The courts rarely use such a low bar. The test is usually the reasonable person or “the man on the street.” Does a reasonable person find them inflammatory?
I see the role of the arbitrator a little differently here: the workplace definition is geared for an employee who posts inflammatory things and then hides behind the “just kidding, you uppity types have no sense of humor” with a wink. They tried to use it on a comedian and got slapped down-independent of whether he was funny, he was foremost a comedian, not just an asshole hiding behind the defense that a reasonable person understands his trolling post-hoc attempt at comedy.
Yeah but the classic lawyer joke in response is, “have you ever met a reasonable person?” More often the “reasonable person” is the judge plus half a degree of leeway.
The "reasonable person" from law is not an average or typical person. It's an idealized person who doesn't change very much over time because the concept is rooted in common law. The average or typical person can change dramatically as social norms and movements go, but common law moves very slowly by accumulation of precedent.
I think that’s his point: the legal fiction goes back to Roman law and is specifically invariant when used for questions of constitutional equality or egalitarianism.
IMO, human nature has not changed, culture at large has not radically shifted, and the world is not coming to an end. This is just wide-tie/skinny-tie stuff.
But many people have said essentially the same thing, over the course of many years. I think there’s a moment for each of us when we realize that our worldview isn’t substantially similar to that of others anymore, especially younger people.
Personal experience is useful. All kinds of groups were mistreated, historically speaking. If we keep pulling up old grievances, society remains perpetually divided. How many lynchings did you witness yourself? Or hear from first-hand witnesses?
I think you have a point, and I have often felt the same way. However, it gets very murky when deciding where the line of "currently relevant" gets drawn versus what is just "historical". There are so many factors, including whether or not it feels that an injustice was ever addressed in a meaningful way by a population that continues to identify with and evangelize the perpetrators of that injustice.
How many firings for presumed inflammatory conduct have you witnessed or hear from first-hand witnesses? Personally, I've been fortunate not to have experienced any of these, but I do believe they exist and reading about them is useful for informing my worldview. It's helpful to understand how corporations and institutions are ingesting and digesting societal trends around evolving cultural awareness of injustice in order to protect their commercial interests.
Very serious injustices have occurred within the recent past. Take, for example the 1985 MOVE Bombing, in which Philadelphia police bombed a house in a predominantly black neighborhood during an armed standoff with the MOVE group. Whether or not you feel the bombing of an armed group was a justified use of force by police, the subsequent 61 homes that were allowed to burn down are harder to justify. This was followed by the ethically fraught decision by the Philadelphia Health Commissioner to cremate/dispose of any human remains without contacting family members, with the ultimate result that those remains were used in UPenn and Princeton "forensic anthropology" courses without any chance for their families to reclaim their remains.
More recently, I personally witnessed Philadelphia police corral Black Lives Matter protesters into an enclosed space on the side of the highway with no exits and fire tear gas into the crowd. On the news, I watched a number of similar confrontations take place in multiple cities in the nation.
When inequality continues, I have come to appreciate that the ability to feel that a grievance is historical is a privilege. A significant motivation for people to turn to history is to better understand the struggles through which they are currently living. For these people, understanding the historical context is not a way to bring up old grievances, it is a lens through which they can properly understand how systematic disparities in due process and access have produced today's injustices. It is an aid to better identify how currently extant systems create unfair conditions at a large scale.
Very odd that people who want thicker skin in our culture would find it so distasteful that I've simply shared some recent history and some first-hand personal experience without any particular name calling or inflammatory remarks. Can't a person share their thoughts anymore? Really didn't mean to offend anybody and somewhat surprised that I have seemed to.
Nobody is privileged in absolute terms. Everybody has their own troubles. Groups (racial, social, whatever) are a useful abstraction, not a reality. And if anyone has to compensate anybody for anything, that's what the justice system is for.
I agree that nobody is privileged in absolute terms, and do not feel that your statement conflicts with anything I have written. We seem to also agree that abstractions can be useful, but perhaps disagree on whether or not the "realness" of a concept must necessarily be related to the capacity for that concept have effects on society and on real people that may be beneficial or harmful.
The justice system is ideally intended to provide fair and impartial justice, but I think it's also fair and reasonable to point out when it falls short of that ideal. In fact, in a democratic society, I would argue that an informed and vocal public is a necessary component of keeping institutions accountable to the people.
