Category: reason

Blue June Glooms On

I have now finished reading June Medical Services and Seila Law. Collectively, they total 243 pages! Both cases are now edited for the Barnett/Blackman supplement–down to 26 pages each. It took me all day. If you’d like a copy, please e-mail me: josh-at-josh-blackman-dot-com.

Last week I predicted that Roberts would write June Medical and Breyer would write Seila Law. I whiffed on Seila. I mostly got June Medical correct.

June Medical split 4-1-4. By my reading, Roberts’s opinion is the most narrow. But putting asides the nuances of the confounding Mark Rule, the writing is on the wall for the future of Whole Woman’s Health. Justice Kavanaugh offered a helpful count in his dissent:

Today, five Members of the Court reject the Whole Woman’s Health cost-benefit standard. Ante (ROBERTS, C. J., concurring in judgment); ante (THOMAS, J., dissenting); ante (ALITO, J., joined by THOMAS, GORSUCH, and KAVANAUGH, JJ., dissenting); ante (GORSUCH, J., dissenting). A different five Members of the Court conclude that Louisiana’s admitting-privileges law is unconstitutional because it “would restrict women’s access to abortion to the same degree as” the Texas law in Whole Woman’s Health. Ante (opinion of ROBERTS, C. J.); see also ante (opinion of BREYER, J., joined by GINSBURG, SOTOMAYOR, and KAGAN, JJ.).

Going forward, there are five votes to limit the Court’s abortion framework to consider a a law’s burdens, without weighing the law’s benefits.  The Chief has effectively overruled Whole Woman’s Health to the extent it departs from Casey. The Court didn’t swing to the left; at most, he feinted for the day.

Of course, who knows what the next abortion case will bring? Maybe the Chief’s game of “87‐​dimensional chess” will finally yield a checkmate.

Speaking of the proverbial “long game,” Roberts largely viewed Seila Law as a continuation of Free Enterprise Fund v. PCAOB (2010). That case was decided a decade ago–the same period of time that elapsed between Meyer and Humphrey’s Executor. Yet, Roberts described that decade-old case as being decided “recently.” That simple descriptor reveals the glacial pace with which Roberts views the law. Ten years is a blip. After all we are now twelve years from Heller. Still waiting.

On that note, Justice Thomas had a delightful footnote in June Medical about the Court’s Second Amendment jurisprudence:

Today, the plurality reaffirms our precedent allowing beer vendors to assert the Fourteenth Amendment rights of their potential customers. Ante (citing Craig v. Boren (1976)). But it is fair to wonder whether gun vendors could expect to receive the same privilege if they seek to vindicate the Second Amendment rights of their customers. Given this Court’s ad hoc approach to third-party standing and its tendency to treat the Second Amendment as a second-class right, their time would be better spent waiting for Godot.

I will have much more to say about these two cases. For now, Blue June rolls on. And we will see another batch of decisions in about 8 hours.

from Latest – Reason.com https://ift.tt/38dQiml
via IFTTT

When Can You Threaten Deadly Force as a Defensive Tactic?

This question is in the news because of the St. Louis controversy (see, e.g., here and here); but I thought I’d discuss it more broadly, because the answer is surprisingly unsettled.

[1.] To begin with, recall that, as a general matter, you can lawfully use deadly force to prevent death, serious bodily injury, kidnapping, or rape, if you reasonably fear such harm. In about half the states, you can use it to prevent robbery (forcible theft from your person). And in some states, you can use it to prevent arson (even arson that doesn’t threaten death or serious bodily injury, such as arson of some outbuilding) or burglary of your home or possibly even your business or workplace.

But you generally can’t use it if all you reasonably fear is mere trespass on your open land (e.g., your lawn) or minor vandalism or even a physical battery short of serious bodily injury. You can use nondeadly force to stop such lesser harms, but not deadly force. For more details, see this post, but let’s rely on this (admittedly oversimplified rule) for now.

[2.] If you can lawfully use deadly force, then you can lawfully threaten deadly force, e.g., by pointing a gun at someone or saying “get out of here, or I’ll shoot you.” So if, for instance, you tell a trespasser that they’re trespassing (or even threaten nondeadly force to tell them to stop trespassing), and they turn on you and credibly threaten to kill you (the St. Louis man’s story), then you can generally use deadly force to protect against that threat.

