon, and John Schwartz, “Tainted Water, Ignored Warnings and a Boss with a Criminal Record,” New York Times (August 24, 2019). 12 Doctor Fake News, at www.bbc.co.uk 13 Lynch, “Truth as a Democratic Value.” 14 Michael P. Lynch, “Fake News and the Internet Shell Game,” New York Times (November 28, 2016).

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15 Braden R. Allenby, “Information Technology and the Fall of the American Republic,” Jurimetrics 59 (Summer 2019): 409. 16 Patricia T. O’Connor, “A Defense of the Semicolon and Other Adventures in the English Language,” New York Times Book Review (August 3, 2019). At www.nytimes.com 17 Jonathan Haidt, “The Emotional Dog and Its Rational Tail: A Social Intuitionist Approach to Moral Judgment,” Psychological Review 108 (October 2001): 814. 18 Daniel Kahneman, Thinking, Fast and Slow (New York: Farrar, Straus and Giroux, 2011). 19 Donald Trump famously claims to rely heavily, if not exclusively, on System 1 thinking, referring to it as his “gut.” 20 Discussed in Michael J. Saks and Barbara A. Spellman, The Psychological Foundations of Evidence Law (New York: NYU Press, 2016). 21 For example, in a debate in 2016 over Brexit versus Remain, the Remainer’s presentation was described thus: “[A] spindly, socially diffident, unsmiling figure, spoke next. He was emphatic, evocative. He talked about pride, independence, nationhood, sovereignty, dignity, making our own laws and decisions.” Jenni Russell, “The ‘Political Anarchist’ Behind Britain’s Chaos,” New York Times (September 7, 2019). At www.nytimes. com 22 See, e.g., Gregory R. Maio and Geoffrey Haddock, The Psychology of Attitudes and Attitude Change, second edition (Thousand Oaks, CA: Sage, 2015). 23 Robert Cialdini, Influence: The Psychology of Persuasion (New York: William Morrow & Co., 2006). 24 David Hume, A Treatise of Human Nature (1739–40), Book 2, Part 3, Section 2. 25 Lynch, “Truth as a Democratic Value.” 26 An overview can be found at “Replication Crisis,” https:// en.wikipedia.org 27 T. P. Gallanis, “The Rise of Modern Evidence Law,” Iowa Law Review 84 (March 1999): 499; Stephan Landsman, “The Rise of the Contentious Spirit: Adversary Procedure in Eighteenth Century England,” Cornell Law Review 75 (March 1990): 497; John H. Langbein, “Historical Foundations of the Law of Evidence: A View from the Ryder Sources,” Columbia Law Review 96 (June 1996): 1168. 28 Saks and Spellman, The Psychological Foundations of Evidence Law. 29 Valerie Hans and Michael J. Saks, “Educating Judges and Juries to Evaluate Scientific Evidence in the Courtroom,” in Diamond and Lempert (eds.), Daedalus 147 (Fall 2018): 164. 30 Lynch, “Truth as a Democratic Value.”

PART II

EVIDENCE AND TESTIMONIAL BELIEF WHAT DOES IT MEAN TO #BELIEVEWOMEN?

4 #BELIEVEWOMEN AND THE PRESUMPTION OF INNOCENCE CLARIFYING THE QUESTIONS FOR LAW AND LIFE KIMBERLY KESSLER FERZAN

In September 2018, Christine Blasey Ford accused Supreme Court nominee, Brett Kavanaugh, of sexually assaulting her when the two were teenagers. During the confirmation hearing, Donald Trump tweeted that if the facts were as Ford alleged, she would have reported the incident. In response, #WhyIDidn’tReport went viral, with sexual assault victims coming forward on Twitter with their explanations for why they did not reveal a prior sexual assault or for how, when they did, such claims were not taken seriously. As such stories flooded social media, something else happened. In response to these tweets, men and women responded, “I believe you.” It is difficult to overstate the power of these three simple words. Victims of sexual violence were often speaking out for the first time, naming perpetrators that included friends, family, boyfriends, and strangers; and articulating the fear they had—of retaliation, of reliving and acknowledging what had happened to them, of a degrading criminal process, and perhaps worst of all, of not being believed. And someone else in cyberspace reached out and just believed them. And though undoubtedly some of those who responded were friends of the victim, Twitter also contains many people who follow thousands of people and are reciprocally 65

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followed by thousands, so many of these responders may simply have been believing a complete stranger. If #BelieveWomen was the battle cry for Ford’s supporters, then the presumption of innocence was the banner for Kavanaugh’s. Here is but a sampling: “Kavanaugh: Well-Deserved Victory for the Presumption of Innocence,”1 “Losing the Presumption of Innocence,”2 and “Kavanaugh Is Innocent Until Proven Guilty—Not the Other Way Around.”3 Ojel Rodriguez argued that, “The testimony by Ford was heart-throbbing, sincere, painful, and deeply compelling. . . . Nevertheless . . . [t]o any rational person, the standard of ‘proven without any reasonable doubt’ was not met.”4 Susan Collins explained her Senate vote, noting, But certain fundamental legal principles—about due process, the presumption of innocence, and fairness—do bear on my thinking, and I cannot abandon them. In evaluating any given claim of misconduct, we will be ill served in the long run if we abandon the presumption of innocence, tempting though it may be. We must always remember that is when passions are most inflamed and fairness is most in jeopardy.5

The presumption of innocence and #BelieveWomen both embody compelling considerations, and we may wonder how to reconcile them. The Kavanaugh hearing presented the peculiar problem that no one knew who had to prove what and by what standard. On the one hand, the standard we should apply to a job applicant for the highest court in the land is hardly likely to be the same standard we apply to whether we should deem him a criminal and incarcerate him. On the other hand, even if the barest allegation might be sufficient to derail a candidate behind closed doors, certainly something more credible should be required once someone has been nominated by the president. But there is a wide range of positions between these two poles. In this chapter, I do not aim to reconcile these positions. My project is prior to it. My goal here is to better explicate the claims that underlie both #BelieveWomen and the presumption of innocence in law and life, as well as to identify instances in which crosspollination, between our everyday evaluations and the legal system,

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is contaminating our thinking. First, I begin with #BelieveWomen and sort through various ways to interpret this demand (though my survey is not exhaustive). I spend additional time on one particular interpretation, an understanding that ties a cry for trust to a nonreductionist position with respect to the justification for believing testimony—that is, the idea that we have reason to believe someone, and are justified in so doing, just on the individual’s say-so. Although it is not my contention that this view is superior to other understandings, I believe it has received less attention in the literature and thus warrants additional examination. Next, given how many potential understandings of #BelieveWomen exist, I briefly gesture at how complicated the interaction of different understandings will be in life. I then turn to law. Here, I show how the various interpretations of #BelieveWomen raise distinct legal questions, but also note that flat-footed understandings of this demand have created confusions. I suggest the law may meet the demands of #BelieveWomen through a corrective of the kind proposed by Miranda Fricker, evidentiary instructions, and (potentially by) alterations of the burden of proof, but that full belief may be too much to ask in this context. That is, law may be unable to accommodate a demand that we believe women, though it may be able to treat them respectfully as epistemic agents. In making this claim, I reject that increasing one’s credences in light of testimony “counts” as believing someone. Second, I look at the presumption of innocence, noting that under the Supreme Court’s jurisprudence, it amounts to no more than the requirement that the prosecution must prove its case beyond a reasonable doubt. Additionally, following Larry Laudan, I endorse the view that the presumption in law is simply the claim that a juror has no evidence. But that is not what we want in life. The questions we want to ask in life are (1) what do we owe each other, and (2) when there are contested factual situations, what is the default position? The presumption of innocence rhetoric assumes the answers to these questions. Reconciling these claims will be difficult. And because the claims—#BelieveWomen and the presumption of innocence— encompass more than one demand or conception, we must be more precise as we try to analyze them. We will only find truth (or

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knowingly sacrifice it) when we are careful to attend to precisely the questions we are asking. #BelieveWomen in Life and Law This section has several goals. First, I aim to unpack the various understandings of #BelieveWomen. Here, I devote significant attention to an understanding that weds a call to trust to a nonreductionist approach to testimony. The idea is that we owe women trust, and this trust generates the bridge that renders it epistemically permissible to believe them. Second, I show how complicated it may be to meet #BelieveWomen’s demands in ordinary life, depending upon which understandings are in play. Finally, I turn to law and ask whether law can meet the demand that we believe women, demonstrate how commentators are currently embedding epistemic confusions in this debate, and consider where the pressure points are in law such that we can alter the long-standing systemic distrust of women’s testimony in sexual assault cases. #BelieveWomen and the Call to Be Believed The first question is, what does #BelieveWomen require? What is the nature of the demand?6 When Ford came forward with her allegation, what did #BelieveWomen direct the hearer to do? To be sure, the obvious answer is believe women. But one might question whether that is more easily said than done. It is dubious that you can just will yourself to believe, and it seems that absent the right evidence, you’d be epistemically irrational to do so. My aim in this section is not precision with respect to one type of descriptive content, nor is it to pin down one (or more) expressive functions for the slogan.7 My goal here is to be more ecumenical and to put on the table several distinct understandings. I want to capture what those who employ “BelieveWomen” in their tweets and on their signs may intend to express. And I also want us to grasp why we find the “I believe yous” in Twitter replies to be so valuable. My goal is not to select among these understandings.

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Non-Epistemic Accounts Maybe #BelieveWomen is not about epistemology at all. #BelieveWomen may be political rhetoric that stands for a call to arms and a call to action that is not truly about what you believe. Perhaps some hearers typed “I believe you” on an accuser’s Twitter feed to stand in solidarity, not because they had actually taken the belief on board. Beyond solidarity, #BelieveWomen may be about the good consequences that result from acting as if you believe women. We might think that if we treat all women as credible, this will encourage rape reporting, and more perpetrators of sexual violence will be brought to justice.8 The goal of more justice overall means potentially sacrificing truth in any individual case. As Bari Weiss reports, “[S]o many women are sharing [this view] with one another in private. Countless innocent women have been robbed of justice, friends of mine insist, so why are we agonizing about the possibility of a few good men going down?”9 Clearly, one would need to calculate the false positives against the false negatives (not to mention determine whether any deontological constraints are in play), but this would be a distinct non-epistemic argument, one that has a significant role to play in calculating burdens of proof.10 Epistemic Accounts I Alternatively, we might take the goal of #BelieveWomen to be epistemic—the aim is truly that women be believed. There are different epistemic accounts. We can understand #BelieveWomen as an epistemic overcorrection. Because women have been systematically disbelieved, we should believe them all, and then perhaps we will ultimately settle on the right amount of belief. Still, this directive sounds a bit odd—“Believe things that may be false so they can counteract the other false beliefs you have and eventually you will believe things that are true.” Perhaps a more charitable way to view the demand is as an attempt to create a positive generic. Generics are often thought to be pernicious. Many theorists argue against them because they essentialize their subjects, and generics often don’t reflect anything like true probabilities.11 That is, often the problem with generics is that a few cases lead to the essentializing of the entire group.12 This hashtag would be an effort at positive essentialization (though

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the creation of a positive generics requires far more empirical support than negative generics do).13 Nevertheless, Jennifer Saul has argued that generics might be deployed for positive impacts.14 To be sure, this way of shifting the generic may not be the most effective, but the idea is to shift the mind-set to “women are believable.” This interpretation of #BelieveWomen takes as its aim to reset the public’s typical associations of women with false claims of sexual violence.15 Another view would be that #BelieveWomen is best understood through the prism of standpoint epistemology.16 This might cover two different sorts of ideas. One is that women are experts in the range of misogynistic behaviors.17 A second idea would be that women claim particular expertise in whether any individual case is an assault. This conception is not that women are men’s epistemic equals, but that women know better than men. But something still seems amiss. As we reflect on Ford’s situation, she didn’t want you to act “as if” you believed her, to type her notes on Twitter in solidarity, or to think of her case as a “corrective.” She wanted you to really and truly believe her. Whatever might bring about valuable consequences, there is a different value to being believed. Moreover, although #BelieveWomen might be an assertion of expertise, for some victims of sexual violence, the desire is not to assert that one is an expert, but simply to be taken on one’s own terms. Ford was vulnerable and exposed; she had put her story forward; and she wanted you to believe her. How might we understand the import of #BelieveWomen as an epistemic directive? First, #BelieveWomen may be thought to stand for the proposition that women rarely falsely report sexual assault. This directive is as simple as attending to baseline probabilities. Moreover, not only is such a directive useful in the individual case, but it may be that a rule—believe women—is also justified. Fred Schauer argues that just as rule-consequentialism may yield more right action overall than act-consequentialism, evidentiary rules create more truth overall.18 Thus, we might think that following a rule of “believe women” will yield more correct epistemic judgments about when to believe women than assessments of individual cases. This understanding is both empirical and epistemic. It is empirical in that its justification relies on whether it is in fact true that women rarely falsely report (such that if it turned out that our

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numbers were wrong, we ought to #DisbelieveWomen).19 It is epistemic in that it is aimed at epistemic goals—that is, getting to the truth, as opposed to serving some other value. An alternative epistemic interpretation is that #BelieveWomen may be thought to be a corrective. As Miranda Fricker notes, women have suffered epistemic injustice. “Testimonial injustice occurs when prejudice causes a hearer to give a deflated level of credibility to a speaker’s word.”20 This can be an attack on either competence or sincerity grounds.21 Fricker argues: When the hearer suspects prejudice in her credibility judgement— whether through sensing cognitive dissonance between her perception, beliefs, and emotional responses, or whether through self-conscious reflection—she should shift intellectual gear out of spontaneous, unreflective mode and into active critical reflection in order to identify how far the suspected prejudice has influence her judgement. . . . If she finds the low credibility judgement she has made of a speaker is due in part to prejudice, then she can correct this by revising the credibility upwards to compensate. There can be no algorithm for her to use in determining how much it should be revised upwards, but there is a clear guiding ideal. The guiding ideal is to neutralize any negative impact.22

A Frickerian approach then grounds #BelieveWomen in injustice, but also offers an epistemic corrective. Fricker, too, wants to get to the truth of the matter, and her claim is that we need to re-evaluate our approach to speakers in order to achieve that. Epistemic Accounts II: Trust, Testimony, and Non-Reductionism The Frickerian corrective is responsive to a systematic discounting of women’s testimony. One response to this discounting is stop discounting. Fricker’s view, like positions within standpoint epistemology and claims that we should shift burdens of proof, has received significant attention. I’d like to draw a different connection here.

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Although I do not argue that this is the best way to understand #BelieveWomen, I do contend that this perspective resonates with the directive and is far less explored in the literature. We should thus spend some time unpacking this approach— the interpretation of #BelieveWomen as a call to trust and as a call to nonreductionism. That is, not only do we owe it to women to start with a baseline of trust, but this trust will justify our believing them. As a minimum stance, we owe each other “basic epistemic respect,” which Michael Lynch defines as “to treat them in some or all of the following ways: as a possible knower, as someone who can engage in the give and take of the game of giving and asking for reasons, and as someone who has the potential to make up their own minds.”23 We owe everyone this baseline of respect. Do we owe more?24 Alongside the “Believe Women” signs are the “Trust Women” signs. This may be a signal for the standpoint epistemology discussed earlier, or it could be a view that we should trust them after decades of distrust. As Karen Jones explicates the concept, “to trust someone is to have an attitude of optimism about her goodwill and to have the confident expectation that, when the need arises, the one trusted will be directly and favorably moved by the thought that you are counting on her.”25 Katherine Hawley, in her recent study on trustworthiness, links trustworthiness in conduct to trusting someone’s word, maintaining that asserting something is a promise to speak truthfully.26 #BelieveWomen, like its sister concept, #TrustWomen, is about taking women to be truthful and knowledgeable epistemic agents, upon whose word one can rely. Like belief, trust cannot be willed.27 Jones takes reasonable trust to be a permissive norm, where it is not irrational to distrust someone, and notes the difficulties in signaling that one is trustworthy.28 Notably, the demand of respect or trust is not just about what we may owe them, but it also generates an epistemic permission to form a belief. This is important because the desire to be respected or trusted is not sufficient to grant an epistemic permission to believe that testimony,29 but this linkage can be created—the cry for trust or respect can be conjoined with a non-reductionist approach to testimony.30 Before proceeding, let me spend a moment locating this argument within the general discussion. I have been working through

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various understandings of #BelieveWomen, some of which are about believing this woman and some of which are not. The understanding current under examination is under-theorized in the literature, and thus, I am devoting more attention to it. This is a view that conjoins a normative call—that we owe women trust, to an epistemic permission—that we are entitled to believe people based on their say-so. Lawyers might be surprised to find that one way that philosophers take people to gain beliefs (and knowledge) is through the philosophical notion of “testimony.” To lawyers, testimony involves a witness stand, an oath, and a penalty for perjury. To the philosopher, the idea is that someone tells you stuff, and then, through some process (subject to debate), you believe it. When you ask your mom what she did last night, and she tells you she went to the movies, ta-da, you now believe your mom went to the movies. In life, beliefs based on testimony seem to come quite readily. Reliance on testimony is unavoidable. Without testimony, we would have to give up on science and history, as we would lack empirical access to the claims inherent in these fields.31 Testimony is a central way in which we learn about, and thereby navigate, our world. Now, let’s take a cursory glance at what the “some process (subject to debate)” is that gets us from what the speaker said to what you, the hearer, come to believe. The question is partly whether you have good reason—are justified—in believing something. Your belief that you are holding an apple comes from your perception. You need no further reason to believe it beyond touch and sight. No one would fault you for believing something because you saw it! But what about when people tell you things? Non-reductionists argue that “so long as there are not any relevant defeaters, hearers can justifiedly accept the assertion of speakers merely on the basis of a speaker’s testimony.”32 The justification for believing testimony is then on a par with the justification for believing one’s senses, as “the fact that my belief is based on how my perceptual system represents the world to me imbues it with a kind of justification that, at least under normal circumstances, requires no additional argument or independent corroboration from other sources.”33 Notably, a non-reductionist does not take testimony to be infallible. To be sure, it may be defeated, just as the discovery that you had been

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given a hallucinogen would defeat your belief that there really was an apple in your hand. But the idea is that you don’t need anything beyond someone’s testimony for you to be justified in your believing what he says.34 So, you can believe there is an apple on the table either because you saw it or because I told you. In contrast, for reductionists, “the justification of testimony is reduced to the justification we have for sense perception, memory, and inductive inference.”35 The reductionist wants more for justified belief than simply someone’s say-so. She will look to the speaker’s credibility, demeanor, and the general circumstances.36 Both sides of this debate face formidable objections.37 I certainly cannot do justice to this debate here; indeed, Axel Gelfert notes that “developing a theory of testimonial justification is often seen as an especially vexed task.”38 What I can do, however, is to show #BelieveWomen can be understood through a prism that uses the respect that is owed as both a moral claim about what we owe women and an epistemic claim that, given what we owe them, we are also justified in believing them. Only to non-reductionists is believing women about believing speakers. As C.A.J. Coady notes, “When we believe testimony, we believe what is said because we trust the witness.”39 Richard Moran argues that the reductionist (or what he calls Evidentialist) view misses something important. Even if hearers can take assertions to be evidence, that is not what speakers see themselves as doing. Speakers are intentionally conferring a reason for the hearer to believe something; they are offering an assurance. Moran juxtaposes this with a photographer who offers a photograph.40 Both photographer and viewer take the photograph to be offering evidence of some fact. But speakers don’t see themselves as photographs. They see themselves as intentionally conveying information such that it is their utterances as assurances that are providing reasons. In either case, the photographer and speaker may be giving reasons to “believe that” but only the speaker is also saying “believe me.” “The ‘directive’ aspect of telling, attesting to a specific proposition, is thus related to the speaker’s presentation of herself as accountable for the hearer’s believing what she says.”41 In other words, speakers are sticking their necks out, as they are asking you to believe them. And, because of this, the speaker is subject to criticism if she is wrong.42

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In addition, because the speaker has stuck her neck out, there is some attendant embarrassment if one opts not to believe her. As Jonathan Adler notes, if a stranger gave you directions and then you asked another person for directions, you would be embarrassed if the first stranger saw you do this. You’d feel sheepish about not taking his word. It is a sign of distrust. This example seems to demonstrate a “believe unless defeated” stance to testimony as opposed to a “examine fully before you believe” approach.43 The non-reductionist view is tied to two ideas, one conceptual and the other normative. The conceptual idea is that we need to understand testimony as an interpersonal exercise; it is fundamentally different from perception. The normative idea is that we need to value the speaker as the informant, and not simply as a bearer of information that may be read off of her external state or the sounds that come out of her mouth. To value her is to understand that testimony is bound up in her intention that you take her testimony as a reason to believe the fact that she tells you. Importantly, the idea is not that valuing her gives you a normative reason that you should believe, but that this is an epistemically defensible way to get to truth. It merely involves recognizing “that we are rationally entitled to encounter others—the possessors of rational powers—in a fundamentally different way than mere objects.”44 The non-reductionist, then, rejects that what is said to her can be reduced to other means by which we gather knowledge (such as perception, inference, and memory). And this rejection can partially be understood as respect of persons. As Gelfert explains, “On this view, withholding trust until sufficient independent evidence is available would, in a sense, amount to not trusting our interlocutor at all: instead of treating our interlocutor as a person, capable of vouching for the truth of the matter, we would effectively be reducing them to the status of being a mere instrument for gathering evidence—much like, say, a measurement instrument in science.”45 As insightfully captured by G.E.M. Anscombe, “It is an insult and an injury not to be believed.”46 Essentially, the non-reductionist finds, ceteris paribus, that the failure to believe when one is permitted to is because one failed to accord the trust and respect that was owed to the speaker. Indeed, Miranda Fricker’s corrective may be ill-suited to her articulation of the wrong hearers commit when they fail to accord

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a woman the epistemic respect to which she is entitled. Fricker argues that the problem with epistemic injustice is that one uses the speaker as a means. The idea is this: If you take what she is saying as true, then you treat her as an informant; when you dismiss the speaker as a knower, you treat her as a piece of information.47 The former respects a person; the latter treats her as a means.48 This distinction resonates with the contrast between the reductive and non-reductive views. But if this is the nature of the objection, then Fricker’s solution may be slightly misguided, as she is providing a reductionist answer to a non-reductionist problem, as Marušić and White note.49 Her account of how one is used as a means is that one is taken merely as a source of evidence rather than as a knower. But her corrective relies on better evaluation of the evidence, which is the very same sort of reductive evidential stance toward testimony, as opposed to a denial that testimony ought to be evaluated in the same sort of way.50 Let us return to #BelieveWomen within this non-reductionist epistemological stance. #BelieveWomen gains a rhetorical robustness that its other framings lack. We believe things all the time because we believe people. Women making sexual assault claims should not be treated any differently. Valuing women as people means simply taking their testimony with the same respect and regard as we take anyone else’s. If one way to understand “Black Lives Matter” is that black lives matter just as white lives do—but we have taken the latter for granted and ignored the former— similarly, one way to understand #BelieveWomen is as a claim that you should believe women in cases of sexual violence just as you believe men when they claim to be victims of other crimes. One clarification will deepen this demand. Again, the nonreductionist will look to defeaters. Defeaters may simply be contrary evidence.51 Or, these defeaters may be about the speaker herself and whether she seems trustworthy.52 Alternatively, the defeaters may deal with the context.53 The speaker who appears highly intoxicated defeats one’s warrant to form a belief. And the speaker who says something radically outlandish also does not entitle one to say, “But Aunt Susie said she saw aliens and so I believe it!” Hence, non-reductionists can take on board the fact that there is a difference between someone you ask for directions and the stranger who announces she was assaulted on the street, and it can accommodate

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the concern that the content of what is being claimed as true is certainly relevant. But, as we see these clarifications taken on board, we should also note that #BelieveWomen may be precisely aimed at our inclination to find defeaters when there are instances of sexual violence. And so, #BelieveWomen becomes a reminder that the speaker’s credibility is not undermined because she is a woman, nor should her claim be undermined because it is about sexual violence.54 Hence, a non-reductionist could take #BelieveWomen as a claim that being a woman who claims to have been victimized is not a defeater, and thus, as a claim that women are entitled to the same sort of testimonial respect as men, a respect in which we believe someone simply on her say-so. #BelieveWomen in Life Those who heard the Ford allegations were ultimately trying to decide what to believe. I have suggested that there are different ways that the call to #BelieveWomen might be interpreted as these hearers deliberated. Some of these interpretations do not depend upon epistemic values, but instead are external demands toward goals of increased justice and social change. Some seek to influence our methods of belief formation indirectly. I suspect that different speakers mean different things. Given that #BelieveWomen may stand for different things, it is a vexed task to determine how it applies. Different meanings have different implications and different counterweights. Here, I will just gesture at the complexities. Undoubtedly, one problem we confront in life is that we may have myriad practical and epistemic claims on the table at once. Let’s start with a hard case in life. When actress Lena Dunham’s friend was accused of sexual assault, Dunham tweeted in support of her friend. In response, bustle.com included a posting by Jenny Hollander entitled, “Why ‘Believe Women’ Means Believing Women Without Exception.”55 Hollander’s claim was that if you #BelieveWomen then you believe women even when the accused is your spouse, your father, your son, or your friend.56 That seems to be a lot to ask. But there are many ways to think about it. Consider just a taste of how the previous interpretations bear on this demand. First, wholly on epistemic turf, hearers know

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quite a bit about the subject, so we might wonder whether spouses really should defer to strangers about what their husbands did.57 A demand of #BelieveWomen that goes against the bulk of the hearer’s evidence will simply have to meet a high bar. Second, when #BelieveWomen is not aimed at truth in the individual case, but at increasing justice overall, the hearer may have other objections. The hearer might question (1) why she should sacrifice truth in this case, (2) whether even if her loved one is guilty, as a matter of agent-relative morality, isn’t applying the demand to her asking too much of her, and/or (3) whether even if her loved one is guilty, as a matter of agent-relative morality, shouldn’t all subjects be entitled to an exception such that they have the support of their loved ones? Third, conflicting values are even more difficult once we consider the partiality literature. Some theorists argue that as part of being a good friend, one is committed to a degree of epistemic partiality.58 Then, even if #BelieveWomen is purely an epistemic construct and is aimed at truth, arguments on the other side may not be truth arguments. The hearer may have non-epistemic values to contend with. Fourth, the hearer may have significant stakes in her attachment to the accused. Imagine having to take on board that someone you love deeply—your father, your husband, your son—is a rapist. That’s not a belief that you form like finding out the year the Wizard of Oz was produced (1939). It is a belief that shapes (and rocks) your world, demands revision of countless beliefs and qualification of endless memories, calls for reactive attitudes, and requires action. To form that belief is life changing for the believer.59 And in higher stakes situations, we should expect that pragmatic encroachment will require more evidence before you feel comfortable knowing something.60 Each of these issues is worthy of an article in its own right, as there are myriad considerations that yield no easy resolution. This brief discussion demonstrates how complicated this calculation can be, particularly in high stakes scenarios. But we should also be wary of too quickly using high stakes scenarios as our model in more ordinary cases. First, we might ask what turns on believing that the sexual assault has occurred. If while watching the hearings, I think Kavanaugh assaulted Ford, my belief is not going to make or

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break whether he is appointed to the Supreme Court, so the consequences of my belief are different than those for Susan Collins. Hence, it is a mistake to think that the consequences (whether not receiving a Senate appointment or going to prison) that bear on the decision-maker ought to apply in the same way to the ordinary hearer.61 Second, in these more ordinary cases, we have to examine the costs of both sides.62 That is, pragmatic encroachment might counsel in favor of lower, not higher, standards. For all these complexities, in some instances, we seamlessly take beliefs on board. For instance, imagine a student comes to me and asks that during our class on the law of sexual assault, I not call on her63 to answer a question in class because she has been a victim of sexual violence.64 Surely, I just believe her.65 I am not going to ask her whether she reported it, whether I can see her medical records, or whether she can supply me with witnesses. (Instead, I’d offer her the sort of support that comes from believing her—asking whether she is all right, whether she wants to talk about it, or whether she is receiving counseling. I’d do whatever might be appropriate in the moment.) Notably, it is this case of uncontroversial and freely given belief that resonates with us. Our view of the easy case, where one unhesitatingly wholeheartedly believes, has become #BelieveWomen’s ambition for the law. The easy case resonates with us because we recognize that there are times that we appear to be straightforwardly non-reductionist full believers. But life and law are not always so easy. I have tried to demonstrate in this section that taking a belief on board may not be quite as easily justified, epistemically or normatively, in hard cases in ordinary life. #BelieveWomen in Law Enter law. Law must answer questions about #BelieveWomen. Some of these are familiar to law, and even if we do not know what the answer is, we know what the terms of the debate are. But there are some claims that are made in the context of sexual violence that seem spurious, or even silly. My aim is to map central #BelieveWomen interpretations onto our legal debates, to reveal mistakes in flat-footed epistemic approaches, and to offer preliminary remarks about how law can (and cannot) meet the demands of #BelieveWomen.

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Before doing so, however, it is worth spending a moment on the historical background for rape law and the evidentiary challenges that women who claimed to have been victims of sexual violence faced. Currently subject to revision, the American Law Institute’s Model Penal Code, renowned in numerous ways for its innovative approach to the criminal law, includes these two provisions with respect to sexual assault: Section 213.6(4): Prompt Complaint. No prosecution may be instituted or maintained under this Article unless the alleged offense was brought to the notice of public authority within [3] months of its occurrence [or special provisions for minors].66 Section 213.6(5). Testimony of Complainants. No person shall be convicted of any felony under this Article upon the uncorroborated testimony of the alleged victim.  .  .  . In any prosecution before a jury for an offense under this Article, the jury shall be instructed to evaluate the testimony of a victim or complaining witness with special care in view of the emotional involvement of the witness and the difficulty of determining the truth with respect to alleged sexual activities carried out in private.67

If this sort of institutionalized epistemic injustice strikes you as profoundly troubling, consider John Henry Wigmore (whom I shall quote at length): There is, however, at least one situation in which chastity may have a direct connection with veracity, viz, when a woman or young girl testifies as a complainant against a man charged with a sexual crime . . . Modern psychiatrists have amply studied the behavior of errant young girls and women coming before the courts in all sorts of cases. Their psychic complexes are multifarious, distorted partly by inherent defects, partly by diseased derangements or abnormal instincts, partly by bad social environment, partly by temporary physiological or emotional conditions. One form taken by these complexes is that of contriving false charges of sexual offenses by men. The unchaste (let us call it) mentality finds incidental but direct expression in the narration of imaginary sex incidents of

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which the narrator is the heroine or the victim. The real victim, however, too often in such cases is the innocent man for the respect and sympathy naturally felt by any tribunal for a wronged female helps to give easy credit to such a plausible tale.68

There were myriad other challenges that victims of sexual violence faced when seeking justice for wrongs done to them. Even though rape shields statutes have removed the ability to infer incredulity (and consent) from lack of chastity, and states have removed prompt complaint69 and corroboration requirements,70 scholars continue to document the difficulties that women confront in having their cases prosecuted, much less securing guilty verdicts.71 It is in the shadow of the criminal law’s long-standing disbelief that #BelieveWomen now intersects the law. Trust, Credences, and Believing Women Legal adjudications don’t operate on beliefs. Jurors are not asked which witnesses they believe. They don’t believe the plaintiff or the defendant. Belief has very little to do with it.72 Rather, they are asked about whether their confidence levels meet whatever the legal standard is.73 The courtroom setting is reductionist. We evaluate all evidence. Far from taking people at their word, we do require oaths and threaten penalties for perjury. We assess demeanor. We question each piece of evidence for whether it is what it purports to be and whether it is reliable. We reject that you can offer beliefs based on what others have told you, and we instead require those with personal knowledge to testify.74 We look under the hood at everything. As #BelieveWomen morphs into the courtroom, we might then ask about whether the non-reductionist full belief account has any purchase. One question is whether one may simply abandon nonreductionism solely for this forum without being a reductionist generally. Notably, I believe a thoroughgoing non-reductionist can account for this reductionist shift in approach without abandoning non-reductionist commitments.75 But there is a more pressing worry—if #BelieveWomen is a claim that respecting women will generate a belief, we may find that the law falls short. Jurors may increase their credences without fully

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believing the witness. Does #BelieveWomen, understood as advocating for non-reductionism and full belief, ask too much? I want to suggest that we can accord women with the respect they are due, that in according that respect we can still be nonreductionist, and that we very well may not arrive at belief. To make this point, I should sever the reductionism/non-reductionism debate from the distinction between belief and credence.76 The link between credence-increasing and reductionism is clear. If you are taking someone as more or less reliable as an epistemic source, then you will have more or less trust in her word and will adjust your credences accordingly. To be sure, you could arrive at full belief through this process, but you need not do so. Evaluating our epistemic sources just is to operate in a world of shades of gray. Now consider non-reductionism. It may be that, although the debate has focused on whether non-reductionism justifies beliefs, one can be a non-reductionist about credence increases. For instance, I offer you my word and you take that offer as a reason to have increased confidence in a proposition simply based on my testimony. So long as you don’t look beyond my testimony, you are being non-reductionist. What I think is interesting about this result is that it leads to the possibility that there may be a kind of robust trust or assurance that grounds full belief and a lesser epistemic respect that grounds credence increasing. Basic epistemic respect may not ground full belief even for the non-reductionist. Hence, to be clear, I take it that both reductionism and non-reductionism are compatible with arriving at either an increase in one’s credence or the adoption of full belief. But here’s the rub for when #BelieveWomen meets law. What I reject is that when you increase your credence based on someone’s testimony, you can always be said to be believing her. Here’s the view I wish to offer: To believe someone is to take the claim on board at the same level of credence as the speaker offers it. If my husband says, “That might have been a bear,” then I believe him if I think, “There might have been a bear.” If my husband says, “A bear was in our backyard,” then I believe him if I think, “There was a bear in our backyard.” I reject, however, that you believe someone if you attribute less credence to the proposition than the level of credence on offer. If my husband says, “A bear was in our backyard,” and I think, “There might have been a bear in our backyard,”

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then I have not believed him. Increasing your credence in Φ in response to someone’s testimony of full belief that Φ is not believing her testimony.77 One might still be a non-reductionist, but one is not a non-reductionist believer. Beyond the fact that credence increasing does not seem to accord with our typical assumptions of what it means to believe someone, it also has a counterintuitive implication. Assume I thought that a fox was in my backyard to a 95% probability. My husband tells me it was a bear, and I then reduce my confidence to 55% (that’s giving his testimony real weight). On the credenceincrease-is-belief view, I will say, “There was probably a fox in my backyard, and I believed my husband when he said it was a bear.” It seems bizarre to say that you can believe someone and yet conclude the opposite. Indeed, the complaint that on pain of irrationality, a senator could not say that she believed Ford but still did not have enough evidence to fail to confirm Kavanaugh, is a claim that believing someone demands more than credence increases. Unfortunately for a conception of the #BelieveWomen that demands full belief, this may mean that we can accord women epistemic respect, or even trust, be non-reductionists, and yet still not believe them. That is, it may be that respecting someone just is increasing your credence, as opposed to forming a full belief. If I take you seriously as an epistemic agent, if I take your assurance as a reason for me to believe something, and I then increase my credence because of you, I have respected you, even if I have not believed you. If there is only a tiny increase in credence, one might question whether I have respected you as an epistemic agent, but surely, in a high stakes situation, one might take another’s words seriously without arriving at full belief. The law’s draw to credences, then, does not run afoul of what we may owe to women and what we are justified in believing, even though it does not lead to the sort of robust belief sought. Legal Confusions Based on Bad Epistemology To this point, I’ve made several arguments. First, I worked through various understandings of #BelieveWomen. Then, I gestured at how difficult meeting this demand is in life, depending on the understandings at play. I have now turned to law. First, I focused on whether law would have difficulty delivering full belief. I now

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want to work through a more general obstacle for law, before turning to ways that law can incorporate some understandings of #BelieveWomen. The problem is that legal commentators are sometimes bad epistemologists who don’t know how to think about testimony. In our current debates, it seems that flat-footed approaches can generate odd claims. Things are getting lost in the translation from life to law. Consider two examples. The first error is the robust skepticism that we can know anything or believe anything in these cases. I have never been a fan of seeing these cases as “he said/she said” or “word-on-word” because they give the impression of even odds, as though each side is as likely as a coin flip. Just because there are two sides doesn’t mean each is equally likely to be correct. As Lois Shepherd describes its meaning: “‘He said, she said’ implies that we throw up our hands in capitulation—the truth simply cannot be known. It’s one person’s word against another person’s word and that’s all there is to it.”78 Why would anyone think this? Here’s a diagnosis. If I am justified in believing A because of her testimony and I am justified in believing B because of his testimony, and A and B testify to opposite facts, then I have a problem. If #BelieveWomen tells us that women have as much claim to be believed as men, that their testimony gives sufficient warrant for belief, then there exist no nuances, no credences, and no probabilities. It is a question of which side you believe. Even on the feminist side of the he said/she said is the worry that this word on word comes down to a battle of equal entitlements to belief and that where the burden is set then will decide who counts as telling the truth. Yet, we know in life that you can hear both sides to a story and be completely convinced that one person is telling the truth and the other is lying. Again, he said/she said isn’t fifty-fifty; it is not a close call. It is not even “even evidence.” Parents, teachers, and principals adjudicate disputes between children by determining credibility daily. Credibility disputes do not reduce to “cannot know.”79 As Georgi Gardiner notes, “[W]e mistake the linguistic balance of the expression . . . for epistemic balance,”80 and by doing so, we ignore the range of ways that different people’s testimony is evaluated against a range of background beliefs, probability baselines, and so forth.

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Here’s a second odd claim. It is the claim that testimony somehow isn’t evidence. Here’s a sample of that position: “The truth is that I don’t know whether Kavanaugh is innocent or guilty, and—as I wrote on Friday—I found Dr. Ford’s testimony to be compelling and credible. Having said that, (so far) we have seen zero evidence to prove Brett Kavanaugh attempted to rape her 36 years ago” (emphases in original).81 We seem to be confusing what counts as evidence with corroboration of that evidence. It’s as if, if one isn’t a non-reductionist, then testimony does not count at all. But there is a distinction between reductionism and corroboration. For example, some reductionists maintain that testimony may be justified by an inference to the best explanation. But if so, reductionism does not require something or someone else. Hence, there seems to be confusion between thinking we cannot take a belief on board just because someone said it and thinking the fact that someone said it is of no evidentiary import. Notably, it is true that corroboration requirements can seem to devalue testimony.82 The US Constitution provides that no person shall be convicted of treason without the testimony of two witnesses.83 But notice that that is not the view that testimony is not evidence. If that were true, then two witnesses would be no better than one. It is preposterous to think that a burden, be it preponderance or beyond a reasonable doubt, cannot be met with someone’s testimony. You are highly confident in many, many things in your life simply because someone told you those things. To be sure, one can go the skeptical route. You could be brain in a vat; your thoughts could come from an evil demon. But if one is going to maintain that one knows about Lincoln and Napoleon, that one understands scientific principles that one has never discovered for oneself, or that one can get the accurate time of day by asking someone on the street, then one is going to have to abandon the outright silly view that one cannot know that there was a sexual assault when someone says there was.

