This post is sure to be the final stake for Bannergate. I’m going to compare it to securities law.
Reactions to Bannergate have varied. A common apologetic stance is that there is no objective harm done. Any reasonable or objective reader would or should have caught on to the hoax. Claims of harm must be based on unreasonableness.
This argument is familiar to the securities lawyer. Similar arguments play out in securities briefs every day. A company makes a statement that turns out to be false, and number of shareholders file suit. In order to prevail, the shareholders must show that the false statement was material. If it’s not material — i.e., if it doesn’t really matter — then there is no liability. As a result, a good deal of litigation focuses on whether a false statement is material. There are known carve-outs. Obvious puffery (“our company is great”) is not material. Forward looking statements (“we hope to do X”) is often not material.
Banner apologists sometimes invoke similar reasoning, suggesting that objective readers knew or should have known that Banner was fake.
The materiality standard has been criticized. Recently, my friend and co-author Dave Hoffman wrote a great article on the topic. Dave’s argument (hopelessly condensed into a few sentences) is that the materiality standard as applied by courts is too demanding on shareholders. Shareholders are expected to act like pure economic profit-maximizing machines; any deviation makes their decisions look unreasonable and subjects their claims to dismissal. Dave severely criticizes what he sees as a de facto rule requiring that shareholders act as profit-maximizing robots or risk losing the protection of securities laws. His argument is, in effect, that irrational people — or not-perfectly-rational people — deserve protection too.
Our approach to Bannergate may depend on our view regarding this very question. Do irrational people deserve protection too? Yes, there were many indicators that should probably have raised suspicions for our rational, objective, “reasonable man” blog reader. But others, like Julie, seem to feel strongly that irrational people deserve protection too.
I find Julie’s position sympathetic, and not only because it corresponds to a vision of securities law that I like. I think Julie is right to demand protection for irrational people, precisely because there is so much about our relationship with God that is, at its core, irrational. Our faith depends on still small voices, burnings in the bosom, talks or prayers or thoughts that somehow confirms to us that God exists, that He loves us, that the church is true and correct, that families can be together forever. Testimonies rise and fall based on the silliest of little things. Take a look at Julie’s conversion thread. Julie’s own testimony comes in part from Owen Meany. A dozen conversion stories in the comments are no more objectively rational. And yet they are real. Is it equally possible that someone’s testimony is, however rationally, linked to the bloggernacle? I don’t base my own testimony on the bloggernacle. But my own entirely subjective foundations are not really much more rational or objective than simply basing it all on a blog.
Testimonies rise and fall based on small and often irrational factors. Those factors might — and apparently for some commenter, do — include blogs. This means that our responsibilty goes beyond merely protecting rational or objective blog readers. The less-than-perfectly-rational blog reader deserves protection too.