[3.] If you can’t lawfully use any force (for instance, against people who aren’t trespassing but are merely peacefully protesting on a public sidewalk, even in front of your house), then you can’t lawfully threaten deadly force, either.

[4.] But say that protesters are trespassing, so you’re allowed to use nondeadly force to eject them: Perhaps they are on your driveway or your lawn. I don’t know the Missouri law on whether residents of a gated community where the roads and sidewalks are private may use nondeadly force to eject trespassers, so let’s turn to the clearer case where they are on your own property, or are threatening to damage your property in a fairly minor way (as opposed to, say, through arson or some other especially harmful action).

Can you threaten deadly force even when you can’t lawfully use it? On that, states disagree. The LaFave & Scott Criminal Law treatise tells us that “merely to threaten death or serious bodily harm, without any intention to carry out the threat, is not to use deadly force, so that one may be justified in pointing a gun at his attacker when he would not be justified pulling the trigger.” Likewise, Black’s Law Dictionary defines “nondeadly force” to include a “threat of deadly force, such as displaying a knife.” (See this post on the Siwatu-Salama Ra case from Michigan.) That seems to be the majority view.

But it’s not the view everywhere, and in particular not in Missouri, see State v. Kendrick (Mo. Ct. App. 2018):

Kendrick was accused of “knowingly exhibit[ing], in the presence of one or more persons a .45 Caliber pistol, a weapon readily capable of lethal use, in an angry or threatening manner.” “The Missouri Supreme Court has held that unlawful use of a weapon by exhibiting it in an angry or threatening manner constitutes ‘deadly force’ for the purpose of … justification defenses.” State v. Cummings (Mo. Ct. App. 2017) (citing State v. Parkhurst (Mo. 1992)). Thus, the … statutory elements that must have been established by substantial evidence in order for Kendrick to inject the issue of self-defense in this case are [in relevant part -EV]:

[a] that Kendrick … reasonably believed physical force was necessary to defend himself from what he reasonably believed to be the use or imminent use of unlawful force of another (section 563.031.1);

[b] that Kendrick reasonably believed deadly force—that is “‘physical force which is used with the purpose of causing or which a person knows to create a substantial risk of causing death or serious physical injury'”—was necessary to protect himself against death, serious physical injury, or {“any felony involving the use or threat of physical force or violence against any individual, including but not limited to murder, robbery, burglary, arson, kidnapping, assault, and any forcible sexual offense”}, or was necessary to use against a person who had unlawfully entered, attempted entry, or remained after unlawful entry into his residence (section 563.031.2(2), (3)); ….

The evidence, viewed in the light most favorable to Kendrick, established that Williams was unarmed, raised his voice, and pushed Kendrick three times before Kendrick retrieved a handgun. Thus, Kendrick “‘introduced a deadly instrument into what had been, at most, a simple battery and significantly raised the level of violence.'” “‘[D]eadly force [including, in Missouri, the threat of deadly force -EV] cannot be used to repel a simple assault and battery.'” Instead, “[d]eadly force is only justifiable when the defendant reasonably believes that such deadly force is necessary to protect himself from death, serious physical injury, or any forcible felony.” Here, the evidence established, at most, that Williams committed a simple assault and battery against Kendrick. There was no evidence that Kendrick reasonably believed deadly force was necessary to protect himself against death, serious physical injury, or any forcible felony.

from Latest – Reason.com https://ift.tt/2NCXM92
via IFTTT

When Can You Threaten Deadly Force as a Defensive Tactic?

This question is in the news because of the St. Louis controversy (see, e.g., here and here); but I thought I’d discuss it more broadly, because the answer is surprisingly unsettled.

[1.] To begin with, recall that, as a general matter, you can lawfully use deadly force to prevent death, serious bodily injury, kidnapping, or rape, if you reasonably fear such harm. In about half the states, you can use it to prevent robbery (forcible theft from your person). And in some states, you can use it to prevent arson (even arson that doesn’t threaten death or serious bodily injury, such as arson of some outbuilding) or burglary of your home or possibly even your business or workplace.

