The Fallacy of the Empathic Fallacy: Unpacking 'Nope'


In a recent article published on NPR's race and identity site, Code Switch, University of Wisconsin professor David Shih outlined the problems and limitations of free speech protections on university campuses. Ultimately, Shih's complaint rests on the historically grounded and still fully-present 'asymmetry of power', something that regularly goes unrecognized by those who champion the so-called 'marketplace of ideas' as the best remedy to racist speech.

In his closing, Shih summarizes his view this way:

Powerful interests will find their way around the First Amendment to protect the status quo against antiracist protest. Asking student protesters to tolerate racist hate speech is to ask them to trust in free speech laws that have historically exempted the powerful and punished the vulnerable. When it comes to racism, the "marketplace of ideas" is not laissez-faire and never was.

As a diagnosis, it seems to me that Shih's article is, for the most part, clinical in its compass and claims. Anyone who would deny both the long American history of the oppression of people of color (and women) and the concomitant ineffectiveness of free speech alone to triumph over that tradition of oppression is simply not seeing things clearly. That much is beyond debate.

However, I would suggest that Shih, despite his clarity on the matter of power imbalance and its perpetuation by those having more of it, deeply misunderstands the role of empathy in addressing such enduring social ills.

What does empathy have to do with it? Well, in his article, Shih grounds the faulty metaphor of 'the marketplace of ideas' in something called 'the empathic fallacy'. This term, as he notes, was invented by the critical race theorists Richard Delgado and Jean Stefancic in a 1992 Cornell Law Review article. The authors define their neologism in this way:

[…] the empathic fallacy, consists of believing that we can enlarge our sympathies through linguistic means alone. By exposing ourselves to ennobling narratives, we broaden our experience, deepen our empathy, and achieve new levels of sensitivity and fellow-feeling. We can, in short, think, talk, read, and write our way out of bigotry and narrow-mindedness, out of our limitations of experience and perspective. As we illustrate, however, we can do this only to a very limited extent (1261).

Delgado and Stefancic certainly have a point when they say that thinking, talking, reading, and writing about the problem of racism will not necessarily give rise, as sunshine after a hard rain, to a rainbow coalition of mutually empathetic citizens, joyfully spreading their all-embracing arc over a once dark and fragmented American landscape.

But is it really fair to equate such a fallacious notion with the limitations of human empathy? From where I stand, the answer is 'no'.

Yet I suggest that the problem is bigger than a question of fairness; it is actually an issue of accuracy. All three authors (Shih, Delgado, and Stefancic), I claim, go wrong in their argument against the 'empathic fallacy' precisely because they don't seem to understand what empathy actually is.

They generally conflate 'ideas' with 'sympathies', and then go on to reduce empathy to an impassioned form of argumentation rather than what it truly represents – the ability to imaginatively identify with and share the emotional state and perspective of another human being (or animal, for that matter).

In an important sense, empathy is non-linguistically or even pre-linguistically rooted. It quite often arises precisely when one perceives what is not being spoken or otherwise 'linguistically' expressed. So to argue against empathy because it rests on 'linguistic means alone' is simply confused.

Such confusion is made explicit when, for example, Delgado and Stefancic's assert that “The empathic fallacy holds that through speech and remonstrance we can surmount our limitations of time, place and culture, can transcend our own situatedness” (1281).

The phrase 'speech and remonstrance', which suggests pleading, reasoned argumentation, is indicative of their (mistaken) belief that empathy is simply rhetoric that happens also to be deeply felt.

Shih, too, evidences confusion about empathy when he says that “[...] the empathic fallacy leads us to believe that "good" speech begets racial justice and that we will be able to tell the difference between it and racist hate speech because we are distanced, objective arbiters.”

Once again, the suggestion that empathy relies on impartial and dispassionate 'arbitration' betrays Shih's blindness to the fact that empathy has nothing to do with balancing the pros and cons of an argument; instead, it has everything to do with inter-subjective identification and psychological 'resonance' with another.

I hate to be the bearer of bad news, but given these glaring oversights, it would appear that the 'empathic fallacy' seems itself to be wholly dependent on an unrecognized fallacy of its own – what you might call the 'fallacy of the empathic fallacy'.

Of course, one might rightfully argue about the limitations of human empathy, but certainly not about the existence of human empathy itself. And those arguments would in any case hinge on the limitations in individual imagination and psychological openness and not, as our authors seem to suggest, in the utter unavailability of an objective, trans-historical, trans-cultural point from which clear-eyed judgments about cultural issues might be securely made.

In fact, it is this very notion, what Delgado and Stefancic call our inescapable “situatedness,” that, I suggest, is causing all the problems. Whether they realize it or not, it is their own ability to escape their 'situatedness' that has made it possible for Shih, Delgado, and Stefancic to be inspired enough to speak out in support of the oppressed and underprivileged.

After all, if each of us were entirely hemmed in by “our limitations of time, place and culture,” then how would it be possible to make any claims regarding the suffering of others? How could we possibly know that they are in fact suffering and not instead just making it up to gain some advantage? The work of these authors, in other words, requires empathy rather than refutes it.

So, you might ask, how could these well-educated authors overlook such seemingly obvious contradictions? I suggest that it is because they subscribe to the social-constructionist theory of human psychology.

Social Constructionism

Consider for a moment the claim of Delgado and Stefancic that those who believe in the empathic fallacy think that “linguistic means alone” and exposure to “ennobling narratives” are sufficient to broaden one's sympathies.