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Epistemic Correctives, Standpoint Epistemology, and Burden Shifts While the understanding of #BelieveWomen as a call for nonreductionism and full belief may get lost in translation to law, other concepts make the transition more easily. To be sure, signs of solidarity or efforts to change baseline assumptions of truth or generics are not arguments for within the courtroom, but three of our conceptions do seem to be within the realm of the trial—epistemic correctives, standpoint epistemology, and setting the burden of proof. Epistemic Correctives Legal theorists have been sensitive to the interpretation that gives #BelieveWomen a Frickerian spin. Sherry Colb’s nuanced account of “What Does #BelieveWomen Mean?” takes up primarily the Frickerian corrective approach.84 Colb’s argument is eminently reasonable. She claims, “The #BelieveWomen hashtag responds to a very old and longstanding prejudice,” such as Lord Chief Justice Matthew Hale saying that “[rape] is an accusation easily made and hard to be proved, and harder to be defended by the party accused, tho never so innocent.”85 Colb also notes the prevalence of jury instructions and evidentiary requirements that made it more difficult to prove rape. Colb claims that #BelieveWomen does not mean that women never lie. Instead, she notes the incentive structure is such that men are the ones more likely lying.86 After all, the accuser could simply stay out of the entire matter; it is the accused who has a motive to proclaim his innocence. Colb’s proposal is rather modest ultimately, as she merely counsels for police to act as if they believe a complainant. Colb wants the police officer to take the complainant seriously and be fair minded, but she is also skeptical of getting police officers to actually commit to a belief without further investigation. To Colb, then, #BelieveWomen is just “respect women as you would any other victim of any other crime.” Deborah Tuerkheimer has a more aggressive approach to #BelieveWomen, but one that is ultimately about a Frickerian corrective.87 Tuerkheimer notes that legal scholarship has failed to take notice of Fricker’s work, and Tuerkheimer deploys Fricker’s insights to argue that epistemic injustice results in a “credibility

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discount.”88 Tuerkheimer notes this discounting is pervasive in sexual assault cases, ranging from policing, to prosecuting, to adjudicating.89 Where Tuerkheimer goes bold is that her solution is to allow for Equal Protection litigation because women are receiving credibility discounting based on group membership.90 But this sort of litigation is the means to reach Tuerkheimer’s ideal end, which is simply for individuals to apply the Frickerian corrective and to assess the evidence correctly. Admittedly, operationalizing a Frickerian corrective is far easier said than done. In some ways, the #BelieveWomen campaign is working indirectly to do just this—to make individuals stop and think about women’s testimony. Are there more direct evidentiary remedies? Charles Barzun suggests that our system of evidence ought to employ rules of weight, wherein we can instruct the fact finder as to how to weight evidence.91 Then, instead of excluding hearsay, for example, we could simply say it was “an inferior grade of evidence.”92 Barzun notes that corroboration requirements, like those previously used for rape, are rules of weight because they deem the evidence itself insufficiently weighty to sustain the conviction.93 Barzun does not counsel that such rules should be used to tell juries how to value evidence positively or increase its weight, as that would come close to being an irrebuttable presumption and would be of dubious constitutionality (e.g., “I hereby instruct you to believe women.”).94 Still, one might wonder whether there is a way to construct a clever instruction along the lines of what we tell jurors with respect to direct and circumstantial evidence: “Both direct and circumstantial evidence are acceptable types of evidence to prove or disprove the elements of a charge, including intent and mental state and acts necessary to a conviction, and neither is necessarily more reliable than the other. Neither is entitled to any greater weight than the other.”95 Standpoint Epistemology There are other extensions of the myriad interpretations of #BelieveWomen that are possible in the legal domain. The Frickerian interpretation opens up the prospect of a robust standpoint epistemology. The idea is not that women are equal to men, but that women are superior interpreters of the facts. How standpoint epistemology can or should be taken into account in law is tricky.

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We might think that there isn’t room for specialized knowledge with respect to some legal questions. The question of whether the defendant believed there was consent, for example, is wholly subjective and determined from the defendant’s standpoint. And jurisdictions that take consent to be subjective willingness allow the victim to be the final arbiter of consent, irrespective of any expertise. Yet, perhaps standpoint epistemology comes into play with questions of reasonableness: whether the defendant was negligent (thereby unreasonably believing he had consent), whether affirmative consent was present (thereby relying on objective interpretations of conduct), or whether the defendant’s behavior was coercive (would a reasonable person take the defendant’s actions as well as the situation to be threatening). These questions might open up space for a claim along the lines that a woman is better equipped to understand what sorts of conduct would feel coercive and undermine consent. It is unlikely, however, that the law would qualify either the defendant or the victim as an expert with greater knowledge. Rather, any “expertise” is more likely to rely on specific past acts between the victim and the defendant that, for example, would lead the victim to take some conduct as a threat that an ordinary juror would not.96 Though I cannot explore it here, the idea that women are experts raises questions about jury composition. Employing peremptory strikes based on gender stereotypes, because women know differently, is unconstitutional.97 Yet, women’s expertise, and thus the need to have them on a jury, is precisely what standpoint epistemology endorses. That is, standpoint epistemology and the Constitution don’t currently mix. Reconsidering the Burden of Proof (Explicitly and Covertly) Finally, an interpretation of #BelieveWomen as arguing for rebalancing our trade-offs plays a role in formulating the burden of proof. There is a rich literature about burdens. To some, this is only about how we allocate error between false positives and false negatives. This leads to the criminal maxim of “better to let ten guilty men go free than to convict one innocent man.” However, as some theorists have pointed out that some false negatives may be extremely detrimental, thus advocating a far lower burden than proof beyond a reasonable doubt,98 other theorists have sought to give a deontological interpretation of the burden. For instance,

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Alec Walen has argued that the proof beyond a reasonable doubt standard is a deontological restriction, and that only certain sorts of trade-offs (those dealing with retributive justice) may be made— other harms that come from the false negative do not count within the calculus.99 Ultimately, we need to determine what we are trading off (is it only the costs of error, and which ones?) and how the balance should be set. Different legal questions will strike the balance differently. Within the Title IX context, one can make arguments for higher and lower standards based on the costs of error on either side, and one could maintain that lower standards better protect victims. A university that requires only a preponderance for expulsion for cheating would have difficulty articulating why a higher standard is required for expulsion for sexual misconduct (particularly if there were no collateral impacts). And, with Kavanaugh, we might think the costs of error are significantly different: not giving him a job on the highest court in the land or appointing an attempted rapist to the court.100 Of course, how errors are allocated depends not just on the burden of proof. As Michael Pardo notes, it also depends on the quality of the evidence, whether it is systematically skewed, and whether it is likely to be misinterpreted by the fact finder.101 All of these affect what the true distribution of false positives and negatives will be. #BelieveWomen as an argument for changing the balance of false positives and false negatives affects other aspects of law as well, albeit covertly. Rape shield statutes exclude evidence of the victim’s prior sexual conduct as minimally relevant and thus outweighed by the policies of encouraging rape reporting. If rape shield statutes prevent the admission of a prior act, then even in a case in which it might create reasonable doubt, the evidence is excluded to pursue the goal of more justice overall, as opposed to more truth in the individual case. Moreover, the creation of different sorts of crimes may change the risk of error. As Bill Stuntz famously demonstrated, legislators can circumvent burdens of proof by removing elements. So, if the moral wrong is ABC, but the statute only requires AB, then the legislature has removed the possibility of reasonable doubt on C, an element which may be hard to prove. (Stuntz then argued that it is within prosecutorial discretion to determine whether C exists

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and she should prosecute, a result Stuntz found problematic.102) Hence, the way that substantive law is constructed also determines who bears what risks. The understanding of #BelieveWomen that advocates for believing women at the expense of a few innocent men is precisely the embodiment of these trade-off questions. This is a debate that we need to have, and #BelieveWomen puts that debate front and center in stark form. There are difficult questions here, including what to do about the potential distributional effects of different standards,103 but we need to be clear about what our goals are and how we reconcile them. The Presumption of Innocence Our difficulties in sorting out claims of sexual violence are not solely the result of not knowing what we mean by believing women. The presumption of innocence is likewise on display in law and life in ways that continue to confuse our debates. Indeed, although the presumption of innocence has been subjected to far more scholarly scrutiny, its meaning and scope are contested as well. The Presumption in Law Recall that both the news media and Susan Collins invoked the presumption of innocence during the Kavanaugh hearings. And there are those who invoke this presumption completely outside the adjudicative context. Here’s the problem. To quote Inigo Montoya, “I do not think it means what you think it means.” Well, the real problem is that it appears to mean many things.104 There are questions as to the fora in which it applies and as to the standard required. And, there is the distinct question of what it means to presume someone innocent. The Forum and the Standard Doctrinally, within the United States, the Supreme Court’s interpretation of the presumption is extraordinarily narrow. Kentucky v. Wharton held that failure to give an instruction on the presumption of innocence does not in and of itself violate the Constitution.105 United States v. Salerno upheld the constitutionality of the Bail

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Reform Act, allowing a court to prejudge the defendant’s case and to use the fact of indictment as evidence that the defendant will commit another offense.106 The fact that someone was acquitted of an offense prevents neither civil charges nor use of the evidence as a prior bad act in a future case. Generally, the presumption is thought just to be the reasonable doubt requirement for criminal convictions.107 In contrast, in adjudicating alleged violations of the presumption as codified by the European Convention on Human Rights, the European Court of Human Rights has given the presumption more substance. Two cases should suffice to draw the stark contrast in jurisprudential approach. In Allenet de Ribemont v. France, the court held that the presumption was infringed when, prior to trial, high ranking French police officers commented to the press that the defendant was an accomplice to murder.108 In Geerings v. Netherlands, a judge determined by a balance of probabilities that the defendant did commit thefts and ordered forfeiture of his assets. However, because the defendant had been acquitted of these charges, the European Court of Human Rights held that this violated the presumption.109 Theoretically within and without the United States, there is broad disagreement about the meaning of the presumption.110 To some, in line with current doctrine, the presumption just is the beyond a reasonable doubt rule. In contrast, others argue for broader extensions. Shima Baradaran argues that the presumption of innocence should preclude certain factors, including the indicted offense and future dangerousness, in determining whether to release a defendant on bail.111 These factors, Baradaran argues, conflict with the view that the defendant ought to be presumed innocent until conviction.112 Unlike the beyond a reasonable doubt view of the presumption, which gives the presumption substantive content, this position claims that the presumption protects the criminal process, noting that only it can adjudicate guilt. It is, as Carl-Friedrich Stuckenberg calls it, a view of the presumption as a “flank defense” that protects the primacy of the criminal process.113 The presumption is also thought to animate or closely relate to other procedural rights, including those related to selfincrimination and search and seizure.114 Of course, as one seeks

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to extend the presumption beyond trial, the question of what the presumption means becomes even more difficult. If police are to believe the defendant innocent, how do they justify searching him?115 And if the standard for overcoming the presumption is met for the search, why is the defendant entitled to the presumption anew when it comes to bail or even trial?116 Notably, if the presumption is applicable in these varied contexts, this reveals that not only do we not have one addressee, the jury, but we do not even have one standard. After all, no one thinks that the police need proof beyond a reasonable doubt before they conduct a search. And, that means that there is something of a sliding scale that must balance the state’s need to investigate crime against the individual’s liberty. It would mean that the presumption does not entail proof beyond a reasonable doubt. Despite the disparate demands on the presumption, it is important to note that all of these constructions of the presumption are within criminal proceedings, and the person bound by the presumption is the state. Even from broad European Court of Human Rights holdings, Liz Campbell extracted the general principle that, “What the ECtHR has found to be problematic are court expressions of suspicion after acquittal, and also state declarations of guilt that encourage the community to view her as guilty and arrogate the appropriate judicial role.”117 Kavanaugh’s hearing was hardly a criminal proceeding. And, whoever held what burden (a question to which I will return), it was hardly a beyond a reasonable doubt standard. And, once we are out of the criminal process, we don’t tend to invoke the presumption. If the question is whether I slipped on your steps because you negligently maintained them, it would be odd for you to run around talking about the presumption of innocence. All of this seems to be the wrong forum for the presumption. What Does It Mean to Presume Someone Innocent? The other difficulty here is that there is a question of what it means to be presumed innocent. Even in the context of criminal adjudications, our faith in the clarity of the presumption can unravel. What exactly does it mean to tell the jury they need to presume the defendant is innocent? Following Laudan, we should first distinguish between probatory (court-decided, legal) innocence and

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material (factual, actual) innocence (or guilt). A probatory presumption of innocence means that the jury (or other state actor) starts with the presumption that it simply has no evidence of the defendant’s guilt.118 A material presumption of innocence would mean that the jury is asked to presume that the defendant is not in fact guilty. In other words, the proposition of material innocence is that the defendant did not in fact commit the offense whereas probatory innocence is to admit that one has no proof that the defendant committed the offense.119 Laudan raises a range of concerns with viewing the presumption of innocence in criminal cases as one of material innocence: How can jurors simply adopt beliefs contrary to facts (such as that the defendant was arrested and charged, and thus likely isn’t innocent120) and how do individual jurors hold the belief that the defendant is materially innocent until the very moment when the jury collectively reaches the conclusion that the beyond a reasonable doubt standard is satisfied? Laudan argues instead for probatory innocence: “What is important is that the juror concedes that she has no proof now about guilt and that, therefore, she lacks any clue about which side will eventually prevail. This is a patently true description of her situation and any juror should accede to its truth.” The presumption of innocence, then, is that the jury has no evidence yet as to whether the defendant committed the crime beyond a reasonable doubt. The reason we put the burden on the state is because, given the stakes—locking someone up and branding him a criminal—we believe that the state ought to have this high burden. This is constitutional bedrock for criminal cases, but in other areas, we might evaluate the trade-offs and come to a different conclusion. Importantly, in American law, the presumption has no role outside of being the corollary of proof beyond a reasonable doubt—an extraordinarily high burden before action is warranted. Ultimately, for the Kavanaugh hearing, the prior question was who held what burden. If Kavanaugh had to show that he was worthy of the post, then not just the evidentiary baseline but the evidentiary question would look entirely different.121 Consider the concern that Harriet Miers was simply unqualified to be a Supreme Court justice. If she had to meet some standard, no one would

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contend that she was entitled to a presumption of innocence (or competence). It is a legitimate question whether a president’s decision to nominate, or the fact that the nominee was in the public eye, counted toward the standard and created some sort of deference. However, because the allegation against Kavanaugh was of a criminal nature, the presumption of innocence was invoked. That should not have been the question.122 The Presumption in Life The lack of fit between the presumption and the Kavanaugh hearing pales in comparison to the way we ought to think about these questions in life. We think we know what we mean when we invoke the presumption—the intention is to invoke a deep, inalienable entitlement to someone’s belief in our material innocence. The Constitution contains no such guarantee. We then see individuals sniping at each other when one asserts that someone is not entitled to the presumption. They seem to be making a category mistake. Still, there is something right about invoking the presumption. If the legal presumption is about how the state ought to treat us until a particular burden is met, then the rhetorical presumption has to do with how we should treat each other. If speakers have claims on us to be taken seriously as knowers, subjects have claims on us that we should not rush to judgments against them. Perhaps we ought not to start by thinking ill of someone. Unless and until you become convinced by some (to be determined) standard that I have done something wrong, shouldn’t you think the best (or at least not the worst) of me? Unquestioningly, for centuries, white men have received the benefit of the doubt when claims of sexual assault have been made against them. Still, the fact that we have given too much weight to their testimony does not mean that they are entitled to no weight or to no consideration. In the same way that we worry about the use of statistical evidence in other contexts, men are entitled to claim that just because other men are sexual assaulters doesn’t mean that they are. If women are owed due respect and consideration, then so are men. The entitlement to be heard and to be valued is an entitlement on both sides. But as the banner of #BelieveWomen is waved in the court of public opinion, men have sought to clothe

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their account in the presumption of innocence. Both sides are clearly employing this rhetoric to sway public opinion, but for this reason, our discourse becomes contaminated with concepts that simply do not apply. We thus avoid having the real debates. Again, the court of public opinion is quite different from a court of law. Forming a belief that a random celebrity is a rapist is quite different from expelling or incarcerating him. Moreover, in life, one may simply reserve judgment in a way that is not possible in law. But instead of thinking about this within the context of sexual assault and the criminal law, we ought to think about how we otherwise adjudicate negative allegations. How do we understand someone’s claim that he was robbed? How do we understand the competing accounts of a bar fight? What is the fair minded and respectful way to go about sorting individuals’ testimony? I think the question of what we owe someone as a starting assumption is difficult. Recently, theorists have brought our attention to how heeding (not ignoring) baseline probabilities may result in biased views.123 And, as mentioned earlier, there is the further question of whether we can wrong someone by what we believe about them. As we struggle with how to confront statistical evidence, we will struggle here with how to approach sexual assault allegations. Unlike just about every other debate in this area in which women or people of color are potentially wronged by the employment of statistical evidence,124 in these cases, we are at a crossroads as to whether white men will also be the recipients of negative statistical assumptions.125 Although some will (rightly) bemoan that it is only when the majority group is impacted that we have important normative discussions,126 the silver lining is that these important normative discussions can inhere to the benefit of everyone. At the moment, the invocation of the presumption of innocence covertly skews the question. The true critical question is always who has to prove what and by what standard. The presumption of innocence answers: the accuser and beyond a reasonable doubt. Indeed, that is what commentators said with respect to Kavanaugh—that they were not convinced beyond a reasonable doubt. But the fact that we owe men consideration does not fix the terms of the inquiry. As a final illustration, consider the following case from Crewe and Ichikawa.127 A conference was held to

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celebrate the work of an esteemed philosopher, but that philosopher had recently been accused of sexual misconduct. For this reason, some philosophers urged the boycotting of this conference. Now, one response is that the professor has been neither charged nor convicted. But it is a mistake to think that if we do not know the person committed the offense, then we ought to participate. We may want a lower threshold, and one that takes into account the stakes for the complainants if the profession continues to celebrate someone who actually has committed sexual misconduct. As Crewe and Ichikawa note, “there is no clear reason why submitting to the workshop is the choice of default.”128 Certainly, one does not sign onto a conference without considering the topic, the quality of the participants, and so forth. The idea here is that the consideration “is this person worth honoring” is on the table. To be sure, this is not the end of the matter. We do not want rumor and innuendo to ruin careers. We can worry about disproportionate responses. Although Kavanaugh’s case was spectacularly public, many cases present the worry about the long-term reputational damage that can be caused. All of these are legitimate concerns, and we must confront these concerns directly. The problem is that we try to shortcut these difficult questions with the presumption of innocence. But the presumption of innocence is just empty rhetoric that obscures the foundational question of to whom we owe what when. Conclusion Claims of sexual violence require us to seek truth while doing right by speakers and subjects. The myriad epistemic and non-epistemic interests pull us in different directions. The different approaches to testimony, the ability to work in credences or beliefs, and the encroachment of pragmatic concerns make even the epistemological questions difficult. These questions are debated in different fora—though I have dealt primarily with the criminal law, Title IX, and public opinion— journalists, prosecutors, police officers all have their roles to play, and they all have different roles to play. Undoubtedly, the interconnections between these questions can bring us a sense of deeper understanding as we can deploy tools for one sphere in another.

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Although this chapter has not attempted to reconcile the presumption of innocence and #BelieveWomen, it has been my aim to subject the various understandings to greater scrutiny. For instance, whether we should believe women in a court of law depends on what we mean by “believing women.” A solidarity approach is different from a claim that we ought to alter the burden of proof, and both are distinct from the view that we should engage in Frickerian correctives. So, too, the fact that presumption of innocence requires proof beyond a reasonable doubt in criminal cases reflects important principles at stake but does not dictate the terms of our interactions outside that forum. We ought to be careful of the shadows we are casting. There are some tools that are appropriate for one forum but not for another. As we seek rhetoric that applies across the board, we risk running roughshod over our deepest commitments and making errors about what issues are and are not at stake. We thereby risk talking past each other. Finding the right answer will be hard enough even when we are asking the right questions. Notes This chapter benefited from presentation at the University of Virginia Law School faculty workshop, ANU’s Centre for Moral, Social and Political Theory seminar, the NOMOS conference hosted by Princeton’s University Center for Human Values, Warwick’s Centre for Ethics, Law and Public Affairs Seminar, King’s College’s Legal Philosophy Workshop, and the European Research Counsel/Leverhulme Workshop on Responsibility, Belief, and Knowledge at University College London. All of these audiences made this chapter substantially better. I am grateful to my commentators, Renée Bolinger and Jason Stanley at Princeton, and Neil Manson at UCL, and for written comments from, or fruitful discussion with, Elizabeth Barnes, Christian Barry, Georgi Gardiner, Bob Goodin, Rachel Harmon, Deborah Hellman, Liz Jackson, Seth Lazar, Fred Schauer, Melissa Schwartzberg, Victor Tadros, Patrick Tomlin, and Deborah Tuerkheimer. Billi Jo Morningstar provided indispensable help in the preparation of this manuscript. 1 Ojel L. Rodriguez, “Kavanaugh: Well-Deserved Victory for Presumption of Innocence,” Globe Post, October 15, 2018, https://theglobepost.com 2 Thomas Jipping, “Losing the Presumption of Innocence,” National Review, September 25, 2018, www.nationalreview.com

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3 Hans A. von Spakovsky, “Kavanaugh Is Innocent Until Proven Guilty—Not the Other Way Around,” Fox News, October 3, 2018, www. foxnews.com 4 Rodriguez, “Kavanaugh: Well-Deserved Victory.” 5 Collins did not claim the presumption of innocence required proof beyond a reasonable doubt. “Read Susan Collins’s Speech Declaring Support for Brett Kavanaugh,” New York Times, October 5, 2018, www.nytimes. com 6 #BelieveWomen is underinclusive as a rallying cry as there are also male victims of sexual violence. For a critical inquiry into the differential treatment of male rape, see Bennett Capers, “Real Rape Too,” California Law Review 99 (October 2011): 1259–1308. 7 I thank Jason Stanley for prompting me to clarify the nature of my inquiry in this section. 8 This move was suggested to me by Debbie Hellman. 9 Bari Weiss, “The Limits of ‘Believe All Women’,” New York Times, November 28, 2017, www.nytimes.com 10 It is worth distinguishing two different types of arguments here. First, whenever we set the burden of proof, we are engaging in either a deontological question of what we owe someone before we visit negative consequences on him or a consequentialist question about trade-offs. There is a second view, suggested by Nancy Chi Cantalupo, that where we set the burden of proof expresses a view about who is likely lying. Nancy Chi Cantalupo, “For the Title IX Civil Rights Movement: Congratulations and Cautions,” Yale Law Journal Forum 125 (2016): 281–303. It is true that we can skew the burden of proof to take into account the ease with which false accusations are made. Michael S. Pardo, “Second-Order Proof Rules,” Florida Law Review 61 (December 2009): 1083–1113. But we must first set the appropriate burden before we skew it. It is only because Cantalupo assumes the answer to the first question is that individuals should be treated equally with respect to burden of proof that she thinks that unequal treatment evinces distrust. My view is that the first question is where the action is and that there may be reasons for the balance to be something other than a preponderance, such that we cannot read distrust into where we set the balance. For instance, the University of Virginia’s honor code requires proof beyond a reasonable doubt for something like plagiarism, for which a student can be expelled. The idea is not that the burden expresses the view that professors are liars, but that the burden expresses a view about how much evidence the school should have before inflicting a potentially life-altering sanction. 11 Sarah-Jane Leslie, “The Original Sin of Cognition: Fear, Prejudice, and Generalization,” Journal of Philosophy 114 (August 2017): 393–

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421, https://doi.org/10.5840/jphil2017114828; Sally Haslanger, “Ideology, Generics, and Common Ground,” in Feminist Metaphysics: Explorations in the Ontology of Sex, Gender and the Self, ed. Charlotte Witt (Dordrecht: Springer, 2011), 179–208. 12 Leslie, “Original Sin of Cognition,” 395. 13 Ibid., 396. 14 Jennifer Saul, “Are Generics Especially Pernicious?,” Inquiry (2017), https://doi.org/10.1080/0020174X.2017.1285995. 15 #BelieveWomen does not exhaust the possible epistemic correctives out there. Georgi Gardiner, “Doubt and Disagreement in the #MeToo Era,” in Feminist Philosophers on #MeToo (working title), ed. Yolonda Wilson (New York: Routledge, forthcoming). 16 I thank Jason Stanley for this suggestion. 17 Kate Manne, Down Girl: The Logic of Misogyny (New York: Oxford University Press, 2017). 18 Frederick Schauer, “In Defense of Rule-Based Evidence Law—and Epistemology Too,” Episteme 5 (October 2008): 295–305. Compare the perspective that “every rule that leads to the exclusion of relevant evidence is epistemically suspect.” Larry Laudan, Truth, Error, and Criminal Law: An Essay in Legal Epistemology (Cambridge: Cambridge University Press, 2006), 19. 19 Statistics do indeed support the view that few women lie. But I don’t want my exposition to turn on an empirically contested question. 20 Miranda Fricker, Epistemic Injustice: Power and the Ethics of Knowing (Oxford: Oxford University Press, 2007), 1. 21 Ibid., 45. 22 Ibid., 91–92. 23 Michael Lynch, “Truth as a Democratic Value,” this volume. Stephen L. Darwall, “Two Kinds of Respect,” Ethics 88 (October 1977): 36–41 (discussing recognition respect). 24 Neil Manson’s commentary at the UCL workshop helpfully unpacked an entire range of interests that women may have. (On file with author.) He suggested: an interest in being recognized as epistemically competent, an interest in being recognized as epistemically virtuous, an interest in being recognized as truthful, an interest in social inclusion/ participation, an interest in justice and fairness, an interest in social power and authority, the instrumental interest in the practical importance of being believed, and an interest in others believing what we say because they believe us. Pursuing these suggestions would make this already wideranging chapter too unwieldy, but I think he is quite right to think that the strength of the linkage in the text may turn on which of his suggested interests we endorse and how strong those interests are.

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25 Karen Jones, “Trust as an Affective Attitude,” Ethics 107 (October 1996): 5–6. 26 Katherine Hawley, How to Be Trustworthy (Oxford: Oxford University Press, 2019), 50–52. 27 Jones, “Trust as an Affective Attitude,” 16. 28 Karen Jones, Counting on One Another: A Theory of Trust and Trustworthiness (forthcoming), ch. 5. As Renée Bolinger noted in her comment to this chapter, the push for trust may be at the level of social epistemology. We can only indirectly cultivate trust in women who claim to have been victims of sexual violence. 29 Some readers have objected that non-reductionism is unnecessary to this project—as the question is just whether we owe women trust. But this can generate a “wrong-kind-of-reasons” problem—that “having a moral obligation . . . to believe p does not appear to be the right kind of thing to provide a reason . . . to believe p.” Berislav Marušić and Stephen White, “How Can Beliefs Wrong?—A Strawsonian Epistemology,” Philosophical Topics 46 (Spring 2018): 98. Hence, non-reductionism provides a link between the moral and epistemic components. 30 I thank Alex Guerrero for this helpful intervention at the NOMOS conference. 31 C.A.J. Coady, Testimony: A Philosophical Study (Oxford: Oxford University Press, 1992), 8–13. 32 Jennifer Lackey, “Introduction,” in The Epistemology of Testimony, ed. Jennifer Lackey and Ernest Sosa (Oxford: Oxford University Press, 2006), 4. Lackey expounds elsewhere: For every speaker A and hearer B, B knows that p on the basis of A’s testimony that p if and only if: (1) B believes that p on the basis of the content of A’s testimony that p, (2) A’s testimony that p is appropriately connected with the fact that p, (3) B has no undefeated defeaters for A’s testimony that p, (4) B is a reliable and properly functioning recipient of testimony, and (5) the environment in which B receives A’s testimony is suitable for the reception of reliable testimony. Jennifer Lackey, “A Minimal Expression of Non-Reductionism in the Epistemology of Testimony,” Noûs 37 (December 2003): 712. 33 Axel Gelfert, A Critical Introduction to Testimony (London: Bloomsbury, 2014), 99. 34 Ibid., 100. 35 Lackey, “Introduction,” 5. 36 Gelfert, Critical Introduction to Testimony, 102–103. 37 For a theory to be thoroughly reductionist, it must eliminate testimony and reduce the reliability of testimony to the reliability of per-

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ception and so forth. Gelfert, Critical Introduction to Testimony, 104. One worry about global reductionism is that it implies that children, who gain most of their knowledge through taking adults at their word, then do not know anything, as their beliefs are not justified. Angus Ross, “Why Do We Believe What We Are Told?,” Ratio 28 (June 1986): 70. Elizabeth Fricker attempts to give an account of why children may accept testimony. Elizabeth Fricker, “Critical Notice, Telling and Trusting: Reductionism and Anti- Reductionism in the Epistemology of Testimony,” Mind 104 (April 1995): 403. Yet there are objections to this approach. Matthew Weiner, “Accepting Testimony,” Philosophical Quarterly 53 (April 2003): 261. In addition, there is an impossibility to reductionism to the extent that one is truly supposed to confirm everything one knows. Coady, Testimony, 82, 144. Another concern is that we cannot even begin to reduce testimony to other things without being able to identify a report and to what it refers, and once we attempt such an endeavor, we cannot get language and the practice of reporting off the ground without reliance on testimony. Leslie Stevenson, “Why Believe What People Say?,” Synthese 94 (March 1993): 429– 451; Coady, Testimony, 85– 93. Another potential reductionist move, inference to the best explanation, leads to reference class problems, as we need to know what to compare to what to determine whether it is reliable. On the other hand, non-reductionism seems to be a recipe for, in Elizabeth Fricker’s term, “gullibility.” Elizabeth Fricker, “Against Gullibility,” in Knowing from Words: Western and Indian Philosophical Analysis of Understanding and Testimony, ed. Bimal Krishna Matilal and Arindam Chakrabarti (Dordrecht: Kluwer Academic, 1994), 125–161. Phenomenologically, Fricker believes that we are always unconsciously monitoring speakers; we are not taking their say-so. Ibid., 150. Not only do we do this, but we are required to do this: “any fully competent participant in a social institution of a natural language simply knows too much about the characteristic role of the speaker, and the possible gaps which may open up between a speaker’s making an assertion, and what she asserts being so, to want to form beliefs in accordance [with non-reductionism].” Ibid., 126. 38 Gelfert, Critical Introduction to Testimony, 95. 39 Coady, Testimony, 46. 40 Yes, it is true that nowadays the photographer is offering an assurance that the photo is not doctored and so forth. But one can imagine the photographer seeing something for the first time in her photograph in the same way that any other viewer does. 41 Richard Moran, The Exchange of Words: Speech, Testimony, and Intersubjectivity (Oxford: Oxford University Press, 2018), 90. 42 Ibid., 140.

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43 Jonathan Adler, “Epistemological Problems of Testimony,” Stanford Encyclopedia of Philosophy (Winter 2017), https://plato.stanford.edu 44 Marušić and White, “How Can Beliefs Wrong?,” 113. And consider Ross, “Why Do We Believe”: The suggestion is that our response to language reflects a sensitivity to the entitlements and obligations generated by its use.  .  .  . There can, of course, be no general objection to introducing concepts like entitlement and obligation into a discussion of reasons for believing. In speaking of the possession of certain evidence as justifying us in drawing a certain conclusion, or as “forced” it upon us, we are already invoking entitlements and obligations to believe. That is the language of reason.  .  .  . We have seen that a measure of respect for the authority of others as judges of the correct and incorrect use of language is a condition of the existence of shared standards of correct use. It must equally be seen as a condition of reason in so far as that implies a respect for objective standards of truth or fitness to be believed. (79–81) 45 Gelfert, Critical Introduction to Testimony, 91. 46 G.E.M. Anscombe, “What Is It to Believe Someone?,” in Rationality and Religious Belief, ed. C. F. Delaney (Notre Dame, IN: University of Notre Dame Press, 1979), 150. 47 Fricker, Epistemic Injustice, 134. 48 Notably, I don’t think that even as she frames it, the means principle is implicated. If A asks B if B is alive, B’s answer of “yes” is a piece of information that he is alive, irrespective of the truth of his answer (and thus is not hearsay!). It seems odd to say that we are disrespecting B though. Indeed, as any evidence professor can tell you, there are myriad ways that we take what people say into evidence, even when they intend to make assertions, because their relevance to our adjudicative questions is not the truth of their assertions. Are we disrespecting them? 49 Marušić and White, “How Can Beliefs Wrong?,” 97–114. 50 “What this tension in Fricker’s view reveals is that, to make good on any distinction between ‘informant’ and ‘source of information’ that has the kind of ethical significance Fricker assigns it, we need to abandon the kind of evidentialism she presupposes for determining the proper response to an interlocutor.” Marušić and White, “How Can Beliefs Wrong?,” 105. 51 Felix Bräuer, “Looking Beyond Reductionism and AntiReductionism,” Episteme 17 (June 2020): 233. 52 Michel Croce and Paul Poenicke, “Testing What’s at Stake: Defending Stakes Effects for Testimony,” Teorema 36 (2017): 168. 53 Ibid.

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54 Compare Karen Jones, “The Politics of Credibility,” in A Mind of One’s Own: Feminist Essays on Reason and Objectivity, ed. Louise Antony and Charlotte Witt (Boulder, CO: Westview Press, 2002), 154–176. 55 Jenny Hollander, “Why ‘Believe Women’ Means Believing Women Without Exception,” Bustle, November 21, 2017, www.bustle.com 56 It is difficult to sort out Hollander’s claim because it is not clear exactly what she takes to undergird #BelieveWomen. At times, it seems to be an argument that you are likely wrong if you believe your loved one is not guilty. At other times, it seems to be that if everyone believes their loved one is the exception, it undermines the goals of #BelieveWomen. She asserts that “when you believe all women on principle, you believe all women” (emphasis hers). Hollander, “Why ‘Believe Women’.” 57 “Our extra knowledge sometimes allows us to draw a more accurate conclusion.” Sarah Stroud, “Epistemic Partiality in Friendship,” Ethics 116 (April 2006): 514. 58 Simon Keller, “Friendship and Belief,” Philosophical Papers 33 (2004): 329–351. Compare Nomy Arpaly and Anna Brinkerhoff, “Why Epistemic Partiality Is Overrated,” Philosophical Topics 46 (Spring 2018): 37–51, arguing that partiality is not constitutive of a good friendship but that friends may have duties to double-check evidence because the cost of a false positive is very high. 59 “Friendship is importantly contingent on continued esteem for one’s friend’s merits and character, then it is not surprising that we would massage our beliefs about our friend’s character in a favorable direction and downplay any information which might threaten that esteem.” Stroud, “Epistemic Partiality in Friendship,” 511; Rachel McKinnon, “Lotteries, Knowledge, and Irrelevant Alternatives,” Dialogue 52 (September 2013): 523–549. There are negative views of this epistemic stickiness as it may perpetuate injustice. Jason Stanley, How Propaganda Works (Princeton, NJ: Princeton University Press, 2015), 193–199. 60 Jason Stanley, Knowledge and Practical Interests (Oxford: Oxford University Press, 2005). 61 I thank Georgi Gardiner for raising this issue. 62 Bianca Crewe and Jonathan Jenkins Ichikawa, “Rape Culture and Epistemology,” in Applied Epistemology, ed. Jennifer Lackey (Oxford: Oxford University Press, 2021). 63 This is hypothetical. I only use volunteers for classes on sexual assault to avoid putting a student in a situation in which she would have to make the sort of request that appears in the text. 64 I thank Victor Tadros for suggesting this type of case to me. 65 I have (sadly) been in this situation many a time. Each time, I just believe.

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66 American Law Institute, Model Penal Code: Official Draft and Explanatory Notes: Complete Text of Model Penal Code as Adopted at the 1962 Annual Meeting of the American Law Institute at Washington, D.C., May 24, 1962 (Philadelphia, PA: The Institute, 1985), § 213.6(4). 67 American Law Institute, Model Penal Code, § 213.6(5). 68 John Henry Wigmore, Evidence in Trials at Common Law, ed. James H. Chadbourn, rev. ed. (Boston: Little, Brown, 1970), vol. 3A, § 924a, 736. 69 The exhaustive survey done by the American Law Institute’s Model Penal Code sexual assault provision reform project reveals that only South Carolina and Texas have vestiges of these provisions. Model Penal CodeRevision of Article 213, Commentary, B.2a. 70 Although some states continue to have a corroboration requirement, in practice, it is limited in its applicability to testimony that is problematic on its own terms (contradictory, incredible, and so forth). Ibid., B.2b. 71 Deborah Tuerkheimer, “Incredible Women: Sexual Violence and the Credibility Discount,” University of Pennsylvania Law Review 166 (December 2017): 1–58; Michelle J. Anderson, “The Legacy of the Prompt Complaint Requirement, Corroboration Requirement, and Cautionary Instructions on Campus Sexual Assault,” Boston University Law Review 84 (October 2004): 945–1022. 72 Some philosophers may quibble (or more than quibble) with this characterization. For recent efforts to introduce belief and knowledge into legal proof, see Lara Buchak, “Belief, Credence, and Norms,” Philosophical Studies 169 (June 2014): 285–311; Sarah Moss, “A Knowledge Account of Legal Proof,” unpublished manuscript on file with author. 73 This may strike some readers as too strong. Lay people do operate in the language of belief. And, they are likely to articulate thoughts such as “I believe her, just not 100%” as opposed to reporting their mental state as a confidence level. I will not address the debates about the relationship between credences and beliefs here, but suffice it to say that if myriad philosophers cannot settle on this question, then it is likely that different lay people mean different things by belief. Still, the task of a juror is not to say, “I believe the defendant,” but rather, “I am not convinced the defendant did it.” 74 Fed. R. Evid. 602. 75 That is, there are various ways to remain a non-reductionist but become a reductionist in the legal setting. First, counter-evidence may be a defeater. Second, one might recognize that even in life, non-reductionism about belief gives way when the stakes get high. Croce and Poenicke argue that just as pragmatic encroachment may impact when we make knowledge claims, so, too, the stakes may impact when we look for additional

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evidence. Croce and Poenicke, “Testing What’s at Stake,” 163–183. They claim that this can be accommodated within non-reductionism by including pragmatic defeaters within the account. When the stakes are high, we scrutinize more. This means that we effectively become reductionists in high stakes situations. 76 Many thanks to Renée Bolinger for prompting me to sever these questions and consider the issues in this section. 77 “One cannot believe both people when they are giving opposite testimony.” Anscombe, “What Is It to Believe Someone?,” 141–151. 78 Lois Shepherd, “The Danger of the ‘He Said, She Said’ Expression,” The Hill, October 12, 2018, https://thehill.com 79 Ibid. 80 Georgi Gardiner, “She Said, He Said: Rape Accusations and the Preponderance of the Evidence,” manuscript on file with the author. 81 Matt Lewis, “It’s ‘Believe the Woman’ vs. the Presumption of Innocence—and Kavanaugh Is Caught in the Middle,” Daily Beast, October 2, 2018, www.thedailybeast.com 82 Charles L. Barzun, “Rules of Weight,” Notre Dame Law Review 83 (July 2008): 1964. 83 U.S. Const. art III, § 3. There are some interesting questions here I cannot pursue. We might think that this provision tells us that testimony is lesser evidence. But it might simply be that we want more evidence for such a serious crime. The problem with sexual assault is that there are rarely witnesses to the offense, and so a corroboration rule of this sort would effectively prevent the prosecution of the vast majority of cases. 84 Sherry F. Colb, “What Does #BelieveWomen Mean?,” Verdict: Legal Analysis and Commentary from Justicia, November 7, 2018, https://verdict. justia.com 85 Colb, “What Does #BelieveWomen Mean?” Matthew Hale, Historia Placitorum Coronae: The History of the Pleas of the Crown (Philadelphia: Robert Small, 1847), 1:635. 86 Another way to put this point is that it is a costly signal. In these sorts of cases, costly signals can be assimilated with a broad expressive view of #Believe Women as standing for #BelieveCostlySignals or it can be absorbed within reductionism as it gives a reason to believe testimony. I thank Bob Goodin for suggesting the costly signal view. 87 Her paper is not framed as a discussion of the hashtag, but I think it is a fair reading of her sentiments. Tuerkheimer, “Incredible Women,” 1–58. 88 Ibid., 3. 89 Ibid. 90 Ibid.