But you generally can’t use it if all you reasonably fear is mere trespass on your open land (e.g., your lawn) or minor vandalism or even a physical battery short of serious bodily injury. You can use nondeadly force to stop such lesser harms, but not deadly force. For more details, see this post, but let’s rely on this (admittedly oversimplified rule) for now.

[2.] If you can lawfully use deadly force, then you can lawfully threaten deadly force, e.g., by pointing a gun at someone or saying “get out of here, or I’ll shoot you.” So if, for instance, you tell a trespasser that they’re trespassing (or even threaten nondeadly force to tell them to stop trespassing), and they turn on you and credibly threaten to kill you (the St. Louis man’s story), then you can generally use deadly force to protect against that threat.

[3.] If you can’t lawfully use any force (for instance, against people who aren’t trespassing but are merely peacefully protesting on a public sidewalk, even in front of your house), then you can’t lawfully threaten deadly force, either.

[4.] But say that protesters are trespassing, so you’re allowed to use nondeadly force to eject them: Perhaps they are on your driveway or your lawn. I don’t know the Missouri law on whether residents of a gated community where the roads and sidewalks are private may use nondeadly force to eject trespassers, so let’s turn to the clearer case where they are on your own property, or are threatening to damage your property in a fairly minor way (as opposed to, say, through arson or some other especially harmful action).

Can you threaten deadly force even when you can’t lawfully use it? (Assume they are merely trespassing, and you don’t reasonably believe them to be threatening something much worse.) On that, states disagree. The LaFave & Scott Criminal Law treatise tells us that “merely to threaten death or serious bodily harm, without any intention to carry out the threat, is not to use deadly force, so that one may be justified in pointing a gun at his attacker when he would not be justified pulling the trigger.” Likewise, Black’s Law Dictionary defines “nondeadly force” to include a “threat of deadly force, such as displaying a knife.” (See this post on the Siwatu-Salama Ra case from Michigan.) That seems to be the majority view.

But it’s not the view everywhere, and in particular not in Missouri, see State v. Kendrick (Mo. Ct. App. 2018):

Kendrick was accused of “knowingly exhibit[ing], in the presence of one or more persons a .45 Caliber pistol, a weapon readily capable of lethal use, in an angry or threatening manner.” “The Missouri Supreme Court has held that unlawful use of a weapon by exhibiting it in an angry or threatening manner constitutes ‘deadly force’ for the purpose of … justification defenses.” State v. Cummings (Mo. Ct. App. 2017) (citing State v. Parkhurst (Mo. 1992)). Thus, the … statutory elements that must have been established by substantial evidence in order for Kendrick to inject the issue of self-defense in this case are [in relevant part -EV]:

[a] that Kendrick … reasonably believed physical force was necessary to defend himself from what he reasonably believed to be the use or imminent use of unlawful force of another (section 563.031.1);

[b] that Kendrick reasonably believed deadly force—that is “‘physical force which is used with the purpose of causing or which a person knows to create a substantial risk of causing death or serious physical injury'”—was necessary to protect himself against death, serious physical injury, or {“any felony involving the use or threat of physical force or violence against any individual, including but not limited to murder, robbery, burglary, arson, kidnapping, assault, and any forcible sexual offense”}, or was necessary to use against a person who had unlawfully entered, attempted entry, or remained after unlawful entry into his residence (section 563.031.2(2), (3)); ….

The evidence, viewed in the light most favorable to Kendrick, established that Williams was unarmed, raised his voice, and pushed Kendrick three times before Kendrick retrieved a handgun. Thus, Kendrick “‘introduced a deadly instrument into what had been, at most, a simple battery and significantly raised the level of violence.'” “‘[D]eadly force [including, in Missouri, the threat of deadly force -EV] cannot be used to repel a simple assault and battery.'” Instead, “[d]eadly force is only justifiable when the defendant reasonably believes that such deadly force is necessary to protect himself from death, serious physical injury, or any forcible felony.” Here, the evidence established, at most, that Williams committed a simple assault and battery against Kendrick. There was no evidence that Kendrick reasonably believed deadly force was necessary to protect himself against death, serious physical injury, or any forcible felony.

