Naming, Blaming and Claiming a Moral Panic

Naming, Blaming, and Claiming in Public Disputes:
The 1998 Maine Referendum on Civil Rights Protection
for Gay Men and Lesbians

By Carolyn Wiethoff

Wiethoff’s use of the Fesltiner’s theory on naming, blaming and claiming proves to be quite interesting in this article. She easily demonstrates how the Christian Civic League of Maine used this three-step narrative to appeal two distinct groups of voters – ultra-conservative Christians and undecided voters in the general public – in order to over to endorse a referendum ending civil rights protections for GLBTs. Because the response to this attack was very limited by GLBT groups, the CCLM was able to name possible social harms, attribute them to GLBTs, and then make a legal claim for the referendum in order to ensure those harms do not happen.
I found Wiethoff’’s take on the naming, blaming and claiming narrative to be very accurate, and troubling. I was also intrigued by how much the process overlapped with the idea of a moral panic. In retrospect, that is what this type of narrative allowed the CCLM to launch against homosexuals living in Maine.

Demon Activity – homosexuality and its perceived harms/risks
Minority Group – obviously blame is attributed to GLBTs
Victims/Group in Need of Protection – children and Christians
Policy Proposed – 1998 Main referendum banning civil rights protections

First, they identified the harm/demon – homosexuality. Surprisingly they were able to demonize homosexuality through the fear of old stereotypes (HIV/AIDS), the belief that homosexuals were actually a powerful force in society unworthy of civil rights protection because they would likely use that power to endorse homosexual teachings in schools and threaten the Christian way of life. Naturally, in the 2nd part of the process, GLBTs were the minority group blamed/attributed with creating and perpetuating this type of risk and social harm through their life-style choices.
The next step in the moral panic was to identify a group in need of protection. The CCLM effectively portrayed children and those of the Christian faith to be the most directly threatened by homosexuality, both physically (through the perceived risk of being more likely to be exposed HIV/AIDS) and spiritually (endorsing a homosexual lifestyle and threatening Christian beliefs/freedoms).
Finally, the CCLM proposed legislation through it’s referendum to abolish civil rights protection for GLBTs, which they argued would protect children and Christians by keeping homosexual groups from becoming too powerful and pushing their risky lifestyles and harmful practices on the rest of society.
It’s incredible to see how easily the CCLM was able to pull of this obviously discriminatory maneuver, largely without much dispute from the GLBT community, while at the same time quite I found it appalling that our legal system could be manipulated and used in such a way even in this day and age. It just goes to show you how powerful the naming, blaming, claiming narrative is, especially when combined and presented in the context of a moral panic.

The changing of claiming

The Emergence and Transformation of Dispute:
Name, Blaming, Claiming…

By Felstiner, Abel & Sarat

In this article, the authors effectively present theory on how naming, blaming and claiming are essential to the litigious processes that are carried out on a daily basis. They argue that this narrative must be applied by individuals in any given situation in order legal action to occur and for a suit to be filed. The process is as follows: injury or harm must be recognized; said injury/harm is attributed to an outside party; grievance is filed/brought against those perceived to be responsible; is grievance is ignored or rejected, a claim may be made and the situation is transformed into a matter of legality.
The section I found most interesting within this article was how goals may change through the legal process. What the plaintiff initially wanted in the beginning may not continue to be the objective as the dispute progresses, and at the same time, the dispute itself is subject to change as well. An example of this is presented in the ways in which the courts individualize remedies, effective changing the goal of the plaintiff. The example given is victims suing a “manufacturer to alter the production process,” and instead only being awarded a monetary sum by the court.
It’s somewhat disheartening to think that this could be the outcome, that the goal of social good is forgotten and replaced instead of compensation by the courts, but I suppose this backs up the findings of Ewick and Sibley, in that once a dispute enters the legal realm, it is no longer entirely in the hands of plaintiff/complainant. He or she actually gives up power in the pursuit of power/justice. In the case mentioned in this article, those suing a manufacturer give power to a judge, who instead of coinciding with their wishes to order the company to alter their practices and production methods, awards them monetary sums instead, ultimately changing the objective and conclusion the initial dispute that was filed.

But didn't he just say....