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91 Barzun, “Rules of Weight,” 1957–2017. 92 Ibid., 1958. 93 Ibid., 1959. 94 Ibid., 2014. 95 Judicial Council of California Criminal Jury Instructions (2017), 223. 96 State v. Kelly, 478 A.2d 364 (N.J. 1984). 97 J.E.B. v. Alabama, 511 U.S. 127 (1994). 98 Larry Laudan, “The Rules of Trial, Political Morality, and the Costs of Error: Or, Is Proof Beyond a Reasonable Doubt Doing More Harm than Good?,” in Oxford Studies in the Philosophy of Law, ed. Leslie Green and Brian Leiter (Oxford: Oxford University Press, 2011), 1:195–223. 99 Alec Walen, “Proof Beyond a Reasonable Doubt: A Balanced Retributive Account,” Louisiana Law Review 76 (Winter 2015): 355–446. 100 We can give this more nuance. Is the president’s nomination entitled to some sort of deference? Irrespective of that deference, does it matter that the nominee is already in the public eye? Certainly, the allegations, however spurious, that could keep someone from being a nominee are distinct from the reasons not to go forward with someone who is already subject to public awareness. I thank John Oberdiek for discussion of this point. 101 Pardo, “Second-Order Proof Rules,” 1088; Laudan, Truth, Error, and Criminal Law, 73. 102 William J. Stuntz, “The Pathological Politics of Criminal Law,” Michigan Law Review 100 (December 2001): 505–600; Richard H. McAdams, “The Political Economy of Criminal Law and Procedure: The Pessimists’ View,” in Criminal Law Conversations, ed. Paul H. Robinson, Stephen Garvey, and Kimberly Kessler Ferzan (New York: Oxford University Press, 2011), 517–527. 103 Many #BelieveWomen debates seem to invoke the image of a drunk fraternity boy. But college women are less at risk for sexual assault. Sofi Sinozich and Lynn Langton, U.S. Department of Justice Special Report: Rape and Sexual Assault Victimization Among College-Age Females, 1995–2013 (December 2014). There are also significant concerns (1) that criminalization changes will disproportionately impact poor people of color but (2) that women of color (as well as immigrants and transgender people) are least likely to have their rights vindicated. See generally Aya Gruber, The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration (Berkeley: University of California Press, 2020), 121–150. 104 The discussion of these interpretations draws from Kimberly Kessler Ferzan, “Preventive Justice and the Presumption of Innocence,” Criminal Law and Philosophy 8 (June 2014): 505–525.

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105 Kentucky v. Wharton, 441 U.S. 786 (1979). 106 United States v. Salerno, 481 U.S. 739 (1987). 107 Andrew Stumer, The Presumption of Innocence: Evidential and Human Rights Perspectives (Oxford and Portland: Hart, 2010), xxxviii; Laudan, Truth, Error, and Criminal Law, 40. 108 Allenet de Ribemont v. France (1995) 20 EHRR 557, [1995] ECHR 15175/89. 109 Geerings v. Netherlands, [2007] ECHR 30810/03. 110 Laudan, Truth, Error, and Criminal Law, 91. 111 Shima Baradaran, “Restoring the Presumption of Innocence,” Ohio State Law Journal 72 (2011): 723–776. 112 Ibid. R. A. Duff, “Pre-Trial Detention and the Presumption of Innocence,” in Preventive Justice, ed. Andrew Ashworth and Lucia Zedner (Oxford: Oxford University Press, 2014). 113 Carl-Friedrich Stuckenberg, “Who Is Presumed Innocent of What by Whom?,” Criminal Law and Philosophy 8 (June 2014): 301–316. The presumption protects against anticipating the outcome of the criminal trial, circumventing the outcome, and undermining the outcome. 114 William S. Laufer, “The Rhetoric of Innocence,” Washington Law Review 70 (April 1995): 329–421; Stumer, The Presumption of Innocence, xxxix. 115 Some scholars claim that the presumption raises a logical contraction because if “the innocence of the person is assumed . . . it is impossible to explain logically why an investigation is being conducted and charges filed without reaching an absurd conclusion that all accused persons are prosecuted by law enforcement agencies without basis.” Rinat Kitai, “Presuming Innocence,” Oklahoma Law Review 55 (Summer 2002): 257–296. 116 Laudan, Truth, Error, and Criminal Law, 93–94. 117 Liz Campbell, “Criminal Labels, the European Convention on Human Rights and the Presumption of Innocence,” Modern Law Review 76 (July 2013): 694. 118 Importantly, no evidence is not the same as even odds. Richard D. Friedman, “A Presumption of Innocence, Not of Even Odds,” Stanford Law Review 52 (April 2000): 873–887. 119 Laudan, Truth, Error, and Criminal Law, 12. 120 “Most criminal defendants who are brought to trial in America are in fact guilty.” Friedman, “A Presumption of Innocence,” 879. 121 Compare Youngjae Lee, “Op-Ed: It’s Better to Pass Over 10 Innocent Nominees Than to Risk Having a Justice Guilty of Assault on the Supreme Court,” L.A. Times, October 5, 2018, www.latimes.com 122 In her comment at the NOMOS conference, Renée Bolinger also raised the question of whether it was appropriate to reassert the pre-

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sumption of innocence after the victim presented evidence. As Bolinger views this, it is inappropriate to claim there is no evidence after evidence has been presented. However, I think the problem is an ambiguity between the two questions above. If the presumption of innocence is asserted as a reminder that there is a standard, as opposed to a commentary on whether the standard is potentially met, then it makes perfect sense to reassert the presumption later. Indeed, juries are instructed about the presumption of innocence, and this is not a commentary on the quality of the state’s evidence. 123 Deborah Hellman, “The Epistemic Commitments of Nondiscrimination,” Virginia Public Law and Legal Theory Research Paper Series, Research Paper No. 2018–60, October 26, 2018, https://ssrn.com/abstract=3273582. 124 For exploration, see Renée Jorgensen Bolinger, “The Rational Impermissibility of Accepting (Some) Racial Generalizations,” Synthese 197 (2020): 2415–2431. 125 Although it is undoubtedly true that black men will still be disproportionately impacted by this statistical assumption. 126 Compare Ekow N. Yankah, “Op-Ed: When Addiction Has a White Face,” New York Times (February 9, 2016), www.nytimes.com 127 Crewe and Ichikawa, “Rape Culture and Epistemology.” 128 Ibid.

5 #BELIEVEWOMEN AND THE ETHICS OF BELIEF RENÉE JORGENSEN BOLINGER

For all its faults—and they are legion—Twitter is a great resource for social epistemology. Particularly over the last five years, the platform has provided a window into our collective practices surrounding testimony of sexual assault and harassment. As women reported the sexual misconduct of various high-profile men in the wake of the #metoo campaign, Twitter preserved a public record of a common pattern: A woman accuses a man of misconduct. He denies the accusation, and in the subsequent discussion someone urges the importance of the presumption of innocence and due process: We are told to not “condemn him in the court of public opinion” until the accuser produces “real evidence” sufficient to establish his guilt beyond reasonable doubt. As these patterns recurred on the day after Christine Blasey Ford’s testimony at the Kavanaugh confirmation hearings (September 27, 2018), a full-page color ad appeared in the New York Times, saying simply: “BELIEVE WOMEN.”1 The phrase also began trending on Twitter, as users urged us to #BelieveWomen. Predictably, the same general patterns recurred in response to the hashtag: Op-eds appeared, worrying that believing women short-circuits due process, strips the accused of the presumption of innocence, or urges us to ignore the facts.2 Similar numbers of editorials sprang up in reply. There is a cluster of difficult questions here, both interpretive and normative. Among them: How should we understand the social project of the “#BelieveWomen” campaign?3 and what does the presumption of innocence even mean outside legal contexts? 109

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Kimberly Ferzan’s chapter in this volume (“#BelieveWomen and the Presumption of Innocence: Clarifying the Questions for Law and Life”) pursues both questions with rigor and clarity, and my contribution will engage closely with hers. Obviously, a slogan can be used to mean many things, and undoubtedly there’s substantial variation in what those who tweet #BelieveWomen actually mean. I’m pursuing a partly reconstructive, rather than purely descriptive project: I seek a charitable interpretation that construes the demand made in the most reasonable and well-grounded way consistent with (many but not all) of the ways the tag is actually used. A tempting—and popular—way to understand the hashtag is that it demands that we believe what women tell us, when and because they tell us. The most extreme formulation of this is that we owe it to all women, without exception, to believe what they say without question.4 This seems to be how Margaret Atwood interpreted the hashtag; when asked to comment, she dismissed it, saying, “Women schwomen—I don’t think you should believe all anything [ . . . ] It’s more useful to say listen to all women and take what they’re saying seriously enough to actually do investigations.”5 While Ferzan’s rich and provocative chapter explores a wide range of ways to understand the hashtag, it devotes special attention to leveraging the conceptual resources of contemporary epistemology to reconstruct and consider a less extreme formulation of this interpretation, “as a call to trust and as a call to non-reductionism [about testimonial justification]. That is, not only do we owe it to women to start with a baseline of trust but this trust will justify our believing them.”6 Like Atwood, Ferzan rejects the demand so construed, at least in legal contexts, noting that when the stakes are high, we cannot base our beliefs simply on the say-so of women (or anyone, for that matter), but must rather examine the credibility of every witness, and apportion our degree of confidence in what was said to the evidential force we take the speaker’s testimony to provide. Both Atwood and Ferzan are clear that they take the hashtag to be prompted by a real problem: Women are persistently under-trusted specifically when they bring first-person accusations of assault. And both think some epistemic fix is called for: We need to trust women more than we do. Atwood suggests that the needed fix is taking their testimony to give us sufficient reason to do a thorough investigation;

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Ferzan proposes increasing our confidence in their testimony in order to cancel out our (probably subconscious) unjustified distrust of women as testifiers.7 But both think asking us to believe women demands too much. While I agree that we should not simply believe what women say because they’re women, I do not think that is the best understanding of the demand to #BelieveWomen. Nor do I think we should understand the demand as a call to be non-reductionists about testimonial justification. In fact, I think the hashtag aims to call attention to a way that women are wronged when not believed, rather than to the fact that their testimony can make belief rational. I argue that the demands of #BelieveWomen are quite modest; it does not require anything like simply accepting whatever women assert as true. We should distinguish between the attitudes of believing a speaker and believing a proposition and resist the assumption that believing a speaker entails forming a full belief in the proposition asserted. I outline an alternative model according to which believing a speaker is taking their assurance to provide evidence of the truth of the thing asserted, and orienting one’s further inquiry in certain characteristic ways. If we interpret the demand to believe women as a demand to respond to their testimony as I suggest, the demand is fully consistent with investigating the evidence in the ways Ferzan and Atwood advocate. If this is right, it becomes harder to see why anyone would think that there is a conflict between believing women and due process or the presumption of innocence. I suggest that the sense of conflict stems from the pragmatic implicatures generated by the appeals to the presumption of innocence in everyday contexts. Though the literal assertoric content of such appeals does not entail that victims’ testimony is not evidence, it is nevertheless often reasonable for hearers to infer that the speaker does in fact dismiss victim testimony. This is because the presumption only concerns what to do when we have yet to receive evidence, and so when invoked after hearing victim testimony, implies that the speaker accords the testimony little to no weight. One of the themes I’ll return to throughout is that speakers who offer testimony—at least in the paradigmatic cases for which #BelieveWomen is invoked—have a positive entitlement to being believed or treated as trustworthy. I take this up explicitly toward

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the end, in part to outline the basis for this entitlement, and in part to demonstrate that the analysis I offer of what it takes to fulfill our obligation to believe women does address these interests. But while I think it is important to recognize that there is a way to interpret #BelieveWomen as a nuanced epistemic instruction, I do not ultimately think this is the best way to think about the social project of the hashtag campaign. As part of a large-scale social project, #BelieveWomen does more than deliver instructions for correcting individual epistemic bias. I suggest that it works to call attention to a particularly pernicious trope operating in the background: that “women lie about assault.” As long as something like this is socially accepted, we are primed to respond to women who testify about assaults with suspicion—an affect that crowds out the trust necessary to afford their testimony appropriate credibility. My discussion centers on everyday contexts, rather than legal ones, partly because this is where the collision between the invocations of the hashtag and presumption is most vivid, and partly because I don’t think the epistemic norms for these two domains are so different. I will consequently use “testimony” and “evidence” in their loose everyday senses, rather than in their strict legal senses. Distinguishing Questions of Justification and Obligation Let’s start by taking a closer look at the subject matter of the call to #BelieveWomen. One of the central contributions of Ferzan’s chapter, I think, is its focus on the demand to appropriately respect women who testify. Ferzan suggests interpreting the hashtag “as a call to trust and as a call to non-reductionism,” because of its emphasis on testimony as an interaction involving respect; as she writes, “Only to non-reductionists is believing women about believing speakers.”8 The argument here is reminiscent of Goldberg’s (2019) contention that any plausible defense of a speaker’s entitlement to be trusted must take non-reductionism as a premise.9 It is true that non-reductionists foreground the speaker as the source of reasons for belief in testimony, but we should distinguish carefully between two readings of the question “when should we believe testimony?” The reading central to the reductionist-versus-non-reductionist debate considers testimony as an input to our rational behavior as

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epistemic agents. Both theories aim to address a question about what anchors the evidential value of testimony, roughly: “when and how does being told that p provide sufficient justification to make belief in p rationally permissible?” Call this the evidential question. The reductionist says the evidential value of testimony that p is indirect and reduces to our independent reason to take the testifier to be credible. Non-reductionists maintain that when we receive testimony from someone that p, unless there are specific reasons to doubt them, we are directly (defeasibly) rationally permitted to base our epistemic confidence in p on their assurance; we do not need to first investigate their credibility in order to be justified in believing what they have told us.10 Both focus on how testimony provides enough evidence to rationally permit belief in a proposition p; here there is no question of owing belief. But testimony is also more than this: It is an interaction of trust, a cooperative exchange between responsible moral and epistemic agents.11 In offering testimony, a speaker “vouches for” the truth of her assertion; she stakes her own competence as an epistemic agent as an assurance. There are deep parallels between this sort of exchange and other core exercises of normative agency, including the making of promises and contracts. The same reactive attitudes seem licensed in response to failures.12 We feel resentment when we accept testimony but later discover the testifier was wrong, and we feel injury or indignation at having our testimony unfairly rejected; we believe that we were owed more care.13 Nonreductionism stresses the ways that agency underwrites the justification provided by testimony, but frames it as merely permissive: We are issued an invitation, not an obligation.14 But if we fix on the ethical dimension, while it is true that testifiers issue an invitation to trust, it is not merely a permission; absent good reason, we cannot decline it without wronging them.15 So, there is an ethical question about testimony, distinct from the evidential question: “Under what circumstances do we owe it to the testifier to believe them?” The two questions are very different. The evidential question focuses on what rational permissions we receive from testimony; the ethical question on what we owe to speakers who testify to us. I maintain that the answers to the two questions are also largely independent: Settling what explains how testimony can provide adequate warrant to permit rational belief in a proposition does

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not settle when we owe it to someone to believe them, nor even what cognitive attitude one must adopt in order to count as believing someone.16 There are three distinct issues here: (a) Is the justification testimony provides for confidence in p direct or indirect? (b) When (if ever) do testifiers have an entitlement to be believed? (c) Does believing a testifier entail adopting an attitude of full belief toward the propositional content they asserted? Taking #BelieveWomen to call for non-reductionism, I suggest, would subtly conflate (a)—an inquiry into the evidential question— with (b), an instance of the ethical question. When we ask whether we are really obligated to #BelieveWomen, the underlying issue is, “what do we owe to women, when they testify?” Both Goldberg and Ferzan recognize that (a) and (b) are distinct but take it that if testifiers have an entitlement to being believed, it would be grounded in an entitlement to be trusted qua speaker, a thought closely associated with non-reductionist answers to (a). Both are skeptical of such an entitlement because they take the answer to (c) to be “yes.” Interpreting the hashtag as demanding that we believe what women tell us also presupposes a “yes” answer to (c). To make it clear that there is room for a different answer, it will help to introduce another set of distinctions, this time between three different concepts we routinely use the word “believe” to express. The first two are attitudes we take toward truth-evaluable propositions. The one most familiar to epistemologists, perhaps, is a subjective attitude of full confidence or high credence in the truth of a proposition p.17 The second is more action-oriented: It is the attitude we take when we close inquiry whether p, having concluded that (given our evidence) we are justified in treating p as true and using it as a premise in practical reasoning. The third is an attitude taken not toward propositions but toward sources of information: trusting the assurances of source. To demonstrate: Imagine there is a screen that displays a number between 0 and 120. Some proportion of the time—say 74 percent—the number is the readout from a thermometer in Death Valley; the rest of the time it is randomly generated. Insofar as you

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treat the readouts on the screen as reliable evidence about the temperature, there is a natural sense in which we should say you believe the screen. Perhaps, given that you believe the screen, you will be inclined to treat the fact that it says “80” as decisive evidence and adopt the belief that it is 80° in Death Valley. Or you could respond with more nuanced credences, reasoning from the fact that the screen displays an accurate readout 74 percent of the time to a credence 0.74 that it is 80° in Death Valley. Either way, the explanation of why you have the credences and beliefs you do will trace back, in part, to the fact that the screen “told” you that it’s 80°, and you believe the screen.18 In which sense of “belief” might we owe belief to speakers? One way to get at this is to ask what we do wrong when we refuse someone’s testimony. It is not just that we underestimate their evidential value as an informant, and so end up less epistemically rational than we might have been. The testifier has a different complaint: It is “an insult and an injury to not be believed.”19 Rejecting someone’s testimony treats them as an unreliable source, ineligible to give adequate assurances—and so as either incompetent or insincere. Treating someone this way is insulting if you lack specific reason to think that the speaker is in fact unreliable. Plausibly, speakers are entitled to reasonable trust; roughly, to being believed unless there is specific reason to doubt them. Later I’ll examine what interests could ground this kind of entitlement. For now, though, it will suffice to fill in the content of the entitlement. First, notice that it doesn’t seem especially plausible that someone (to whom we do not stand any special relationship) has a right to be believed in either of the first two senses: to our developing full confidence in or closing inquiry on a proposition simply because they asserted it. Insofar as speakers are entitled to be believed, then, the better candidate understanding is the third sense: belief as trust in the assurances of a source.20 So in what follows I will (as much as possible) speak of trusting speakers and believing propositions. That is, I embrace Anscombe’s conclusion that “believing someone (in the particular case) is trusting him for the truth—in the particular case.”21 Putting this all together, what we have so far is an answer to (b): Speakers have an entitlement to be believed—that is, to have their assurances trusted as evidence—when we lack specific reasons to doubt them as reliable testifiers.22

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From what we’ve said so far, this is not such a heavyweight obligation; indeed, one might think it eminently reasonable. If this is all #BelieveWomen asks, it is making a very modest demand. It is not that we owe special credulity to women qua women, as a group of testifiers. Rather, since being a woman is not itself reason to doubt a person’s credibility, our general obligation to speakers entails that women, too, are entitled to reasonable trust. So far so good, but what are we to do when a speaker whom we trust in this way testifies that p is true? One might think (though I do not) that if you believe (trust) a speaker, you must believe what they tell you: Adopt an attitude of full belief in p. We have arrived, then, at question (c). Does Believing a Speaker Entail Full Belief in What They Say? Three Ways to Believe Someone The conflict between #BelieveWomen and the presumption of innocence is a tension between two ethical demands on our epistemic activities. #BelieveWomen invokes speakers’ entitlements to be believed when they testify. The presumption of innocence—or at least an appeal to it in everyday contexts—emphasizes people’s claim to our not believing badly of them on inadequate evidence.23 These seem to come into conflict most directly in “she said/he said” cases, when our only or primary evidence of the wrongdoing is the victim’s testimony.24 Critics of #BelieveWomen worry that the demand displaces necessary inquiry with something like solidarity or blind faith in the victim’s accusation. Ferzan summarizes the concern (which she does not endorse) thus: If #BelieveWomen tells us that women have as much claim to be believed as men, that their testimony gives sufficient warrant for belief, then there is no nuance, no credences, and no probabilities. It is a question of which side you believe.25

Clearly, mere side-picking is inappropriate in a courtroom; it is not great practice in everyday epistemic dealings, either. The argument underlying this worry can be put like this: Believing a speaker entails adopting an attitude of full belief in the content of their

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assertions without further inquiry. That attitude is inappropriate in she said/he said cases, because it conflicts with the presumption of innocence; therefore, the demand to #BelieveWomen is unreasonable. Focus on the first step of this argument. Why should we accept it? It does not follow from either reductionism or non-reductionism about testimonial justification. Grant that (directly or derivatively) a speaker’s testimony gives you some justification for confidence in p. If you do not form a full belief in p, but you do increase your confidence roughly in proportion with the justification received, do you wrong the speaker? Nothing we’ve said so far implies this: What we owe to speakers is to not reject their testimony without specific reason. Failing to respond to testimony that p with flat-out belief that p constitutes rejecting testimony only if believing a speaker entails believing the proposition asserted by the speaker. If it doesn’t, there need not be a conflict between the demands of #BelieveWomen and the epistemic care we should take when the stakes are high (and must take in courts as a matter of procedural justice). So, the central question is whether believing a person necessarily involves taking an attitude of full belief toward the proposition they assert. Something like this is a pretty common background assumption, I’ll grant. But I don’t think we should accept it. I won’t so much argue against the assumption as present an alternative and suggest that this alternative has enough going for it that we should interpret #BelieveWomen as invoking it instead. The assumed picture is something like (i) To believe someone who asserts that p is take the attitude of full belief toward the propositional content of their assertion.

Ferzan does not quite endorse (i); she instead embraces a weaker formulation: (ii) To believe someone who asserts that p is “to take the claim on board at the same level of credence as the speaker offers it.”

This departs from (i) only in cases where the testifier hedges their claim, saying “I think that” or “probably.” But if the testifier flat-out asserts p, then (ii) would usually require flat-out believing p.

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Notice that both of these are specified in terms of posteriors, the epistemic attitudes you have after you have heard the testimony. We certainly sometimes use phrases like “believe me!” to express a demand for one of these two attitudes. But I think there is also a natural sense of believing someone that is concerned not with posteriors but with priors: Your dispositions to take the speaker’s assurances to justify raising your confidence in p, which you have even before you’ve heard their testimony or worked through your total evidence to reach your ultimate verdict on p. This is taking them to be a trustworthy epistemic source; someone whose intentional assertions give you evidence not merely that they are talking, but that the propositions they assert are likely true. It is the sense in which you believe your zoologist friend when she tells you an obscure fact about Australian marsupials, but not the breathless five-year-old who relates his adventures fighting an invisible dragon. You believe someone in this sense when you are disposed to treat their assertions as giving you strong evidence in favor of the truth of what they’ve said. More formally, (iii-a) To believe someone who asserts that p is to take the fact that they testify that p to give you epistemic reason, greater than a magnitude m, and proportional to your estimation of their trustworthiness, to increase your confidence in p.26

On this interpretation, #BelieveWomen instructs us to ensure that our estimation of the evidential support for p that we receive from hearing a woman testify is at least m, absent specific evidence that she is not trustworthy— and be disposed to increase our credence in p accordingly. This is precisely the disposition that we counted as believing the screen’s reports about the temperature in Death Valley. Importantly, even if your estimation of a witness’s’ trustworthiness is quite high, believing them in the (iii- a) sense won’t always result in having a high enough posterior confidence in p to yield full belief in p. If you started out with a low enough initial degree of confidence, or the rest of your evidence strongly supports ~p, or if belief is not just a matter of high credence, you may well believe the person who told you p but not believe p.27 Though certainly this introduces a level of nuance not usually present in Twitter exchanges, I think it is still true to the

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everyday phenomenology of trusting speakers and other sources of testimony. I expect that some readers will immediately find (iii-a) unsatisfactory; surely believing someone involves much more than just increasing my credence in what they’ve said! I agree, but resist the suggestion that we should fill in the details of this “much more” by requiring that our posterior confidences be substantially higher (or reach full confidence in p), as (i) and (ii) do. Rather, there are a number of other ways that trusting someone’s testimony should restructure our epistemic orientation: changing what we take to be relevant counter-possibilities, framing what questions we take to be important, what evidence we look for (and how hard), which working assumptions we adopt, and, of course, which propositions we start treating as default-accepted unless we have specific reason to doubt them.28 Perhaps especially relevant: If you believe the person who testifies but fall short of forming a full belief in the content of their testimony, you’ll still be keeping an eye out for some error possibilities—maybe there’s additional evidence that contextualizes what they’ve said—but you won’t be focused on whether they’re lying. You won’t be discounting what they’ve said in proportion to some statistic about how often people “like them” have been wrong in the past. If you believe the person, you apply scrutiny in the first instance to your overall evidence on p, not to the credibility of the witness. To reflect all this, we should supplement the evidenceoriented condition (iii-a) with an additional inquiry-oriented condition, something like (iii-b): (iii-b) and to focus your subsequent inquiry on p (rather than on the trustworthiness of the testifier).

This doesn’t mean we disallow evaluations of the speaker’s credibility, but they are not the central focus of our inquiry if we believe the speaker.29 It does require treating p as a live question, rather than as likely false: It directs us to seek the evidence we would expect to find if p is true, rather than spending energy inventing hypotheses to explain how a lying witness would produce the specific testimony received. It also affects how we rank the plausibility of the various hypotheses: Believing a witness’s statement that p gives us reason to

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take seriously possibilities that render p consistent with our other evidence, even if they’re complicated, and to demote hypotheses that would imply that our witness is lying, even if they are simpler.30 One last note on the picture I am offering here: If believing a speaker is just to treat their testimony as evidence relevant to your inquiry in the ways detailed by (iii[a-b]), we clearly need not presuppose the truth of non-reductionism in order to affirm that speakers are entitled to this form of belief when they testify. Any plausible version of reductionism about testimonial justification will still maintain that it is rational for us to take testimony to give us epistemic reason (proportional to our estimation of their trustworthiness) to raise our credences in p. This is unsurprising, given the independence of the evidential and ethical questions. She Said/He Said Revisited: Believing Conflicting Testimony If we accept that believing (trusting) a speaker need not involve forming the full belief that p, then we can avoid the worries that many (including Ferzan and Atwood) raise about the call to #BelieveWomen. There need not be any conflict between satisfying this demand, on the one hand, and doing due epistemic diligence and respecting due process, on the other. Consider the problem of conflicting testimony. Ferzan is absolutely right that if believing a person requires forming full belief in the proposition they assert, then when speakers assert contradictory contents, we cannot coherently believe them both. Suppose two people (let’s call them Alex and Beth) testify to inconsistent contents. It is not possible to form the attitude of full belief in p in response to Alex, and simultaneously form the attitude of full belief in ~p, in response to Beth, without being incoherent. We can only withhold judgment or pick a side. So, if (i) or (ii) are correct as a model of what it is to believe a speaker, then, when presented with conflicting testimony, you face “a question of which side you believe.” But even when testimonials conflict, it is perfectly possible to take both testifiers to be trustworthy, and so to update your credence in p on both “Alex asserts that p” and “Beth asserts that ~p.” If you trust both equally, you may end up with the same credence in p as you had when you began, but if believing someone only

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requires something like (iii), then you will have believed both of your sources. You will not have rejected the testimony of either, though you will likely need to do more investigating to know whether to believe p. Importantly though, this is if your estimation of trustworthiness is roughly equal for both testifiers. In she said/he said cases, as Gardiner points out, we are often not justified in taking the trustworthiness of a denial to be on par with the trustworthiness of the accusation. In general, a speaker’s having a strong incentive to assert something—independent of its truth—is a reason to trust their assertion a little less. A person who stands accused of assault always has an incentive to deny it; the same does not hold for making an accusation.31 Plausibly the base rates matter here, too. A recent meta-analysis of reporting rates found that only about 5 percent of rape reports filed are “false”—that is, the evidence yielded by investigation either on balance suggested the assault did not occur, or was insufficient to establish that one did.32 Taking these numbers at face value, we would be justified in taking an accusation (at least one issuing in a police report) to be reliable 95 percent of the time—which is a fair bit higher, surely, than we should expect from denials. High Costs of Belief On the face of it, both (i) and (ii) are quite demanding interpretations of what it is to believe a speaker. Ferzan takes even (ii) to be ill-suited to the inquiry necessary in legal contexts, though perhaps more amenable to everyday dealings. Still, one might worry that it is sometimes too demanding even there. Believing that a loved one has committed sexual assault sends shock waves through your life, in a way that believing that it rained while you were in the library does not. Intuitively, we are at least permitted to be epistemically cautious, requiring more (or more compelling) evidence before we close inquiry on high-stakes propositions like these. We may be tempted to think that an advocate of (ii) could appeal to pragmatic encroachment here, but it cannot do the work; it is addressed to the wrong question. Pragmatic encroachment is a theory that explains why a degree of evidential justification that usually suffices to permit rational belief

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is insufficient when the stakes of mistakenly having that belief are high.33 So if we’re addressing the evidential question, asking whether testimony gives agents facing high costs sufficient evidence to make belief that p rational, pragmatic encroachment can be leveraged to say “no.” But if that’s not the relevant question—if we’re instead asking whether respecting the speaker’s entitlement to be believed (trusted) still requires the agent to believe p, even when that belief would be costly—then pragmatic encroachment only has space to operate if we interpret believing speakers my way. If we embrace either (i) or (ii), then believing someone requires at least matching your credence to the strength of their assertion; if the speaker flatout asserts p, then both (i) and (ii) require you to flat-out believe p in response, or else you fail to believe the speaker. There is no room here to ask whether your total evidence, including their testimony, is adequately justifying given the stakes you face. Of course, failing to believe only wrongs the testifier if we owed them belief. Maybe there’s room for an advocate of (i) or (ii) to argue that speakers are only entitled to be trusted when their testimony in fact gives adequate justification for full belief given the stakes facing the hearer. But this suggestion makes the foundations of the speaker’s entitlement pretty mysterious. The stakes of belief for the hearer are often not transparent, and not obviously of concern, to the testifier. So if what the speaker has a claim to is being trusted just when the hearer’s evidence rationally permits full belief in their context—to your believing that p on their say-so if and only if your evidence suffices to justify belief, given your actual and unknown circumstances—the grounds for this moral claim must be quite abstract. It’s hard to think which interests of the speaker could ground such a claim, or how they could complain that they are wronged by failure. It cannot be that they are wronged whenever we fail to form beliefs that we are justified in having. We do that all the time, when we fail to draw inferences on the information we already have, or fail to notice or process evidence in our visual field, etc. The complaint a speaker has against our failing to believe them qua testifier is not principally that we have failed to form a justified cognitive attitude. Pragmatic encroachment is well-suited to explain when an agent should close inquiry on p, given their evidence and the comparative

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costs of relevant errors risked. But the theory is not equipped to tell us how to balance the harms to others of rejecting testimony against our own high stakes to determine when others have a claim to our believing. By contrast, the notion of reasonable trust is capacious, well-suited to exactly this kind of balancing. As Karen Jones develops the notion, reasonable trust can encompass different kinds of reasons that count in favor of trust, from epistemic, to instrumental, to reasons that follow from commitment to an ideal. In some cases, you will need evidence sufficient for a strongly justified belief that the other is trustworthy. In other cases, trust can be reasonable in response to someone’s explicit invitation to trust (depending on domain and consequences of misplaced trust).34

Reasonable trust in a trustworthy but fallible speaker won’t straightforwardly generate an obligation to match your credence in p to the strength with which they asserted it, much less to flat-out believe it. You might well have other evidence that you shouldn’t disregard, or be facing significant practical stakes. If I have reasonable trust in Annie, then when her assertion that p gives me adequate evidence in context for full belief (together with my other evidence), I will adopt an attitude of full belief toward p. But otherwise, I will simply become more confident in p. All the action happens in the ethical question, not the evidential question. We are not concerned that in failing to believe someone’s testimony we will be irrational; we are concerned that we will wrong them. Our epistemic lives are shot through with ethical considerations, and while recent debates over “moral encroachment” on the epistemic have focused on whether we can wrong someone through what we believe about them,35 the important point here is that whether we believe (trust) them is also ethically charged. This need not mean that trusting speakers as we ought is in competition with more narrowly epistemic aims; we need not sacrifice truth in particular cases in order to advance the ethical project. Indeed, bringing our actual epistemic practice into alignment with the normative demands of reasonable trust may make us more rational by a number of metrics, by correcting ways our inquiry is presently distorted by bias.

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Acknowledging these ethical dimensions is important, not just because it appropriately foregrounds that we owe it to stakeholders to improve our epistemic practices, but because the distortions we aim to address can be incredibly difficult to spot or fix when approached as purely epistemic problems.36 Distrust does not always manifest as an unreasoned refusal to believe anything someone says. We can distrust someone by failing to attach adequate weight to their testimony, or by holding them to inappropriately strict standards (requiring perfect recall of all details from an event that took place years in the past, or being able to rule out quite unlikely alternative explanations of events, etc.) before we will accept what they say. Distrust can also manifest in seeking defeaters too readily or focusing disproportionately on the possibility that they are lying or unreliable. Innocent Presumptions and the Presumption of Innocence If you’re persuaded by what I’ve said so far—that #BelieveWomen urges us to place the same default trust in women that we place in other testifiers, and that this requires us to take the fact that a woman testifies to p to provide evidence in favor of p’s truth— then it is puzzling how appeals to due process, or reminders about the presumption of innocence, conflict with appropriate trust in women’s testimony. Is this all just a confusion? Given the demands of #BelieveWomen (as I propose to understand them), is there anything inappropriate about reminding interlocutors of the importance of the Presumption of Innocence? While the obligation to believe women as I have interpreted it is fully consistent with respecting due process and the presumption of innocence, there is still a conflict implied by such reminders. To draw this out, let’s start by getting more precise about what the “presumption of innocence” does and doesn’t involve, in American criminal law contexts. As Ferzan’s discussion makes plain, the content of the presumption is procedural; respecting it involves doing two things:37 POI-Default: setting “innocent” as the default for what to conclude if the relevant standard of proof is not met.

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POI-as-No-Evidence: taking the attitude that one has no evidence concerning whether the defendant is guilty prior to the proceedings. POI-Default is necessary in trials because the court cannot simply withhold in the way that an individual can, or even conclude with a hedged “probably the accused is guilty.” Because of the structure of a trial, the finder of fact must in the end conclude either p or ~p; the standard of proof sets a threshold for the degree of evidential support that will suffice to justify finding that p, and the presumption of innocence identifies ~p as the default if that threshold is not cleared. The presumption of innocence as no-evidence requires that our priors—our degree of confidence in p before we hear any evidence—should be either concentrated at 0.5 (reflecting the fact that we think p is as likely to be true as false), or spread evenly across the full space of possibilities 0–1.38 So, prior to hearing the testimony, the presumption of innocence requires that we not take the bare fact of an accusation as evidence of guilt. When invoked in informal contexts, the presumption is sometimes glossed as requiring something much stronger than this: Material-POI: to outright believe that the accused is innocent (~p), until presented with overwhelming evidence to the contrary.

Material-presumption of innocence requires that we start with full confidence in ~p. There are reasons to worry about whether assuming that the accused is in fact innocent is coherent in all the contexts in which the presumption of innocence is required.39 But even this way of interpreting the presumption of innocence does not genuinely conflict with believing women, if we respect the evidence we receive. Here’s why: An accusation is made. We start with no evidence, then the accuser offers her testimony that p. If we’re good Bayesians, we update by conditionalizing our prior in p on how probable p is given this new evidence. Where this leaves us depends on where we started, how attached we were to that starting point (sometimes called resilience), and how much we trust the evidence we obtained. If we put more stock in the trustworthiness of the

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testimony than in our starting presumptions—which we should— then no matter our starting point, it will be pretty easy for testimony that p to move us to significant confidence in p. The more attached we are to the starting point (or the less we trust the testimony), the more the difference between the alternative understandings of the presumption of innocence makes a difference to the post-update degree of confidence. If the starting point is resilient, it will take an overwhelming amount of evidence to convince someone who starts out presuming ~p that in fact p is probably true. But insofar as the presumption of innocence is a stance defined by the absence of any evidence, the starting credence it yields should not be resilient and so should easily shift in response to the weight of evidence with any real probative force. This fact is actually what helps to make sense of the complaint that invocations of the presumption of innocence in everyday contexts—like Twitter exchanges—imply that accusers are lying, or shouldn’t be trusted. There are various pragmatic principles, or maxims, typically operating in the background of our everyday conversations. To abide by them, you must make your contribution not only true, but efficiently informative and on-topic, given our shared information and the goals of our conversation.40 Reminding your conversational partners about what to do in the absence of evidence is an unhelpful contribution to make immediately after receiving evidence. So, if you’re being cooperative, you must mean something else by asserting it: not just that presuming innocence is a good starting place, but that even now, having heard the testimony, we shouldn’t stray far from that starting point. This would only be true if you took the testimony to have little to no evidential value. Here it might be useful to return to the screen example. If >50 percent of the time the screen just displays a randomly generated number, then seeing what’s on it gives you little reason to believe that’s the temperature in the desert. But it would be inappropriate to retain this attitude if you knew that the screen was pretty reliable (especially if it was known to report falsely only 5% of the time!). So, if, after seeing “80°” on the screen, you reprimand someone for saying that’s probably the temperature in the desert right now, your assertion pragmatically implicates that we cannot treat the screen as reliable.