from Latest – Reason.com https://ift.tt/2NCXM92
via IFTTT

Communications With Reputation Repair Firm Aren’t Privileged

From Brummer v. Wey, decided by Judge Lucy Billings on Jan. 17, but just posted on Westlaw:

[D]efendants [Benjamin] Wey and NYG Capital move to compel production of 33 documents that plaintiff [Prof. Christopher Brummer] and FINRA [the Financial Industry Regulatory Authority] claim are protected from disclosure … as attorney work product or … as material prepared in anticipation of litigation. FINRA’s privilege log further characterizes the subject of eight withheld documents as “mitigation of litigation risks arising out of public statements concerning anticipated litigation.” …

[T]he documents … are … proposed strategies by a public relations firm and comments by plaintiff and FINRA on those strategies, for plaintiff and FINRA to counteract and thus mitigate damages from the defamatory statements concerning plaintiff on the internet, [arising] from his work with FINRA, about which he sues. That defamation, not this litigation or its anticipated commencement, prompted this public relations campaign. Depending on defendants’ future conduct, the firm, APCO Worldwide, proposed as part of the campaign the creation of new, readily searchable online text and images positively portraying plaintiff, unrelated to the litigation.

Of course when plaintiff anticipated commencing this litigation, he, his attorneys, and APCO Worldwide anticipated that he might need to respond to inquiries about the litigation or respond to retaliatory defamation by defendants and might use the litigation as another opportunity to explain and counteract the defamation. If other media portrayed the underlying facts or the litigation inaccurately, APCO Worldwide proposed to correct and halt the spread of misinformation.

Consequently, plaintiff’s attorneys were kept abreast of the proposals, to advise APCO Worldwide and plaintiff in the event the proposals might negatively impact the litigation or expose plaintiff to liability for any statements by him about defendants: hence the label, “mitigation of litigation risks arising out of public statements concerning anticipated litigation.” The documents reveal no such event, however, nor any advice by plaintiff’s attorneys, other than their concern that they be kept abreast.

While the work product protection may extend to an attorney’s information, impressions, or observations conveyed to experts retained as consultants to assist in analyzing or preparing plaintiff’s action, the documents at issue thus show that the attorneys conveyed no such information, impressions, or observations, nor did APCO Worldwide assist in analyzing or preparing plaintiff’s action. The documents include no communications by attorneys that are the product of their legal training or skills or that reflect any legal research, analysis, theory, strategy, or conclusion. Their occasional communications reflect only their desire to be apprised of APCO Worldwide’s, plaintiff’s, or FINRA’s proposed public relations strategies in the event they called for the attorneys’ input. To the extent that any FINRA attorney offered public relations advice, it was only public relations advice, not legal advice. Therefore the documents include no attorney work product.

The documents also make abundantly clear that they were not prepared primarily for purposes of the litigation, but to mitigate the damage to plaintiff’s reputation, rehabilitate his reputation, and assure that his communications in an effort at mitigation would not instead call more attention to the claimed defamatory statements and amplify the harm from them. Defendants are entitled to this relevant information regarding plaintiff’s efforts to mitigate the past and future effects of the claimed defamation and any communications that might reveal the impact of the defamation on plaintiff’s reputation and his mental and emotional condition, whether minimal or severe.

Relevance of the material to the litigation does not equate to material prepared in anticipation of litigation. The latter is material regarding how plaintiff intends to prove his mitigation of damages, not the facts regarding his mitigation of damages. Even his strategies as to how he communicates to his professional community or the public and to whom he communicates about the claimed defamation and whether his communications call attention to the defamation and enhance rather than mitigate his damages still bear on mitigation and do not amount to strategies as to how he will plead or prove defamation, damages, or their mitigation.

In sum, APCO Worldwide’s advice to plaintiff and FINRA and their comments on that advice, which they shared with their attorneys, but to which the attorneys did not contribute, was to assist plaintiff in his public relations strategy, not in his litigation strategy, in rehabilitating his reputation, and in mitigating his damages. At most, APCO Worldwide provided plaintiff advice regarding how to communicate about the litigation so as not to enhance his damages, but not how to prepare, present, or support his claims in the litigation so as not to enhance his damages or for any other purpose in the litigation….