What, I ask, exactly does 'exposure' mean here? Is 'exposure' a one-size-fits-all term? And does it also assume that all those who are being 'linguistically exposed' to these ennobling narratives come to that exposure with identical predispositions and expectations? The (unanswered) questions mystify and multiply.

But don't expect any help from Delgado and Stefancic who, as noted above, openly acknowledge their belief in the social constructionist theory of human psychology. As they say in their article, this theory claims that

In an important sense, we are our current stock of narratives, and they us. We subscribe to a stock of explanatory scripts, plots, narratives, and understandings that enable us to make sense of - to construct - our social world. Because we then live in that world, it begins to shape and determine us, who we are, what we see, how we select, reject, interpret and order subsequent reality (1258).

In other words, social constructionists believe that the cultural narratives into which we are born play the most significant role in deciding and determining both our individual identities as well as the ways in which we understand and then recapitulate the stories of the dominant culture, in this case those that outline and justify the status of non-whites and/or non-white males.

No sooner are we helpless, puny, 'blank slate' infants born when, almost immediately, the narratives of the culture become indelibly inscribed on our psyches. Ours is a decidedly (and sadly?) passive condition. By the time we are old enough to realize the depth of this conditioning, it is too late to make any real, substantial changes in that culturally imposed 'autobiography' and the best we can do, as Delgado and Stefancic point out, is to accept and (attempt to) clarify the boundaries of our 'situatedness'.

Bummer. No wonder they don't hold out much hope for empathy (insofar as they [mis]understand it) – being able to make the imaginative and emotional leap that empathy requires is a near impossibility in the social constructionist view of human psychology.

In that scheme, we barely grasp the uncanniness of our own selves, composed as they are of a swirl of interpenetrating, though stock, cultural narratives; so any suggestion that we could truly, or even remotely, identify with or understand another is (or would be) indeed hubris, as Delgado and Stefancic suggest.

How can we “somehow control our consciousness despite limitations of time and positionality” (1261), especially when there is no stable 'self' anywhere to exercise that control? And furthermore, how can “we can be more than we are” (1281) when we don't even really know who we are to begin with? For Shih, Delgado, and Stefancic, the answer is that we can't and shouldn't even try.

What should we do, then, especially in regards to the problem of racism? As far as I can tell, Shih offers no suggestions outside of various forms of 'negative action' – resist; censor or disallow racist hate speech; 'raise awareness'; 'wake the fuck up', maybe; revolution? … I don't know. It's unclear.

Delgado and Stefancic, on the other hand, are quite direct in expressing their views on possible remedial measures. They begin, admirably, by saying, “What can be done? One possibility we must take seriously is that nothing can be done - that race and perhaps sex-based subjugation, is so deeply embedded in our society, so useful for the powerful, that nothing can dislodge it” (1288-89).

This does not mean, however, that they are defeatists. They also offer a four-point approach to racial reform, all of which seem uncontroversial (1289-91). If nothing else, the realism of Delgado and Stefancic is a welcome corrective to what I see as the errors in both their understanding of human psychology and their confusion around empathy.

In any case, ignoring the demonstrably false presuppositions of the social constructionist view (modern genetics, anyone?), I would like to conclude by instead taking its claims at face value and issuing a simple challenge, or question, to those who subscribe to it (I am including here Shih, Delgado, and Stefancic):

'If you are as committed to the constructionist foregrounding of 'situatedness' and the importance of coming to terms with the notion “that our ability to escape the confines of our own preconceptions is quite limited,” (1281) then are you likewise committed to recognizing the situatedness of all others, including those overt racists and free speech-defending liberals with whom you find so much to criticize?'

In other words, does a thorough appreciation of the inescapable situatedness of everyone in our shared society have any edifying and magnanimous consequences, or is it merely a way of justifying one's position on 'the right side of history'?

Let me be clear: I am not asking whether or not we should 'tolerate intolerance', because that implies passivity and acceptance; rather, I am asking what the 'point' of social constructionist theory is if it offers only a 'very limited' possibility of seeing the world through the eyes of another.

It seems to me that when you combine the ineffectiveness of the 'marketplace of ideas' and the underlying 'fact' of social constructionism as determinant and driver of all-embracing and utterly inescapable individual situatedness, our authors have painted themselves into a intellectual and rhetorical corner. But, I would argue, if they could just get straight on the question of empathy then paths of escape would open all around.


In the absence of that event, it is no wonder that those who take this kind of stance, which is necessarily a defensive one (back against the wall, and all), are often given to defending their position with the sharp and emasculating rejoinder, 'Nope'.

'Nope' is like a dagger directed precisely at the 'heart' of the 'attacker'. It suggests utter finality. It is meant to kill. An emphatic 'No', 'Nope' says, “I reject everything that you are presenting to me, and furthermore find it (and possibly you) repugnant. Please stop talking.”

'Nope' is decidedly unempathetic. It not only acknowledges 'situatedness', but also clings to it, Golem- like. 'Nope' is an attempt to (re)gain power and control through asserting authority. “I have spoken,” it says, “Hear my words!” Nobody wins when 'Nope' enters the conversation.

'Yup', on the other hand, dissolves barriers. It says, “I understand and can relate to the feelings and experiences that inform your words and actions.” 'Yup' doesn't want authority; it wants community. 'Yup' is empathetic. 'Yup' is our only hope.

This is not a fallacy.

Works Cited

Richard Delgado and Jean Stefancic, Images of the Outsider in American Law and Culture: Can Free Expression Remedy Systemic Social Ills, 77 Cornell L. Rev. 1258 (1992).

Shih, David. "Hate Speech and the Misnomer of the 'Marketplace of Ideas'." Code Switch, NPR.  Web. May 3, 2017.