Why Not Thought Crime?

I was alarmed to find a quotation supporting child rapists falsely attributed to me & going viral on Twitter. … messages shaming me for supporting child rapists. … I tweeted a clarification about the falsehood to no avail. (more)

Galileo’s Middle Finger is one American’s eye-opening story of life in the trenches of scientific controversy. … Dreger began to realize how some fellow progressive activists were employing lies and personal attacks to silence scientists whose data revealed uncomfortable truths about humans. In researching one such case, Dreger suddenly became the target of just these kinds of attacks. (more)

In 1837 Abraham Lincoln wrote about lynching and “the increasing disregard for law which pervades the country—the growing disposition to substitute the wild and furious passions in lieu of the sober judgment of courts, and the worse than savage mobs for the executive ministers of justice”. (more)

For a million years, humans lived under mob rule. We gossiped about rule violations, and then implemented any verdicts as a mob. Mob rule worked well enough in forager bands of population 20-50, but less well in farming era village areas of population 300-3000, and they work even worse today. Instead of a single unified conversation around a campfire, where everyone could be heard, larger mob conversations fragment into many separated smaller conversations. As the accused doesn’t have time or access to defend themselves in these many discussions, most in the mob only hear other voices. So mob rule comes down to whether most others are inclined to speak well or ill of the accused. And, alas, for an accused that many don’t like, mob members are often more eager to display personal outrage at anyone who might do what was accused, than they are to determine if the accused was actually guilty.

And so we developed law. When someone was accused of a violation, a legal authority authorized an open debate between the accused and a focal accuser. While such debates had many flaws, they had the great virtue of giving substantial and roughly equal time to an accuser and the accused. Where a mob might accept false accusations and false claims of innocence because they are not willing to listen to long detailed explanations, law listens more, and thus can eliminate many mistaken conclusions. Today, when an official prosecutor is assigned the task of convicting as many criminals as possible, the fact that this prosecutor declines to prosecute a particular accusation is often reasonably taken as exoneration.

However, we still use mob rule today for people accused of things that are widely socially disapproved, but not illegal. While the mob’s verdict is not enforced directly via law, punishments can still be severe, such as loss of jobs and friends, and even illicit violence. Which raises the obvious question: why not make mob-disapproved behaviors illegal, so that law can overcome the problem of error-prone fragmented mob conversations? If the official legal punishment were set to be comparable to what would have been the mob punishment, isn’t it a net win to use a more accurate process of determining guilt?

You might think that mobs shouldn’t be censuring so many things, but unless you are willing to more actively discourage such mobs, the real choice may be between mob and legal adjudication. Legal adjudication of an accusation does seem to cut the eagerness for mob rule on it, even if this doesn’t always eliminate mob activity. You might say that law has costs, and so should be reserved for big enough harms. But obviously mobs think these acts are big enough to bother to organize to censure them. The cost of making mobs seems at least comparable to the cost of using law. You might note that accusations are often hard to prove, but we make many things illegal that are hard to prove. If law can’t prove an accusation well enough to declare guilt, why trust an even more error-prone mob process to determine guilt? If you think that the errors of mobs declaring guilt are tolerable even when the law refuses to declare guilt, then you think law demands overly strong proofs. If so, we should change legal standards of proof to fix that.

It makes more sense to use mobs when society is honestly split into groups that differ on which acts should be approved or disapproved. For example, if one big group thinks people should be praised for promoting economic growth, while another similar sized group thinks people should be censured for promoting economic growth, then we may not want our legal system to take a side in this dispute. But mob rule today often censures people for things of which almost everyone disapproves. Like strong racism or sexism, or promoting rape. If over 99 percent of citizens disapprove of some behavior, maybe it is time to introduce official legal sanctions against that behavior.

At least twice in my life I’ve been subject to substantial mob rule censure. Fifteen years ago my DARPA-funded project was publicly accused by two senators of encouraging people to bet on the deaths of allies; the next morning the Secretary of Defense announced before Congress that my project was cancelled. In the last month, I was accused of promoting rape, and widely censured for that, receiving many hostile messages and threats, and having people and groups cut off public association with me.

In both cases I’m confident that law-like debate would have exonerated me. My DARPA-funded project, Policy Analysis Market, was going to have bets on geopolitical instability in the Mideast, not terror attacks. (Over 500 media articles mentioned the project in the coming years, and articles that knew more liked it more.) And recently I asked why there is so little overlap between those who seek more income and sex redistribution. I didn’t advocate either one, and “redistribute” just mean “change the distribution” (look it up in any dictionary); there are as many ways to change the distribution of sex without rape as there are to change the distribution of income without using guillotines like in the French revolution. (Eight years ago I also compared another bad thing to rape, to say how bad that other thing might be, not to say rape is good.)

I would personally have been better off had these things been thought crimes, as I could have then more effectively defended myself against false accusations. And I’ve learned of many other cases of mob rule punishing people based on false accusations. So I am led to wonder: why not thought crime? It might not be the best of all possible worlds, but couldn’t it be better than the mob rule we now use?

Added 7a: When mobs have mattered, the choice has often been between sufficiently suppressing them or creating laws that substitute for what they would have done. See some history.