Readers might recall this case from when an appellate court reversed an injunction against defendant’s publishing “images depicting … lynching in association with plaintiff.” The underlying defamation damages lawsuit, though, continues.

from Latest – Reason.com https://ift.tt/3dHycdt
via IFTTT

Communications With Reputation Repair Firm Aren’t Privileged

From Brummer v. Wey, decided by Judge Lucy Billings on Jan. 17, but just posted on Westlaw:

[D]efendants [Benjamin] Wey and NYG Capital move to compel production of 33 documents that plaintiff [Prof. Christopher Brummer] and FINRA [the Financial Industry Regulatory Authority] claim are protected from disclosure … as attorney work product or … as material prepared in anticipation of litigation. FINRA’s privilege log further characterizes the subject of eight withheld documents as “mitigation of litigation risks arising out of public statements concerning anticipated litigation.” …

[T]he documents … are … proposed strategies by a public relations firm and comments by plaintiff and FINRA on those strategies, for plaintiff and FINRA to counteract and thus mitigate damages from the defamatory statements concerning plaintiff on the internet, [arising] from his work with FINRA, about which he sues. That defamation, not this litigation or its anticipated commencement, prompted this public relations campaign. Depending on defendants’ future conduct, the firm, APCO Worldwide, proposed as part of the campaign the creation of new, readily searchable online text and images positively portraying plaintiff, unrelated to the litigation.

Of course when plaintiff anticipated commencing this litigation, he, his attorneys, and APCO Worldwide anticipated that he might need to respond to inquiries about the litigation or respond to retaliatory defamation by defendants and might use the litigation as another opportunity to explain and counteract the defamation. If other media portrayed the underlying facts or the litigation inaccurately, APCO Worldwide proposed to correct and halt the spread of misinformation.

Consequently, plaintiff’s attorneys were kept abreast of the proposals, to advise APCO Worldwide and plaintiff in the event the proposals might negatively impact the litigation or expose plaintiff to liability for any statements by him about defendants: hence the label, “mitigation of litigation risks arising out of public statements concerning anticipated litigation.” The documents reveal no such event, however, nor any advice by plaintiff’s attorneys, other than their concern that they be kept abreast.

While the work product protection may extend to an attorney’s information, impressions, or observations conveyed to experts retained as consultants to assist in analyzing or preparing plaintiff’s action, the documents at issue thus show that the attorneys conveyed no such information, impressions, or observations, nor did APCO Worldwide assist in analyzing or preparing plaintiff’s action. The documents include no communications by attorneys that are the product of their legal training or skills or that reflect any legal research, analysis, theory, strategy, or conclusion. Their occasional communications reflect only their desire to be apprised of APCO Worldwide’s, plaintiff’s, or FINRA’s proposed public relations strategies in the event they called for the attorneys’ input. To the extent that any FINRA attorney offered public relations advice, it was only public relations advice, not legal advice. Therefore the documents include no attorney work product.

The documents also make abundantly clear that they were not prepared primarily for purposes of the litigation, but to mitigate the damage to plaintiff’s reputation, rehabilitate his reputation, and assure that his communications in an effort at mitigation would not instead call more attention to the claimed defamatory statements and amplify the harm from them. Defendants are entitled to this relevant information regarding plaintiff’s efforts to mitigate the past and future effects of the claimed defamation and any communications that might reveal the impact of the defamation on plaintiff’s reputation and his mental and emotional condition, whether minimal or severe.

Relevance of the material to the litigation does not equate to material prepared in anticipation of litigation. The latter is material regarding how plaintiff intends to prove his mitigation of damages, not the facts regarding his mitigation of damages. Even his strategies as to how he communicates to his professional community or the public and to whom he communicates about the claimed defamation and whether his communications call attention to the defamation and enhance rather than mitigate his damages still bear on mitigation and do not amount to strategies as to how he will plead or prove defamation, damages, or their mitigation.