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Given that respecting testimony entails taking it to be some evidence for p, reasserting either that we should presume that ~p, or that we lack probative evidence as to whether p, is to disregard the testimony we’ve been offered. When an appeal to the presumption of innocence is used as a reply to the claim that victim testimony is probative evidence, the underlying picture thereby forwarded embeds skepticism about the testimony. It pragmatically implies that the testimony either isn’t evidence at all, or counts for very little.41 Both of these possibilities are incompatible with taking the testifier to be a reliable source of information, and so imply that she is either lying or incompetent. Making these appeals, then, is in conflict with the demands of #BelieveWomen, though there is no conflict between actually respecting the presumption of innocence and believing women. The Entitlement to Be Believed, Revisited The account that I’ve offered is reasonably lightweight, as obligations to believe go. It basically only requires being disposed to treat women’s testimony as relevant evidence. Hopefully, this sounds reasonable—like what we should be doing anyway just to be rational. You might suspect that this is because my account is not really an analysis of what it takes to believe someone, or at any rate not what is invoked by #BelieveWomen. So—especially if you were skeptical about the hashtag’s demands—you might feel that I’ve changed the subject. Does the lightweight thing I’ve outlined really count as believing a speaker? And even if it does, is it plausible to think that speakers are actually entitled to that? To settle these fears, I’ll try to make good on the promissory note from earlier to revisit the interests that ground a speaker’s entitlement to be believed. If what I’ve outlined can serve those interests, that’s some evidence that my proposal should count as a viable interpretation of what it takes to believe a speaker. There are of course some (by now familiar) non-instrumental interests a speaker has in being taken to be a credible source of testimony, at least by some hearers, sometimes. These are the speaker’s interests in participating as an agent in good standing in the epistemic community. In rejecting their testimony, we represent them as unreliable. This is both diminishing and excludes

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them from the participatory goods of a valuable epistemic practice.42 Plausibly these participatory interests at least ground a claim against the type of epistemic injustice that is the primary focus of Fricker (2007): being specially distrusted, relative to others, due to an identity prejudice. But this is not yet a claim to being believed. It isn’t clear that interlocutors who uniformly resist trusting anyone’s testimony about sexual assault or harassment transgress any speaker’s claim to being counted as a participant in the epistemic community more generally.43 The simpler explanation for how exactly we wrong a speaker when we inappropriately reject their testimony appeals to more instrumental considerations. Let’s focus in particular on the social and political role of testimony and work backward to characterize the testifier’s moral interest in being believed.44 There are some sorts of facts for which we simply must take someone else’s word. The reasons for this forced reliance vary: Evaluating the evidence might require expertise we do not have, or access to evidence we cannot get, or the ability to observe phenomena from a particular vantage point in time, location, or social identity. To have evidencesensitive beliefs or credences about these facts at all, we will have to trust someone’s testimony; we will have to rely on someone vouching for a fact. When a speaker’s concrete interests depend on policy decisions made about facts of this kind, and she does have direct epistemic access to those facts, she has a very strong interest in being considered eligible to vouch for them. When she is not—when those who influence the policy decisions are not disposed to treat her assurances that p as evidence in favor of the truth of p—then there are two possibilities: either they trust no one to vouch for those facts, or they deny her (and/or her social group) influence that they grant to others. If we trust no one to vouch for the facts, we distrust all testimony on the issue, and must throw up our hands, saying, “who can know?” whenever an accusation is made without enough independent evidence to warrant belief in the absence of the victim’s testimony. There are special contexts—when the testimonials are equally credible, a thorough investigation has been done, and the evidence remains equivocal—in which we must accept that the facts are murky. But when this is the default position, it is functionally

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equivalent to declining to enforce victims’ rights. Since the accused always have a strong incentive to issue a denial, this policy will lead to systematic failure to enforce the rights of victims or protect them from future victimization. We are typically at least slightly more trusting: willing to believe the testimonials we find plausible, while ignoring the others. The trouble here is that we evaluate whether testimony sounds trustworthy by quickly checking it against how common we interpret the type of event reported to be, and how often we think people lie about it. (This is why, for instance, no one believes men on Tinder who say they’re 6 feet tall.) But if our sense of these relative frequencies isn’t itself informed by reliable evidence, we’re likely to be woefully inaccurate, and misplace our (mis)trust. Similarly, when deciding how much weight to give to testimonial evidence, it is well and good to emphasize the need to balance the risks to the accuser of dismissing a true accusation against the risks to the accused of accepting a false accusation. But to do this balancing successfully, we need to have some estimation of the comparative likelihoods of each type of error. We cannot hope to succeed if we procedurally and systematically underestimate the odds of one type of error (e.g., by discounting the testimony of those who are in a position to give evidence). Unfortunately, all of these harms are on display in our current approach to accusations of sexual assault. We tend to dismiss claims that we take to be improbable, and police are more likely to decline investigation if they think false reports are common. But this is something of a vicious cycle. There is a significant discrepancy between the actual comparative prevalence of assaults versus unsubstantiated accusations, on the one hand, and beliefs about these rates held by members of the general public and police departments, on the other. In the United States, victims only file police reports in 32–59 percent of sexual assaults.45 The reported frequency of assault is thus substantially lower than the real frequency of victimization. Routine non-investigation magnifies the disincentive for victims to report or testify, further widening the gap between the actual rates of assault and the evidence preserved in police records. The all-too-predictable consequence is that the people tasked with investigating whether a reported assault occurred approach victim testimony already skeptical about its

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evidential value, believing assaults to be much less, and false accusations much more, common than they actually are. As Tuerkheimer summarizes, In one survey of nearly nine hundred police officers, more than half of the respondents stated that ten to fifty percent of sexual assault complainants lie about being assaulted, while another ten percent of respondents asserted that the number of false reports is fifty-one to a hundred percent. Another study found that more than half of the detectives interviewed believed that forty to eighty percent of sexual assault complaints are false.46

As a reminder: The actual rates of false reporting are closer to 5 percent. To summarize: We have an interest in our testimony being received as evidence, because we need to be able to offer evidence to motivate action to protect our rights. Thus, even though the duty I have outlined is not very demanding, this lightweight duty serves a fairly heavyweight moral interest for the testifier. If we assume that when an agent has a compelling moral interest that can be secured at reasonably low cost, she plausibly has a claim right, it is plausible that speakers do have a right to being believed in the sense that I have outlined. To be clear, I do not think that this minimal entitlement is the only form of belief we can owe to someone. I think we do owe this to strangers, and yes, to all women. (Remember, we owe a qualified duty to treat their testimony as reason-giving when we lack specific reason to doubt their reliability.) But we can acquire thicker obligations in the context of closer relationships. We might indeed have duties to believe the best of our friends, or to accept the testimony of our partners even when it is unlikely to be true, given the rest of our evidence. I do not think anything I have said commits us to the existence of these duties, but I do not want to rule them out, nor would I deny that we could remind someone of these obligations by saying they ought to “believe me.”47 My aim in this chapter has only been to articulate the nature of the entitlement that speakers may have to be believed by people they have never met.

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The Heart of the Problem: A Social, Affective Deficit In closing, I’d like to briefly float a rather different interpretation of the function of #BelieveWomen. It’s natural to think about testimony as an interaction between individuals: one speaker, one hearer, abstracted from a larger community. But as I emphasized in the previous section, there’s also a social dimension to testimony. This extends to credibility assessments; we do not just rely on each other to vouch for facts. We also vouch for people as sources of information. Rather than calculate the trustworthiness of every speaker ourselves, we outsource—or distribute—this labor to others in the community. We do this by relying on social signals about trustworthiness.48 If we interpret #BelieveWomen not as an imperative demanding full belief, but as an epistemic instruction aimed to correct the underlying credibility deficit women face when individuals assess their evidence, we might think of it as saying, roughly, “Women have a quite low misleading-testimony base rate for first-person reports of sexual harassment or assault, so assign high credence when they testify.” Formalized, this would presumably be something like: “Where p is a first-person victim’s report of sexual assault, the relative frequency in past cases of [~p & a woman testifies that p] is quite rare. So, your credence in ~p, conditional on [a woman testifies that p] should be very low. So all else equal, on getting evidence a woman testifies that p, the rational agent should update to a high credence in p.” Simplified into advice that your father might follow in his everyday activities, this would be: “trust women (far) more than you do on this topic.” As a direction to individual believers, it is unlikely that a corrective of this kind will go very far in addressing the harms that motivated the #BelieveWomen campaign. The extent of our distrust—the readiness with which hearers seek defeaters for women’s testimony to assault, and the resilience with which they cling to the presumption of innocence even after hearing testimony— suggests that the issue is not simply a collection of individual mistakes about the weight of their evidence. What #BelieveWomen is up against isn’t, I suggest, an individual cognitive problem, but an affective, social one, in which something emotive—the fear of false accusation—looms large and crowds out the trust that underlies confidence in testimony.49

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Relatively early in her chapter, Ferzan considers in passing that the demand is “an attempt to create a positive generic,” rather than an epistemic instruction. I think there is something to this, but it isn’t straightforward. A “generic” is a bare plural sentence, like Ducks lay eggs. Mosquitos carry West Nile virus. Boys don’t cry. Pit bulls are aggressive. We readily accept such sentences as true, assert them in everyday contexts, and rely on them in reasoning and argumentation. But it’s far from clear what, precisely, we should take the semantic content of such sentences to be. They seem to predicate properties in a way that quantifies over whole groups, but the strength of the quantification is implicit—there is no “all,” “most,” or “some”—and it is not apparently reducible to these common quantifiers. Does “ducks lay eggs” claim that most ducks lay eggs (or just most female ducks)? That ducks generally lay eggs? That it is striking that they do so, or that it is a characteristic property of the kind that they engage in egg-laying? The truth conditions of generics are murky; that’s part of why they’re so interesting to political philosophers of language and linguists.50 Generics are pretty close to cognitively basic;51 we use them to sort the world into manageable categories. But they’re also incredibly slippery: Because generics aren’t explicitly quantified, when evaluating one we tend to read it as (say), “[some] pit bulls are aggressive,” and so accept it as true on the basis of just a couple of salient or striking cases. But when deploying a generic in reasoning, we have a strong tendency to treat it as (say), “[most/all] pit bulls are aggressive.”52 This tendency is particularly pronounced when the generics in question concern a dangerous property. What Leslie terms “striking property generics” can establish fear and distrust of an entire category, based on a few striking instances.53 On learning of just a handful of cases of Great White sharks attacking surfers off the Australian coast, we move quickly to accept the generic “sharks attack bathers,” and subsequently allow it to frame our approach to all sorts of sharks as dangerous. There’s an evolutionary advantage to learning quickly, especially about danger—but it over-generates.

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The overwhelming majority of sharks will never attack, but this fact does little to unseat the striking property generic that disposes us to view all members of the kind with suspicion. There is a deep resonance between these generics and the social project of #BelieveWomen. Nevertheless, generics are still truthevaluable declaratives, whereas “#BelieveWomen” is an imperative. It makes a demand, not an assertion; to read it as a generic we would have to take it as elliptical for something like “women are trustworthy.” That aside, one wonders whether a project to establish a positive generic of the sort imagined could be expected to succeed in improving the uptake of women’s testimony. There’s a risk, when trying to introduce a positive generic, that you’ll actually only make the negative stereotype that you’re trying to displace more salient, and so entrench it instead. Imagine trying to establish “men aren’t violent” or “pit bulls are safe” as generics. If the background context is not already favorable—and especially if it is already unfavorable, if it already encodes a pernicious generic— then these are apt to cement the opposite belief instead. This is why rebranding efforts often circumvent the realm of the rational or truth-evaluable entirely. If there is already widespread acceptance of the pernicious generic “pit bulls are dangerous,” you don’t fix that by telling people “pit bulls are safe.” You try to change the frame people use to think about pit bulls, with a little branding.54 You make them seem cute and cuddly by calling them “pibbles.” Importantly, this gets in at the level below beliefs: It targets the affective frames with which we approach the world, which we use to sort our inputs, to resolve ambiguity, to decide what we are seeing, hearing, etc., and how to feel about it.55 I want to suggest that #BelieveWomen is precisely this kind of campaign, in which case it’s not (primarily) an epistemic directive for individuals. It seeks to restructure cognitive architecture at a deeper level, to destabilize an affective frame that represents women as prone to making false or specious allegations of sexual assault. The hashtag surfaced in response to a particular pattern: the pattern of responding to women’s first-person testimony by implying that we have no evidence, raising vague concerns about false allegations, and pointing to a (very) small number of striking instances of specious accusations. If Jones is right that attitudes like fear and suspicion undermine trust—and I think she is—then to actually address the widespread

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distrust of women’s testimony, we need a project in social marketing, aimed to undercut an already existing and widespread striking property generic: that women make false or spurious accusations of sexual assault.56 The target is affective; it does not instruct hearers to believe what is asserted by all, most, or even any women in particular. It does not even instruct them to try to increase their estimates of women’s credibility. Rather, it urges us to interrogate (and abandon) the undeserved affective skeptical frame with which we greet women’s testimony in general and about sexual assault especially. That will require attending carefully to the patterns that manifest in our conversations about sexual assault, how we talk about women’s testimony, and what questions we are disposed to ask when the topic comes up.57 Wrapping Up So, to summarize: I’ve argued that on a plausible understanding of what being believed as a speaker amounts to—namely, being trusted—there is no conflict between appropriately believing women who testify and preserving the presumption of innocence and due process. Hence, I have suggested that we do in fact have an ethical obligation to believe women, as well as an ethical obligation to avoid thinking badly of someone on inadequate evidence. Both obligations are grounded in our duty to avoid imposing the harms and risks that would result from rejecting testimony or making errors arising from our mistaken beliefs. So, while I agree that we shouldn’t blindly defer to or “side with” women, there is a plausible reading of #BelieveWomen as an imperative, on which the hashtag urges us to have reasonable trust in women’s testimony. This requires accepting their testimony as evidence in favor of the propositions they assert, and changing our orientation toward error possibilities—in particular, it requires that we avoid centering our inquiry on whether the testifier is misleading, focusing instead on what the available evidence supports about the events she recounts. Though I have spent most of this chapter working to demonstrate that we can believe speakers without adopting an attitude of full confidence in the content of their assertions, I do not think that #BelieveWomen actually is best understood as calling for a reform of our individual epistemic responses to women’s testimony.

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Rather, the correction must be a project in social epistemology. We don’t just use testimony to vouch for facts; we outsource the work of deciding whom to trust, and how much. We vouch for people as trustworthy testifiers within domains of expertise: Trust him for fashion advice, her for career advice, etc. In large social networks, we vouch for types of people (don’t trust politicians or used car salesmen; do trust scientists, etc.). When this works well, it is a cognitively efficient way of dividing epistemic labor. But it can go—and has gone—badly. A group of agents have been branded as characteristically unreliable in their testimony about an area of policy concern that is testimony-dependent. It’s not that people believe that all women lie, no more than that all sharks attack bathers. But just a few salient bad cases, blown to mythic proportions and deeply embedded in cultural tropes, are sufficient to brand all members of the kind as untrustworthy, ineligible to vouch for the facts in that domain. When she testified, Ford exemplified many of the properties we use to indicate trustworthiness: She leads a conservative lifestyle, in general obeys social norms, has advanced degrees, has a stable income, spoke in a calm and organized matter, answered questions directly, and still the first questions asked (and the majority of subsequent public discussion) focused on whether she was trustworthy. What the hashtag calls attention to is that our social system of figuring out whom to trust is broken: It unfairly excludes women as sources of reliable epistemic testimony, especially on the topics where their testimony is crucial to understanding the scope of the problem. As I said at the outset, this is a reconstructive (and perhaps partly revisionist) gloss of the hashtag; I expect plenty of users do mean things by #BelieveWomen which I have ruled out as implausible. But I think there is value in carefully tracing what it could mean, at its best, and outlining the nature of the underlying social problem that provoked it. Of course, this is all a bit complicated for Twitter, so it’s understandable if people make a hash of it when limited to 280 characters (pun intended).

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I am particularly grateful to Richard Bradley, Kim Ferzan, Maegan Fairchild, Georgi Gardiner, Sanford Goldberg, Margaret Shea, Heather Young, and William Wells for extensive written comments on and close engagement with earlier drafts of this chapter. I also benefited immensely from discussion with Rima Basu, Andrew Chignell, Carolina Flores, Amy Floweree, Danny Forman, Rachel Fraser, Johann Frick, Alex Guerrero, Elizabeth Harman, Douglas Husak, Ewan Kingston, Victoria McGeer, Avia Pasternak, Dee Payton, Daniel Viehoff, and Annette Zimmerman, as well as with: the participants at the NOMOS conference hosted by Princeton’s University Center for Human Values in Fall 2019; students in Zoë Johnson King’s Spring 2020 seminar on the Social Turn in Metaphysics and Epistemology at New York University; participants in the Princeton University Center for Human Values Laurence Rockefeller Research Seminar; members of the Rutgers Value Theory Reading Group in May 2020; participants in the Social (Distance) Epistemology Series in June 2020; members of the Oxford Summer Lockdown Epistemology Group in July 2020; and members of the philosophy department at Monash University in August 2020. Notes 1 The ad was sponsored by the dating app Bumble, which is distinctive in requiring women to make the first move, and is marketed as a way to at least somewhat reduce the amount of harassment women face when dating. Morgan Gstalter, “Dating App Bumble Publishes Full-Page Ad in NY Times: ‘Believe Women’,” The Hill, September 28, 2018. https://thehill.com 2 Bari Weiss rejects #BelieveWomen with the explanation: “I believe that facts serve feminists far better than faith. That due process is better than mob rule. [ . . . ] What we owe all people, including women, is to listen to them and to respect them and to take them seriously. But we don’t owe anyone our unthinking belief.” Weiss, Opinion, “The Limits of Believe All Women,” New York Times, November 28, 2017. www.nytimes.com 3 One important question which I will not spend much time addressing is how we should read “women” in “#BelieveWomen.” On one reading, it restricts the scope of the campaign to only testifiers who are female or have a feminine gender, or to only those who suffer identity-prejudicial credibility deficits in virtue of their membership in this social group. This reading con-

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strains the scope of the people whom we are to believe but leaves the topics on which we are to believe them unrestricted. An alternative reading, which I find more attractive, takes the primary aim to be to secure credibility for people who are reporting sexual assault or harassment. Insofar as these reports are stereotypically made by women, it is plausible that anyone making such a report is subject to what Emmalon Davis calls a “Content-Based Testimonial Injustice”: unjust skepticism or dismissal of a content, stemming from a prejudice against the social identity with which that content is associated (see Emmalon Davis, “A Tale of Two Injustices: Epistemic Injustice in Philosophy,” in Applied Epistemology, ed. Jennifer Lackey. Oxford: Oxford University Press, June 2021; https://global.oup.com). On this reading, the prejudice to be addressed is principally against women, but the motivating issue is a tendency to dismiss testimony reporting the sexual misconduct of prominent men. What I say should hold for either reading. 4 This extreme interpretation is particularly favored by those who think the hashtag makes an unreasonable demand. There are in fact two variants of the tag: “#BelieveWomen” and “#BelieveAllWomen.” The latter appears to have emerged later (it rose to prominence when David French re-tweeted Juanita Broaddrick’s accusation that Hillary Clinton “tried to silence” her). As compared to the more ambiguous #BelieveWomen, the #BelieveAllWomen tag is used disproportionately often by detractors. See Susan Finaldi, “#BelieveAllWomen Is a Right-Wing Trap,” New York Times, May 18, 2020. www.nytimes.com) 5 Interview with Sam Gillette, People Magazine, September 11, 2019. 6 In “#BelieveWomen and the Presumption of Innocence: Clarifying the Questions for Law and Life,” Ferzan is clear that she does not endorse this reading, but thinks it sufficiently plausible to merit substantial attention. I will postpone discussion until later, but very briefly: “Nonreductionism” here refers to the view that the evidential justification we receive from testimony does not necessarily reduce simply to the evidence we have about the speaker’s reliability. Instead, hearers have a defeasible default entitlement to believe the contents of speakers’ testimony. 7 This is the corrective for testimonial injustice proposed by Miranda Fricker, Epistemic Injustice: Power and the Ethics of Knowing (Oxford: Oxford University Press, 2007). 8 Ferzan, “#BelieveWomen.” 9 Sanford Goldberg, “Anti-Reductionism and Expected Trust,” Pacific Philosophical Quarterly 100 (December 2019): 952–970, doi:10.1111/ papq.12277. 10 For more thorough explication of testimonial anti-reductionism, see Jennifer Lackey, “A Minimal Expression of Anti-Reductionism in the Epistemology of Testimony,” Noûs 37 (December 2003): 706–723.

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11 Richard Moran appeals to this aspect of testimony to ground his non-reductionist claim: We are entitled to trust the speaker’s assurances. Richard Moran, “Getting Told and Being Believed,” Philosophers’ Imprint 5 (August 2005): 1–29. 12 These “Strawsonian” reactive attitudes are a hallmark of interactions between morally responsible agents. See P. F. Strawson, “Freedom and Resentment,” Proceedings of the British Academy 48 (1962): 1–25. 13 Moran, “Getting Told” explicitly draws the parallel between the act of assertion involved in testimony and promises. Both actions indicate commitment on the part of the speaker, and change the normative relations between speaker and hearer, generating new obligations and permissions. 14 See Moran, “Getting Told,” and especially Goldberg, “AntiReductionism,” for discussion on this point. 15 Others have made this point as well. See Allan Hazlett, “On the Special Insult of Refusing Testimony,” Philosophical Explorations 20: supp. 1 (2017): 37–51. 10.1080/13869795.2017.1287293; and Richard Holton, “Deciding to Trust, Coming to Believe,” Australasian Journal of Philosophy 72 (March 1994): 63–76. 16 As Sandy Goldberg emphasized to me, taking these questions to be independent risks discovering that the norms of rational inquiry conflict with the ethical norms on belief. As will become clear in this chapter, I do not think they do conflict in this case. But either way, it seems to me that this sort of normative conflict is not a priori impossible, and so we must simply face our fears. 17 I remain neutral here on the debate over whether the conception of full belief as a subjective attitude of full confidence can be reduced to high credence. 18 Incidentally, both of these attitudes are open to you regardless of whether your justification for treating the screen’s readouts this way is that you have a wealth of evidence for the screen’s reliability (reductionist) or simply that you are entitled to treat it as default-reliable absent defeaters (non-reductionist). 19 G.E.M. Anscombe, “What Is It to Believe Someone?,” in Rationality and Religious Belief, ed. C. F. Delaney (Notre Dame, IN: Notre Dame Press, 1979), 141–151, 150. The same point has been emphasized by several authors working on testimonial injustice, including Hazlett, “Special Insult of Refusing Testimony,” and Geoff Pynn, “Testimonial Injustice and Epistemic Degradation,” in Applied Epistemology, ed. Jennifer Lackey (Oxford: Oxford University Press, 2021). 20 The suggestion that we frame believing someone as involving trust, rather than believing some proposition, is also made by Berislav Marušić

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and Stephen White, “How Can Beliefs Wrong?—A Strawsonian Epistemology,” Philosophical Topics 46 (Spring 2018): 97–114. 21 Anscombe, “What Is It to Believe Someone?,” 151. Anscombe herself assumes that if we trust someone in this way, then when she asserts flat-out that p, we must adopt an attitude of full belief in p; here, we part ways. 22 This view of what it is to believe a speaker is prima facie at odds with Moran’s, on which the act of testimony is a giving of assurance, and the fact that the speaker offers such assurance provides a (non-evidential) reason for the hearer’s belief. But this appearance is misleading: Moran is at pains to distinguish the type of justification received from testimony qua intentional assertion from evidence one might receive simply from the fact that the person is talking. In taking the speaker’s telling you that p to give you epistemic reason to increase your credence in p, you are responding to the testifier as a responsible agent; it is their assurance that you are treating as evidence, rather than the brute fact of their having produced some set of noises. 23 For recent discussions of such a claim, see, e.g., Rima Basu and Mark Schroeder, “Doxastic Wrongings,” in Pragmatic Encroachment in Epistemology, ed. Brian Kim and Matthew McGrath (Abingdon: Routledge, 2018), 181–205; Endre Begby, “Doxastic Morality: A Moderately Skeptical Perspective,” Philosophical Topics 46 (Spring 2018): 155–172; Georgi Gardiner, “Evidentialism and Moral Encroachment,” in Believing in Accordance with the Evidence: New Essays on Evidentialism, ed. Kevin McCain (New York: Springer, 2018), 169–195; Sarah Moss, “Moral Encroachment,” Proceedings of the Aristotelian Society 118 (July 2018): 177–205; Mark Schroeder, “When Beliefs Wrong,” Philosophical Topics 46 (Spring 2018): 115–127. 24 I here follow Georgi Gardiner, “The “She Said, He Said” Paradox and the Proof Paradox,” in Truth and Trials: Dilemmas at the Intersection of Epistemology and Philosophy of Law, ed. Zachery Hoskins and Jon Robson (Routledge, forthcoming), in referring to these cases as “she said/he said,” because the order of the testimonies—that her accusation comes first, predictably followed by his denial—is significant to the evidential value of each assertion. These cases do not straightforwardly pattern with simple disagreement cases, in which two equally well-placed and equally trustworthy speakers with matched or no incentives to lie disagree about a fact. 25 Ferzan, “#BelieveWomen.” 26 m here is a variable that controls how demanding this standard is; I remain neutral on what specific values it should take. Note that this constraint is applied to priors, rather than posterior credence in p: it requires that the credence you are disposed to have in p conditional just on the speaker’s testimony that p be sufficiently greater than your credence in p

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without the testimony. Expressed more formally: C(p|‘S testifies that p’) − C(p) > m. This constraint is relatively weak; it does not prescribe any particular posterior degree of confidence in p, since if your total evidence strongly supports ~p, you can satisfy this condition and still ultimately have a final credence in p below 0.5. My thanks to Richard Bradley for discussion on this point. 27 This holds for both of the two concepts of belief as a propositional attitude I mentioned above. Suppose belief is credence above a certain threshold or an attitude of full confidence (equivalent to credence 1). Then if you started with a low prior, or had mixed evidence about p, you may end up with a credence too low to count as belief even if you have a lot of confidence in the credibility of your source. Suppose instead that, in line with Jacob Ross and Mark Schroeder [“Belief, Credence, and Pragmatic Encroachment,” Philosophy and Phenomenological Research 88 (March 2014): 259–288], whether I believe p is a question about what my reasoning defaults are: If I routinely consider the risks given the remaining probability of ~p, then I don’t have a full belief that p—even if my credence in p is extremely high. Conversely, if I routinely assume that p (either consciously or by not even questioning whether p, as one might if “p” is “the coffee is safe to drink”), then I believe p, even if my actual credence in p is pretty low (0.58, say). Probably believing when at this credence is irrational, but I’d still say someone who reasons this way believes p. Believing in this sense is closing inquiry—and you can have reached quite a high credence in p, based on your source’s testimony, without closing inquiry about p. 28 I owe this insight to Georgi Gardiner, who develops some of these themes in “The Reasonable and the Relevant: Legal Standards of Proof,” Philosophy & Public Affairs 47 (Summer 2019): 288–318; and “Doubt and Disagreement in the #MeToo Era,” in Feminist Philosophers on #MeToo, ed. Yolonda Wilson (Abingdon: Routledge, forthcoming). 29 Believing a speaker does not mean we cease looking for defeaters, either. But it does change what sort of defeater we seek: We should remain vigilant for rebutting defeaters (facts which indicate that p is false), but not seek undercutting defeaters (facts that debunk our trust in the speaker). Thanks to Andrew Chignell for discussion on this point. 30 Legal theorist Sherry Colb’s interpretation of the hashtag, as I understand it, takes the hashtag to be saying just this, and thus to demand that police in fact believe complainants. Ferzan, by contrast, takes Colb to interpret the hashtag as counseling “police to act as if they believe a complainant” (Ferzan, “#BelieveWomen”). See Sherry Colb, “What Does #BelieveWomen Mean?” Verdict: Legal Analysis and Commentary from Justicia, November 7, 2018, https://verdict.justia.com 31 Gardiner, “Doubt and Disagreement.”

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32 Claire Ferguson and John Malouff, “Assessing Police Classifications of Sexual Assault Reports: A Meta-Analysis of False Reporting Rates,” Archives of Sexual Behavior 45 (July 2016): 1185–1193, doi:10.1007/s10508015-0666-2. Because the police records used for the studies analyzed do not distinguish between investigations concluding with evidence that the assault did not occur, and those concluding with insufficient evidence that one did, these numbers almost certainly over-count false reports, but it is hard to estimate by how much. 33 Jeremy Fantl and Matthew McGrath, “Evidence, Pragmatics, and Justification,” Philosophical Review 111 (January 2002): 67–94; John Hawthorne and Jason Stanley, “Knowledge and Action,” Journal of Philosophy 105 (October 2008): 571–590; Ross and Schroeder, “Belief, Credence, and Pragmatic Encroachment,” 259–288; Brian Weatherson, “Can We Do Without Pragmatic Encroachment?,” Philosophical Perspectives 19 (December 2005): 417–443. For an overview of how different theorists formulate pragmatic encroachment, and how moral stakes might be relevant to the evidence required to justify a belief, see Renée Jorgensen Bolinger, “Varieties of Moral Encroachment,” Philosophical Perspectives 34 (December 2020). For a discussion of how the moral costs of failing to form justified beliefs about rape could make skepticism inappropriate, see Bianca Crewe and Jonathan Jenkins Ichikawa, “Rape Culture and Epistemology,” in Applied Epistemology, ed. Jennifer Lackey (Oxford: Oxford University Press, 2021). 34 Jones, Counting on One Another: A Theory of Trust and Trustworthiness (unpublished manuscript) chapter 4, p. 17. 35 See references in note 23. 36 Gardiner, “Doubt and Disagreement” surveys a range of reasons why the symptoms of unjustified distrust of women can, in these cases, deceptively feel like cognitive achievement, and so be uniquely difficult to identify as rational distortions. 37 These correspond roughly to the main functions of the presumption of innocence in American criminal law, as characterized by Ferzan. The POI-as-No-Evidence is the “probatory presumption of innocence,” which Ferzan glosses as meaning “that the jury (or other state actor) starts with the presumption that it simply has no evidence of the defendant’s guilt.” The POI-Default highlights the role of the presumption in allocating the burden of proof; it is “the corollary of proof beyond a reasonable doubt” (Ferzan, “#BelieveWomen”). 38 The no-evidence starting point is not necessarily equivalent to taking it to be precisely equally likely that the accused is innocent as that he is guilty. Some argue that jurors ought to be permitted to use their knowledge of background facts about the frequency of the crime to in-

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form their prior credences; I here opt for the less committal suggestion that they spread their credences across the full range. As I’ll demonstrate in a moment, the differences do not matter for our present purposes. See discussion in Richard D. Friedman, “A Presumption of Innocence, Not of Even Odds,” Stanford Law Review 52 (May 2000): 873–887. 39 Ferzan discusses several of them in her chapter; therefore, I will not revisit them here. 40 These are the Gricean maxims of Quality, Quantity, and Relevance. See H. P. Grice, “Logic and Conversation,” in Syntax and Semantics 3: Speech Arts, ed. Peter Cole and Jerry Morgan (New York: Academic Press, 1975), 41–58. 41 This is not to say that every reminder about the presumption of innocence made after we receive testimony implies that testimony is evidentially weightless. Conversational implicatures can be explicitly cancelled; for instance, if the instruction “I remind the jury that the fact that the defendant has been accused is not itself evidence of guilt; you must weigh the evidence” is continued with “including the testimony from the complainant,” the implication that her testimony is not evidence is cancelled, because the instruction provides an explicit alternative explanation for the relevance of making the utterance. 42 Fricker, Epistemic Injustice, emphasizes wrongs of this sort, which have been elaborated by subsequent authors writing on testimonial injustice. There is a particularly nice discussion in Pynn, “Testimonial Injustice.” 43 This form of domain-specific distrust does not count as a testimonial injustice on Fricker’s original model. It might be accommodated by the notion of content-based testimonial injustice outlined by Davis, “A Tale of Two Injustices.” However, since the grounds for rejecting testimony in this domain is skepticism, rather than an associated identity prejudice, it may not fall under any direct model of testimonial injustice. 44 My thanks to Daniel Viehoff for helpful discussion on this point. 45 US Department of Justice, US Bureau of Justice Statistics, Female Victims of Sexual Violence, 1994–2010, by Michael Planty and Lynn Langton (2013; revised 2016), www.bjs.gov. The belief that the police will not do anything, or that the personal costs of reporting are too high, are among the most common justifications given for not filing a report. 46 Deborah Tuerkheimer, “Incredible Women: Sexual Violence and the Credibility Discount,” University of Pennsylvania Law Review 166 (December 2017): 1–58, 16; Tuerkheimer cites Amy Dellinger Page, “Gateway to Reform? Policy Implications of Police Officers’ Attitudes Toward Rape,” American Journal of Criminal Justice 33 (May 2008): 44, 55; US Department of Justice, National Institute of Justice, National Institute of Justice Visiting

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Fellowship: Police Investigation of Rape—Roadblocks and Solutions (December 2010), www.ncjrs.gov 47 My thanks particularly to Johann Frick and Elizabeth Harman for discussion on this point. For further development on the suggestion that we might have relationship-based obligations to believe well of someone, see Sarah Stroud, “Epistemic Partiality in Friendship,” Ethics 116 (April 2006): 498–524; Simon Keller, “Friendship and Belief,” Philosophical Papers 33 (2004): 329–351. 48 This theme is developed at length in Karen Jones, Counting on One Another: A Theory of Trust and Trustworthiness (unpublished manuscript). 49 Karen Jones, “Trust, Distrust, and Affective Looping,” Philosophical Studies 176 (April 2019): 955–968. 50 See, e.g., Ariel Cohen, “Generics, Frequency Adverbs, and Probability,” Linguistics and Philosophy 22 (June 1999): 221–253; David Liebesman, “Simple Generics,” Noûs, 45, no. 3 (2011): 409–442; Sarah-Jane Leslie, “The Original Sin of Cognition: Fear, Prejudice, and Generalization,” Journal of Philosophy 114 (August 2017): 393–421. 51 See Leslie, “Original Sin.” 52 Jennifer Saul, “Are Generics Especially Pernicious?,” Inquiry (2017): 1–18. 53 Leslie, “Original Sin.” 54 Discussed in, among other places, the New York Times: Marisa Meltzer, “The Pit Bull Gets a Rebrand: Who Needs a Goldendoodle When You’ve Got a ‘Pibble’?,” New York Times, January 4, 2019. www.nytimes.com 55 For more on affective frames, and how they are more explanatory of action and attitude than are underlying propositional attitudes like belief (even belief in a generic), see Liz Camp and Carolina Flores, “‘That’s All You Really Are’: Social Trouble with Cognitive Essentialism” (unpublished manuscript, on file with the author). 56 See Jones, “Trust, Distrust, and Affective Looping.” 57 The interpretation I have offered of the #BelieveWomen campaign is supported by recurring editorials that stress the importance of taking women’s testimony seriously and emphasize that false accusations are much rarer—and much more obvious—than they are believed to be. For instance, in 2017, Sady Doyle emphasized: “The phrase is ‘believe women’—meaning, don’t assume women as a gender are especially deceptive or vindictive, and recognize that false allegations are less common than real ones.” Doyle, “Despite What You May Have Heard, ‘Believe Women’ Has Never Meant ‘Ignore Facts’,” Elle, November 29, 2017. www. elle.com. More recently, Monica Hess critiqued the substitution of “#BelieveAllWomen” for the original tag, noting that “‘Believe women’ was a reminder, not an absolute rule; the beginning of a process, not an end.

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It was flexible enough to apply to various contexts: Believe women  .  .  . enough to seriously investigate their claims. Believe women . . . when they tell you about pervasive indignities—catcalling, leering—that happen to them and their friends when you’re not around” (Hess, “Believe Women as a Slogan; Believe All Women Is a Strawman,” Washington Post, May 11, 2020. www.washingtonpost.com/. Susan Finaldi made the comparison even more explicitly: “The preferred hashtag of the #MeToo movement is #BelieveWomen. It’s different without the ‘all.’ Believing women is simply the rejoinder to the ancient practice of #DoubtWomen” (Finaldi, “#BelieveAllWomen Is a Right Wing Trap”).

PART III

SHOULD WE SPEAK TRUTH TO POWER?

6 POST-TRUTH BERNARD E. HARCOURT

The quest for truth is the search for a solid foundation on which to ground oneself and to convince others. From the earliest time, gods and oracles provided that solid basis for claiming truthful beliefs and just actions. For some ancient philosophers and Enlightenment thinkers, human reason, rather than religious belief, operated as the firm grounding. For positivist thinkers in the nineteenth century, science and empirical evidence served as a truthful foundation on which to ground certitude. God, reason, science—these have constituted, throughout history, the principal bases for truth, alongside others of course, such as nature, human nature, or simply might. At certain historical conjunctures, the solid foundations of truth have shifted.1 Those moments often have been accompanied by fear and insecurity. People worry that the demise of an established foundation will license greater immorality, or worse, barbarity. For instance, many religious thinkers viewed the Enlightenment as a deep menace, although many of us today do not believe there was an increase in immorality in Western society. Some, like Steven Pinker, argue that Western societies actually became less violent.2 Others contend that the scale of barbarity associated with modern slavery, imperialism, and colonialism, or the world wars of the twentieth century and the Holocaust, suggest otherwise— some, like Homi Bhabha, suggest there are deep asymmetries rendering comparison difficult.3 Still others remain agnostic and adhere to Richard Rorty’s more reserved assessment: “When the thinkers of the Enlightenment dissociated moral deliberation from divine commands, their writings did not provoke any notable increase in the amount of immorality.”4 147

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Many today believe that we are at risk of another paradigmatic change in the foundations of truth and that this potential seismic shift may be accompanied by moral and political decline, by authoritarianism and barbarity, and possibly even—depending on our response to the global climate crisis—by the end of humankind. The fear today is that we have entered a “post-truth age” and a “post-truth society”—to borrow the Oxford Dictionary word of the year for 2016.5 Many believe that this new post-truth era is one in which alternative facts, pseudo-facts, and “fake news”—to borrow the Collins Dictionary word of the year for 20176—will masquerade as actual evidence, and propaganda and political spin will replace public discourse. New books with titles like The Death of Truth: Notes on Falsehood in the Age of Trump and Weaponized Lies: How to Think Critically in the Post-Truth Era are climbing the New York Times bestseller list.7 Reputable scholarly presses are publishing new philosophical texts with titles such as Post-Truth and The Misinformation Age: How False Beliefs Spread.8 Myriad scholarly articles on post-truth and fake news are appearing.9 These articles and books trace the causes of “truth decay” to factors including new digital technologies, a decline of trust in science and scientists, increased economic inequality, greater political polarization, the advent of social media and information bubbles, the more fractured media landscape, and a decline in social capital.10 The arguments in these works often draw on George Orwell’s writings and his dystopic ideas about double-speak. They also frequently evince special disdain for postmodernism and thinkers like Michel Foucault, who are accused of bringing all of this about by questioning the objectivity of truth. As the philosopher Daniel Dennett exclaims, “I think what the postmodernists did was truly evil. They are responsible for the intellectual fad that made it respectable to be cynical about truth and facts.”11 Towering intellectual figures like Hannah Arendt, Isaiah Berlin, and other critics of authoritarianism are deployed in opposition to our new post-truth condition. Their lives and examples, as Seyla Benhabib writes, demonstrate “that the courage for telling it as it is can cut through the deluge of propaganda, fake news, and the illusions of a post-truth society.”12 It is tempting to embrace the thrust of these arguments, especially given that so many lies and so much propaganda have

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originated from far-right, proto-fascist movements that deploy factual inaccuracies to deny the climate crisis and vaccine science, and to demonize vulnerable populations.13 At the head of these, former US President Donald Trump lied like no one’s business and racked up a place in the Guinness Book of World Records for his falsehoods. The Washington Post reported in March 2019 that Trump “averaged nearly 5.9 false or misleading claims a day in his first year in office. He hit nearly 16.5 a day in his second year. So far in 2019, he’s averaging nearly 22 claims a day.”14 That amounts to 9,014 false or misleading claims in his first 773 days in office.15 We could certainly describe Donald Trump, himself, as “posttruth.” The more important question, though, is whether we have entered a “post-truth society” and what exactly that would mean. Here it is important to distinguish between the political, rhetorical strategy of protesting “post-truth” from the more substantive, descriptive claim that we are indeed in a new paradigm regarding truth. The first question is a bit of a distraction, so let’s start by putting it aside. Putting Aside Questions of Political Strategy and Rhetoric It is by no means clear that, as a purely strategic political matter, calling out the far-right, proto-fascist movements as “post-truth” or denouncing a “post-truth society” is necessarily the most effective political strategy. If it were, I for one would not hesitate. If it were likely to beat the retreat of proto-fascism and White Supremacy in the United States, I would be the first to deploy the rhetoric. In that struggle, I am willing to rehearse any one of Arthur Schopenhauer’s rhetorical stratagems from his Art of Always Being Right. The problem is, Donald Trump claimed truth more than anyone, and many on the extreme right believe in old-fashioned Christian truths. The moral majority that backed Trump—however paradoxical that may seem—was wedded to truth. Neither Trump, nor most of his constituency, would ever identify with the idea of “post-truth”—making the term itself, and the charge, a derogatory label (much like “neoliberal” or “postmodern”). Derogatory terms often fail because they are ambiguous and can easily be turned against the accusers.

