March 24, 2017

How Do I Talk to My Neighbor? (Our Alternative Universes)

Law360 In-Depth

In Joan Silver's romantic comedy, "Crossing Delancey," Sam (Peter Riegert) struggles to cross a cultural divide within his broader community, fruitlessly pursuing his heart's desire while asking himself repetitively: How do I talk to Isabelle (Amy Irving)? As our country sinks ever deeper into divisiveness as foreboding as any since the Civil War, I am asking myself, how do I talk to my neighbor, who seems oblivious to or unperturbed by the daily onslaught of distortions, untruths and bullying by our president? I'm groping to connect with that neighbor, who thinks I'm hysterical, paranoid and a dupe, because my angst is over "fake news." How do we sustain constructive, civil discourse over the nation’s many challenges when we have such divergent understandings of what is real and what is not?

Here in Washington, D.C., nearly everyone I encounter in our "bubble" has been running around with their hair on fire since President Trump proclaimed that his poorly attended Inauguration was the largest in history and that he would have won the popular vote in a landslide, but for "millions" of votes cast illegally for Hillary Clinton — two "facts" unsupported by a single shred of evidence or state voting official. Sure, some are untroubled by his bombastic claims and dismiss the backlash to them as "just politics." But the current state of our politics is not a matter of competing political alliances or philosophies: the camps in our divided nation cannot even communicate with one another because they lack common beliefs in the truth. From my perspective, no one has done more to carve and deepen this perilous ravine in the nation’s body politic than Donald J. Trump.

We all have family and friends who live on "the other side" of our national rift; talking politics together is an exercise in futility. For some, Obama "destroyed" the country, betrayed American values and lied. For me, precisely the opposite is true: though I disagreed (sometimes strongly) with some of his policies, I admire Obama’s integrity and decency, and am horrified by Trump’s unprecedented denigration of our judiciary, intelligence community, free press, and constitutional values. Something more pernicious than political differences lies at the heart of the disturbing disconnect between us: the systematic destruction of the singular medium of civil political discourse — truth.

My undergraduate studies in American political history (at Brandeis, whose university motto was: "Truth unto its innermost parts") taught me what scholars had long elucidated: astride the finely balanced triumvirate of the executive, legislative and judicial branches of our government, a vibrant free press is essential to the preservation of our liberties and democracy — a fourth co-equal branch, essentially. As a staffer to a member of the House Judiciary Committee preparing articles of impeachment against Richard Nixon, I witnessed how investigative journalism brought down a powerful president by shining the bright light of truth on unlawful deeds and lies perpetrated at his behest by his subordinates. At Yale Law School, my classmates (including distinguished Justice Sonia Sotomayor) and I studied and debated the case law establishing the constitutional principles that safeguard the freedom of the press, the pursuit of truth and the axiom that "truth is a defense" (to allegedly harmful public statements).

We live now in a time when truth itself is besieged. The proliferation of cable news stations, bloggers and other purveyors of "information" (once called "facts") has overwhelmed many folks’ ability to assimilate the full range of perspectives and sort the insightful from the inane, the harsh glare of reality from wholly concocted baloney. Worse still, our nation has over a period of years tumbled down separate sides of a gaping fracture in our political and social culture. We seem to operate from truly alternative universes.

When the President of the United States alleges with seriousness that "the media is the enemy of the American people," how can I talk to my neighbor who believes that nonsense? When his top aides dispute undeniable facts by pointing to "alternative facts," as if an alternative to the facts (heretofore known as fiction) is itself a fact, how can I talk to my neighbor who embraces alternative facts when the real facts do not fit their preferred narrative? When a man campaigns for president by promising to ban Muslims from immigrating to our country and then insists that his ban on immigration from seven predominantly Muslim countries has nothing to do with their religion (which, inconveniently, would violate the Constitution of the United States he took an oath to uphold), and millions of Americans either accept or don't care about such cynical chicanery, how do I talk to those neighbors? And when our president protests that any criticism of his nominations, political agenda, bizarre tweets, erratic actions or baseless claims constitutes "false news" or "fake news" — whether it's from the New York Times, the Wall Street Journal, CBS, ABC, NBC or CNN, upon whom generations of Americans of every political stripe have depended for the news, i.e., the truth about what is happening in our world — and some neighbors fall for that, how do I communicate with them?

Trump's presidency has re-ignited my social and political consciousness. I am determined not to vacate the field to those bent on undermining America's trust in the fourth branch of our democracy — a vibrant, free press composed of journalists, not sycophants or propagandists. We must seek, elevate and celebrate truth above opinion or political gain. We must begin to talk to one another about truths, across the divide that separates alternative universes; and we must do it now.

Neighbor: please speak; I promise to listen. Will you?


Les Sotsky is a senior partner at Arnold & Porter Kaye Scholer LLP, where he chaired the firm's environmental practice group from 2006 through 2015. Based in Washington, D.C., he is a broadly experienced environmental litigator, specializing in toxic tort, hazardous waste, Clean Water Act, and chemical exposure matters, as well as crisis management and risk mitigation.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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