In sum, APCO Worldwide’s advice to plaintiff and FINRA and their comments on that advice, which they shared with their attorneys, but to which the attorneys did not contribute, was to assist plaintiff in his public relations strategy, not in his litigation strategy, in rehabilitating his reputation, and in mitigating his damages. At most, APCO Worldwide provided plaintiff advice regarding how to communicate about the litigation so as not to enhance his damages, but not how to prepare, present, or support his claims in the litigation so as not to enhance his damages or for any other purpose in the litigation….

Readers might recall this case from when an appellate court reversed an injunction against defendant’s publishing “images depicting … lynching in association with plaintiff.” The underlying defamation damages lawsuit, though, continues.

from Latest – Reason.com https://ift.tt/3dHycdt
via IFTTT

Kneeling in the Church of Social Justice

uigphotos324385

Over the past several years, a social justice philosophy has arisen that is less a political program than a religion in all but name. Where Christianity calls for people to display their moral worth through faith in Jesus, modern Third-Wave Antiracism (henceforth TWA) calls for people to display their moral worth through opposition to racism. In the wake of the murder of George Floyd, this vision has increasingly been expressed through procedures, routines, and phraseology directly patterned on Abrahamic religion.

America certainly has work to do on race. For one, while cops do not kill black people more than white people, they harass and abuse black people more than white people, and the real-life impact of this is in its way just as pernicious as the disparity in killings would be. If the tension between black people and the cops were resolved, America’s race problem would quickly begin dissolving faster than it ever has. But making this happen will require work, as will ending the war on drugs, improving educational opportunities for all disadvantaged black children, and other efforts such as steering more black teenagers to vocational programs training them for solid careers without four years of college. 

These are real things, upon which we must behold scenes like in Bethesda, where protesters kneeled on the pavement in droves, chanting allegiance with upraised hands to a series of anti-white privilege tenets incanted by what a naïve anthropologist would recognize as a flock’s pastor. On a similar occasion, white protesters bowed down in front of black people standing in attendance. In Cary, North Carolina, whites washed black protesters’ feet as a symbol of subservience and sympathy. Elsewhere, when a group of white activists painted whip scars upon themselves in sympathy with black America’s past, many black protesters found it a bit much.

Such rituals of subservience and self-mortification parallel devout Christianity in an especially graphic way, but other episodes tell the same story. Many conventional religious institutions are now rejecting actual Christianity where it conflicts with TWA teachings. At the Massachusetts Institute of Technology, a chaplain was forced to resign after writing a note exploring the contradiction between roasting the police as racist and the Christian call for love of all souls. Unitarianism has been all but taken over in many places by modern antiracist theology, forcing the resignation of various ministers and other figures.

The new faith also manifests itself in objections to what its adherents process as dissent. A friend wrote on Facebook that they agreed with Black Lives Matter, only to have another person—a white one, for the record—post this reply: “Wait a minute! You ‘agree’ with them? That implies you get to disagree with them! That’s like saying you ‘agree’ with the law of gravity! You as a white person don’t get to ‘agree’ OR ‘disagree’ when black people assert something! Saying you ‘agree’ with them is every bit as arrogant as disputing them! This isn’t an intellectual exercise! This is their lives on the line!”

This objection seems studiously hostile until we compare it to how a devout Christian might feel about someone opining that he “agrees” with Jesus’ teachings, as if the custom were to think one’s way through the liturgy in logical fashion and decide what parts of it makes sense, rather than to suspend logic and have faith.

The religious analogies pile higher by the week. Third-Wave Antiracism even has (metaphorical) sacrificial victims. The New York Times‘ food columnist Alison Roman is on suspension for criticizing in passing Marie Kondo and Chrissy Teigen for going commercial. Her sin? Criticizing not one, but two, people “of color.” (Kondo is Japanese, Teigen half white and half Thai.) Teigen has openly said that she does not think Roman deserves to be canceled for what she said, but no matter. At the Times, the TWA must have its way.

A great many intelligent people clearly consider all of the glowering postures, verbal laceration, and dismissals to be somehow an advance over how social change worked in America in the past. The seismic civil rights victories of the 1960s came about through protest, no doubt. But absent in the annals of how we got from Selma to the election of Barack Obama is this focus on individual psychology as opposed to national social and political structures.