Propensity to Sue in England and the United States of America:
Blaming and Claiming in Tort Cases

By Herbert M. Kritzer

In this article, Kritzer takes an in-depth look at the likelihood that Americans will file suit in comparison to the litigiousness of the English culture. While the findings do determine that Americans are more likely to go to court because they associate injury/harm done by others with compensation, the degree to which we sue is not much greater than our neighbors from across the pond.
While I was able to come to this conclusion, I found it to be a very rocky road in getting there. I don’t know whether I simply couldn’t comprehend aspects of this article or whether or not the argument wasn’t effective enough, but I found it difficult to make sense of Kritzer findings until he summarized everything. The statistics were presented in rather confusing way, and he tended to make statements that seemed rather contradictory.
For example, on page 414, Kritzer, begins a paragraph: “Regardless of the kinds of comparisons I make, the claiming rates in England exceed those in the United States.”
This seemed to be a bit surprising to me. Then, right at the very bottom of the paragraph, Kritzer says: “However, even ignoring this element of difference, there is a lower claiming rate across the board in England than in the United States.” Huh. That wasn’t what you said a minute ago. Statements like this, coupled with a seemingly endless list of statistics and repetitive legal rhetoric just confused the hell out of me throughout this piece, though I was able to gather and agree with his conclusion that our culture in general is more likely to attribute blame to others than the English, and that we tend to associate blame with compensation. But I guess it was tough for me to get there.

Improperly labeling junkies

Legal Consciousness on the Margins of Society:
Struggles Against Stigmatization in the AIDS Crisis

By Michael Musheno

This particular article proved to be an interesting study. The element I found most compelling was how both groups in the study tended to buy into the stigmatization and stereotyping that amounted due to their lifestyles and afflictions. For example, each of the female heroine users didn’t feel in any way that they were victims, and that each of them was a full-blown “junkie”, despite the fact that only one of them actually exhibited uses practices that would characterize them that way. Likewise, with the HIV-positive men in the study, they found themselves blaming their lifestyle and agreed with society’s common misconception that AIDS was a gay disease and it was their own fault for contracting it.
In both cases, the individuals were subject to labeling theory. Essentially, they found themselves buying into the insults and names they were being called so that they themselves believed that’s what they were. This theory has come up during my studies of crime and juvenile delinquency. Essentially, certain groups of people are labeled in a negative way that identifies them as being bad or being lower than others. Part of the theory is also the idea of a self-fulfilling prophecy, in which due to the labels, an individual actually becomes what he or she is being called.
In this reading, we see this type of labeling being used against both the heroine users and the gay HIV-positive men. The women are junkies, and the men live a lifestyle that is risky and wrong, and is largely to blame for their condition. Both groups find themselves believing the labels and even starting to think that they deserve to have HIV. I find myself curious as to the fate of the female heroine users. At the time, only one of them exhibited the characteristics of a junkie, yet all of them labeled themselves this way. After the support and treatment group was disbanded, I wonder how many of them actually progressed into full-blown addiction due to their labeling.

The power of the gatekeeper

Making Law at the Doorway:
The Clerk, the Court and the Construction of Community in a New England Town

By Barbara Yngvesson

It’s interesting how much Yngvesson seems to like small towns. Anyway, her notion of the clerk as a gatekeeper of the court seems to be spot-on. As the man presiding over the hearing, the clerk, it is his duty to hear the “evidence” of these “garbage cases” in order to determine whether or not they actually go to court. Most of the cases really didn’t need to go much further than they did. They mostly involved small claims and neighbor disputes, and I suppose that in most cases, we cannot waste the time and resources of the court over small, petty squabbles.
However, there was definitely one case in particular where I felt more of a response may have been necessary. The final case involving the Hispanic woman and her family, the Polish couple, and the English couple seemed to be a bit more serious than the clerk was willing to recognize. He dismissed their cases as “frivolous” and really appeared to be talking down to them. He believed their quarrels amounted to “kidstuff”, and that they were simple problems only involving poor people. They sounded a bit more serious to me. Children carrying weapons? The use of racial slurs and epithets? Physical violence and confrontations between men and women? I suppose throwing them in jail wouldn’t have really helped things, but the clerk really seemed way to dismissive in the charges the complainants were making, especially in the way in which he tended to talk down to the people involved.
In a way, I found his dismissive behavior and his “stop fooling around” attitude to be somewhat inappropriate. There were fairly serious allegations the complainants were making. What was most unusual was the way in which local law was applied to make it seem like this type of behavior was acceptable. Both the complainants and the clerk seemed to agree that due to the bad neighborhood, “vicious behavior is a normal exchange.” Therefore, certain acts and actions were actually tolerable due to the context in which it was occurring, and the actual law doesn’t apply. However, if the same actions were occurring elsewhere in another community, criminal charges may have been brought forth, or at least the matter may have progressed beyond a hearing.