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And of course that is what Trump did. He and his followers constantly claimed and seized the notion of truth. Trump presented himself as the ultimate truth-teller. And most of his supporters believed that Trump was in fact the one telling the truth. That was a large part of his draw, at least if you listened to the man or woman on the street who supported Trump: “He tells it like it is.” “He says what he means.” “I honestly believe he is telling the truth.” “He is funding his own campaign. Nobody owns him.”16 Trump said this himself: “I don’t lie. I mean I don’t lie. In fact, if anything, I’m so truthful that it gets me in trouble, OK? They say I’m too truthful. And, no I don’t lie. I don’t lie. I’m self-funding my campaign. I tell the truth.”17 Trump fought the political battle over truth on truth’s ground—and he pulled it off for years and made it to the White House. On the purely tactical question, there is no reliable evidence, one way or the other, as to whether the strategic use of the “posttruth” and “fake news” arguments is an effective political weapon to counter the far-right. It is noteworthy that the “fake news” argument originated among liberals, especially in response to the Pizzagate incident in 2016,18 but then Trump immediately appropriated and quickly dominated the use of the term. Trump was an absolute master at spinning interpretations and, most often, outdid his liberal opponents. So it is difficult to tranche the purely tactical question. I for one am not, myself, a particularly astute political strategist—and I doubt many of the readers of this chapter are either. As a purely political matter, in the end, it may be too arrogant to suggest, with those who argue that we have entered a post-truth society, that the term itself is “an expression of concern by those who care about the concept of truth and feel that it is under attack”—as if the far-right did not care about truth.19 No, the far-right is fighting, strategically, on the terrain of truth—and often winning. It is worth noting that, at the other end of the spectrum, the rhetorical argument that postmodernism or Michel Foucault’s epistemology or Richard Rorty’s pragmatism is responsible for our new post-truth condition is also a distraction.20 The specter of a posttruth society far predates postmodernism.21 One need only reread Hannah Arendt’s essay, “Truth and Politics,” published in the New Yorker in 1967, to get a sense of this. Or George Orwell’s dystopia, 1984, written in 1949. In fact, most of the authors who describe

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a new post-truth age regularly cite passages from Orwell’s dystopia, and often refer to Nazi Germany and Stalin’s Soviet Union. Lee McIntyre’s philosophical treatment, Post-Truth, for instance, uses passages from Orwell’s writings as the book’s epigraph and as multiple chapter epigraphs.22 Moreover, with the exception of Steve Bannon, Julia Hahn, and a handful of far-right intellectuals, none of the Trump constituency knows or cares about postmodernism except as something to laugh at. Few if any have even been exposed to it really—especially given that no one, on either side of the debate, can really define postmodernism precisely. This blame game by certain liberals merely dredges up old rivalries from the 1990s and frictions within the Left that are completely orthogonal to the arguments and rhetoric of Trump’s far-right today. The attack on postmodernism is derisory, just payback, and it unnecessarily fosters division among progressives. Now let us set aside the purely strategic questions and turn instead to the substance of the matter: Are we in fact living in a post-truth society and does our new digital age undermine the reliability of evidence for purposes of determining the truth? Assessing the Post- Truth Argument The strongest argument for a post-truth society is that there is in fact a sharp increase, first, in the amount of falsehoods that now masquerade as truth in politics; second, in the use of arguments that effectively depreciate the epistemic standard for truth; and third, in the decay of truth. Along these lines, one might argue that we have indeed entered a post-truth age when, first, as a factual matter, the Republican Party is able to convert a fact such as climate change into a perceived hoax for a large portion of the American population; second, when people begin to care more about someone giving a point of view or speaking what’s on their mind, than in the facticity of those statements; and third, when there is significant truth decay, including among other things increased disagreement about facts and “declining trust in formerly respected sources of factual information.”23 Even if the New Right makes claims to truth and is fighting on the terrain of truth, the argument goes, it is in fact turning the concept of truth on its head by changing falsities into truths

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and turning pseudo-facts into actual facts. When such behavior prevails politically, we are effectively living in a post-truth condition where falsehoods masquerade as truths. We are living, in reality, in a post-truth world. As with any historical claim of transformation, it is important to be careful and attend both to the evidence of continuity and rupture. On the one hand, there are always precursors and illustrations from earlier times that undermine the claim of a paradigm shift. The term post-truth, for instance, was apparently first used in an essay in The Nation by Steve Tesich in 1992 referring primarily to President Ronald Reagan.24 Notorious incidents far predate Donald Trump—such as when Secretary Colin Powell, in February 2003, displayed false evidence before the United Nations, in circumstances, incidentally, that caused far wide-ranging geopolitical instability and hundreds of thousands of deaths. Incidences of falsified evidence— such as doctored photographs, forged historical archives, or misleadingly edited film footage—existed well before the digital age. And, as noted earlier, the idea of the post-fact is already in Orwell. On the other hand, the claim of disruption will depend on the metric of change and requires careful measurement—whether it is the actual increased frequency, and by how much, of lies masquerading as truths, or simply the greater ease with which it is today possible to doctor digital evidence, for instance. To investigate these questions properly, then, it is important first to take an historical step back, and then an analytic step forward. An Historical Step Back First, a step back to place the problem in more of a historical light. For most of American history, most of the American population believed in the truth of White Supremacy—many still do. Similarly, and still today, most of the non-indigenous American population denies that Americans have engaged in a genocide of native peoples. Would we say that for most of American history, America was a post-truth society because, for the most part, it believed White Supremacy to be scientifically true, even though it was and is not? If not, what about the slaveholding states in the Antebellum period? Or the thirteen founding states that ratified the three-fifths provision of the US Constitution? In the 1950s, many truly believed that

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the future of this country depended on fossil fuels; today, we understand that fossil fuel emissions may lead to the end of humankind. In the 1960s, many believed in the promise of plastics; today, we understand that plastic is poisoning the planet. We know better, of course, now. But still, the historical record suggests either that the post-truth has been with us for a long time or that we need to be more careful about the term. What history reveals is that the claim to truth often has been murderous. The truth of White Supremacy was the moral foundation of slavery, of Jim Crow, and today of racialized mass incarceration—as well as of colonialism and imperialism. In 1930s Germany, most Germans believed in the truth of the superiority of the Aryan race. For many, reason and empirical evidence may have displaced religion as the foundation of truth, but later revealed themselves to be as dangerous as what came before. The Holocaust, the Soviet Gulag, the Chinese famine, the Cambodian Killing Fields—they revealed that claims to reason and rationality could outdo even the ravages of religious faith, such as the Wars of Religion. Horkheimer’s Eclipse of Reason, and his and Adorno’s Dialectic of Enlightenment, underscored the potential for human reason to turn against itself like a vicious autoimmune disease. Throughout human history, the claim to truth has been one of the most dangerous and powerful weapons known to man. From the Crusades to Pol Pot, the claim to truth is what justifies genocide, torture, and extreme forms of punishment, like the death penalty. We are only prepared to execute the condemned when we believe in the truth of their guilt. Foucault was fond of citing a passage from the celebrated philologist Georges Dumézil—and, I confess, I have become fond of citing Foucault citing Dumézil, because the passage is discerning: Looking back into the deepest reaches of our species’ behavior, “truthful speech” [la parole vraie] has been a force few could resist. From the earliest moments, truth was one of man’s most formidable verbal weapons, most prolific sources of power, and most solid institutional foundations.25

Once we recognize the power of truth, I believe, we may start to better appreciate the need to be more careful about it. Earlier, I

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emphasized Donald Trump’s claim to truth-telling in part to deromanticize truth and truth-telling, and to re-politicize it. Too often, we associate truth and truth-telling with our heroes, whether it is the Reverend Martin Luther King Jr. breaking silence on the Vietnam War or Oedipus seeking the true murderer. We focus on Socrates or Diogenes. We laud the parrhesiasts whom we admire and extol the courage of truth. But it is important to remember, lest we get carried away, that the New Right too claims the mantle of truth-telling. For many, Donald Trump is the parrhesiast. A More Analytic Step For ward Second, then, let’s move forward more carefully regarding the noun truth and the adjective true. Let’s begin with some honest reflection on our use of the term in ordinary parlance. Whereas philosophers may prefer to limit the use of the term truth to ontology and epistemology, in ordinary political discourse speakers tend to use the concept of truth as part of a cognate family of terms that include, as well, nouns and adjectives such as fact, facticity, factual, existence, and reality, from the ontological realm; justified, valid, or validity, from the political and normative realm; as well as accurate, certain, right, and correct. As a matter of ordinary debate, we often speak about facts or even theories as being true, but we also use the concept of truth to qualify political and moral judgments, and even ethical and aesthetic judgments. Sophisticated philosophers understand the family kinship and the parallel between an assertion of truth in the context of a statement of fact and in the context of a moral judgment;26 but in ordinary parlance, we do more than see parallels. We create equivalences. Many of us often start our political arguments with “The truth is” or “The fact of the matter is.” It is practically impossible to stake political ground without claiming truth. On those occasions, the speaker is usually claiming truth to lay a foundation for themselves or to convince others, to seek solid ground or stable footing—rather than simply saying “that’s my individual idiosyncratic taste” or “that’s simply my opinion, you are entitled to yours.” The speaker is claiming that those political or normative judgments are solid like the truth of this keyboard I am typing on—that there is something objective or valid about them, or right, not just for the speaker, but for the listener as well.

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Much of the analytic philosophical debate over the correspondence theory of truth has revolved around the object of truth— whether it is the words, the sentence, the proposition, or the real-world facts to which they correspond, that are true. But those particular distinctions are beside the point in our real lives and in political debate. What matters are the similarities, among the different judgments, in the type of argumentative move that the speaker is attempting to realize: namely, grounding their judgment on something true, valid, right, correct. This reflects well the fact that truth is our most solid foundation, one that we so often return to, and always as our last resort. Being right about truth is most always the best way to convince others. How then could we be more careful? For a start, it might be prudent to be more careful about the terms themselves. Without forcing analytic philosophical distinctions on others, sticking to ordinary parlance, it might be useful to simply reflect on the terms we use in political debate to convey the idea of a solid foundation—to claim truth. The first term is fact. Many of us use the term fact to refer to something about the real world that, when it is accurate, is factual, and when it is not, is simply not a fact. Most of us, in ordinary life, do not question the existence of things-in-themselves, and do not really care about whether a factual statement involves the thing-initself or our perception of it or our linguistic statement about it. We mostly assume that, for all intents and purposes, we all have pretty much the same perception of the thing-in-itself and that it really is out there. There is, then, no point to describe a fact as being true when all we need to do is decide whether it is a fact. So, the fact is, I am typing. That does not need to be true or false, that is a fact. That is factual. To a large extent, this addresses one knot of correspondence theories of truth: The analytic debate over whether it is the proposition, or the sentence, or the thing that corresponds, that is true as it relates to a really existing fact in the world, becomes unnecessary. What matters is the fact—and whether it accurately exists in the real world or not. There is no need to talk about the truth of propositions. We can simply leave it at the existence of a fact and leave truth out of the picture. Moreover, if we believe that the binary fact/not fact is too simplistic, then we could use a probability scale to determine how sure we are of its existence.

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A second term is prediction. When we make a statement about the future, in practically all cases, we are making a prediction about some future event. Predictions have levels of probability or of certainty. Any statement about the future—any prediction—does not lend itself to a claim of truth, but to a probabilistic judgment. So there is no point qualifying predictions about the future as true or false, we can simply try to ascertain their likelihood or probability on an ordinal scale or spectrum. A third term is theory. We tend to use the term theory as a statement or hypothesis about the real world that has not been proven wrong or invalidated. When a new theory comes into existence and replaces an old theory that has been proven wrong, then we can qualify it as a better theory, perhaps even as our best existing theory. We should not, though, qualify it as truth. It may be proven wrong. Here, we can get along well with Karl Popper’s notion of falsifiability regarding scientific theory and Boyle’s idea of reproducibility. For Popper, theories about the world can only be considered scientific if they are falsifiable, and they can only be falsified, not verified. Nothing can verify a scientific theory, but one counterexample can falsify it. This means one cannot say that theories are true, just that they have not been falsified. To go any further, even to speak as Popper later would of “truthlikeness” or of “verisimilitude”—or as late-night television host Stephen Colbert would about “truthiness”(!)—is not helpful, but just replicates, in a crystalline manner, the problems of claiming truth. Similarly, we could borrow from Boyle the idea of reproducibility, and argue that the reproducibility of a theoretical prediction—i.e., achieving the same results using the same methodology—or now what we refer to as replicability—i.e., achieving similar results using different data or methods—would mean only that we have not falsified the theory and that, until further notice, it remains the better theory. A fact exists. A prediction is probable. A theory is better. A political argument may be valid, logical, reasonable, or corroborated by empirical evidence. Notice that I have not yet used the term true. We deploy the term all the time in our conversation, but we need not. We usually do and when we do, we gesture toward a more permanent or universal statement about our human condition. But that is actually unnecessary and it may not even exist. At most, we may have temporary, punctual determinations about what all the

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best evidence suggests right now, which we can call our best theory or interpretation. When we have to act, we need to decide what are the facts and what is the best theory. The model we use when we need to act, essentially, is a rough-and-ready juridical model: We review the evidence and decide based on a burden and a standard of proof. Someone has the burden of proving. There may be a presumption one way or the other. And proof has to be established to a certain degree—whether it is just an iota of evidence, or more than 50 percent, or practical certainty. We decide on a standard and who carries the burden, and we let the chips fall. Effectively using a juridical model, we reach a temporary judgment. But that does not mean the judgment is true. It means it is a temporary assessment of the evidence and arguments. This is precisely what we do in an American criminal or civil trial: The jury, judge, or attorneys in negotiation determine whether there is sufficient evidence that satisfies the burden and standard of proof. When an American jury returns a guilty verdict in a criminal case, it is not telling the truth—although that is a common misperception. The verdict is just a temporary assessment of the weight of the evidence, and it is open to later reassessment on a motion for a new trial or post-conviction proceeding. The verdict does not mean, by any means, that the convicted person actually, in truth, committed the crime, but just that the prosecutor, who bears the burden of proof, has marshaled sufficient evidence to satisfy the standard of proof, namely beyond a reasonable doubt. Of course, our contemporaries project all kinds of biases and misleading interpretations and judgments into and onto the process—including racial and ethnic bias, class stereotypes, and moral panics that distort their interpretation of the evidence and reinforce their false perception that the verdict is the truth. But if we are being careful about what is going on and attentive to how best to describe the situation, a criminal verdict is no more than a temporary assessment of the evidence in relation to a burden and standard of proof. It is not the truth. In effect, then, we may not need the word truth, especially Truth with a capital T. In fact, neither truth nor Truth may really exist—at least, outside the narrow, technical, philosophical debates in ontology or epistemology. In the ordinary world and everyday politics, we have facts, probabilities, and better theories with logical or evidentiary thresholds. We decide who has to prove and whether those

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thresholds are met, and based on that, we reach judgments as to whether a claimed fact exists, a prediction is probable, or a theory or hypothesis is better than others—or we simply state all this in probabilistic terms. The term true, it turns out, is too unstable in the sense that it can only be proven wrong. Truth is never for always, or universal, or preclusive—as we tend to use it. What we ordinarily call truth is just a temporary, punctual evaluation of evidence or reasons. We can only ever say that something is factual or valid based on our current state of knowledge and given all the evidence at our disposal today. And once we have cut truth to size, then we realize it hardly makes sense to speak of truth and never makes sense to speak of Truth with a capital T. The best approach toward truth is a humble one: What we believe is just the best interpretations we have for now, those that have not been falsified yet. That’s the best we have, but not permanently true. So, for instance, the theory of climate change is not true, rather, it is our best theory about our human condition today given all the empirical data and scientific evidence. It may still be falsified; but, on the basis of all the empirical data and scientific evidence we have at our disposal, having to make decisions today that may affect the rest of human history, we tranche in favor of the theory of global climate change. And we question whether those who do not believe in climate change have vested interests—for instance, whether elite-educated climate deniers have a financial interest or a political stake in climate denial. If we were more careful in ordinary life and political discourse, we would use the word truth much more sparingly. We might not even use it at all. It tends, misleadingly, to connote a level of certainty associated with the existence of things-in-themselves—the existence of this keyboard I am typing on—that gets improperly projected onto the validity of normative arguments or predictions about the future. It actually weakens our arguments because it allows the other side to seize on any bit of uncertainty and use that differential to demonstrate that we are fabricating truth. It also distracts from the larger political question of the kind of world we want to live in and of what we believe in—whether it is God, or reason, or science, or ethics.

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159 The Will to Truth in Political and Philosophical Debate

If we were indeed more careful, we would also use the term truth more sparingly in technical political and philosophical debates. Surprisingly, even sophisticated philosophers often elide the subdisciplinary distinctions and end up, at the bitter end, arguing about truth in the context of politics and morality: High-level philosophical debate on matters of politics, justice, and morality, even ethics, often devolves into a question of truth, even among progressive thinkers, and even in the most sophisticated exchanges in political and moral philosophy, where everyone agrees that the questions revolve around the validity and justification of normative arguments and not their truth. Even there, the controversy often boils down to a claim of truth and often to an accusation that one’s interlocutor is not sufficiently attentive to truth. Let me offer an illustrative example. The Habermas- Rawls Debate In the famous philosophical debate between Jürgen Habermas and John Rawls in the mid-1990s, both philosophers understood their exchange to be in political and moral philosophy only.27 Both Rawls and Habermas understood their debate to be a contest between, on the one hand, Rawls’s framework of political liberalism and his ingenious use of the device of the original position (“OP”) as the grounds for achieving an overlapping consensus on principles of justice among people having different worldviews, and, on the other hand, Habermas’s social democratic communicative action theory and his refined use of a universalization principle (“U”), according to which a shared norm would only be valid if, knowing its consequences and effects, it could be freely accepted jointly by everyone concerned. This was a debate in practical philosophy, not epistemology, nor metaphysics, nor, more narrowly, ontology. This was clear from Habermas’s first intervention in the debate, where Habermas focused on the negative consequences of the rationalchoice underpinnings of the OP method on democracy.28 It was equally clear from Rawls’s handwritten notes, in which Rawls jotted

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down, referring to Habermas’s universalization principle, “Analogue or substitute for OP?”29 Both philosophers understood their contest to be a question of the validity or justifiability of the resulting norms. They mutually understood this to be a matter of political and moral philosophy, not of epistemology—so a question of validity and justification, not a question of truth in the epistemological sense. Rawls had been very clear in his earlier writings that his theories of justice and of political liberalism were in practical philosophy and not in metaphysics or epistemology. As Rawls had written (and as Habermas quoted in his first salvo): “the aim of justice as fairness as a political conception is practical, and not metaphysical or epistemological. That is, it presents itself not as a conception of justice that is true, but one that can serve as a basis of informed and willing political agreement between citizens viewed as free and equal persons.”30 Not a question of truth. In his first, more generous intervention, Habermas remains mostly in the realm of questions of validity and justification. His critique is that Rawls’s political liberalism achieves only acceptance, in other words a form of social stability, and not acceptability as a form of validity.31 The problem with Rawls’s approach, put succinctly, is “the assimilation of questions of validity to those of acceptance.”32 For Habermas, the difference between acceptance and acceptability does have an epistemic character, and there is at the very least an analogy between acceptability and truth—one that Habermas accuses Rawls of eliding by his use of the term “reasonable.”33 But still, in this first intervention, Habermas remains on the terrain of normative validity and justifiability, for the very simple reason that moral questions are susceptible to a validity check: “Questions of justice or moral questions admit of justifiable answers—justifiable in the sense of rational acceptability—because they are concerned with what, from an ideally expanded perspective, is in the equal interest of all.”34 In his lengthy and more combative reply to Habermas, Rawls emphasizes that his own understanding of political liberalism is that it does not make a claim to truth and does not raise questions of epistemology, but is only a practical political theory that “falls under the category of the political.”35 Rawls specifically distinguishes Habermas’s approach, which he qualifies as a

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comprehensive doctrine, as one that elides the difference between moral validity and truth.36 By contrast to Habermas, Rawls stays on the terrain of “reasonableness,” not truth. Rawls emphasizes: “Political liberalism does not use the concept of moral truth applied to its own political (always moral) judgments. Here it says that political judgments are reasonable or unreasonable; and it lays out political ideals, principles, and standards as criteria of the reasonable.”37 Jürgen Habermas would write two further rebuttals to Rawls, each of which became somewhat more heated on the question of truth. In each of those, Habermas tries to maintain the distinction and to not simply claim truth, but it evidently gets increasingly difficult. Habermas’s first rebuttal is actually styled with truth in its title: “‘Reasonable’ Versus ‘True,’ or the Morality of Worldviews.”38 There, Habermas responds to Rawls that his effort to remain only within the political domain necessarily fails and that it is impossible to avoid entirely the epistemological dimensions even in practical philosophy. But by his last rebuttal, “Reply to My Critics,” Habermas lets his guard down and embraces the centrality of truth to all philosophical domains—not just epistemology, but politics, morality, and even ethics. “I cannot think of any serious philosophical study, in whatever subdiscipline, that would and could not seriously make truth claims,” Habermas declared.39 Even ethics, which Habermas had earlier carefully distinguished from moral judgments.40 “Ethical statements about what is good ‘for me’ or ‘for us,’ for instance, remain captive to the perspective of a particular understanding of oneself and the world, but we claim (with this relativizing qualification) validity for them, too. Otherwise ethical advice would be pointless.”41 But at that point, the relativizing qualification is hardly relevant, or convincing. It’s just a mere parenthesis. “Of course,” Habermas adds, “we claim universal validity only for descriptive statements and statements concerning justice (where I understand ‘justice’ in the Kantian sense).”42 But again, by this point, it is clear that truth operates across the board—in politics, morality, and even ethics—it’s just a question of how forcefully we make the claim to truth. In every subdiscipline, serious philosophers claim truth. So in the end, according to Habermas, the central defect with Rawls’s political liberalism is that it does not allow for a measure of truth to attach to the agreed-upon norms. There isn’t that solid foundation on which we can say that this is true, or what others

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should do. It can’t make a claim to truth. In the end, when the rubber hits the road, all the sophistication and analytic distinctions tend to fall by the wayside and we are left with a claim to truth even on normative and ethical questions. And for that matter, I would argue that Rawls, who assiduously avoids the concept of truth, adopts a notion of reasonableness that inscribes within it the need for what I would call truthful judgments—this is, of course, Habermas’s critique. Habermas helpfully summarizes Rawls’s definition of “reasonable” as follows: “‘reasonable’ refers in the first instance to the attitude of people who are (a) willing to propose, agree upon, and abide by fair terms of social cooperation between free and equal citizens, and (b) capable of recognizing the burdens of argument and willing to accept their consequences.”43 What is plain from this definition is that its parts would likely lead a critic to claim truth, namely on whether people are in fact truly capable or willing. Those judgments determine whether people are being unreasonable, or whether there are other grounds for deliberative breakdown. In liberal political and legal debate, that often leads to claims of truth. I’ll set that aside, but it does functionally bring us back to truth again, in the end. The Will to Truth I would argue that in this exchange, and more generally, the claim to truth, in the end, is the last refuge of the scoundrel. When a sophisticated philosopher is claiming truth in the political or moral realm, knowing well the epistemological distinctions between existence, truth, validity, or justifiability, they are overplaying their hand. They are overdoing it. They are abusing truth. And it is usually, I suspect, because they are losing the battle over validity. But it is not a credible approach. It is a cry of despair. It is the equivalent of the layperson saying: “I’m right, and you are wrong, period.” “What I’m saying is the truth!” It’s clutching a sinking raft. It’s a cry of despair that tries to ground an argument on more solid foundation than that on which it probably rests. Moreover, by trying to claim that solid ground of truth—that something universal that trumps all other arguments—the sophisticated critic also elides the relations of power that shape the institutions and practices that affect our appreciation of these interpretations

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and theories (or what the critic calls the truth). The imposition of a true foundation, as if it were true and sure, as if it were beyond power relations, hides all kinds of relations of power. Judith Butler articulated this best in earlier debates, in the 1990s, over the clash between feminism and poststructuralism, when she explained: to establish a set of norms that are beyond power or force is itself a powerful and forceful conceptual practice that sublimates, disguises, and extends its own power play though recourse to tropes of normative universality. And the point is not to do away with foundations, or even to champion a position that goes under the name of antifoundationalism. Both of these positions belong together as different versions of foundationalism and the skeptical problematic it engenders. Rather, the task is to interrogate what the theoretical move that establishes foundations authorizes, and what precisely it excludes or forecloses.44

The imposition of a foundation, the claim to truth, is indeed a power play. It involves an assertion of power in the realm of political debate. Ways For ward When I look back on history, it feels almost inevitable that people will continue to claim truth in public discourse—and not just there, but as well in sophisticated analytic and continental philosophical debates. The will to truth has been with us for too long. It is unlikely to evaporate even on careful reflection. Nevertheless, it is worth investigating better ways forward—better, that is, than to claim the truth. Michel Foucault offered one such approach: Instead of dedicating oneself to the infinite task of distinguishing truth from falsity, especially in those domains where truth should not govern, Foucault focused on writing histories of truth—of what people believed to be true—and histories of truth-telling. The critical philosophical enterprise in the wake of Kant, Foucault explained, could give rise to two very different projects. One is the project, inspired by Kant, of determining the limits of reason and the criteria of truth: to determine the internal or external rules by which certain statements can be deemed true or false. This was the project of critique

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that draws on the etymology of the Greek word krinein, meaning to distinguish, to judge, to parse. The other critical project, which Foucault embraced, is to explore how claims to truth are infused with truth-value and how truth-telling works. This latter project provides the basis for a history of truth or of truth-telling: an analysis of the historical sequence of the methods by means of which the claim to speak truth—or what Foucault referred to as veridiction, as in the diction or telling of truth or veritas—succeeds. Foucault explained the difference between these two projects with great precision in his inaugural conference to his Louvain lectures, on April 2, 1981, and it is worth quoting the passage extensively to understand what separates Foucault from those other projects to claim truth: If critical philosophy is a philosophy that starts not from the wonderment that there is being, but from the surprise that there is truth, then we can clearly see that there are two forms of critical philosophy. On the one hand, there is that which asks under what conditions—formal or transcendental—there can be true statements. And on the other, there is that which investigates the forms of veridiction, the different forms of truth-telling. In the case of a critical philosophy that investigates veridiction, the problem is that of knowing not under what conditions a statement is true, but rather what are the different games of truth and falsehood that are established, and according to what forms they are established. In the case of a critical philosophy of veridictions, the problem is not that of knowing how a subject in general may understand an object in general. The problem is that of knowing how subjects are effectively tied within and by the forms of veridiction in which they engage. [ . . . ] In a word, in this critical philosophy it is not a question of a general economy of the true, but rather of a historical politics, or a political history of veridictions.45

It is this political history of truth that Foucault produced in his writings and lectures. Instead of engaging in battles over truth or the criterion of truth, Foucault wrote superb histories of true belief. He wrote a history of the different ways that Western Europeans understood madness throughout different epochs—from the belief, in the Renaissance, that the mad had mysterious powers to see into the

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future, to the conception of madness as lack of reason in the seventeenth and eighteenth centuries, to the medical model of madness in modern times—in order to draw their implications. He wrote a history of how Western Europeans understood their world, from the model of similitude and resemblance in the Renaissance, to one of representation, ordering, and difference in the eighteenth century, to one that placed man at its center in more modern times. He wrote a history of true beliefs about punishment in France, and another about understandings of sexual relations in Western civilization. I have tried another approach in my work: to take seriously the idea of unmasking and develop a critical philosophy of illusions.46 In my work, I have argued that our understanding of the world is mediated by mental constructs and interpretations that have effects of reality and redistribute material resources, wealth, and well-being. I have tried to demonstrate how so many of our leading and most significant interpretations—from the idea of order and order maintenance, to the ideal of prediction, to the myth of natural order and of a free market, to the notion of internal enemies— how all these core beliefs are in fact illusions that have significant consequences in terms of material distributions. In my writings, I attempt to lift the veil and expose these illusions, not in order to discover the truth, but only to reposition us to offer better interpretations. I concede that those new interpretations will eventually themselves need to be unveiled in the future, but—somewhat on that juridical model I described earlier—I accept that they may be the best interpretations we have for this moment. I do not unmask illusions to claim truth, but to propose better interpretations that will eventually need to be critiqued. To give an overly simplistic but quick illustration of this unending cycle of critique, or what I call critical philosophy of illusions: Simone de Beauvoir’s brilliant writings on The Second Sex were a crucial critique and step forward that unveiled many of the illusions of patriarchy and male superiority; but they nevertheless reinforced notions of binary gender and a certain essentialism that, even if it was better at the time, would later be unveiled and critiqued by queer theory, which would then be critiqued by trans* theory. De Beauvoir moved us forward and unveiled illusions, but did not reveal genuine interests or real truths, just better interpretations at the time that would call for more critical work.

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The same could be said of Foucault’s writings: his analysis in The Punitive Society and Discipline and Punish exposed the illusion of Western Enlightenment thinking in the punishment field. It revealed that, instead of punishing less, they learned to punish better through mechanisms of discipline that included normalization, regimentation, and panopticism. Those interpretations of the punitive society and of disciplinary power were better at the time in the early 1970s; but even Foucault himself, by 1979, would critique them for still placing too much emphasis on the coercive dimensions, for failing to highlight the pastoral elements of governing, for inadequately theorizing our own role in governance— the dimension of subjectivity. Foucault was actually one of the first to point out these deficiencies and to critique his own at-the-time better interpretations. In my work, then, I develop a critical philosophy of illusions that unveils not to discover truth, but to offer a better interpretation that will quickly need to be critiqued. In this, I embrace the terminology of “illusions.” It is one that Nietzsche and Freud used willingly. Nietzsche famously wrote, in 1873, that “truths are illusions of which one has forgotten that they are illusions.”47 In The Future of an Illusion, Freud preferred the term illusion, which he inflected with the notion of wish-fulfillment, and distinguished it from errors (which are easily demonstrably wrong) and delusions (which are in contradiction with reality).48 Marx by contrast used the term phantasmagoria, which represents the theatrical use of a laterna magica to project frightening images on a screen, to describe commodity fetishism; but would ultimately embrace the term ideology.49 Foucault originally used the term illusion frequently, but eventually developed the framework of knowledge-power and coined the term “regimes of truth” in opposition to the expressions ideology or illusions. By contrast, I have retained the terminology of illusions because it captures best, in more accessible language, the idea of a misleading solid belief that masquerades as truth, but through critique and a lot of work can ultimately be unveiled to arrive, not at truth but instead at another space that will eventually itself become an illusion, need to be critiqued, and once again be unveiled. I do not contend that truth traverses any of this, nor that we can get beyond power in analyzing these illusions.

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In these terminological debates, most often between critical theorists of a Marxian stripe or from the Frankfurt School, and those who might be called poststructuralist or postcolonial or queer, the former often counter by returning to truth. Hannah Arendt foreshadowed this in her essay on “Truth and Politics,” which ends by claiming truth as “the ground on which we stand and the sky that stretches above us.”50 Benhabib instantiates this in her contributions to the Feminist Contentions debate when she argues that denying moral and political universalism “is like wanting to jump over our own shadow.”51 Habermas pulls the move in his debate with Rawls. But these are, I would argue, nothing more than power plays. And they highlight the exact location of the problem of truth: exactly where and when we slip, as we always seem to, from the ontological certainty of existence to political, moral, or ethical judgments that are orthogonal to truth; when we borrow the certainty that “This is a keyboard that I am typing on,” and we apply it to political or moral arguments like “Only the Rule of Law can protect us from this tyranny.” The resort to truth in politics and morality responds to the fear that if we cannot parse truth from falsity and right from wrong, then there is no way to convince others and no path forward. That if we cannot claim truth, we are lost. Well, I am not. My political positions and political actions are not determined by a claim to truth, but by temporary assessments of how, after critically unmasking illusions like the myth of the free market, practices and institutions interpreted through our next best theory are likely to redistribute resources in society, knowing that even that better interpretation will need to be revisited—knowing, that is, that I will undoubtedly be wrong. What is that notion of better, you may ask? It is not truth. It is an assessment, based on the best available evidence, of the effects of reality of that new interpretation and how it is likely to affect material distributions. These are judgments more in the ethical realm, ultimately. They concern a way of being and decisions on how to act politically, and they are not intended to tell others what to do. They are not in the realm of morality—they are not about deciding on a rule of action for others. They are about the way I lead my political and ethical life. At most, I imagine that my political acts may serve as an illustration of an ethical way of thinking and of being that might constitute one possible approach to politics. By acting in this way, I do not aspire to lead by example, nor do I claim

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truth for others. Whether it could ever serve as an example to others is beside the point, and certainly not the goal. When one is on solid ground, one does not need to claim truth. Claiming truth, in fact, may be counterproductive and often is an indication of weakness. It seems only necessary when one is trying, but has not persuaded the other. In my opinion, Habermas lost the debate with Rawls when he had to claim truth. In the end, for the very same reasons that we need to chasten truth, I believe it is crucial to limit the construction of foundations. Foundations are just metaphors for truth, metaphors that claim more than they should. They construct positions that sound universal or permanent, or beyond power relations, but that are in reality temporary and fallible. It is not clear that one needs to have foundations. There is no good evidence that laying foundations is the most effective strategy or is in fact necessary. Just as we do not need a solid idea of truth when we can use better theories or accurate facts, so we should probably assume there are no foundations, and go on anyway. I certainly do not think I can lay a foundation for others, just as I cannot claim truth. I do not believe in unfaltering reason, and scientific evidence only goes so far—many times, my own empirical work has revealed the fallacies of sociological or economic theories, like order-maintenance, or racial profiling, or systems analysis. But I need not generalize. What I have come to realize is that I may not be able to convince others, but I can live my life ethically. So, in the meantime, when I need to decide, I do and use a workmanlike juridical model. I can decide, at a moment in time, what is most probably accurate and the best theory, stating precisely the standards and burdens of proof I have used. It is no more than a census, what I believe today. It can change. But it is a necessary basis for action. And those decisions are only a temporary placeholder, not truth. They can never be universal or for always. Butler again captures this well: “Indeed, I would suggest that a fundamental mistake is made when we think that we must sort out philosophically or epistemologically our ‘grounds’ before we can take stock of the world politically or engage in its affairs actively with the aim of transformation.”52 No, we must act, and when we do so, I propose, we use a rough-and-ready juridical model. That does not mean we make a claim to truth.

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169 Conclusion

The post-truth argument raises another important question about the relationship between truth and trust. Trust is, naturally, implicated in truth discourse. Bruno Latour makes this argument compellingly in Down to Earth: Politics in the New Climatic Regime, a book on global climate change. Latour argues that global climate change is factual, but not believed by many today, because facts require trust. A true fact cannot stand on its own, autonomously, independent of social relations, of who tells it, or discovers it, or proves it—and where and how it is established. There may well be facticity, but in order for facts to stick, they have to properly form part of social life and a social fabric. And when our shared social life has been scarred by betrayal and exploitation, it will no longer be fertile ground for the trust necessary to maintain accurate facts or better theories. Latour summarizes, almost in the margin of his book, his epistemological position: No attested knowledge can stand on its own, as we know very well. Facts remain robust only when they are supported by a common culture, by institutions that can be trusted, by a more or less decent public life, by more or less reliable media.53 It is not a matter of learning how to repair cognitive deficiencies, but rather of how to live in the same world, share the same culture, face up to the same stakes, perceive a landscape that can be explored in concert. Here we find the habitual vice of epistemology, which consists in attributing to intellectual deficits something that is quite simply a deficit in shared practice.54

In other words, as Latour underscores, facts do not “stand up all by themselves,” they require a shared world, and they require institutions and a public life. They will not be believed simply by repeating them or teaching them. They require a shared practice. Latour himself objects to the idea that we are living in post-truth politics or that the people who are ignoring global climate change are simply living in an alternative reality. The problem, Latour argues, is not with “them,” but with “us”: “we” (and here Latour is speaking predominantly of those of European descent) have so

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betrayed others by taking advantage of them, and exploiting them, that they have no reason to trust existing social institutions anymore. By hoarding resources in order to modernize for the Western elite only, through colonialism and imperialism, wealthy Europeans have stripped themselves of a common language. “Before accusing ‘the people’ of no longer believing in anything, one ought to measure the effect of that overwhelming betrayal on people’s level of trust,” Latour writes. “Trust has been abandoned along the wayside.”55 Latour is undoubtedly right that trust is an important factor in discussions surrounding truth. Many of us, for instance, have never ourselves read or reviewed the primary scientific literature on climate change, but have formed our beliefs on the basis of news reports in the New York Times and Scientific American, and on NPR. Many of us form beliefs about climate change on the basis of secondary sources that we trust. Yet today, overall trust in the media has descended to unprecedented lows. According to Gallup polls in 2018, as McIntyre reports, “Americans’ trust in the mass media has now shrunk to a new low: from a high of 72 percent in 1976 in the immediate aftermath of the Watergate crisis and Vietnam, it has now dropped to 32 percent.”56 Most everyone reading this chapter is associated with a university and has trust in the scientific community, its peer-review process, and its ethical standards— despite incidents like the Tuskegee University untreated syphilis experiment on African American men or the University of Chicago’s malaria experiments on inmates at Stateville Prison.57 Most progressives believe the consistent and quasi-universal scientific findings of scholarly scientists. But many on the New Right do not trust science or academic experts, and defer instead to other forms of authority, such as religious belief, or in the case of Trump, a perception of business acumen. On a range of issues, from HPV, COVID-19, and other vaccinations to climate change and environmental issues, conservative Americans tend to be more skeptical of science and scientists than are liberals.58 This is not to excuse anyone, and I will be the first—being myself agnostic, an academic, and a contrarian—to put hard data ahead of religion, charisma, might, or rhetorical argument, in forming opinions about factual matters. But clearly, questions of trust are central. They too deserve further reflection, attention, and care.

