During my first year of law school, my civil procedure professor made the offhand remark that “once upon a time, people could be shamed into acting appropriately, but this is no longer the case.” Underlying the professor’s remark was the conclusion that manners were once, but are no longer, viewed as a social asset. And the professor’s remark was meant to identify an awkward disconnect between what the rule of law assumed and expected during social interaction.

What at the time seemed like a mere nostalgic reflection about how much more decent were the old days, this remark now yields explanatory value for the 2016 presidential campaign. Specifically, it explains the awkward disconnect between what the First Amendment assumes and expects from American democracy.

{mosads}On August 25, Univision’s Jorge Ramos’ made an attempt to hijack Donald Trump’s (R) speech in Iowa. On July 18, #BlackLivesMatter successfully hijacked Sen. Bernie Sanders’s (I) speech in Seattle. Both of these bold impositions were undertaken with a confidence undeterred by the recourse of shame.

What is meant by shame is the remorseful feeling accompanying foolish behavior. And what is meant by foolish behavior is disrespectful, uncivil, and/or mannerless social interaction. Foolish behavior has no business in civil discourse because it is counterproductive and domineering. Without the backstop of shame as a deterrent, we wind up with speeches from Trump and Sanders being forcefully surrendered to hooligans.

In the case of Sanders’ speech, a group of #BlackLivesMatter operatives bum-rushed Sanders’ stage within seconds of beginning his speech. They threatened the stage coordinator, and said “If you do not listen to her, your event will be shut down right now…make a decision!” The stage coordinator tried to block the microphone from them, pleading “we’re trying to be reasonable.” But the operatives, undeterred, elbowed their way onto center stage, and let out a series of hysterical shrieks: “We’re not reasonable!”

In the case of Trump’s speech, Univision’s Ramos stood up and began asking his questions during another questioner’s turn to talk. Undeterred by the civil rules of the answer-question format, he did everything he could before being kicked out to talk over the other questioner and Trump. It would appear as though Ramos believed that wanting to be heard while being Latino gave him a license to impose his will on Trump and every spectator. 

Now imagine if all adults behaved like this any time they wanted something. There would be no meaningful difference between the civil discourse of children and adults, and what we would be left with is barbarism. Therefore, it’s worth remembering that adhering to manners, exercising civility, and/or showing respect once guided our law’s assumption of good will as a working hypothesis in its adjudicatory expectations.

As for the awkward disconnect between the assumptions and expectations of the law, consider the following: on private property, a heckler can be excluded (i.e. removed) for violating the property holder’s rules. Under contract, a heckler can be financially penalized for violating the terms of a speech provision. Under the rule of law, a heckler can be criminally penalized for violating the dictates of the speech law. 

Unencumbered by manners, civility, and respect, the current approach to civil discourse views presidential candidates as professional athletes contractually bound to answer questions after a game; the fact that a presidential candidate is present renders the speaking forum public property; the fact that the speaker is a presidential candidate absolves hooligans of their malicious behavior.

The Trump and Sanders examples show how disruptive the lack of shame as a deterrent is to civil discourse. The cause of the diminution of shame is beyond the scope of this writing. But manners, respect, and civility are the preconditions to civil discourse, and American democracy would benefit if these were reestablished as social assets.

Jones is an attorney licensed in Texas and a graduate of Emory University School of Law.