Just a bit too much...

Images of Law in Everyday Life:
The Lesson of School, Entertainment, and Spectator Sports

By Stewart Macaulay

Some of the references in this article may be outdated, but it seems that the theory still applies fairly well to today. I mean, c’mon, a VCR? Macaulay seemed to be all about that piece of outdated, obsolete piece of technology, though I supposed it was still big in the 80s. Anyway, back to the point at hand. Yes, in the end, Macaulay does make a fairly accurate point about how we all learn about the law and litigiousness through school, entertainment and sports. All of three of these topics come with rules, and showcase laws and the consequences of not following those laws. I clearly see the point Stew’s making, but I feel like it takes a very long time for him to make it, and that overall this was too broad of a topic for him to cover in this one article.
Some of the discussion was filled with odd points that distracted me from the topic at hand, such as his apparent disdain for the way in which we are educating American students about history and the bureaucracy and demand for profit from the publishing industry. His argument also included vague statements about the way in which we present law on television and in films, yet clearly they were a lot of mixed message being offered by those mediums. He claims they are inaccurate representations of reality that tend so show only certain themes, but then he goes to list a vast multitude of the many different ways in which law and law enforcement has been portrayed in the media.
Basically, I didn’t find his statement to be entirely relevant to his thesis, nor were they always backed up the statistics and references he used throughout the piece. In the conclusion, Macaulau noted that many of his findings were in fact contradictory, and I think that remained true throughout the article. The points he made on one page seemed to be forgotten by the next. And the final few pages he sort of lost me when he started talking about how there three areas of society should be altered in order to more accurately depict the relationship between law and society. I know the point he is making, and that we indeed learn a great deal about the law through these more common everyday experiences, but the extent to which he wants to alter them or at least find new meaning just seemed to be a very far stretch, and one that I simply could not buy.

More frustration with a local ordinance...

As I read through some of the interviews used in this book, I couldn’t help but find myself identifying with some of their accounts. I have been before, with and against the law before myself, and in general, I have not been a particular fan of the dealings I have gone through. I have found flaws in the system.
One character I identified with was Millie Simpson. In her case, she found the justice system to be disorganized and unaware of her predicament. She was forced to return to court a total of three times in order to clear herself of fraudulent charges. The 2nd time appeared to be the most disenfranchising, when her public defender never showed and she found that judge that was presiding over the case “acted like he didn’t know why I was even back there.” He then proceeded to punish her to the full extent of the law, even though he seemed largely unaware of the facts her case.
I found the same sort of disorganized justice here in Ithaca. I seem to keep posting about these, but late in the summer, I too was slapped with a noise violation. Knowing it would be too difficult to appeal the case, I went down to the Ithaca City Court to take a plea and knock the coming fine down to a minimum. After talking with the city prosecutor, he said he wanted to speak with the ticketing officer in order to determine the appropriate fee, and told me he would have the court adjudicate my case for another two weeks, and that I should send him an email if I hadn’t heard back from him by then.
A week and a half went by, and I didn’t hear anything, so I sent him an email inquiring as to the developments in the case, asking if he had talked to the officer and had come to a decision. The email he sent back was one of complete confusion. He had no idea to what case I was referring to in the slightest, even after I gave him my name, the ticketing officer’s name and my address. He seemed very unsure of why I was even writing to him, and I was forced to refresh his memory. Again he set the hearing to be adjudicated in another two weeks. Again I had to email him and remind him of the details of the case. This time he remembered, but still had not spoken to the officer, nor had he made a decision. In the end, I determined I had to be more persistent in my emails, and made it clear I wanted a decision soon. He stepped up his efforts, and nearly two and a half months after we received the ticket he finally gave us the minimum fine.
Like Millie, I found it rather disenfranchising, because you like to believe in general that the justice system is organized and aware of the very dealings happening in its court. But clearly in both cases, the key players in the cases, one being a judge, the other a city prosecutor, were unaware of the facts. It seems remarkable how quickly they can forget about a case, when it indeed does take up a substantial amount of time and effort just to get through some of the more mundane dealings. Millie had to appear in court three times before her case was finally settled. I was there only once, but found myself emailing and sometimes calling the city prosecutor on a weekly basis. In the end, I found myself simply feeling glad that it was over.