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171 Notes

1 Those moments are often marked not only by a shift in the basis of truth, but also a change in the conception and definition of evidence. In a religious context, the term evidence connotes more the evident truth of revelation and is associated more with scriptural hermeneutics. During the transition to the Enlightenment, the term evidence acquired a mixed religious and rational nature, as in the terminology of the self-evident truths of the signatories of the declaration of American independence. For François Quesnay’s entry on “évidence” in the Encyclopédie, published at that precise moment of transition, the term referred to a blend of evident truths of religious and rational belief. For more rationalist thinkers in the nineteenth century, logic and reason were the most authoritative sources of evidence. Empirical data and scientific evidence, of course, came to the fore with positivist thought. So the definitions of—and the relations between—truth and evidence varied depending on the specific foundations that ground the claim to truth. 2 Steven Pinker, Enlightenment Now: The Case for Reason, Science, Humanism, and Progress (New York: Penguin Books, 2019). 3 Homi Bhabha and Steven Pinker, “Does the Enlightenment Need Defending?” Institute of Art and Ideas, September 10, 2018, available at https://iai.tv 4 Richard Rorty in Richard Rorty and Pascal Engel, What’s the Use of Truth? Trans. William McCuaig (New York: Columbia University Press, 2016), 43. 5 Oxford Dictionaries, “Word of the Year 2016 Is  .  .  .”, available at https://en.oxforddictionaries.com 6 Collins Dictionary, “2017 Word of the Year Shortlist,” available at www.collinsdictionary.com 7 Michiko Kakutani, The Death of Truth: Notes on Falsehood in the Age of Trump (New York: Tim Duggan Books, 2018); Daniel J. Levitin, Weaponized Lies: How to Think Critically in the Post-Truth Era (New York: Penguin Random House, 2016). 8 Lee McIntyre, Post-Truth (Cambridge, MA: MIT Press, 2018); Cailin O’Connor and James Owen Weatherall, The Misinformation Age: How False Beliefs Spread (New Haven, CT: Yale University Press, 2018). 9 Scholarly articles on the post-truth era have burgeoned, see, e.g., Shanto Iyengar and Douglas S. Massey, “Scientific Communication in a Post-Truth Society,” PNAS 116, no. 16 (April 16, 2019): 7656–7661; Stephan Lewandowsky, Ullrich K. H. Ecker, and John Cook, “Beyond Misinformation: Understanding and Coping with the ‘Post-Truth’ Era,” Journal of Applied Research in Memory and Cognition 6, no. 4 (2017): 353–369;

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Álvaro Figueira and Luciana Oliveira, “The Current State of Fake News: Challenges and Opportunities,” Procedia Computer Science 121 (2017): 817– 825; Jonas De keersmaecker and Arne Roets, “‘Fake News’: Incorrect, but Hard to Correct. The Role of Cognitive Ability on the Impact of False Information on Social Impressions,” Intelligence 65 (2017): 107–110. 10 Jennifer Kavanagh and Michael D. Rich, “Truth Decay: An Initial Exploration of the Diminishing Role of Facts and Analysis in American Public Life,” RAND Corporation Report, Santa Monica, CA: RAND Corporation, 2018, available at www.rand.org; Lewandowsky et al., “Beyond Misinformation.” 11 Carole Cadwalladr, “Daniel Dennett: ‘I Begrudge Every Hour I Have to Spend Worrying about Politics,’” Observer, February 12, 2017, at www.theguardian.com (quoted in Joshua Forstenzer, “Something Has Cracked: Post-Truth Politics and Richard Rorty’s Postmodernist Bourgeois Liberalism,” Ash Center Occasional Papers Series, Ash Center for Democratic Governance and Innovation Harvard Kennedy School, July 2018). 12 Seyla Benhabib, Exile, Statelessness, and Migration: Playing Chess with History from Hannah Arendt to Isaiah Berlin (Princeton, NJ: Princeton University Press, 2018), 195. 13 I discuss this proto-fascist, White Supremacist New Right and President Donald Trump’s role in fueling it in Bernard E. Harcourt, “How Trump Fuels the Fascist Right,” New York Review of Books, November 29, 2018, available at www.nybooks.com; see also Jason Stanley, How Fascism Works: The Politics of Us and Them (New York: Random House, 2018). 14 Glenn Kessler, Salvador Rizzo, and Meg Kelly, “President Trump Has Made 9,014 False or Misleading Claims over 773 Days,” Washington Post, March 4, 2019, available at www.washingtonpost.com 15 Ibid. 16 These are a compilation of CNN and other news videos; see “Donald Trump: Last Week Tonight with John Oliver” (HBO) at https://www. youtube.com/watch?v=DnpO_RTSNmQ 17 Jack Shafer, “How Donald Trump Destroyed the Interview: A Century-Old Political Institution May Have Met Its Match,” Politico Magazine, May 27, 2016, available at www.politico.com 18 The “Pizzagate” incident resulted from false information circulating on social media during the 2016 presidential campaign that candidate Hillary Clinton and top Democrats were running a child sex ring and human trafficking out of the basement of the Comet Ping-Pong pizzeria in Washington, DC. 19 McIntyre, Post-Truth, 6. 20 Some contend that it is not just postmodernists, but pragmatists like Richard Rorty, who are responsible for our post-truth condition. The

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Harvard fellow, Joshua Forstenzer, maintains, for instance, that “Rorty’s philosophical project bears some intellectual responsibility for the onset of post-truth politics, insofar as it took a complacent attitude towards the dangers associated with over-affirming the contingency of our epistemic claims.” Forstenzer, “Something Has Cracked,” 4. 21 See Michael Saks’s reply in this NOMOS volume. 22 See, e.g., McIntyre, Post-Truth, book epigraph; page 1 epigraph; page 35 epigraph; page 63 epigraph; page 123 epigraph; and page 151 epigraph. 23 Kavanagh and Rich, “Truth Decay,” 33. 24 Oxford Dictionaries, “Word of the Year 2016 Is . . .” 25 The passage is from Georges Dumézil, Servius et la fortune: essai sur la fonctíon sociale de louange et de blâme et sur les éléments indo-européens du cens romain (Paris, Gallimard, 1943), 243–44. Foucault cites it in his 1981 lectures at Louvain, Michel Foucault, Wrong-doing, Truth-telling: The Function of Avowal in Justice, trans. Stephen W. Sawyer (Chicago: University of Chicago Press, 2014), 28, as well as in his 1971 lectures at the Collège de France, Michel Foucault, Lectures on the Will to Know: Lectures at the Collège de France, 1970–1971, and Oedipal Knowledge, trans. Graham Burchell, ed. Daniel Defert (New York: Palgrave Macmillan, 2013), 84. 26 Jürgen Habermas and John Rawls, for instance, recognize in their exchanges that there is at the very least an essential analogy between statements of truth and those of normative rightness, even if Rawls may prefer to avoid the term “truth” and use instead “reasonableness,” and if Habermas slips into moral truth talk. See, e.g., Jürgen Habermas, “‘Reasonable’ Versus ‘True,’ or the Morality of Worldviews,” 92–113, in Habermas and Rawls: Disputing the Political, ed. James Gordon Finlayson, Fabian Freyenhagen, and James Gledhill (New York: Routledge, 2011), 98; John Rawls, “Political Liberalism: Reply to Habermas,” Journal of Philosophy 92, no. 3 (March 1995): 132–180, 149. 27 On the Habermas-Rawls debate, see James Gordon Finlayson, The Habermas-Rawls Debate (New York: Columbia University Press, 2019) and Habermas and Rawls: Disputing the Political. 28 Jürgen Habermas, “Reconciliation Through the Public Use of Reason: Remarks on John Rawls’s Political Liberalism,” Journal of Philosophy 92, no. 3 (March 1995): 109–131, at 127–128. 29 Finlayson, “Introduction,” The Habermas-Rawls Debate, 2. 30 John Rawls, “Justice as Fairness: Political Not Metaphysical,” Philosophy and Public Affairs, xiv (Summer 1985): 223–251, at 230; Habermas, “Reconciliation Through the Public Use of Reason,” 122. 31 Habermas, “Reconciliation Through the Public Use of Reason,” 122.

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32 Ibid., 126. 33 Ibid., 123–124. 34 Ibid., 125. 35 John Rawls, “Political Liberalism: Reply to Habermas,” 133. 36 Ibid., 141–142 (note, my emphasis, that Rawls writes that “in Habermas’s view the test of moral truth or validity is fully rational acceptance in the ideal discourse situation, with all requisite conditions satisfied”). 37 Rawls, “Political Liberalism: Reply to Habermas,” 149. 38 Jürgen Habermas, “‘Reasonable’ Versus ‘True,’ or the Morality of Worldviews,” 92–113, in Habermas and Rawls: Disputing the Political. 39 Habermas, “A Reply to Critics,” 283–304, in Habermas and Rawls: Disputing the Political, 290. 40 Habermas, “Reconciliation Through the Public Use of Reason,” 125. 41 Habermas, “A Reply to Critics,” 290. 42 Ibid. 43 Habermas, “‘Reasonable’ Versus ‘True,’ or the Morality of Worldviews,” 102. 44 Seyla Benhabib, Judith Butler, Drucilla Cornell, Nancy Fraser, and Linda Nicholson, Feminist Contentions: A Philosophical Exchange (New York: Routledge, 1995), 39. 45 Foucault, Wrong-Doing, Truth-Telling, 20. See also Michel Foucault, Discourse & Truth, and Parrēsia, ed. Henri-Paul Fruchaud, Daniele Lorenzini, and Nancy Luxon (Chicago: University of Chicago Press, 2019), 222– 224: “my intention was not to deal with the problem of truth, but with the problem of the truth-teller or of truth-telling, or of the activity of truthtelling. I mean that it was not for me a question of analyzing the criteria, the internal or external criteria through which anyone, or through which the Greeks and the Romans, could recognize if a statement was true or not. It was a question for me of considering truth-telling as a specific activity, it was a question of considering truth-telling as a role. [ . . . ] [W]hat is the importance of telling the truth, who is able to tell the truth, and why should we tell the truth, know the truth, and recognize who is able to tell the truth? I think that is at the root, at the foundation of what we could call the critical tradition of philosophy in our society.” 46 Bernard E. Harcourt, Praxis and Critique: A Manifesto (2019), available at http://harcourt.praxis.law.columbia.edu. 47 Nietzsche, “On Truth and Lie in a Nonmoral Sense (1873),” 30. 48 Sigmund Freud, The Future of an Illusion, tran. James Strachey (New York: W.W. Norton, 1961), 30–31. 49 Karl Marx, Capital: A Critique of Political Economy, Volume 1, trans. Ben Fowkes (New York: Vintage Books, 1976), 165.

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50 Hannah Arendt, “Truth and Politics,” New Yorker, February 25, 1967. 51 Benhabib et al., Feminist Contentions, 118. 52 Ibid., 129. 53 Bruno Latour, Down to Earth: Politics in the New Climatic Regime (Cambridge: Polity Press, 2018), 23. 54 Ibid., 25. 55 Ibid., 23. 56 McIntyre, Post-Truth, 86. 57 See, generally, Bernard E. Harcourt, “Making Willing Bodies: The University of Chicago Human Experiments at Stateville Penitentiary,” Social Research 78, no. 2 (Summer 2011): 443–478. 58 Lawrence C. Hamilton, Joel Hartter, and Kei Saito, “Trust in Scientists on Climate Change and Vaccines,” SAGE Open, 2015; available at https://doi.org/10.1177/2158244015602752; Dan M. Kahan, Donald Braman, Geoffrey L. Cohen, John Gastil, and Paul Slovic, “Who Fears the HPV Vaccine, Who Doesn’t, and Why? An Experimental Study of the Mechanisms of Cultural Cognition,” Law and Human Behavior 34, no. 6 (2010): 501–516.

7 NOTHING SCOUNDRELOUS ABOUT TRUTH CHERYL MISAK

Some well-established liberal democracies are entering a disturbing age of moral regress, in which elected strongmen threaten important ethical and political principles. We can no longer take it for granted that the rule of law governs democratic politics; that white supremacy is not a legitimate political platform; or that politicians caught telling outright lies should suffer consequences. The aim of this chapter is to show that in order to articulate such claims in the first place and then assess them, we require a concept of truth— one that is safe, or apt, for moral and political judgments. I will sketch such an account of truth, based on the work of C. S. Peirce, Frank Ramsey, C. I. Lewis, and other pragmatists, and argue that we should adopt it, as opposed to Bernard Harcourt’s position in “Post-Truth.” Harcourt asks whether we need the concept of truth or whether we can and should get rid of it. He notes that we have been grappling with this question since ancient times, and offers, as a recent illustration, the debate in the 1990s between John Rawls and Jürgen Habermas. Rawls accused Habermas of hankering after a conception of truth, rather than a reasonable overlapping consensus, and Habermas argued that Rawls had to appeal to the notion of truth in his account of reasonableness. Harcourt himself takes his inspiration from Foucault. He is against the idea of truth and in favor of the idea that all we have are temporary beliefs, laden with power relations. He has some strong words for Habermas and any other philosopher who might appeal to something’s being true: “I 176

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would argue that in this exchange, and more generally, the claim to truth, in the end, is the last refuge of the scoundrel.” One of Harcourt’s reasons for thinking it is dishonest for the philosopher to claim that truth is at stake in ethics or politics is that “Throughout human history, the claim to truth has been one of the most dangerous and powerful weapons known to man.” When we are convinced we have truth in our hands, we tend to run over those who we think do not. He advises us to “move forward more carefully regarding the noun truth and the adjective true.” The way to do this, he says, is to look to ordinary usage: “Let’s begin with some honest reflection on our use of the term in ordinary parlance.” Philosophers “may prefer to limit the use of the term truth to ontology and epistemology,” but Harcourt wants to turn to “ordinary political discourse.” He suggests that if we can sort out our muddled concept of truth, we will be better equipped to answer questions such as whether we are entering a new post-truth society in which alternative facts, pseudo-facts, and fake news masquerade as actual evidence, and propaganda and political spin replace public discourse. It should already be clear that his answer must be that we are not entering such a society, for he rejects the very idea of truth. For him, “post-truth” means that we should get over the idea of truth. We should be done with it. In taking on the project of seeing how we actually use the concept “true,” Harcourt finds himself on a seesaw of intuition. The reason, I suggest, is due to a tension about truth that lies at the heart of the human condition. On the one hand, we take our beliefs to be true, or objective, or aimed at getting things right. On the other hand, we know that our beliefs, and our philosophical ways of understanding their nature and status, have developed in ways that are contingent on all sorts of historical accidents—the evolution of the human brain and sensory apparatus, the way language-users have posed fundamental questions and answered them, the power relations that structure inquiry and knowledge, the technology made possible by the earth’s raw materials, our ingenuity, our political and economic aims, and so on. How can both of these things hold? How can we aim at getting things right, yet see, as William James put it, that “the trail of the human serpent is over everything”?1 It is thus perfectly understandable that Harcourt’s exploration of the use of the truth predicate goes back and forth. When he asks

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early on whether we are in the era of “truth decay,” partly caused by the advent of social media, information bubbles, and a fractured media landscape, he seems to suggest that we need the concept of truth. He notes that the biggest liar of all, the former president of the United States, Donald Trump, is always claiming to tell the truth; that the far right is “fighting on the terrain of truth” (and we must add that the left is as well); and that we think that being right is the best way to convince others. That is one side of the intuition divide. We employ the concept of truth all the time. Harcourt comes to rest, however, on the other side. Neither God, nor reason, nor science provides us with a guarantee that our beliefs are True. It follows for Harcourt that since we can’t find a bedrock, we should drop the notion of truth and see that what we have, at any given time, are temporary beliefs that will themselves be overturned: The model we use when we need to act, essentially, is a rough-andready juridical model: We review the evidence and decide based on a burden and a standard of proof. . . . [W]e reach a temporary judgment. But that does not mean the judgment is true. . . . The verdict is just a temporary assessment of the weight of the evidence, and it is open to later reassessment. Truth is never for always, or universal, or preclusive—as we tend to use it. What we ordinarily call truth is just a temporary, punctual evaluation of evidence or reasons.

Harcourt, that is, calls for a revision in our use of the concept of truth: The will to truth has been with us for too long. It is unlikely to evaporate even on careful reflection. Nevertheless, it is worth investigating better ways forward—better, that is, than to claim the truth.

Harcourt is right that there is nothing sacrosanct about usage. We are interested not merely in what concepts we have come to employ, but whether we should continue to employ them as they currently stand. We can offer arguments for why we should make

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a revision in the way we use a concept. I will argue, however, that Harcourt’s suggested revision is not the way to go. I will argue that without the concept of truth, Harcourt gets himself into a bind in which he cannot assert the things he wants to assert. The general territory of how our concepts are connected to use or practice has been that of American pragmatism, ever since its inception in the 1870s by William James, Charles Sanders Peirce, Chauncey Wright, and Oliver Wendell Holmes.2 An insight at the heart of the pragmatist tradition is that any domain of inquiry and assertion—science, mathematics, ethics, politics—is human inquiry and assertion. Our beliefs, and their status as true or false, warranted or not, cannot be pried apart from our capacities, needs, and aims. Our philosophy of truth, knowledge, probability, justice, and so on, must start with the fact that these concepts are bound up with our practices. We must not begin with high metaphysics, a supernatural God, or some other grand thing that purportedly nails down our concepts with absolute authority. Pragmatists, like Harcourt, have seesawed with respect to the warring intuitions about truth. While all pragmatists reject the quest for certain foundations for knowledge, some agree with James’s (occasional) proclamations that truth is what is satisfactory to this or that person and some agree with Peirce’s more objective pragmatism, on which a belief is true if it would be satisfactory in a more robust sense—if it would be “indefeasible,” or would not be improved upon, or would never lead to disappointment, or would forever meet the challenges of reasons, argument, and evidence.3 Harcourt is in effect with James, at least James in his most subjective moods. I will argue, rather, that it is Peirce’s pragmatism that Harcourt needs to adopt. I will do that by following Harcourt’s advice to examine the place of truth in our practices. The upshot will be to offer him a pragmatist position about truth which I think he could accept without feeling that he was a scoundrel. Harcourt’s objections are against a conception of truth that is absolutist—Truth with what he calls a capital T. We shall see that there is excellent reason to drop such a concept of truth. The real question is whether there is an alternative conception of truth that is not dishonest, yet does justice to the objective dimension of inquiry and assertion.

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In the early 1900s, Charles Sanders Peirce made Harcourt’s point about use. In order to get a complete grasp of a concept, we must connect it to that with which we have “dealings.”4 Otherwise, our concepts are the subject of empty metaphysics—“vagabond thoughts that tramp the public roads without any human habitation.”5 We must look to practices without which we cannot function and see what commitments they entail. That might sound as if Peirce was aiming at Kantian transcendental guarantees for our concepts. But Peirce wanted to naturalize Kant. His idea is put perfectly by David Wiggins. When a concept is “already fundamental to human thought and long since possessed of an autonomous interest,” it is pointless to try to offer an analytic definition of it. Rather, the important task is to get leverage on the concept, or a fix on it, by exploring its connections with practice.6 In this spirit, Peirce argues that the correspondence theory, on which a true belief is one that mirrors a world of believerindependent objects, is misguided. It fails to make our practices “readily comprehensible.”7 How could anyone aim for a truth that goes beyond experience or beyond the best that inquiry could do? How could an inquirer adopt a methodology that might achieve that aim? If we take truth to be correspondence with a reality that goes beyond us, then we make it “a useless word.” Once we see that we have “no use for this meaning of the word ‘truth’, we had better use the word in another sense.”8 Like Harcourt, Peirce thinks that using the concept of truth in the correspondence sense is flawed. When we use truth in the correspondence sense, we fail to see that the very idea of the believer-independent world, and the items within it to which beliefs might correspond, are graspable only if we could somehow, impossibly, step outside of our practices and capacities. To claim that you have truth in this sense is always going to be a spurious claim. And it will often be a dangerous claim, too confident and not in fact grounded in the way that you claim it to be grounded. Peirce then offers us a conception of truth that pays attention to its role in our practices of belief, assertion, and inquiry. Once we take a hard look at those important practices, we will see that those engaged in deliberation and investigation take themselves to aim at truth and to be responsive to reasons and the force of

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experience. Self-interest and power structures can denigrate and interfere with these aims, but that doesn’t counter the fact that inquirers, by virtue of actually looking into a matter, want to get it right, avoid mistakes, and improve their beliefs and theories. Moreover, we want to know what methods might get us true belief— astrology? science? randomized control trials in medicine? We also want to know whether moral and political discourse aims at truth or whether they are radically subjective matters, not at all suited for truth-value. Finally, Peirce argues that we assume we can find an answer to the question that is pressing in on us. Otherwise, it would be pointless to inquire into the matter: “the only assumption upon which [we] can act rationally is the hope of success.”9 Thus, the principle of bivalence—for any p, p is either true or false—rather than being a law of logic, is a “regulative assumption,” or a hope, that is embedded into inquiry. We can sum up all of this by saying that Peirce’s pragmatism tells us that when we look at our practices, we find that philosophy needs to do justice not only to the subjective dimension of human inquiry, which he (and Foucault and Harcourt) have brought out so well. Philosophy also needs to do justice to the objective dimension of human inquiry—to the normative dimension of belief. Peirce argues that belief aims at truth and must be responsive to the facts: “it is one of the essentials of belief, without which it would not be belief . . . that a man could hardly be considered sane who should wish that though the facts should remain lamentable, he should believe them to be such as he would wish them to be.”10 He saw clearly that the Trumps of his time paid no attention to the facts: When politicians disagree, the dispute sometimes has “some other object than the ascertainment of . . . truth.”11 But if a politician makes assertions or claims to believe something, he holds himself responsible for it. For that is what it is to make an assertion: “Nobody takes any positive stock in those conventional utterances, such as ‘I am perfectly delighted to see you,’ upon whose falsehood no punishment at all is visited.”12 But if you assert, for instance, that the virus that causes COVID-19 will disappear like magic, then you are held responsible for that assertion. One might well ask how Peirce is characterizing a fact here. Is he not sneaking in a mind-independent and mysterious entity? He is

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well aware of the danger and avoids it by sticking to a thin concept of fact. A fact is simply that which is compelling, surprising, unchosen, brute, involuntary, or forceful. The most we can say about it is that it impinges upon us. As soon as we acknowledge what impinges on us, we form a belief, or a habit, or a judgment, or an interpretation, and it is those interpretations (not the raw data itself) that stand in justificatory relationships with other beliefs. Peirce thus secures both of the competing intuitions and delivers a sensible, useable, and non-absolutist account of truth. A true belief is that which would be indefeasible—not defeated by experience, argument, and evidence. That’s not to say that we have some vision of an endpoint at which we aim. The truth is off in the indefinite and indistinct future. We can never say with certainty that we possess it. But we can assess our fallible beliefs by seeing how well they fit with all the facts, which we get a glimpse of via experience, argument, and evidence. Addendums to Peirce Over the last 120 years, additions and improvements on Peirce’s pragmatist account of truth have been made. In 1929, Frank Ramsey picked up Peirce’s trail, which had gone rather cold after his death in 1914. Ramsey agreed with Peirce that for our complex philosophical concepts such as truth, “what is wanted is an explanation of the use of the symbol.”13 He also agreed that the correspondence theory was a failure.14 His target was the book he had translated when he was an undergraduate—the Tractatus LogicoPhilosophical, in which Wittgenstein developed a correspondence theory of truth. True propositions are those that accurately picture independently existing facts or states of affairs in a logically precise manner. Ramsey said of the Tractatus: We cannot really picture the world as disconnected selves; the selves we know are in the world. What we can’t do we can’t do and it’s no good trying. Philosophy comes from not understanding the logic of our language; but the logic of our language is not what Wittgenstein thought. The pictures we make to ourselves are not pictures of facts.15

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Like Peirce and like Harcourt, Ramsey saw that a philosophy that tries to unhook truth from the self and society is a vagabond thought without any human habitation. Ramsey also agreed with Peirce that beliefs are habits, or dispositions to act, and that they are judged in terms of whether they are successful. But while Peirce had said that it was the very nature of a belief that it resigns when the facts are lamentable, Ramsey stayed away from such constitutive arguments. His alternative reasoning was that, in order to be successful, a belief has to be connected to (not a perfect picture of) the facts. One of his examples was the belief in hell. If I believe in it, I will try to act in ways that will prevent me, and others, from going to hell. I will repent when I stray, I may proselytize so that others will behave in appropriate ways, and so on. That is the pragmatist account of the content of belief. Ramsey went on to note that “Such conduct will be useful to the [believer] if it really saves him from hell, but if there is no such place it will be a mere waste of opportunities for enjoyment.”16 That’s an improvement on Peirce’s argument that the very concept of belief is such that it is responsive to the facts, which has a whiff of transcendentalism to it.17 It is better to go with Ramsey’s idea that we evaluate beliefs in terms of whether they are reliable or not, and they won’t be reliable if they fail to pay attention to the way things are. Clarence Irving Lewis at Harvard also made important contributions to Peirce’s project. While all pragmatists reject the fact-value dichotomy, Lewis was the pragmatist who thought hardest about how ethics and politics might be realms of genuine inquiry aimed at getting things right.18 In the 1923 “A Pragmatist Conception of the A Priori,” he argued that the whole body of our beliefs is like a pyramid, with the most comprehensive, such as those of logic, at the top, and the least general or most particular, such as “Arthur left his watch on the night table,” at the bottom. When we have a new experience, we attempt to fit it into our human, preformed, patterns. Persistent failure leads to readjustment in the pyramid, but the higher up a concept stands, the more reluctant we are to disturb it, because the more radical and far-reaching the results will be. To switch to a better, and more well-known metaphor, we have experience informing the singular beliefs at the periphery of our

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web of belief, whereas at the core, we find norms that have been stabilized over time by experience.19 Beliefs and principles at the core are fallible and revisable, but were we to revise them, those revisions would reverberate throughout our body of knowledge. Lewis expanded on this position over the next three decades, arguing that ethical judgments are part of our web of belief, “as obdurate and compelling” as “any other kind of knowledge.”20 A recent argument of Jeremy Waldron’s provides an excellent example. He argued that, were the norm allowing torture after the 9/11 attacks in New York to be adopted as a principle, it would cause much damage to the legal order, quite apart from the morality of permitting torture.21 We have to ask ourselves if we are prepared to lose all those other principles. But a belief on the periphery, such as “I should support Oxfam over giving money to my struggling brother,” is something I might easily give up in the face of counterargument or further experience. Indeed, some ethical decisions on the periphery might be mostly, or even entirely, up to an individual—more like matters of taste. Note, however, that even the decision about charitable giving operates within constraints, as giving to your local neo-Nazi group would not be permissible under the system that best stands up to the whole of experience. Another way of putting the point is that a belief that a neo-Nazi organization is deserving of my charitable dollars fails to be responsive to the experience of all—indeed, it denigrates the experiences of many. That is not the only thing that makes it wrong, but it is one thing that makes it a poor belief. One can see a picture emerging here on which our ethical beliefs are candidates for truth, and we are in an ongoing process of introducing new beliefs and revising existing ones. This framework can provide a sophisticated account of our familiar moral world and can differentiate principles not just by their level of generality, nearness to the core, or systematicity, but also in terms of their characters. There’s nothing in this pragmatist account that prevents it from distinguishing, for instance, an obligation to keep a promise to avoid attacking another person from an obligation to keep a promise to pay back a debt. Just as we can distinguish the laws of logic from singular empirical statements, while maintaining that both are nonetheless fallible, we can distinguish a multitude of different kinds of ethical and political statements.

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Finally, let us accept a good point made by a contemporary pragmatist, Huw Price, whose target is the truth-free view of Richard Rorty. Price argues that once we pay attention to our practices, we see that it is not good enough to aim for mere solidarity with others. When you examine practice, you find that the goal of inquiry is truth—something stable and independent of what this or that person or community might think. For the norm of truth plays an essential role in assertion and dialogue. To do without truth is to silence our conversations—both our conversations with others and our own internal conversations.22 Price asks us to imagine a community that uses language primarily for expressing preferences—a community of speakers obeying only the norms of subjective assertibility (sincerity) and personal warranted assertibility (justification). A person who meets both of these norms may be said to have done as much as possible, by her own current standards, to ensure that her assertion is in good order. These speakers can criticize each other for being insincere or for making statements not well-founded by the speaker’s own lights, but they cannot criticize each other for failing to tell the truth. They have merely opinionated assertions (MOAs). “Mo’ans” differ from us in that they do not take disagreement to indicate that someone is mistaken. In the Mo’ans’s linguistic practice we cannot find dialogue and argumentation. As Price so nicely puts it, we cannot find the engagement of individual opinions, as opposed to the mere roll call of individual opinions. Without the norm or “grit” of truth, we wind up with collective monologue— the wheels of argument do not engage and disagreements slide past one another.23 Ramsey, Lewis, and Price bolster and improve upon Peirce’s argument that when we examine the role of truth in our lives, we find (1) that we need a concept of truth and (2) that concept must be human, but still objective. As another contemporary pragmatist, Jeffrey Stout, put it: “getting something right . . . turns out to be among the human interests that need to be taken into account in an acceptably anthropocentric conception of inquiry as a social practice.”24

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Harcourt, contrary to all that has been said above, argues that the concept of truth should not be employed in morals and politics: My political positions and political actions are not determined by a claim to truth, but by temporary assessments of how, after critically unmasking illusions like the myth of the free market, practices and institutions interpreted through our next best theory are likely to redistribute resources in society, knowing that even that better interpretation will need to be revisited—knowing, that is, that I will undoubtedly be wrong.

Part of this is acceptable to the pragmatist, as is one of the pillars of the tradition that all of our beliefs are fallible. Harcourt continues, again sounding a note of the kind of pragmatist I have been describing. Our beliefs must be responsive to how they play out in reality: What is that notion of better, you may ask? It is not truth. It is an assessment, based on the best available evidence, of the effects of reality of that new interpretation and how it is likely to affect material distributions.

But, unlike the pragmatist, Harcourt seems happy with a conception of inaccessible fact. He says that “Most of us, in ordinary life, do not question the existence of things-in-themselves, and do not really care about whether a factual statement involves the thingin-itself or our perception of it or our linguistic statement about it.” He seems to think that some domains of inquiry (science and everyday judgments about objects) arrive at judgments about these things-in-themselves: We slip . . . from the ontological certainty of existence to political, moral, or ethical judgments that are orthogonal to truth; .  .  .  we borrow the certainty that “This is a keyboard that I am typing on,” and we apply it to political or moral arguments like “Only the Rule of Law can protect us from this tyranny.”

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Making truth claims in morals and politics is indeed a scoundrel’s game if what underpins objectivity is a human-independent thingin-itself. But there are some serious problems with this conception of fact. We have seen that one objection Peirce and Ramsey were alert to, and avoided, is as follows. A thing-in-itself or a mind-independent state of affairs is not something we have access to. We can get nowhere with Harcourt’s idea that “What matters is the fact—and whether it accurately exists in the real world or not.” How can Harcourt make sense of these independent facts for some (“ontological”) domains of inquiry? Does he not agree with the pragmatist that all human judgment is fallible? Apparently not. Apparently, his no-truth project only holds for moral and political judgments. But now Harcourt has taken on a huge amount of work. He needs to tell us how scientific and everyday claims can be capital-T true. Part of that massive project will be to say why he has set up the debate so that the cognitivist in ethics loses before it is even started, and to accept the consequences of doing that. A thing-initself is for sure not in play in morals and politics. Wittgenstein accepted this implication of his system in the Tractatus, saying that ethical beliefs, while more important than other kinds of beliefs, were a kind of nonsense because they couldn’t be asserted in the primary language. Ramsey objected: “What we can’t say, we can’t say, and we can’t whistle it either.”25 Wittgenstein eventually gave up the project, faced with Ramsey’s pragmatist objections.26 I suspect that Harcourt, if he put his shoulder to the wheel, would also find that the account of truth that he envisions would have to be abandoned. And, like Wittgenstein, Harcourt will have to stop himself from asserting anything in ethics and politics, for it literally can’t be said in the language of things-in-themselves. The pragmatist does not make the mistake of arranging the theory of truth so as to block ethics and politics from the outset (as well as generality, scientific hypotheses, inductive conclusions, and a host of other kinds of beliefs that we rely upon). Everything I have said about truth on behalf of Peirce, Ramsey, Lewis, and Price is perfectly general—it applies to any domain of inquiry in which we search for answers, make assertions, and try to improve our beliefs by taking account of the evidence and the experience of

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others. While there are of course differences between various kinds of inquiry (for one thing, different kinds of evidence are relevant to different kinds of inquiries), on the pragmatist account of truth, science does not give us objective truth and ethics does not give us mere expressions of emotion. Both science and ethics give us pragmatist truth, which is the best belief we could have. Perhaps Harcourt would reply by saying that he is happy to queer the pitch against ethics and politics, because that is simply the way things are. But there is another, perhaps even more serious, objection to his no-truth proposal for ethics and politics. A number of core notions in his proposal presuppose the concept of truth. For one thing, a “better” theory (or “next best theory” or an improvement on a belief) cannot be in play without the concept “best” or an idea of that at which we aim. This is a version of Price’s point. Without a normative notion of truth, our revisions of belief are just shifts in preference. This is similarly the case for Harcourt’s project of “unmasking” illusions and developing “a radical critical philosophy of illusions.” He wants to argue that all we have are the best interpretations at the moment, and they too will eventually be shown to be illusions. As an example, he gives Simone de Beauvoir’s unveiling the illusions of patriarchy and male superiority, with her own binary interpretations of gender now coming under scrutiny from queer and trans theory. But this very practice—Harcourt’s own practice—in which we “lift the veil and expose these illusions”—assumes that there is a right way—a non-illusory way—of seeing the matter. We can’t make sense of unmasking an illusion, getting something wrong, being tricked, or having our belief occluded by power, without the idea that there is a truth of the matter at which we are aiming. The same holds for the way Harcourt, at the end of the chapter, suggests that we might diagnose our current ills by exploring how trust in science and fact-checked media has being eroded. The concept of trust also relies on the concept of truth. What are we doing when we trust the expertise of epidemiologists and infectious disease specialists, rather than the conspiracy theorists, to drive policy about how society and individuals should respond to a pandemic? We are making a claim that the epidemiologists and infectious disease specialists have true beliefs and the conspiracy theorists have false ones. Harcourt likes Latour’s idea that “facts cannot stand up

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by themselves”—that in order to believe facts, we need a shared and trusted set of institutions to maintain them. My claim is stronger. It’s not just that truth (a concept I can use, but not Harcourt) cannot persevere by itself. We literally cannot make sense of the idea of “trust without asking what we are aiming at when we trust. We trust science because we think it is best suited to arrive at the truth. We also require it when we assess the competing claims. The conspiracy theorists argue that the epidemiologists and infectious disease people have false beliefs and we need something by which to measure the candidate hypotheses. As I write, I happen to be engaging in a heated argument with a cousin via Facebook. He believes, and is encouraging others to believe, that COVID-19 is a benign illness that a cabal of Jews (somehow involving Bill Gates and Vladimir Putin) are duping us into believing. He believes that these “elites” are part of a pedophile ring that has abducted more than a million children, keeping many imprisoned in a series of tunnels under Central Park. The vaccine that is now being distributed, according to my cousin, will contain a microchip that will allow this cabal to control the population and engage in genocide. He advises us all (including his 80-year-old mother) to drink a “mineral” concoction that contains bleach. One of my brothers says to leave him to “his truth”—I’ll never convince him. But while I agree that it is highly unlikely that I will convince him, we cannot describe him as just someone with his own quirky truth. Nor can we describe him as a lone mentally ill person, for many people agree with him and take Trump to be on their side. They hold a dangerous and false set of beliefs. No doubt Harcourt would say that the problem is that they believe they have Truth in their hands. But while it would be nice if they held their views with less certainty, that is not the real problem here. The problem is that they are wicked people who propagate falsehoods to bad ends. We must not leave my cousin to “his truth.” We need to fight the battle on the ground of objective truth (albeit objective in the pragmatist sense). The pragmatist will say that my cousin’s beliefs will not be successful (even if they are appallingly successful in the short term, for instance, in trying to get Trump re-elected). The pragmatist will say that reality will impinge upon him, as it did, tragically, for the thirty-year-old Texas COVID-19 denier who died of the disease

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and whose last words, apparently, were, “I think I made a mistake. I thought this was a hoax, but it’s not.”27 It will impinge on him if his mother drinks bleach. Finally, Harcourt’s Foucauldian histories of truth-telling will themselves be full of truth claims. In thinking about the history of anti-Semitism, for instance, we might assert that it was rife in Britain between the world wars. That is a truth claim. We might also assert that it was wrong even at the time, as evidenced by the fact that some people called it out. And we certainly assert that such talk and behavior are wrong now, even though they are rife in many quarters. These are all truth claims. They are, on the account of truth I have presented here, fallible interpretations, themselves subject to debate, from those who argue, for instance, that criticizing Israel is anti-Semitic. That’s not to say that such critiques are right—that critique always takes us in the direction of progress. Sometimes we will go backward. But again, all of this, including moral regress, implies that there is a truth of the matter. As Peirce said, no one enters a debate without assuming that there is an objective answer to their question, for otherwise, debating itself makes no sense. As Jason Stanley, who has done so much to illuminate the dangers we currently face, puts it: If you take away truth, then you can’t speak truth to power, and all you have left is power.28 Perhaps Harcourt might respond that he is concerned, not so much about whether there is a truth at stake, but about the effects of “claiming truth.” He says: When one is on solid ground, one does not need to claim truth. Claiming truth, in fact, may be counterproductive and often is an indication of weakness. It seems only necessary when one is trying, but has not persuaded the other.

To be sure, it may be best not to claim that we have the truth in our hands. But that is a matter of strategy. Sometimes we will want to deploy the concept of truth in a debate—when, for instance, we are arguing that it is simply true that police officers should not causally choke to death a black person in their custody. Why on earth would we want to say that the condemnation of the death of George Floyd at the knee of that police officer is a temporary judgment that will be overturned? On the other hand, it could be that when we are

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arguing with Syrian refugees about the equality of women in the home, we will want to hold back on making strong claims about the truth of our beliefs, being sensitive to culture difference. Or perhaps we may want to hold back on truth-talk when we talk about physician-assisted death, with all the complexities and worries that accompany such policies. While we may want to say that it is true that people ought to be able to choose a dignified and assisted death, we may be uncertain about whether that option ought to extend to teenagers or to those who suffer from a depression that waxes and wanes. But to acknowledge uncertainty and fallibility and to withhold a claim that we are sure we are right does not entail that there is no truth about the matter, complex as it may be. I hope I have made it clear that on a sensible and human theory of truth, we can employ truth claims without being scoundrels. For making a truth claim involves something like what Harcourt thinks it does. We make a prediction that our belief will not be overturned by evidence and argument. Were we to inquire as long and hard as fruitfully possible, taking in all the experience and argument, and were our belief to stand firm in light of all that evidence, then our prediction would hold and our belief would be true. Since truth amounts to the fulfillment of such predictions, it is perfectly reasonable, when we have a belief that stands up to all the available evidence, to assert it as true (knowing that we might be proven wrong). For example, say that our assessment results in the belief that the so-called free market should be heavily regulated and say that belief gets put into policy and law. If those policies and laws result in better outcomes for individuals and society, our belief is shown to be reliable, and if it were to forever continue to be reliable, then it would be shown to be true. Sure, it is true for a particular society in a particular time, but that is not a flaw in a belief. The truth of many of our beliefs is relative to a time and place. It might have been right for our ancestors to eat meat, whereas for well-off people these days, with good sources of vegetable protein, it might be wrong. I offered this pragmatist account of truth to Harcourt at the NOMOS conference, as a friendly amendment. I argued that it ought to be acceptable to him. For it says that our ethical and political beliefs (indeed, any belief) cannot be pulled apart from our contingent human history, needs, power structures, and social

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and economic context. I also argued that it ought to be attractive to Harcourt, as it would enable him to avoid contradicting himself when he makes assertions about what is right and wrong. The offer was declined. So Harcourt remains unable to consistently say all the things he would like to say, and he continues to use concepts (such as “best” and “illusion”) that rely on the idea of truth, which he has forbade himself to use. Harcourt concludes his chapter by admitting that “it feels almost inevitable that people will continue to claim truth in public discourse.” I have argued that it feels inevitable because it is inevitable. The concept of truth is not one we can do without. If we adopt a pragmatist conception of truth along the lines I have suggested, we can reject ahistorical, transcendental, or ontological theories of truth for ethics and politics, but nonetheless do justice to the objective dimension of those inquiries. We can do justice to the fact that those engaged in deliberation and investigation take themselves to be genuinely disagreeing with others; aim at improving their beliefs and theories; and try to unmask illusions. We can have truth without the foundations that Harcourt rightly argues against. The concept of truth is an indispensable aspect of our practices of inquiry and assertion. As long as we have a modest, pragmatist account of truth, there is nothing at all scoundrelous about it. Notes I thank the participants of the NOMOS conference, including Bernard Harcourt, for their excellent contributions. 1 William James, Pragmatism: A New Name for Some Old Ways of Thinking (New York: Longmans, Green and Co., 1919 [1907]), p. 37. 2 It may sound like it is also the territory of the later Wittgenstein. That’s because Wittgenstein was influenced by Frank Ramsey, who was a self-identified pragmatist. See Cheryl Misak, Cambridge Pragmatism: From Peirce and James to Ramsey and Wittgenstein (Oxford: Oxford University Press, 2016). 3 James himself toggles between these two positions. See Cheryl Misak, The American Pragmatists (Oxford: Oxford University Press, 2013). 4 Charles Sanders Peirce, Collected Papers of Charles Sanders Peirce, i–vi, ed. C. Hartshorne and P. Weiss; vii and viii, ed. A. Burks (Cambridge, MA: Belknap Press, CP 5. 4; 1901). 5 Peirce, Collected Papers, 8. 112.