The game of law

This is an interesting idea that seems to come up again and again when talking about law, and I find it’s one worth investigating. Ewick and Sibley write, “games are clearly demarcated encounters, bounded in space and time, with formal beginnings, turn takings and endings” (p. 136). Obviously, a very similar description could be applied towards the law. Several of the respondents used in this book too, referred to the justice system as some type of game to be played. Arthur Williams found that there was a “great deal of mental stimulation in situations where” the lawyers “were playing games” (p. 138). Raymond Johnson too looked at the justice system as game, as an arena where “You either win, or you lose. As long as you accomplish your objectives, you win. I’m not concerned about justice” (p. 140).
In reality, it is a game, one that Ewick and Sibley say have rules, boundaries, and objectives. And like all games, they do eventually come to a sort of conclusion, where you either win or lose. But there are even more parallels than that. Juries and lawyers are “drafted” by the defendants. A judge presides over the court as a sort of referee or umpire to ensure that the rules are followed. Clients that have more money, like professional sports teams are able equip themselves with better legal lineups, increasing their chances of victory. The court established at varying levels of power and importance, as are major and minor league teams. These comparisons go on and on, and it becomes clear, as it did with Michelle Stewart, that “the truth has very little to do with it, that it is really just a chess game” (p. 138).
As Denzel says in Training Day: “It’s not what you know. It’s what you can prove.” Clearly, it’s how you play the game. And in sports all the time there are ways around the truth, around the rules. In both worlds, there are loopholes, strategies, practices, coaching sessions. In both processes decisions are made and carried out in a way that will influence the outcome of the game, of the trial, in the favor of one party/team of the other. And this idea of game is not limited to the courtroom, but rather it extends throughout the whole process.
For example, two summers ago, my guitar was stolen from the backseat of my car. I immediately sought out help from the police by filing a report on my stolen property. In addition, I reported the missing item to several music shops in the area and told them to be on the lookout. One week later, one store contacted me with the name and number of a person selling the exact item described. After receiving that information, I again contacted the police and told them who stole the guitar. In the end, I was able to recover my stolen property. The point is, even in this process, which occurred outside the courtroom, a game was played. I made specific maneuvers and drafted key players (guitar stores and police) in order to get back my guitar, and once I knew where it was, I sent in my closer to secure the win (in the form of a detective).
In the end I also had to make a decision about whether or not to press charges. If charges were filed, the guitar would be kept as evidence, and it was likely that it would take months before it was finally returned to me. So in the end, I had to make a decision that, to some, would seem like sacrificing justice, in order to get my guitar back as soon as possible and allow me to finish out the season. Maybe a slight stretch with my example, but that point is that the law truly can be a game, one, that is played with a strategy and key heavy hitters, and in this case, I believe I played it rather well.

Before, With and Against

There is this theme repeating throughout Ewick and Sibley’s account of the common place if law, which I have used as a partial title to this entry, that I find rather interesting. Before, with, and against the law. While the authors do present law as existing on several different levels, consisting of many actors and players, they also tend to draw on some their interviewees opinions that law is this sort of abstract force that one best not cross. These three themes – before, with and after, truly seem to uphold that second idea of the law as a sort of supreme force.
The idea of the law in itself is almost too big to imagine. When I hear the word law, as do many of the interviewees in this account, my mind doesn’t necessary go to the many players who make up a part of the system. Instead, I do find myself thinking about this abstract force that is supposed to dispense justice and uphold the peace. Without law, chaos would ensue. Somehow, the system keeps us all in check, yet it is a confusing and mystifying establishment. Millie Simpson said that at the conclusion of her case, the judge delivered his judgment in such a way that she “didn’t even understand what he was saying” (p. 92). Bess Sherman too found herself mystified by the extent of the law she dealt with in order to find her Social Security check, and the power wielded by her doctors in influencing that decision.
A lot of this interviews resulted in accounts such as this, with a feelings of confusion, or apprehension or bewilderment at the idea of law as this intimidating force that runs our lives. I do find it interesting though, that in many cases the interviews do refer in some ways to the players that make up the system, while in much of the time it’s simply the system or idea of law that is recognized. Yes, we tend to see the law and justice as this sort of force or abstract ideology which we follow, but it is upheld, carried out and dispensed by a vast group of actors. Law is perpetuated by people. It is a social process in which people challenge each other, or companies, or work together.
In this respect, I find it amazing that the Law and Society movement still seems rather undeveloped and in its infancy. We have talked about natural law, but really there is no law in nature like the kind we have established here within our society. Law requires people; it requires some type of social interaction between many different people. It is not necessarily this isolated, abstract idea that governs our lives, as we often believe it is, but a process infiltrated with people. One does not necessarily stand before, with or against the law. Rather, he stands before a judge, with his lawyer and his accuser. The world is s stage, and we are all players, and no truer words could spoken when talking about the law.

Shhh...local law in effect

Inventing Law in Local Settings: Rethinking Popular Culture
Barbara Yngvesson

I found Yngvesson’s article on the role of law in small localities to be interesting and largely applicable to my own encounters. She claims that “law is a cultural exchange, conducted inside the king’s rules.” However, as in cases concerning a king and the distance between himself and his colonies, the initial rules are subject to change, for law is invented at the top but, it is reinvented in local practices.

Another important note that I found interesting was the idea that courts play a very complex and central within certain local communities as “arenas where community is created and notions of self and others are defined.” Being a college student living in Ithaca, I immediately thought of the arena that exists here in this small city, and the stir it has caused over the past few years.

Of course, the drama that was fought out in the courtroom that I’m now referring to was the establishment of the local noise ordinance, which allows police officers to hand out individual fines to residents and tenants who are creating an unnecessary amount of noise. I believe on the books, the ordinance is violated if noise can be heard 25 feet from and individual’s front porch.

While of course this may be just an excuse to rant about a local ordinance that I find unjust and ambiguous as no noise complaints are even required to administer tickets, I think this is an interesting example of how local law defines the values of a community. In this particular example of course, we’ve seen how local lawmakers have enacted policy that apparently a large enough proportion of the local community feels is important and necessary. Many locals are tired of the noise emitted by partying college students, and so the law has been altered in order to preserve that.

The actions of the court may be interpreted as offering a “moral sense,” one that includes “awareness of a community of interests extending beyond the pursuit of individual legal rights.” The noise is indeed an interesting issue, that may or may not violate individual rights in pursuit of the community’s interests. And honestly, if applied correctly, I understand that sacrifice. Why should a family have to call in a noise complaint on their neighbors who are partying at 4 a.m. on a weekday? It makes more sense for the police to be able to handle that situation on their own, should they come across it.

However, in the case of a group of girls living a few houses down from mine, the implementation of the noise ordinance seemed unfair and unjust. One early summer evening, four girls were issued tickets after, apparently, playing a game of scrabble that got too rowdy. I’m not entirely sure of the point I was making with this last bit, but it was something I wanted to share. My intention was to apply to reading to my own life.

Let's talk about class

Law and Inequality: Race, Gender…and, of Course, Class
By Carroll Seron and Frank Munger

Seron and Munger article picks up where Galanter left off in his discussion of law and society and the influence of class on legal proceedings. In fact, they even make reference to his piece on the ‘haves’ and ‘have-nots’ in order to establish the rift that exists between social classes. At the same time, they also utilize his rather ambiguous use of the word ‘haves’ in order to sum up a the lack of social theory defining and characterizing social class in the context of law, just as class hasn’t been entirely theorized or defined by social scientists. This is something that Seron and Munger feel is a problem.

Class, while often thought of as highly influential in the courtroom, has largely been unexplored in theory and explanations in terms of law and society. It is applied to social problems, but not necessarily developed in theories. This is an important point, considering the role of social scientists in evaluating problems at their root. How can you seek improvement or begin to offer solutions if you haven’t fully examined the issue and developed further rational thought?