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6 David Wiggins, “Marks of Truth: An Indefinibilist cum Normative View.” In R. Shantz (ed.), What Is Truth? (Berlin: DeGruyter, 2002), p. 316. 7 Peirce, Collected Papers, 1. 578. 8 Peirce, Collected Papers, 5. 553. 9 Charles Sanders Peirce, The Writings of Charles S. Peirce: A Chronological Edition. Ed. E. Moore (Bloomington: Indiana University Press, 1900–), 2: p. 272. 10 Charles Sanders Peirce, Charles S. Peirce Papers, Houghton Library, Harvard University: MS 673, 1911: 11. 11 Peirce, Collected Papers, 4. 34. 12 Peirce, Collected Papers, 5. 546. 13 Frank Ramsey, “Philosophy.” In D. H. Mellor (ed.), Philosophical Papers. (Cambridge: Cambridge University Press, 1990), pp. 1−8, 3. 14 Ramsey has been taken to be a founder of the redundancy theory of truth, which holds that all the essential uses of “true”’ are captured by the schema: “p” is true if, and only if, p. For an argument against this account of truth, see Misak, “Pragmatism and the Function of Truth,” in Steven Gross, Nicholas Tebben, and Michael Williams (eds.), Meaning Without Representation: Essays on Truth, Expression, Normativity, and Nature. (Oxford: Oxford University Press, 2015), pp. 262–279. For the argument that Ramsey never held it, see Misak, Cambridge Pragmatism: From Peirce and James to Ramsey and Wittgenstein (Oxford: Oxford University Press, 2016). 15 Frank Ramsey, Notes on Philosophy, Probability and Mathematics. Ed. M.C. Galavotti (Naples: Bibliopolis, 1991), p. 51. 16 Frank Ramsey, On Truth. Ed. N. Rescher and U. Majer (Dordrecht: Kluwer, 1991), pp. 91–92. 17 Habermas, in the debate referred to by Harcourt, made an argument that the very nature of communication requires the truth of some norms of inquiry. I am with Harcourt here, if what he wants to say is that Habermas makes an unwarranted transcendental move, while Rawls stays close to the ground—to our practices. See Misak, “Pragmatism and the Transcendental Turn in Truth and Ethics,” Transactions of the C.S. Peirce Society, 30/4 (1994): 739–775. But, of course, I’m not with Harcourt in his objection to Habermas’s appeal to the idea of truth. 18 John Dewey thought about morals and politics as well, but I think Lewis is even more insightful than Dewey. See Misak, The American Pragmatists. 19 This metaphor will be recognized as Quine’s. He took it wholesale from his teacher, Lewis. See Misak, The American Pragmatists. 20 Clarence Irving Lewis, An Analysis of Knowledge and Valuation. (London: Open Court, 1971), first published in 1946. 21 Jeremy Waldron, “Torture and Positive Law: Jurisprudence for the White House,” Columbia Law Review 105/6 (2005): 1681–1750.

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22 Huw Price, “Truth as Convenient Friction,” Journal of Philosophy 100, no. 4 (2003): 167–190. 23 Ibid. 24 Jeffrey Stout, “On Our Interest in Getting Things Right: Pragmatism without Narcissism,” in Misak, ed., New Pragmatists (Oxford: Oxford University Press, 2007), pp. 7–31, 18. 25 Frank Ramsey, “General Propositions and Causality,” Philosophical Papers. Ed. D. H. Mellor (Cambridge: Cambridge University Press, 1990), pp. 145−164, 146. 26 See Cheryl Misak, Frank Ramsey: A Sheer Excess of Powers (Oxford: Oxford University Press, 2020). 27 Bryan Pietsch, “Texas Hospital Says Man, 30, Died After Attending a ‘Covid Party’.” New York Times, July 12, 2020. www.nytimes.com 28 Jason Stanley, How Fascism Works (New York: Penguin, 2018), chapter 4.

8 RESPONSE TO BERNARD E. HARCOURT’S “POST-TRUTH” JASMINE B. GONZALES ROSE

In a brilliant chapter, “Post-Truth,” Bernard Harcourt explores, among other things, whether we are living in a post-truth society and whether the digital age undermines the reliability of evidence for determining the truth. In this commentary, I will humbly add to the conversation he started by looking at how the law and racism— particularly against populations perceived as foreign—contribute to the problem of truth in the twenty-first century. This is not to say that racism is the only or even most important systemic issue to examine at this time. The New Right’s promotion of patriarchy, homophobia, transprejudice, anti-Semitism, Islamophobia, authoritarianism, warmongering, extreme capitalism, environmental destruction, economic inequality, and limited press, as well as disregard for public health, are of parallel concern; however, a focus on a single issue is more feasible for this brief commentary. Harcourt’s chapter inspired me to take a closer look at how white supremacy has been employed as evidence in the formation of the law and how the law can, in turn, be a source of “truth.” This provides one possible—at least partial—explanation for how the New Right can believe the unbelievable. While Donald Trump may be a pathological liar,1 it appears his messages of white supremacy, nationalism, and nativism resonate with supporters’ core truths such that abundant factual inaccuracies are overlooked. Although it is easy to disregard the New Right constituency as merely bigoted, ill-informed, MAGA–hat wearing dupes, it is important to consider how the laws that formed this country support their racist positions. 195

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It is also valuable to reflect on how a false political narrative of racial progress has allowed racism to propagate in the United States. Harcourt aptly observes that truth is simultaneously illusory and of great significance in everyday life.2 Perhaps in that respect, the conceptualization of truth can to some degree be analogized to that of race. Race is not objectively real, biological, or supported by sound empirical methods. It is instead more of a social, and at times, legal construction.3 However, race is experienced as real in that it has a tremendous effect on daily life. Race, racial classification, and racism influence the allocations of benefits and burdens in our society, even in matters of life or death.4 Truth—or the illusion of truth—is also, in many ways, a social and legal construction. Combining these concepts of race and truth yields racialized truths, which can be particularly impactful in the law, politics, and people’s lives. Racialized truths may have played a considerable role in the 2016 presidential election and may continue to do so in the current political climate. As Harcourt observes, “God, reason, science  .  .  . have constituted, throughout history, the principal bases for truth, alongside others of course, such as nature, human nature, or simply might.”5 The law is an example of a source of truth stemming from these grounds. At times, the law has been viewed as truth on the grounds that it is a result of divine providence where God has interceded in the mortal world.6 This is a foundational premise of Saint Thomas Aquinas’s classical natural law theory. William Blackstone viewed the law as “being co-eval with mankind and dictated by God himself.”7 Law has also been considered truth under a secular approach to the doctrine of natural rights.8 For example, John Locke identified inalienable natural rights as life, liberty, and property; and Thomas Jefferson relied on Locke’s conceptualization to proclaim that “all men are created equal” in the Declaration of Independence.9 Alternatively, the law has been viewed as simply a matter of will—that of the sovereign or the people.10 Critical race theorists would argue that the law is a reflection of will, but only the will of the “in-powered”11 to maintain existing structures of power and racial order.12 Irrespective of whether one views the law as a primary, secondary, or even tertiary source of truth, in everyday life the law creates

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much of our reality and acts as truth in fundamental ways. For instance, this morning I woke up in a house that I believe I own because judicial rulings held that the property of American Indians could be bought and due to legal recognition of the bundle of property rights afforded property owners. Additionally, when people perceive me to be a foreigner (yet again), I can prove I am a US citizen because the Treaty of Guadalupe Hidalgo made my ancestral homeland of Northern New Mexico part of the United States and because of my (and my ancestors’) birthright under the citizenship clause of the Fourteenth Amendment. I have the legal documentation—the deed, birth certificate, and passport—to prove these things. Law shapes our legal and lived reality. Law is a source of evidence of the truth of my existence as an American, even if some of my compatriots may believe that my children and I are invading Mexicans. This is a belief that has become more prevalent since the 2016 presidential election. In November 2016, I removed my daughter from her parochial elementary school in Pittsburgh, Pennsylvania because fellow fourth graders were tormenting her with the type of post-election racial bullying experienced across the nation.13 For my daughter, those autumn school days were filled with her hearing statements like: “I hate Mexicans.” “I hate you because you’re Mexican.” “President Trump is going to put you in jail because you’re a Mexican.” The 2016 presidential election unleashed feelings of white supremacy and racial hatred that had been bottled up for decades. Rather than focus on how mistaken or misguided these nineyear-old school children (or their parents) may have been, I want to focus on how correct they were. Even fourth graders knew—on some level—what the impact of Trump’s election would be. They could anticipate that children who looked like mine would be imprisoned, locked away in cages.14 As Harcourt observes, Trump is celebrated by his supporters as the “ultimate truth-teller” who “tells it like it is.”15 To some extent, Trump is speaking the truth of dominant views on race in the United States. This is not to say that he is morally right. While I am persuaded by Harcourt’s cautioning not to extol and proclaim absolute truth, I feel comfortable wholeheartedly declaring that there is no superior race and that people of all racialized backgrounds, ethnicities, national origins, and colors are truly equal in worth. To me, and I am sure to many of you

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reading these words, this fact is as true as Harcourt’s keyboard. Yet, some foundational US laws declare otherwise. Such laws say Christians of European descent are supreme, and rather than using cautious language like most politicians, Trump more overtly agrees. In that way, Trump is more “honest,” or at least more forthright, about his prejudice than other like-minded public officials. There is significant evidence to support the “truth” of white supremacists in the law. I do not refer to blatantly racist laws that have been overturned, like Dred Scott and Jim Crow statutes. I mean what is called “good law” in jurisprudence; not because it is good in the normative sense but because it is currently valid law. That, of course, would be “valid” according to legal positivists and not necessarily to those adhering to conceptualizations of natural law. Whereas the former would base the law’s validity on procedural compliance, the latter would not consider a law valid unless it was consistent with basic morality. While arguably racist laws abound, one seminal, illustrative case is Johnson v. M’Intosh. 16 This US Supreme Court case analyzed the transfer of real property between white property owners and examined the power of American Indians to transfer lawful title of land.17 Johnson v. M’Intosh is one of the Supreme Court’s most important opinions because it provided the legal basis for white occupation and ownership of land that now constitutes much of the mainland United States. The decision was essential to validating the formation and continuation of the country. The sources of truth for the M’Intosh ruling were white supremacy, Christian dominion, and capitalist (as opposed to sustainable) use of land. The case appears to have been a sham18 or—to use today’s parlance—to be based on “alternative facts.” The adjudication did not include Native American tribes and people who were indispensable parties of interest, although admittedly the law of Civil Procedure differed at that time.19 Scholars and jurists have revealed that it was a collusive case, built on a fraudulent set of facts concerning a feigned controversy.20 It is fitting to consider M’intosh here because from this case one can postulate that white supremacy is a foundational legal basis for the existence of the United States. Or perhaps a case involving shady real property dealings seems particularly apropos in light of Trump’s history in real estate.21

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Writing for the Court in Johnson v. M’Intosh, Chief Justice John Marshall set forth the doctrine of discovery, providing that European “discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest,” and that this right transferred successively to the United States.22 The early European theory of conquest presumed the right of “civilized” Christian people to possess the lands occupied by “savages” and “heathens,” who in the minds of white settler-colonialists were not putting the property to proper (profitable) use.23 According to the Supreme Court, “the character and religion of its inhabitants [the American Indians] afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendency.”24 The Supreme Court reasoned that Christian people of European descent were superior and that this was a justification for depriving American Indians of their lands and ultimately establishing a new, white-dominated country.25 The Supreme Court did not provide any evidence for the superiority of Christian people of European descent; it was just a belief accepted and propounded by the highest court. The “truth” of white supremacy was such an established certainty that it was judicially noticed. Judicial notice is a common law concept now codified in rules of evidence. An example is Federal Rule of Evidence 201, which provides, “The court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”26 White supremacy was so generally known and accepted that it could be evidence in the highest court of the land that supported the white occupation, settlement, and existence of the United States. White supremacy is so integral to the legal fabric of the United States that it should not come as a surprise that the New Right continues to espouse it today in the names of nationalism and nativism. In its common usage, “truth” is understood to be something “in accordance with fact or reality,” or a “fact or belief that is accepted as true.”27 Thus, truth in many ways is understood to be a person’s sincere beliefs. But whose beliefs? Today, just as it was in 1823 when M’intosh was decided, truth under the law often refers to that of

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the racial majority. For instance, in my Evidence Law scholarship, I have put forth the theorization of “racialized reality evidence” and how it is subject to “implicit judicial notice.”28 Racialized reality evidence is de facto “evidence of the lived experience of a person that is directly shaped by the racially stratified system in which [they] live[]. Racialized reality is how one experiences our nation’s current racial caste system as a benefit or detriment.”29 “Implicit judicial notice” refers to instances where facts are entered into evidence without process or substantive proof because they are readily, even if incorrectly, assumed to be true based upon white beliefs and experience.30 An example of racialized reality evidence that would likely receive implicit judicial notice is assumptions about the relevance of Latinx flight from US Immigration and Customs Enforcement (ICE), US Customs and Border Protection (CBP), or other law enforcement officers. In white racialized reality, ICE, CBP, and police are benevolent civil servants, and anyone who would flee or otherwise avoid them must be undocumented or, to use the racist vernacular, “an illegal.” However, there are many other reasons that Latinxs might avoid ICE, CBP, and local police who are increasingly tasked with immigration enforcement. Latinx US citizens, permanent residents, and immigrants with recognized legal status may flee to avoid racial profiling, harassment, delay, wrongful arrest or detention (which has happened to many natural-born and naturalized Latinx US citizens),31 or attracting attention to mixed-status families and friendship groups. I can attest to trying to steer clear of ICE and border patrol because it usually means a time-suck of closer screening and subjection to the indignity of my Americanness being questioned even though I am a US citizen Chicana of indigenous heritage and carry proper state-issued identification. While the white racialized reality that only the guilty (or “illegal”) flee would be implicitly judicially recognized, the Latinx racialized reality of fleeing immigration authorities to avoid racial targeting would require the introduction of witness testimony evidence, including that of costly expert witnesses. In light of how white supremacy has influenced the formation of the law and how white reality itself is sometimes bestowed evidentiary value, it is not unexpected that white supremacy and white reality are central to the identities and belief systems of a sizeable

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population of white Americans who feel patriotic expressing it. Perhaps it is no surprise that when Trump expressly or tacitly espouses white supremacy, nationalism, nativism, and xenophobia, so many hear him speaking the truth because he is speaking to their racialized reality. That may be why there is a high level of trust in Trump. Instead of being a race traitor, he is a race loyalist who they can blindly trust. As Harcourt explains, “trust is an important factor in truth.”32 Truth “require[s] a shared world[,] . . . institutions and a public life.”33 White supremacists finally have their “needs” realized in Trump and in digital spaces where such persons and their ideas can congregate and proliferate. Trump particularly resonates with less- educated whites34 who, as the result of class concentration of wealth, decimation of labor unions, and decreased economic opportunities, among other things, have less to claim pride in than they would in a fairer economic system. The construct of whiteness itself also robs its members of the richness of diverse cultural identity, leaving only a top seat on the racial hierarchy and a claim to normalcy.35 Historically in the United States, abandoning one’s European culture—whether it be Irish, Italian, or of other, particularly eastern or southern, European background— was required in order to become fully white.36 Membership in the elite club of whiteness required homogeneity. This has had an effect through generations, leaving the majority of whites with European heritage but not an active cultural (including linguistic) connection to and identity with their diverse heritage. A notable exception to this is Jewish Americans of European descent; but they are often not considered to be fully white,37 as the anti- Semitism of the New Right demonstrates. Consequently, as Frank Wu observed, “Whiteness, too, bears a cost: a race without culture, defined solely by a history of subordinating others.”38 With racial supremacy being the main source of pride—rather than career, financial status, or a strong connection to heritage culture—Trump is someone to believe in. Having secured such trust, Trump’s frequent and far- fetched falsehoods are ignored. Further, to employ Willard Van Orman Quine’s famous metaphor,39 perhaps white supremacy is so core to the web of belief of Trump supporters that empirical evidence (not to mention old-fashioned common sense) does little to alter their beliefs and steadfast trust.

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Harcourt correctly takes issue with the notion that post-truthism is a new phenomenon in the United States. He points out how we have been living under the lie of white supremacy since this nation’s formation. “White Supremacy was the moral foundation of slavery, of Jim Crow, and today of racialized mass incarceration—as well as of colonialism and imperialism.”40 I want to point out another political falsehood that shows post-truthism is nothing new. From the traditional right to the center- to mid-left, there was a long-standing narrative that racial equality had been achieved in Brown v. Board of Education I and II41 and then completed after the election of Barack Obama as the forty-fourth president of the United States.42 The pervasive political myth was that since formal equal opportunity had been achieved, we lived in a post-racial society. Supposedly, race no longer mattered in the United States.43 This position was not supported by empirical evidence. By most measures, including criminal justice, health, housing, or education, vast racial disparities have persisted between whites and people of color.44 Critical race theorists were considered on the fringe for thinking that racism still existed. Not only was post-racialism a lie, but buy-in of this lie by Republicans and Democrats alike was likely a contributing factor to the present political moment where the New Right has taken root. Racism has been likened to a virus.45 Left untreated, it can mutate or lie dormant under the surface, only to emerge more robust and aggressive. Here, the false political narrative of racial progress concealed structural racism. Left unaddressed, white supremacy, nationalism, nativism, and xenophobia multiplied and strengthened. As veteran journalist Albor Ruiz reflected, it is chilling when quotes from the Diary of Anne Frank can be mistaken for reflections on this year’s first day of school.46 “Terrible things are happening outside. At any time of night and day, poor helpless people are being dragged out of their homes . . . Families are torn apart: men, women and children are separated. Children come home from school to find their parents have disappeared.”47 A few days after a white domestic terrorist perpetrated a massacre targeting “invading” “Mexicans” in El Paso, and while the fear of private and statebased racial hatred against Latinxs weighed heavily, ICE rounded up nearly seven hundred, predominantly Latinx, immigrant

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workers in Mississippi.48 The press reported that it was “the largest single-state immigration enforcement operation in [United States] history.”49 After the raid, many children did not have anyone to care for them.50 Some walked home from school to find they were locked out of their houses because their parents had been detained in the workplace raids.51 The next day, hundreds of terrified Latinx children did not go to school.52 If these children had taken to their journals to record their observations, one imagines they would have written words similar to those of young Anne Frank. The widely touted belief that there had been significant racial progress in the United States, despite reliable evidence to the contrary, was a “truth” that people across the political spectrum should have been more wary of. As Harcourt powerfully observed, “[T] hroughout human history, the claim to truth has been one of the most dangerous and powerful weapons known to [hu]man[s].”53 As he wisely recommends, “Once we recognize the power of truth . . . we may start to better appreciate the need to be more careful about it.”54 We should be particularly careful about self-congratulatory narratives that our country has overcome the structural injustices upon which the nation was founded. Critical perspectives across disciplines are imperative. For critical race theorists, this means unmasking the power behind racialization,55 the purpose of racism,56 privilege,57 the property of whiteness,58 the pervasiveness of racism,59 and the permanence of racism;60 as well as affirmatively seeking the inclusion of perspectives of people of color.61 We should constantly reevaluate “truths” and should question, above all else, who benefits. We should then determine how we could share those benefits more equitably across society. This is my truth in a post-truth society. Notes 1 Glenn Kessler et al., “President Trump Has Made More Than 10,000 False or Misleading Claims,” Washington Post, April 29, 2019, www.washingtonpost.com 2 Bernard E. Harcourt, “Post-Truth,” in this volume. 3 Ian F. Haney López, “Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice,” Harvard Civil Rights–Civil Liberties Law Review 29:1 (1994), 27.

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4 See Angela J. Davis, “Prosecution and Race: The Power and Privilege of Discretion,” Fordham Law Review 67 (1998), 1, 2, 13, 16 (internal citations omitted): “At every step of the criminal process, there is evidence that African Americans are not treated as well as whites—both as victims of crime and as criminal defendants.”; Erik Lillquist and Charles A. Sullivan, “The Law and Genetics of Racial Profiling in Medicine,” Harvard Civil Rights–Civil Liberties Law Review 39 (2004), 391, 396: “[R]acial and ethnic minorities generally have higher rates of a wide variety of diseases and have higher disability and death rates than whites in this country,” citing Barbara A. Noah, “The Participation of Underrepresented Minorities in Clinical Research,” American Journal of Law and Medicine 29 (2003), 221, 223; Tracey Maclin, “Race and the Fourth Amendment,” Vanderbilt Law Review 51 (1998), 333, 345–354, summarizing empirical evidence of police disproportionately targeting Black and Hispanic motorists for traffic stops; Vada Berger et al., “Too Much Justice: A Legislative Response to McCleskey v. Kemp,” Harvard Civil Rights–Civil Liberties Law Review 24 (1989), 437, 447–449, explaining how the death penalty is imposed in a racially discriminatory way; Jeffrey Olivet et al., “Supporting Partnerships for AntiRacist Communities: Phase One Study Findings,” 4 (March 2018), http:// center4si.com, approximately 64.7% of people experiencing homelessness are Black, despite making up only 12.4% of the population; Moriah Balingit, “Racial Disparities in School Discipline Are Growing, Federal Data Show,” Washington Post, April 24, 2018, www.washingtonpost.com, “Black students faced greater rates of suspension, expulsion and arrest than their white classmates.” 5 Harcourt, “Post-Truth,” in this volume. 6 Donald Elfenbein, “The Myth of Conservatism as a Constitutional Philosophy,” Iowa Law Review 71 (1986), 460–461, 463. 7 1 William Blackstone, Commentaries *41. 8 Elfenbein, “The Myth of Conservatism,” 460–461. 9 Steven G. Calabresi and Sofía M. Vickery, “On Liberty and the Fourteenth Amendment: The Original Understanding of the Lockean Natural Rights Guarantees,” Texas Law Review 93 (2015), 1317–1319. 10 Elfenbein, “The Myth of Conservatism,” 460–461. 11 Jasmine B. Gonzales Rose, “Challenging Authority: A Symposium Honoring Derrick Bell,” University of Pittsburgh Law Review 75 (2014), 429, 432. 12 See Derrick A. Bell, Jr., “Brown v. Board of Education and the InterestConvergence Dilemma,” Harvard Law Review 93 (1980), 518, 523. 13 “The Trump Effect: The Impact of the 2016 Presidential Election on Our Nation’s Schools,” Southern Poverty Law Center (November 28, 2016), www.splcenter.org

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14 “Family Separation: By the Numbers,” ACLU, www.aclu.org: “[A]t least 2,654 immigrant children were separated from their parents or caregivers as a result of Trump administration policies.” 15 Harcourt, “Post-Truth,” citing “Last Week Tonight with John Oliver: Donald Trump,” HBO 2016, www.youtube.com/watch?v=DnpO_RTSNmQ 16 Johnson v. M’Intosh, 21 U.S. 543 (1823). For an argument acknowledging the racist underpinnings but advocating for a different reimaging of M’Intosh, see Joseph William Singer, “Indian Title: Unraveling the Racial Context of Property Rights, or How to Stop Engaging in Conquest,” Albany Government Law Review 10:1 (2017). 17 See Johnson, 21 U.S. at 571–572. 18 Walter R. Echo-Hawk, In the Courts of the Conqueror: The 10 Worst Indian Law Cases Ever Decided (Golden, CO: Fulcrum Publishing, 2010), 67. 19 Ibid.; see Federal Rules of Civil Procedure 19 (required joinder of parties). 20 Echo-Hawk, In the Courts of the Conqueror, 67. 21 Heather Vogell et al., “Pump and Trump,” ProPublica, October 17, 2018, https://features.propublica.org: “[A]n eight-month investigation by ProPublica and WNYC reveals that the post-millennium Trump business model is different from what has been previously reported. The Trumps were typically way more than mere licensors or bystanders in their oftentroubled deals. They were deeply involved in these projects. They helped mislead investors and buyers—and they profited handsomely from it. Patterns of deceptive practices occurred in a dozen deals across the globe, as the business expanded into international projects, and the Trumps often participated. One common pattern, visible in more than half of those transactions, was a tendency to misstate key sales numbers. . . . Another pattern: Donald Trump repeatedly misled buyers about the amount (or existence) of his ownership in projects in Tampa, Florida; Panama; Baja and elsewhere.  .  .  . The Trumps often made money even when projects failed. And when they tanked, the Trumps simply ignored their prior claims of close involvement, denied any responsibility and walked away.”; Dan Alexander, “Trump Sold $35 Million of Real Estate in 2018,” Forbes, January 11, 2019, www.forbes.com: “Donald Trump sold an estimated $35 million worth of real estate while serving in the White House last year. . . . In other words, people were pumping cash into the president’s coffers without disclosing who they were. According to a 2017 investigation by the USA Today, only 4% of purchasers in Trump buildings used LLCs in the two years before Trump secured the presidential nomination.  .  .  . Donald Trump still owns an estimated $437 million worth of residential real estate, opening up the possibility that anyone could theoretically buy a

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property and funnel money to the president of the United States”; Jesse Drucker, “$7 Million Trump Building Condo Tied to Scandal-Scarred Foreign Leader,” New York Times, April 10, 2019, www.nytimes.com 22 21 U.S. at 587. 23 Echo-Hawk, In the Courts of the Conqueror, 57, 67. 24 Johnson, 21 U.S. at 573. 25 Ibid. 26 Federal Rules of Evidence 201(b). 27 “Truth,” Oxford English Dictionary, 2nd edition, 1989. 28 Jasmine B. Gonzales Rose, “Toward a Critical Race Theory of Evidence,” Minnesota Law Review 101 (2017), 2243, 2245. 29 Ibid., 2282. 30 Ibid., 2285–2286. 31 Jorge Gavilanes, “Mistaking U.S. Citizenship,” Brigham Young University Journal of Public Law 28 (2013), 257, 272, estimating that in a decade, tens of thousands of US citizens have been detained and thousands deported; see e.g., Morales v. Chadbourne, 793 F.3d 208 (1st Cir. 2015), in which a US citizen Latina sued for being repeatedly and wrongfully detained by ICE. 32 Harcourt, “Post-Truth,” in this volume. 33 Ibid. 34 Thomas B. Edsall, “We Aren’t Seeing White Support for Trump for What It Is,” New York Times, August 28, 2019, www.nytimes.com: “In less than a decade, from 2010 to 2018, whites without a college degree grew from 50 to 59 percent of all the Republican Party’s voters, while whites with college degrees fell from 40 to 29 percent of the party’s voters”; Adam Harris, “America Is Divided by Education,” The Atlantic, November 7, 2018, www.theatlantic.com: “According to exit polls, 61 percent of noncollege-educated white voters cast their ballots for Republicans while just 45 percent of college-educated white voters did so. Meanwhile 53 percent of college-educated white voters cast their votes for Democrats compared with 37 percent of those without a degree. The diploma divide, as it’s often called, is not occurring across the electorate; it is primarily a phenomenon among white voters.” 35 Zeus Leonardo, “The Souls of White Folk: Critical Pedagogy, Whiteness Studies, and Globalization Discourse,” Race Ethnicity and Education 5 (2002), 29, 32: “The assertion of the white race is intimate with slavery, segregation, and discrimination. White culture, on the other hand, is an amalgamation of various white ethnic practices. Whiteness is the attempt to homogenize diverse white ethnics into a single category (much like it attempts with people of color) for purposes of racial domination”.

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36 John Tehranian, “Performing Whiteness: Naturalization Litigation and the Construction of Racial Identity in America,” Yale Law Journal 109 (2000), 817, 825. 37 Ibid., 843. 38 Frank H. Wu, Yellow: Race in America Beyond Black and White (New York: Basic Books, 2002), 56. 39 W. V. Quine and J. S. Ullian, The Web of Belief (New York: McGrawHill Education, 1978). 40 Harcourt, “Post-Truth,” in this volume. 41 Matthew Desmond and Mustafa Emirbayer, “What Is Racial Domination?,” Du Bois Review: Social Science Research on Race 6 (2009), 335, 343 (internal citations omitted): “One who operates under the legalistic fallacy assumes that abolishing racist laws (racism in principle) automatically leads to the abolition of racism writ large (racism in practice) . . . By way of tangible illustration, consider Brown v. Board of Education, the landmark case that abolished de jure segregation in schools. The ruling did not lead to the abolition of de facto segregation: fifty years later, schools are still drastically segregated and drastically unequal. In fact, some social scientists have documented a nationwide movement of educational resegregation, which has left today’s schools even more segregated than those of 1954.” 42 Michael C. Dawson and Lawrence D. Bobo, “One Year Later and the Myth of a Post-Racial Society,” Du Bois Review: Social Science Research on Race 6 (2009), 247, 247: “Many commentators, both conservative and liberal, have celebrated the election of Barack Obama as president of the United States, claiming the election signified America has truly become a ‘post-racial’ society. It is not just Lou Dobbs who argues the United States in the ‘21st century is a post-partisan, post-racial society.’ This view is consistent with beliefs the majority of White Americans have held for well over a decade: that African Americans have achieved, or will soon achieve, racial equality in the United States despite substantial evidence to the contrary. Indeed, this view is consistent with opinions found in the Boston Globe, Wall Street Journal, New York Times, and elsewhere—attitudes that even the tragic events following the Katrina disaster had nothing to do with race.” 43 Roy L. Brooks, “Making the Case for Atonement in ‘Post-Racial America’,” Journal of Gender, Race and Justice 14 (2011), 665–666. 44 See Davis, “Prosecution and Race”; Lillquist and Sullivan, “The Law and Genetics of Racial Profiling in Medicine”; Maclin, “Race and the Fourth Amendment”; Berger et al., “Too Much Justice: A Legislative Response to McCleskey v. Kemp”; Olivet et al., “Supporting Partnerships

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for Anti-Racist Communities: Phase One Study Findings”; Balingit, “Racial Disparities in School Discipline Are Growing, Federal Data Show.” 45 Milton Terris, Letter: Right on the Virus of Racism, American Journal of Public Health 66 (1976); Mihir Bose, “The Ever-Mutating Virus of Racism, and Whether It Can Be Stopped,” Irish Times, August 24, 2019, www.irishtimes.com; Ewan Palmer, “Alexandria Ocasio-Cortez Says White Supremacy Is Like a Virus and It’s America’s ‘Original Sin’: ‘It Never Went Away. It Was Just Dormant,’” Newsweek, August 8, 2019, www.newsweek. com 46 Albor Ruiz, “Cruelty and Immigration,” Al Día, August 15, 2019, https://aldianews.com 47 Ibid., quoting Anne Frank, The Diary of a Young Girl (New York: Doubleday, 1967), 57. 48 Ruiz, “Cruelty and Immigration”; Catherine E. Shoichet, “680 Undocumented Immigrants Are Arrested in Mississippi,” CNN, August 8, 2019, www.cnn.com 49 Ibid. 50 Angela Fritz and Luis Velarde, “ICE Arrested Hundreds of People in Raids. Now ‘Devastated’ Children Are Without Their Parents,” Washington Post, August 8, 2019, www.washingtonpost.com 51 Ibid. 52 Sarah Fowler, “‘A Safe Place’: Over 200 Students Absent After ICE Raids. Schools Reaching Out,” Mississippi Clarion Ledger, August 10, 2019, www.clarionledger.com 53 Harcourt, “Post-Truth,” in this volume. 54 Ibid. 55 Roy L. Brooks, Racial Justice in the Age of Obama (Princeton, NJ: Princeton University Press, 2009), xviii. 56 See Martha R. Mahoney, “Segregation, Whiteness, and Transformation,” University of Pennsylvania Law Review 143 (1995), 1659, 1659: “The concept of race has no natural truth, no core content or meaning other than those meanings created in a social system of white privilege and racist domination.” 57 See Frances Lee Ansley, “Stirring the Ashes: Race, Class and the Future of Civil Rights Scholarship,” Cornell Law Review 74 (1989), 1023–1024. 58 Cheryl I. Harris, “Whiteness as Property,” Harvard Law Review 106 (1993), 1709, 1725. 59 Richard Delgado and Jean Stefancic, Critical Race Theory: An Introduction, Second Edition (New York: NYU Press, 2012), 7. 60 Derrick Bell, Faces at the Bottom of the Well: The Permanence of Racism (New York: Basic Books, 1992). 61 Gonzales Rose, “Toward a Critical Race Theory of Evidence,” 2249.

9 DEMOCRATIC LIES AND FASCIST LIES JASON STANLEY

At the basis of the discourse ethics of democratic deliberation is respect for the equality of one’s fellow citizen, including one’s political opponents. Such respect involves treating them as a fellow reasoner, responsive to the force of the better argument. One’s political opponent is deserving of this sort of equal respect—and this respect manifests itself epistemically, and in discourse. In a healthy democratic culture, we try to win our opponents over by the force of reason. Liberal democracy relies on the twin values of freedom and equality. Fascist ideology, by contrast, firmly repudiates equality— its pillar is inequality. Fascism is a cult of the leader, who promises national restoration in the face of supposed humiliation brought on by minorities, immigrants, liberals, and communists. In fascist politics, equality is represented as means to humiliate the supposedly naturally dominant group, and, ultimately, as a means for a hated minority to seize power. In fascist politics, equality is a charade and a mask. Typically, when political scientists discuss fascism, they tend to focus on fascist regimes. In my work on fascism, I have focused instead on features of a fascist culture.1 We can and should worry about a growing fascist culture, even in a regime that remains a liberal democracy. A growing fascist culture makes it difficult to reap the benefits of liberal democratic culture, even if the structure of democratic institutions—courts and elections, for example— remains in place. A democratic culture prizes equality and equal respect. In contrast, fascist culture is based around a friend-enemy distinction. 209

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In fascist ideology, one’s political opponent is not an epistemic peer, to be won over via the force of reason. Rather, they are to be dominated and defeated. Gathering supporters, in a fascist culture, involves drumming up fear of one’s opponents and exhibiting to supporters the strength and power that demonstrates one will achieve eventual victory over this fearsome enemy. My aim in this short chapter is to use this distinction between liberal democratic culture and fascist culture to illuminate the distinction between the kind of lying one finds politicians engaged in during fairly normal democratic times, and the kind of lying (if that is what it is) that occurs when fascist culture has made significant inroads.2 Fascism’s friend-enemy ideology underlies its vexed relationship with truth. Friend- Enemy Fascist movements portray themselves as the defenders of tradition, often religious tradition—be it Christianity, Hinduism, or Judaism—from an existential threat against civilization’s traditional moral code. The enemy includes liberals, intellectuals, communists, feminists, homosexuals, and despised ethnic or religious minority groups, who supposedly work in tandem to destroy traditional patriarchal religious values. The enemy is portrayed monstrously—as engaged in an attempt to subvert the nation’s institutions and media to destroy traditional values, and as in a kind of conspiracy with the worst criminals imaginable. Here is Nazi Propaganda Minister Joseph Goebbels, from his speech “Communism with the Mask Off,” delivered to the Annual Congress of the Nazi Party on September 13, 1935: Bolshevism is explicitly determined on bringing about a revolution among all the nations. In its own essence it has an aggressive and international tendency. But National Socialism confines itself to Germany and is not a product for export, either in its abstract or practical characteristics. Bolshevism denies religion as a principle, fundamentally and entirely. It recognizes religion only as an “opium for the people.” For the help and support of religious belief, however, National Socialism absolutely places in the foreground of its program a belief in God . . . But the Bolsheviks carry on a campaign,

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directed by the Jews, with the international underworld, against culture as such. Bolshevism is not merely anti-bourgeois; it is against human civilization itself. In its final consequences it signifies the destruction of all the commercial, social, political and cultural achievements of Western Europe, in favor of a deracinated and nomadic international cabal which has found its representation in Judaism.

In this speech, Nazis are the defenders of “the commercial, social, political and cultural achievements of Western Europe,” religion, and indeed “human civilization itself” from the threat of “a deracinated and nomadic international cabal which has found its representation in Judaism.” Later in the speech, Goebbels addresses the tactics of these enemies of civilization: “Murder of individuals, murder of hostages and mass murder are the favorite means applied by Bolshevism to get rid of all opposition to its propaganda.” What follows this is a lurid list of atrocities attributed to Jewish Bolsheviks. Goebbels’s speech is shot through with lies. But considering simply the content of these lies misses the effect of the speech. Goebbels tells his audience, “Bolsheviks carry on a campaign, directed by the Jews, with the international underworld, against culture as such. Bolshevism is not merely anti-bourgeois; it is against human civilization itself.” Terms like “culture” and “human civilization” are used as contrast words for the aims and goals of the Jewish Bolsheviks. On the side of Bolshevism and Jews is “the international underworld”—whatever that is. On the side of National Socialism are all the achievements of Europe, and indeed “human civilization itself.” Goebbels’s narrative presupposes that culture, and even human civilization, are Aryan. The contrastive use of terms in Goebbels’s narrative is part of the systematic dehumanization of Jews. Conversations occur with narrative structures in their backgrounds. Goebbels’s speech urges a narrative structure in which culture and human civilization are Aryan and are diametrically opposing values to the value system of Jews. The obviously false content of the speech is not its main communicative point. Its main communicative point lies in the narrative structure it conveys. As Tamsin Shaw has made clear in a recent essay on US Attorney General William Barr, we find such friend-enemy distinctions

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clearly in the ideology and speeches of members of the Trump administration.3 In a speech delivered at the University of Notre Dame on October 11, 2019, Barr said: Modern secularists dismiss this idea of morality as other-worldly superstition imposed by a kill-joy clergy. In fact, Judeo-Christian moral standards are the ultimate utilitarian rules for human conduct. They reflect the rules that are best for man, not in the by and by, but in the here and now. They are like God’s instruction manual for the best running of man and human society. By the same token, violations of these moral laws have bad, real-world consequences for man and society. . . . Suffice it to say that the campaign to destroy the traditional moral order has brought with it immense suffering, wreckage, and misery. And yet, the forces of secularism, ignoring these tragic results, press on with even greater militancy.

Barr presents the Trump administration as the only hope against increased militant secularism, out to destroy the very fabric of moral order itself. In Barr’s speech, opponents of the Trump administration are opponents of civilization itself. One day later, President Donald Trump gave a speech at the Value Voters Summit, in which he also echoed Goebbels: You are the warriors on the frontiers defending American freedom. We meet tonight at a crucial moment in our nation’s history. Our shared values are under assault like never before. Extreme left-wing radicals, both inside and outside government, are determined to shred our Constitution and eradicate the beliefs we all cherish. Farleft socialists are trying to tear down the traditions and customs that made America the greatest nation on Earth. They reject the principles of our Founding Fathers—principles enshrined into the Declaration of Independence, which proclaims that our rights come from our creator.