As the authors note in the conclusion, “Research without a structural concept of class impoverishes our understanding of law and inequality.” How do we study class? Do we understand class in the greater scope of the world and how it impacts society’s encounters with the law?

It seems almost funny that class has been so overlooked by social theorists, because, at least in my mind, its impact on a number of issues is largely unmatched by anything but race or gender. I suppose it’s not necessarily that it’s been overlooked but a more concrete understanding of depth of the role that it plays has yet to be developed. Class structure is incredibly complex, and as Seron and Munger point out, many of our terms used to describe class are ambiguous when applied to certain groups, especially in today’s society as class lines become more and more blurred, at least in terms of the middle class.

What exactly is a middle class American? I am from New Hampshire, and based on my family’s income level and the luxuries we are able to afford, I would classify my family as middle class. However, my roommate from Long Island also classifies himself as middle class. I have been to his home. I have seen his lifestyle. He will graduate without any student loans, while my accumulated total will significantly higher. Clearly, our understandings of middle-class are different, and I think this sort of exemplifies the problem within our current modes of thinking. They are outdated, they are somewhat obscure, and our understanding of class needs to be remolded before we can accurately address it as an issue.

To have or have not...

Why The ‘Haves’ Come Out Ahead:

Speculation on the Limits of Legal Change
Marc Galanter

In his piece “Why The ‘Haves’ Come Out Ahead, Galanter take s a comprehensive look at how power is distributed throughout our legal system, as well as the various roles and players that contribute to and hold onto that power. What he finds is that there is indeed a great rift between those of varying classes and their specific dealings with the law. While not all OSs are necessarily comprised of the lower class, nor are RPs all necessarily wealthy and powerful (though likely they do have access to significant resources), there is certainly a class division between them that has a great impact on their dealings with the law, at least as far as clients are concerned.

It is a division that many of us are largely aware of, but one that still catches my eye as Galanter investigates the extent to which it affects the legal process, and, of course, that difference is constituted by one’s wealth and power. It seems stereotypical in nature based on our understandings of the court, but in many cases it seems to remain true.

On page 117, Galanter cites the research of Carlin and Howard, who found that the types of cases brought forth by poorer clients (which seem to be more typical of OSs in Galanter’s view) are generally handled in mass quantities, and that due to low fees and a low payoff, “only a limited amount of time and interest is expended on any one case – there is little or no incentive to treat it except as an isolated piece of legal business.”

In effect, we see that the efforts of most OSs to pursue their individual views of justice are severely limited by their resources, their knowledge of the law, and the power that they bring with them to the courtroom. All of these, in turn, are largely influenced by their class level in society, which determines the extent of their wealth, education and influence. The RP clients, on the other hand, have much greater capabilities in the courtroom, as it is an experience that they are familiar with, the have the economic capital to fund their endeavors, and in general prove to be powerful individuals, or are representing powerful entities.

The extent of this rift between the lower and upper classes in the courtroom has led to great inequality in the pursuit of justice. In most OS pursuits, cases are usually settled before ever going to trial, and long before the trial would normally end had it been seen the whole way through. Take for example, plea bargaining.

This is a tactic largely used in criminal court to expedite cases that court-appointed attorneys don’t have the time or resources to argue, nor do their clients in most cases. This is not to say that plea bargains are only offer to lower-class OSs, but that they are disproportionately involved in the outcome of their cases. Is that justice? In most cases, no. It’s really a method of curtailing the legal system, of avoiding the entire judicial process by accepting some level of guilt, even if that punishment doesn’t entirely it the crime. Where’s the due process? Where’s the right to defend oneself?

This is a direct result of the construction of the legal system, as well as the players that take part in it. As the ‘have nots’, the lower class are indeed treated to a different style of justice than those with resources and power. This is nothing new, and it will likely take time to change. In order for that change to take place, Galanter concludes that 4 major changes need to take place: a chance in rules, institutional facilities must be improved, legal services must be improved and expanded, and the position of ‘have not’ parties must also be improved.

These guidelines, while still a little vague in nature, provide the foundation for which change must occur. All of this change largely affects the lower class, the OSs, the ‘have nots’, because they are the ones most negatively affected by then current judicial system, as we have currently seen. The justice system is indeed in large need of reform, and it is in fact long overdue. But of course that takes time, and that is something that we have… or have not?