In this speech, Trump presents his opponents as “the radical left” out to destroy the moral fabric of civilization. And he presents himself as the only solution. A successful narrative structure that seeks to implement a pure friend-enemy distinction is often self-reinforcing, leading people

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who are guided by it to take evidence against it as further evidence supporting it. If you are under the influence of a narrative involving a mysterious global communist elite that controls the media, you might take an article in the media providing evidence that the source from which you have borrowed this narrative structure is fraudulent to be itself more evidence for the narrative. In his book, The Jewish Enemy: Nazi Propaganda during World War II and the Holocaust, Jeffrey Herf writes that “Nazis focused [in their propaganda] on the supposed Jewish domination of German professional life, despite the conflicting reality.” Despite the antisemitic myth that Jews controlled the press, Jews accounted for only 5.1 percent of editors and writers—nor was there any sense to be made of domination in the arts, e.g., Jews accounted for only 2.4 percent of visual artists. “The Jews’ small numbers, economic vulnerability, and lack of political influence were mere surface phenomena. The truth was that a small number of unseen conspirators hidden in the wings controlled international events”—and arranged for the surface appearances to be misleading—according to Hitler, “Jews were masters in the art of deception.”4 The narrative structure of the Protocols of the Elders of Zion is that there is a secretive global elite, who are Jewish. Their loyalty is just to other Jews and not to the nations in which they find themselves; they control the media, the culture industry, the universities, and the banks. They use the language of liberalism and social justice hypocritically in the media they control—to urge for looser and looser immigration laws, for example, or equality for racial minorities, and sexual minorities, all with one single-minded goal: to destroy tradition—first, the dominant position of the nation’s traditional race, by intermarriage or, worse, rape, and, secondly, the traditional family. Their ultimate end goal is communism, including seizure of all private property. If audience members have this narrative structure in their background, one can exploit that fact in various kinds of indirect political messages. One could dog whistle antisemitism, by making salient enough of its structure that there is no need to mention Jews to anyone who has assimilated the narrative. Such a person would understand, by virtue of presupposing the narrative, that Jews were meant. One could also repeat the narrative, replacing Jews by some other group, perhaps Muslims. It’s not far off to describe

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Islamophobia in the United States in terms of a narrative structure involving Muslim Americans as a fifth column whose loyalty is really to other Muslims, and not to fellow citizens. Part of this narrative, echoing the Protocols of the Elders of Zion, is that Muslims and their liberal allies urge lax immigration laws in the name of social justice, but their real purpose is to undermine Christianity. According to this narrative, the left—the socialists and their ilk— have appropriated the cause of Muslim equality, and, using their control of the media and universities, are advancing social justice messages that are really attacks on Judeo-Christian tradition. The narrative structure of the Protocols of the Elders of Zion is familiar to many—that there is a shadowy group that controls the media, and uses appeals to universal principles of justice as a means to displace dominant groups and seize power, and that ultimately the goal is to destroy the dominant group—e.g., white Christians, and replace it with communism, socialism, or even Shariah Law. It is easily deployable against other targets, such as homosexuals. Goebbels’s speech is typical of much of Nazi propaganda in presenting civilization as an Aryan product, and Nazis its only defenders against a deadly outside threat. In Mein Kampf, Hitler declares that all that we admire on this earth—science, art, technical skill and invention—is the creative product of only a small number of nations  .  .  . All this culture depends on them for its very existence  .  .  . If we divide the human race into three categories— founders, maintainers, and destroyers of culture—the Aryan stock alone can be considered as representing the first category.

In a similar vein, the French fascist Guillaume Faye, author of the 2001 book Why We Fight: Manifesto of the European Resistance, insists that “[t]he contribution European civilization (including its American prodigal) has made to the history of humanity surpasses, in every domain, that of every other people.” And one can find gentler versions of this idea being promoted by European far-right politicians who have long since gained respectability. Consider the concept of “European Enlightenment,” which has no singular philosophical meaning. As a taxonomical category, it could include philosophers as fundamentally opposed as Hume and Kant. Some of its figures, not least Kant, were the chief

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proponents of concepts that fascists roundly reject (namely, universal human dignity). Nonetheless, European far-right politicians have subtly adopted talk of the Enlightenment as a way to smuggle in more bald-faced claims of European superiority. For example, Antwerp Mayor Bart De Wever, an outspoken Flemish nationalist, recently started referring to the Enlightenment as “the software” of “the grand narrative of European culture.” Borrowing from British philosopher Roger Scruton, he argues that “the European Enlightenment” and nationalism are complementary, rather than opposed. In De Wever, one finds significant overlaps with Faye. For example, both condemn liberalism and socialism as leading to “open borders,” “safe spaces,” “laws that protect feelings,” and the dissolution of parental authority. Nazi propaganda has some of the most extreme examples of friend-enemy narratives, with no ambiguity. There is no complexity in the characters in Goebbels’s speech—the Judeo-Bolsheviks that are the sworn enemy of “human civilization” are completely dehumanized. Jeffrey Herf writes, “[f]rom the foundation of the Nazi Party to Hitler’s rantings in a Berlin bunker in 1945, the key themes in the regime’s antisemitic story line were righteous indignation about victimization at the hands of a powerful and evil foe, promises of retaliation, and projection of aggressive genocidal intent onto others.” The purity of the friend-enemy distinctions drawn in Nazi propaganda reflects the centrality of the friend-enemy distinction to its ideology. The intended effect of this propaganda is to create fear of the enemy and promote the desire for revenge against them. At the core of fascist ultra-nationalism is the thought that one group deserves greater status, due to a past history of military and cultural achievement and domination, with a mixture with other cultures represented as the destruction of its possibility. In National Socialism, this kind of ultra-nationalism had a foundation in social Darwinism—the “Aryan race” had supposedly proven their superiority over other groups in its past cultural and military achievements, and the threat of race-mixing was a way to destroy Aryans, and with them, the very possibility of culture and civilization. But there are other ways to undergird a hierarchy of value besides appealing to a supposed past victory in military and cultural struggle. Appeals to

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God’s plan, or other aspect of religious ideology, can do the work that social Darwinism did in Hitler’s ideology. And many religions involve a structure of authority that resembles the role of a leader in fascist ideology; such ideological commonalities explain the pattern of history, where conservative religious movements ally with ultranationalist fascist movements, as we see now in countries like India and Poland.5 We can therefore speak of religious versions of essentially fascist ideology, even though such ideologies are not based in pseudo-scientific appeals to social Darwinism. These ideologies, too, could undergird an anti-democratic culture in which political opponents are not equals, but fundamental enemies. From Friend- Enemy to Fascist Lies A democratic culture has equality as its base. One’s political opponent must be convinced via reason, rather than dominated. In contrast, in a fascist culture, politics is militarized. The fascist political leader represents their political opponent as the vanguard of a conspiracy that seeks the ultimate destruction of the dominant group, its removal from power and its replacement. Politics is a field of battle, not of reason. The democratic face of reason, in fascist ideology, is a mere façade. To take one’s opponent at face value, as an honest interlocuter, is already to have lost the game, as it were. In a fascist political culture, a leader has several related goals. One is to delegitimize democratic equality by representing one’s opponent, typically via a conspiracy theory, as fundamentally antithetical to civilization. Another is to exhibit power to one’s supporters, to show them one can get away with extreme distortions of reality. The two goals are related—the first represents one’s opponent as a fundamental threat, while the second is a method of demonstrating to one’s supporters that one has the strength to take on such a threatening and terrible opponent, victory over whom is cause for celebration. This distinction between a democratic culture and a fascist culture, and the correlative distinction between the aims of democratic political speech and fascist political speech, illuminate the sharp contrast between the way in which politicians in a democratic society lie or mislead their publics, and the distinctive kind of lying that occurs in fascist cultures—a subject that is addressed in an important new book by the historian Frederico Finchelstein.6

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In his book, Finchelstein reminds his readers that lying is endemic to all political systems—but argues that fascist lies are a distinctive species: Fascist lying in politics is not typical at all. This difference is not a matter of degree, even if the degree is significant. Lying is a feature of fascism in a way that is not true of those other political traditions. Lying is incidental to, say, liberalism, in a way that it is not to fascism. And, in fact, when it comes to fascist deceptions, they share few things with other forms of politics in history. They are situated beyond the more traditional forms of political duplicity. Fascists consider their lies to be at the service of simple absolute truths, which are in fact bigger lies.

Consider the distinction between the lies the Bush administration engaged in to lay the basis of the invasion of Iraq. These lies had the function of deceiving their audience. In a press briefing with Donald Rumsfeld from February 4, 2003, in the White House, when asked by a reporter about an explicit denial by Saddam Hussein of any relationship with Al Qaeda, Secretary Rumsfeld replied, “And Abraham Lincoln was short.” When pressed to respond directly to Saddam Hussein’s denial of any relationship with Al Qaeda, Secretary Rumsfeld replied, “How does one respond to that? It’s just a continuous pattern. This is a case of the local liar coming up again and people repeating what he said and forgetting to say that he never, almost never, rarely tells the truth.” Here, Rumsfeld does not explicitly semantically express something clearly false—his intent is to deceive. In intending to deceive, one is retaining a semblance of equality of respect for one’s audience— one treats them as a fellow reasoner, whom one must persuade. All governments lie—even democratic ones. In contrast, fascist lying involves blatant patterns of untruth. Fascist lying—if it is even a form of lying—is not an attempt to deceive.7 Given the utter disconnect between fascist untruths and reality, it may be tempting to assimilate fascist lying to the category that Harry Frankfurt has called bullshit, as Frankfurt himself has urged in the popular press.8 A speaker is bullshitting, in Frankfurt’s sense, if they are not just communicating information they know to

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be false, but are unconstrained by any consideration of what may or may not be true. While this description is technically true, it is at best a terribly misleading account of fascist lies. Philosophers use the term “bullshitter” to describe a fellow philosopher who has been refuted in a question session and is desperately searching for a way out. This is hardly an apt description of a far-right ethnonationalist political leader.9 There is a point to fascist lying, an aim that is simultaneously obscured and dangerously minimized by the unhelpful label “bullshit.”10 Many fascist lies are not even assertions. Chapter 12 of Victor Klemperer’s The Language of the Third Reich (Lingua Tertii Imperii, or LTI) is entitled, “punctuation.” Klemperer writes: One would naturally assume that the LTI, given its fundamentally rhetorical nature and constant appeal to the emotions, would be devoted to exclamation marks like the Strum und Drang. In fact they are not at all conspicuous: on the contrary, the LTI appears to me only to have used this sign very sparingly. It is as if it turns everything into a command or proclamation as a matter of course and therefore has no need of a special punctuation mark to highlight the fact—where after all are the sober utterances against which the proclamation would need to stand out?11

Such fascist lies are not descriptions of the world as it is, but have a different “direction of fit”—they are commands to alter the world to accord to the statements. This is what Hannah Arendt calls the language of prophetic scientificality.12 As she writes, “[t]otalitarianism will not be satisfied to assert, in the face of contrary facts, that unemployment does not exist; it will abolish unemployment benefits as part of its propaganda.”13 In liberal democratic politics, there is a well-known practice of plausible deniability—for example, with the use of code words such as “inner city,” conveying a racist message, without asserting it. The historian Timothy Snyder has described Russian Prime Minister Vladimir Putin as engaging in a practice of implausible deniability.14 Unlike plausible deniability, implausible deniability is when someone openly and obviously lies. By so doing, according to Snyder, Putin creates “unifying fictions at home and dilemmas in European and American newsrooms.”15 Mocking factuality has not been

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something that Western newsrooms have been prepared to handle, because factuality is a liberal assumption. If we think of the function of speeches in which Putin employs the tactic of implausible deniability as being to inculcate loyalty, we will have a better sense of why the charge of lying has been so ineffectual. The informational content of such speech is an obvious lie, one that is not expected that people will believe. The communicative act is intended to be a show of strength, to show how Putin can get away with obvious lies. The main point of such a speech is not to convey information; it is rather a kind of speech whose intentions are to create loyalty among his supporters and to project strength. Open defiance of the truth, bald-faced lying, is therefore part of a speech practice, one that is intended to convey strength and power. Fascist political lying also involves a practice of celebration—a kind of victory over one’s opponents, shared by one’s supporters. When a politician practicing fascist politics is allowed to distort reality in these ways, without consequence, the resulting helpless rage of their opponents is experienced, by their supporters, as pleasure. This, in the United States, is called “owning the libs.” Fascist lies project strength, but they also invite supporters to join in schadenfreude at the opponents’ helplessness in combatting them.16 The force of reason is central to liberal democratic politics. It has no such role in fascist politics. The goal of fascist politics is to frame reality as a battle between friend and enemy—and here, language has a different function. In 1946, Ernst Cassirer wrote: If we study our modern political myths and the use that has been made of them we find in them, to our great surprise, not only a transvaluation of all our ethical values but also a transformation of human speech. The magic word takes precedence of the semantic word. If nowadays I happen to read a German book, published in these last ten years, not a political but a theoretical book, a work dealing with philosophical, historical, or economic problems—I find to my amazement that I no longer understand the German language. New words have been coined; and even the old ones are used in a new sense; they have undergone a deep change of meaning. This change of meaning depends upon the fact that those words which formerly were used in a descriptive, logical, or semantic sense, are now used as magic words that are destined to

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produce certain effects and to stir up certain emotions. Our ordinary words are charged with meanings; but these new-fangled words are charged with feelings and violent passions.17

I have argued that the centrality of the friend-enemy distinction to fascism means that discourse has a different function in fascist culture. The point of a leader’s apparent assertions is to spread fear, project strength, bond the supporters to him, and to share in joy over victories. Such discourse has the aim of bonding with “feelings and violent passions” against a common enemy, rather than convincing with reason. Fascism’s distinctive antipathy to the truth is not some additional feature of the ideology. It is rather a direct consequence of the centrality, to fascism, of the friend-enemy distinction. Truth serves as a kind of neutral referee in debates. If all parties respect the truth, there is a level playing field in disputes. Fascism, in contrast, is about power. The enemy in fascist politics is someone who must be fought and defeated in a struggle for power—not reasoned with, as in liberal politics. Where the friend-enemy distinction is central, truth becomes just another weapon in the battle that is politics, to be employed when useful and abandoned when not. Liberalism assumes that what wins the day is the force of the better reason. These assumptions—that conversation is about information exchange, that argument is about expanding knowledge—have seeped outside political philosophy to affect the way philosophers, at least in the analytic tradition, pursue epistemology and the theory of meaning. To understand the current political moment, we must, at least temporarily, set truth and evidence aside. We must understand how rhetoric sways in a way that makes truth and evidence seem secondary, and most important, how to reestablish truth as more than just a convenient weapon to be used in a political dispute between friend and enemy. Notes I’m immensely grateful to Melissa Schwartzberg, whose astute comments on a draft of this piece improved it immeasurably. 1 Jason Stanley, How Fascism Works: The Politics of Us and Them (New York: Penguin Random House, 2018).

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2 My project here is thus tightly related to Michael Lynch’s chapter in this volume, “Truth as a Democratic Value.” Lynch seeks to explain the role and function of “bald-faced political lies.” Like Lynch, I take the prevalence of a practice of bald-faced political lying to be indicative of a loss of democratic culture. But my goal is to derive the practice of bald-faced political lying from intrinsic features of fascist ideology. 3 Tamsin Shaw, “William Barr: The Carl Schmitt of Our Time,” New York Review of Books, January 15, 2020. 4 Jeffrey Herf, The Jewish Enemy: Nazi Propaganda during World War II and the Holocaust (Cambridge, MA: Harvard University Press, 2006). 5 This includes the United States of course, where Father Coughlin and Gerald Burton Winrod, Coughlin’s fundamentalist Protestant counterpart, founder of fascist organization Defenders of the Christian Faith, were at the heart of 1930s American fascism (see chapter 3, “The Religious Right,” of Bradley Hart’s Hitler’s American Friends: The Third Reich’s Supporters in the United States. New York: St. Martin’s Press, 2018). 6 Frederico Finchelstein, A Brief History of Fascist Lies (Oakland: University of California Press, 2020). 7 In “Bald-Faced Lying: How to Make a Move in a Language Game without Making a Move in a Conversation,” Philosophical Studies 173.2 (2016): 461–477, Jessica Keiser argues that bald-faced lying is not a species of lying; if she is correct, fascist lying is not a species of lying either, since fascist lies are a kind of bald-faced lie (see also Michael Lynch’s contribution to this volume). 8 “Donald Trump is BS, Says expert in BS,” Harry Frankfurt, Time Magazine, May 12, 2016. 9 See Jason Stanley, “Beyond Lying: Donald Trump’s Authoritarian Rhetoric,” New York Times, November 4, 2016. 10 These points are ably brought out at length in an important forthcoming paper by Quassim Cassam, entitled “The Bullshit Industry.” 11 Victor Klemperer, The Language of the Third Reich (London: Continuum, 2000), p. 67. 12 Hannah Arendt, The Origins of Totalitarianism (Cleveland, OH: World Publishing, 1958), pp. 345ff. 13 Ibid., p. 341. 14 Timothy Snyder, The Road to Unfreedom: Russia, Europe, America (New York: Tim Duggan Books, 2018), pp. 163–194. 15 Ibid., p. 163. 16 See Susanna Siegel’s op-ed, “Schadenfreude Is the Wrong Reaction to the President’s Covid-19,” in the Tampa Bay Times, October 3, 2020. 17 Ernst Cassirer, The Myth of the State (New Haven, CT: Yale University Press, 1946), p. 283.

INDEX

2016 presidential election, 52, 53, 196– 197. See also Trump, Donald

Bayesianism, 125 belief: believing a speaker vs. believing a proposition, 111; different concepts academic freedom, 21, 41 of, 114–115; pragmatist account of, Adler, Jonathan, 75 183; two concepts of belief as a propoAdorno, Theodor, 153 sitional attitude, 118n27. See also adversary system, 56 epistemology; standpoint epistemolAl Qaeda, 217. See also Bush, George W.; ogy; testimony September 11th #BelieveWomen: 66–68; as an attempt Allenet de Ribemont v. France, 91 to create a positive generic, 69–70; alternative facts, 2, 198 as demanding epistemic respect for American Law Institute, 80 women, 83; as an epistemic corrective, American Medical Association, 51 131, 134–135; and Frickerian correcAnscombe, G. E. M., 75; on believing tives, 71; and injustice, 71; in the law, someone, 115 79–86; Margaret Atwood on #Believeantisemitism, 213–215 Women, 110; non-epistemic accounts Aquinas, Saint Thomas, 196 of, 69; in ordinary life, 68, 77–79; Arendt, Hannah: on the contempt for origins in New York Times ad, 109; and facts, 31; on democracy as a compresumption of innocence, 124–125; mon space, 20; on prophetic scienrelevance of generics to social project tificality, 218; “Truth and Politics,” of, 133; requiring alterations to 15, 150, 167 burden of proof, 67; as seen by nonAriely, Dan, 51 reductionists, 76–77, 86, 114; shifting Aristotle, on means of persuasion, 56 the burden of proof, 88–89; and Aronson, Elliot, 52 standpoint epistemology, 70; underassertibility, personal warranted versus inclusivity of, 68n6; understood as an subjective, 185 epistemic overcorrection, 69; underAtwood, Margaret, 110, 120 stood as epistemic instruction, 112. authority, as a means of persuasion, 56–58 See also due process; evidence; Ford, Christine Blasey; non-reductionism; Bacon, Francis, 5 presumption of innocence; reductionBail Reform Act, 90–91 ism; testimony; truth Bannon, Steve, 151 Benhabib, Seyla, 148, 167 Barabas, Jason, 36 Berlin, Isaiah, 148 Baradaran, Shima, on the presumption Bhabha, Homi, 147 of innocence, 91 bivalence: principle of, 181 Barr, William, 211–212 “Black Lives Matter,” 76 Barzun, Charles, on corroboration Blackstone, William, 196 requirements, 87 Bolshevism, 210–211

223

224 bootstrapping argument, 22 Boyle, Robert 5; on reproducibility, 156 Brandom, Robert, 20 Brown v. Board of Education, 202 Bumble (dating app), 109, 136n1 Bush, George W., lies to justify Iraq War, 217 Butler, Judith, 163 Cambodia, killing fields of, 153 Campbell, Liz, 92 Cassirer, Ernst, 219 Centers for Disease Control, 40–41 China, famine in, 153 Cialdini, Robert, on means of persuasion, 56 Civil Procedure, law of, 198 climate change, 148; as best interpretation of the evidence, 158; changing knowledge about impact of fossil fuels, 152–153; denial of, 50, 151; Latour on, 169; role of expertise, 170 CNN: during COVID-19 pandemic, 24; dismissed as fake news, 26 Coady, C. A. J., 74 cognitivism: in ethics, 187 Colb, Sherry, 86, 140n30 Colbert, Stephen, on “truthiness,” 156 Collins, Susan, during Kavanaugh hearings, 66, 79, 90 colonialism, 147, 170; European theory of conquest, 190 commitment: as a means of persuasion, 56–58. See also persuasion comprehensive doctrine, 18n8, 160–161. See also Rawls, John confirmation bias, 56 Congressional Budget Office, 40 conspiracy theories: about COVID-19 pandemic, 27; contrast with expertise, 188; under fascism, 216. See also COVID-19 pandemic; flat-earth theory; Trump, Donald; vaccines correspondence theory of truth, 2–4, 155, 180, 182. See also truth corroboration requirements, 85, 87

Index Coughlin, Charles, 216n5 COVID-19 pandemic, 1, 6, 170, 181; conspiracy theories about, 15, 27, 188–189; role of expertise during, 41; uninformed citizens’ views about, 40 credences, 5, 81–83 credibility: disputes about, 84 Crewe, Bianca, 95–96 critical race theory, 4, 196, 202; on unmasking power behind racialization, 203 Crusades, 153 Darwall, Stephen, on appraisal respect, 20 Darwin, Charles, 5. See also social Darwinism Davis, Emmalon, 109n3 De Beauvior, Simone: on patriarchy, 188; The Second Sex, 165 De Wever, Bart, 215 deception, 50, 217 Declaration of Independence, 196 deep fakes, 17, 59 defeaters: rebutting vs. undercutting, 140n29 Delli Carpini, Michael X., 36, 39 democracy: deliberative, 19, 25; direct involvement of its citizens, 58; epistemic threats to, 22–31; global decline of support for, 32; as a space of reasons, 21; value of truth and knowledge in, 15–32, 35–44, 52–53; and twin values of freedom and equality, 209. See also fascism democratic culture, 216 democratic deliberation, 209 democratic lies, versus fascist lies, 209–220 deniability, plausible, in democratic politics, 219 Dennett, Daniel, 148 derogatory terms, inefficacy of, in political debates, 149 Descartes, Renée, 4–5; as part of antiAristotelian turn, 5

Index Dewey, John: on democracy as a space of reason, 20; on morals and politics, 183n18. See also pragmatism digital information pollution, 17 Diogenes, 154 discourse ethics, 209 distrust, 124. See also trust dog whistle, 213, 219 double-speak: 148. See also Orwell, George Dred Scott v. Sanford, 198 due diligence, epistemic, 120 due process, 66, 109, 111, 120, 124, 134 Dumézil, Georges, 153 Dunham, Lena, 77 education. See primary education, access to, 21 El Paso 2019 terror attack, 202 Enlightenment: on the grounds of truth, 147; far-right’s invocation of “European Enlightenment,” 214 epistemic bubbles, 17 epistemic disagreement, 22–27; during the Reformation and CounterReformation, 22; during the Renaissance and the Enlightenment, 23; perception of and actual, 24 epistemology: on importance of social knowledge, 7; and legal commentary, 84; Twitter as tool for social epistemology, 109. See also #BelieveWomen; reductionism; non-reductionism; standpoint epistemology; testimony ethics: distinction between ethical and moral judgements, 161 European Convention on Human Rights, 91 European Court of Human Rights, 91–92 evidence: and believing a speaker, 111, 122–123; direct vs. circumstantial, 87; legal vs. everyday sense of, 112; provided by victim’s testimony, 116– 119, 124–134; role in thermometer thought experiment, 114–115; rules

225 of evidence in the courtroom, 57. See also #BelieveWomen; testimony Evidence Law, 200 evidentialism. See reductionism evidentiary instructions, 67 expertise, 88 facticity, 154 facts, 3, 154–155; conception of inaccessible facts, 186–187; in democracies, 25, 35, 38; juridical model of fact-finding, 57–59, 157, 168; as used in ordinary political discourse, 155; political facts, 36, 43; in the posttruth era, 53. See also alternative facts; epistemology; post-truth; truth fake news, 17, 26, 52, 148–150, 177; liberal response to Pizzagate, 150 fascism: fascist ideology, 209–210; fascist lies, 219; proto-fascism, 149; political science on fascism, 209. See also democracy; friend-enemy distinction fascist culture, in contrast to democratic culture, 210–216 Fauci, Anthony, 6; on mask wearing, 44–45 Faye, Guillaume, 214–215 Finchelstein, Frederico, 216–217 flat-earth theory, 15 Floyd, George, 190. See also “Black Lives Matter” Ford, Christine Blasey, 70; sexual assault accusation against Kavanaugh, 65–66, 70, 78–79, 83, 109, 135. See also Kavanaugh, Brett Forstenzer, Joshua, on Richard Rorty, 150n20 Foucault, Michel, 4, 153, 181; Discipline and Punish, 166; his epistemology, 150; his political history of truth, 163–165; on the project of critique, 165–166; The Punitive Society, 166 Fourteenth Amendment, 197 Fox News: coverage during COVID-19 pandemic, 24

226 Frank, Anne, Diary of Anne Frank, 202–203 Frankfurt, Harry, on “bullshit,” 50, 217 Frankfurt School, 167. See also Adorno, Theodor; Horkheimer, Max free speech, 41 freedom of assembly, 21 freedom of the press, 21, 41 Freud, Sigmund, on illusions, 166 Fricker, Elizabeth, 100n37 Fricker, Miranda, 128; Frickerian correctives, 67, 75–76, 86, 97; on women suffering epistemic injustice, 71 friend-enemy distinction, 210–213, 215, 220. See also fascism friendship: epistemic partiality required by, 78 Galileo, 5 Gardiner, Georgi, 84, 121 Geerings v. Netherlands, 91 Gelfert, Alex, 74–75 generics, 132–133 Goebbels, Joseph, 1935 speech, 210–211 Goldberg, Sandy, 114n16 Gove, Michael, 2 Grice, H. P., maxims of Quality, Quantity, and Relevance, 142n40 Gulag, Soviet, 153 Habermas, Jürgen: exchange with John Rawls, 159–162, 167–168, 176–177; universalization principle, 159 Hahn, Julia, 151 Haidt, Jonathan, 54 Hale, Matthew, 86 Hall, Trish, 54 Hawley, Katherine, on trustworthiness, 72 Herf, Jeffrey, The Jewish Enemy, 213, 215 History, the end of, 32 Hitler, Adolf, 213–216. See also fascism Hollander, Jenny, 77 Holmes, Oliver Wendell, 179 Holocaust, 153

Index Horkheimer, Max, 153. See also Frankfurt School Hume, David, 5–7, 214; reason as slave of the passions, 56–57; on tying beliefs to evidence, 5 Hussein, Saddam, 217 Huygens, Christiaan, 5 ICE, 200 Ichikawa, Jonathan Jenkins, 95–96 ignorance as lack of political knowledge among voters, 37 illusions, critical philosophy of, 165– 166, 188 implicit judicial notice, 200 inequality, and truth decay, 148 information, concern with utility of, 50 Inigo Montoya (fictional character), 90 intellectual arrogance: active factional intellectual arrogance, 26; as described by Montaigne, 26; as threat to democratic value of truth, 25–27 Iraq war, 1. See also Bush, George W.; Rumsfeld, Donald J.E.B. v. Alabama, 88, 106n97 James, William, 3–4, 177, 179 Jefferson, Thomas, 196 Jim Crow, 153, 198 Johnson v. M’Intosh, 198–199 Jones, Karen, 123, 133; on reasonable trust, 72 judicial notice, 199 jury service, 56 justification, 185 Kahneman, Daniel, 54 Kakutani, Michiko, 171n7 Kant, Immanuel, 214; critical philosophy after him, 163; pragmatist response to, 180; his understanding of justice, 161 Kavanagh, Jennifer, 151, 173n23 Kavanaugh, Brett: allegations of sexual assault against, 65–66, 78–79, 83, 89, 90, 109; presumption of innocence

Index

227

during his hearings, 92–94, 96. See also #BelieveWomen; Ford, Christine Blasey Keeter, Scott, 36, 39 Keise, Jessica, 217, 221n7 Kentucky v. Wharton, 90 Key, V. O., 38 King, Martin Luther, Jr., 154 Kitcher, Philip, 34n14 Klemperer, Victor, The Language of the Third Reich, 218 knowledge: expected democratization of through the Internet, 16; democratic value of knowledge, 16, 36; encyclopedic knowledge of politics vs. shortcuts, 37; nonreductionist account of, 75; not a Rawlsian primary good, 18, 33n8; political knowledge, 2, 17, 39. See also belief; epistemology; expertise; proof; truth

malaria. See Stateville Penitentiary experiment Marshall, John, 199 Marušić, Berislav, 76 Marx, Karl, on phantasmagoria and commodity fetishism, 166 mass incarceration, racialized, and Jim Crow, 153 McIntrye, Lee, 148n8, 150–151 Mendel, Gregor, 5 merely opinionated assertions, 185 Miers, Harriet, 93 Model Penal Code, 80 Montaigne, Michel, on dogmatism, 25–26 moral encroachment, 123 moral reasoning, social intuitionist model of, 54 moral regress, 176, 190 Moran, Richard, 74, 113n11 motivated reasoning, 56 Mulvaney, Mick, 44

Lackey, Jennifer, 73, 100n32 Latour, Bruno, Down to Earth, 169, 188–189 Laudan, Larry, 67; on probatory vs. material innocence, 92–93 Leslie, Sarah-Jane, 132 Levitin, Daniel J., 171n7 Lewis, C. I.,176; on inquiry into ethics and politics, 183; “A Pragmatist Conception of the A Priori,” 183; on truth, 185 lies, 50; as an aberration, 49–53; as acts of identity expression, 30; compared to other failures to advance the truth, 50; democratic vs. fascist, 209– 220; endemic to all political systems, 217; political, 28–31. See also Trump, Donald; truth liking, as a means of persuasion, 56–58 Locke, John, on natural rights, 196 Luks, Samantha, 30

National Institutes of Health, 40–41 National Oceanic and Atmospheric Administration, 44 National Security Council, 40 National Weather Service, 44 New Right, 151, 154, 170, 195 New York Times, 52, 54, 148; #BelieveWomen ad, 109; dismissed as fake news, 26; as source of climate change information, 170 Newark water crisis, 52 Newton, Isaac, 5 Nietzsche, on illusions, 166 non-reductionism, 71–73; and testimony, 73–75, 110; in the courtroom, 81

madness, conception of during 17th and 18th centuries, 164–165

O’Connor, Cailin, 148n8 O’Connor, Patricia, 54 Obama, Barack, inauguration crowd photos, 30, 42 Oedipus, 154 Orwell, George, 148; 1984, 150–152. See also double-speak; fascism Oxford English Dictionary, 53

228 Pardo, Michael, 89 parrhesiastes, 154 participatory politics, 19 Peirce, C. S., 3, 176, 179, 187; on the principle of bivalence, 181; on the relationship between belief and truth, 181–182, on understanding concepts, 180 persuasion, psychology of, 56–57 physician-assisted death, 191 Pinker, Steven, on progress, 147 Pizzagate, 150 Plato, 8; on democracy, 1–2 Pol Pot, 153 polarization, 59; attitude polarization, 24; and truth decay, 148 political liberalism. See Rawls, John Popper, Karl, on falsifiability, 156 post-truth, 53; post-truth age, 148–149, 151–153, 177, 195; post-truthism since the U.S. founding, 202 Powell, Colin, presenting false evidence to U.N., 152. See also Iraq War; Bush, George W. power relations, in shaping institutions, 162–163 pragmatic encroachment, 79, 81n75, 96, 121–122. See also moral encroachment pragmatism, 4, 150, American, 3, 179, 181; pragmatist theory of truth, 3. See also Peirce, C. I.; Rorty, Richard prediction, as used in ordinary political discourse, 156 preferences: “enlightened preferences,” 39; uninformed preferences, 40 preponderance, 85 presumption of innocence, 66– 67, 88, 111, 124–127; in the context of #BelieveWomen, 65– 97; as “flank defense,” 91; as interpreted by European Court of human rights, 91; in Kavanaugh hearings, 92– 95; in law, 90– 94; in life, 94– 96; as no- evidence and as

Index material presumption, 124–125; probatory vs. material innocence, 92– 93; resilience and presumption of innocence, 131; tension with #BelieveWomen, 116, 124. See also #BelieveWomen; due process; reasonable doubt Price, Huw, critique of Richard Rorty, 185, 194n22 primary education, access to, 21 primary language: 187. See also Wittgenstein, Ludwig primary social goods, 17–18, 21–22. See also Rawls, John probability theory, 5 procedural rights, 91 progress. See moral regress prompt complaint: in sexual assault law, 80–81 proof: burden and standard of proof in the courtroom, 124–125, 157; evidentiary thresholds outside of the courtroom, 157. See also evidence; presumption of innocence; reasonable doubt; social proof; testimony propaganda, Nazi, 215 Protocols of the Elders of Zion, 213–214 punishment, 166 Putin, Vladimir, 189, 218 queer theory, 165 Quesnay, François, 147, 171n1 Quine, Willard Van Orman, 201 race: concept of, 196; racial bullying, 197 racialized reality evidence, 200 racism: racial discrimination in traffic stops, 196n4; and factional arrogance, 26; and the law, 195–198; racial profiling, 200; narrative of racial progress, 202. See also critical race theory Ramsey, Frank, 176; on beliefs as habits, 183; on complex concepts,

Index 182; influence on Wittgenstein, 179, 192n2; on the Tractatus, 182–183; on truth, 185–187 rape laws. See sexual assault laws Rawls, John: exchange with Jürgen Habermas, 159–162, 167–168, 176– 177; original position, 159; overlapping consensus, 176 reasonable doubt, 9–10, 66–67, 85, 91– 98; proof beyond reasonable doubt as deontological restriction, 88–89. See also evidence; presumption of innocence; testimony reasonableness, 88; in Rawls’ philosophy, 160–161, 162, 176 reasoning, Kahneman on two modes of thinking, 54–56 reasons, as currency of deliberative democracy, 25 reciprocity, as a means of persuasion, 56–58 reductionism, 71–85, 120; connection between reductionism/nonreductionism and belief/credence distinctions, 82; in the context of #BelieveWomen, 67–68, 112– 114; versus corroboration, 85; in the courtroom, 81–82; problems with, 74; versus non-reductionism, 112–113. See also #BelieveWomen; non-reductionism Renaissance, 164–165 representation, dyadic, 38 Republican Party, 41, 151, 202, 206 resilience, 11, 125, 131 respect for persons, 72, 75; basic “recognition” respect, 20; basic epistemic respect, 72, 82; equal respect for political opponents, 209; moral respect vs. epistemic respect, 20 Rich, Michael D., 173n23 Rodriguez, Ojel, 66 Rorty, Richard: Huw Price’s critique of him, 185; on moral progress after the Enlightenment, 147; pragmatism and the post-truth condition, 150; thesis

229 that truth isn’t the goal of inquiry, 31–32 Ross, Wilbur, 44 Ruiz, Albor, 202 rule of law, 176, 186 Rumsfeld, Donald, 217 Saul, Jennifer, 70 Schafnner, Brian, 30 Schauer, Fred, 70 Schopenhauer, Arthur, Art of Always Being Right, 149 scientific method, 57–59 Scruton, Roger, on the Enlightenment and nationalism, 215 secularism, militant, Trump administration’s opposition to, 212 September 11th, 1, 184 sexual assault, 10; credibility discounting in sexual assault cases, 86–87; fear of false accusations, 131; in Model Penal Code, 80; men’s testimony in sexual assault cases, 94–95; reporting of sexual assaults, 65, 137; treatment of sexual assault accusations, 109, 128–129; women’s testimony in sexual assault cases, 68– 70, 76, 78–79, 134. See also #BelieveWomen; #WhyIDidn’tReport sexual assault laws: historical background, 80; rape shields statutes, 81, 89; corroboration requirements, 81; rape shield statutes, 81, 89 Shariah Law, 214 Shaw, Tamsin, on William Barr, 211–212 Shepher, Lois, 84 sincerity, 185 skepticism, 3, 85; Pyrrhonean, 23 slavery, 155, 202; modern slavery, 147. See also Fourteenth Amendment; Jim Crow Snyder, Timothy, 218 social capital, decline and truth, 148 social Darwinism, 215–216. See also Darwin, Charles

230 social proof, 55–56, 58 social-epistemic practices: contestation of 41; definition of, 21; examples of, 40; in individual pursuits and in politics, 21; as primary social good, 21 Socrates, 154 standpoint epistemology, 70–72, 86–88. See also epistemology; testimony Stanley, Jason, 49, 190 State v. Kelley, 106n96 Stateville Penitentiary experiment, 170 statistical evidence, in legal proceedings, 94 statistics in policy-making, 6 Stout, Jeffrey, 185 Strawson, P. F., 138n12 Stuckenberg, Carl-Friedrich, 91 Stuntz, Bill, 89 Tarski, Alfred, 3 Tavris, Carol, 52 Ten Commandments, 52 terrorism, El Paso terror attack, 202 Tesich, Steve, coinage of “post-truth,” 142 testimonial justification, nonreductionism about, 11 testimony: and the burden of proof, 85; “content-based testimonial injustice,” 137; evidential and ethical questions about testimony, 113–114, 120, 123; as an interaction of trust, 113; as interpersonal exercise, 75; in legal commentary, 84; legal vs. everyday sense, 112; philosophical concept of, 73; problem of conflicting testimony, 120; reductionism vs. non-reductionism about testimonial justification, 117; speakers’ pragmatic interest in being regarded as providing credible testimony, 127; testimony of complainants in Model Penal Code, 80; treating testimony as evidence, 120; trusthworthiness of, 126. See also burden of proof; epistemology; proof; reasonable doubt

Index theory, as used in ordinary political discourse, 156 three-fifth provision, 152. See also slavery Title IX, 89, 96 tobacco industry, 50 trans*theory, 165 Trump, Donald, 61n19; altering hurricane map with a Sharpie, 35, 44, 47n34; comments on Kavanaugh hearings, 65; and COVID-19 conspiracy theories, 189; echoing Goebbels, 212; perception of him as skilled business person, 170; pictures of his inauguration crowd, 30, 42; purporting to tell truth, 152, 154, 178; speech at Value voters Summit, 212; white supremacy and nativism, 195; world record for number of lies told, 149 trust: owed to women, 68; reasonable trust, 115, 123; and truth, 169 truth: absolutist account of, 179; abuse of in philosophical and political arguments, 162–163, 177; as altered by American pragmatism, 4; analogy between acceptability and truth, 160; analogy between the conceptualization of truth and race, 196; bootstrapping argument about the political value of the pursuit of truth, 22; contempt for truth as epistemic threat, 27–31; definition of, 199; democratic value of the pursuit of truth, 19; during the Enlightenment, 147; epistemic and political value of, 16–17; and ethical beliefs, 184; fact-finding in trial settings, 58–59; factual truths vs. moral truths, 35; and formal logic, 3; as goal of inquiry, 185, 192; Harcourt’s definition of truth, 157–158; in 19th century positivism, 147; pragmatist account of truth, 176; quest for, 147; redundancy theory of truth, 182n14; relationship with democracy, 15; and

Index social-epistemic practices, 49; the value of truth, 15; theory of truth for formalized languages, 3; true belief as a primary social good, 17–18; “truth decay,” 148, 178; as used in ordinary political discourse, 154; value in political discourse, 49; value of factual truths for democracy, 35, 40–41; ways of hindering the search for truth, 50. See also correspondence theory of truth; epistemology; knowledge; post-truth; proof Tuerkheimer, Deborah, 86–87, 130 Tuskeegee experiment, 170 Twitter, 126, 135; as source for social epistemology, 109, 118 United States v. Salerno, 90 urban legends, 50 US Customs and Border Protection, 200 vaccines, 50, 149, 170, 189; anti-vaxxers, 54. See also conspiracy theories; COVID-19 pandemic

231 veridiction, 164. See also Foucault, Michel Vietnam War, 154, 170 viral news, 59, 65 Waldron, Jeremy, on norm against torture, 184 Walen, Alec, 89 Wars of Religion, 153 Watergate, 170 Weatherall, James Owen, 148n8 Weiss, Bari, 69, 130n2 white supremacy, 149, 152–153, 176; in the 2016 election, 197; as evidence in the formation of the law, 195, 198–199; widespread belief in, 200–201 White, Stephen, 76 #WhyIDidn’tReport, 65 Wiggins, David, 180 Wigmore, John Henry, 80 Wittgenstein, Ludwig, 23; Tractatus Logico-Philosophical, 182, 187 Wright, Chauncey, 179 Wu, Frank, 201