Martin Luther King was under no impression that all white people were going to fully “love” all black people. He spent his time working for gradual change in the world as we know it via endless exchange and consultation with the powers that be, not agitating for a vague utopian conception of a society devoid of any racist sentiment. No matter what evidence people find of King’s fundamental radicalism, radicalism in his day was not centered around this recreationally aggrieved performance art, much less obsessively seeking to excoriate and destroy people suspected of impure thoughts.

The TWA adherent might object that today’s strategy is a second step—that the battle of yore was against overt segregation and disenfranchisement, but today making an even more equal society requires this different approach. 

But why is all of this agitprop and joyous defenestration an advance over forging political change in the ways that have had such effect in the past? Those of us watching incongruously and needlessly acrid media posts and the yanking down of statues cannot help thinking the real motivator of the TWA posture is a simple joy in indignation and destruction, along with the comforts of group warmth. The white TWA adherent cherishes displaying virtue. The black TWA adherent has fallen for the Siren call of the noble victim complex, affording one the status of a Cassandra, a survivor, even the granter of absolution, as we see in some of the protest videos.

TWA people, to be sure, claim that all of this is ultimately about changing society. But in practice, the performance and fury are the main meal while the mundane but urgent work of changing society seems distinctly underplayed. One treatise on white privilege after another gives this away, such as Őzlem Sensoy and Robin DiAngelo’s Is Everyone Really Equal? After almost 200 pages of teaching the reader that being a good antiracist requires bowing down to any claims anyone not white makes about race, we assume that the final chapter might show how this counterintuitive ideology is supposed to change the actual world. Instead, that chapter simply repeats the minatory mantras from the previous chapters.

If TWA were really a political program, it would focus much more readily on making change from the grassroots on up; the psychological cleansing would feel like a prelude cherished by a few but best gotten past as quickly as possible. The idea that political work must be preceded by a massive mental overhaul of the nation is not self-standingly obvious. It is a tragically fragile proposition that reveals TWA as in essence not politics but Sunday school.

The TWA world might raise another objection, one that must be heeded. Without the fever pitch of these voices, and the dread they instill in any white person chilled at the possibility of being outed as a racist in today’s society, Tina Fey would not have pulled a few episodes of 30 Rock out of streaming because they had blackface depictions, the Dixie Chicks would not have renamed themselves The Chicks, there would still be an awful lot of statues of Confederate racists standing, and Rhode Island would not be excising the word plantation from its full name. The TWA message asks whites to look inside themselves to examine the ways they contribute to racism. This is happening to an unprecedented degree.

Yet we can be quite sure that the TWA position on these things, no matter how many and no matter how widespread, will be to dismiss them as mere optics, as if such things weren’t what they seemed to be calling for in their furious policing of psychology. The new line will be that these changes didn’t matter because they left “structures” of society in place. This bait and switch will not be a cynical ploy, but an inevitable outgrowth of the fact that TWA is a matter of ideology and attitude, not progress and pragmatism. Its liturgy requires that America always be a racist snakepit, redeemable only by a mysterious day when the U.S. “comes to terms with” racism. Just what those terms would be is never specified for a reason, which is that if there really were no racism the TWA adherents would lose their sense of purpose. (No, reparations won’t do it. Look under the hood of the most prominent calls for reparations and you’ll see that they say reparations would only be a “beginning.”)

In any case, to be sure, names and icons are just optics. More substantively, TWA has helped create some movement in America’s conversation about the cops, a problem central to black Americans’ sense of discomfort and dismissal in America. But there are two problems. 

One is that truly reforming 18,000 different police departments, as well as the byzantine laws that quietly detour and destroy so many lives, will be a long, hard job of the kind King and his comrades so diligently and patiently forged. TWA activity, so focused on smoking out racist imagery, seems ill-suited to participate meaningfully in actual on-the-ground toil of this kind.

And second, we must ask: Is it necessary, for the cops to reform, that a food columnist be suspended for dissing a half-Thai model or that sincere Unitarian ministers lose their jobs?

Because this is so very much a TWA moment and because its perspective has been creeping into the fabric of educated American society over several years, we are becoming desensitized to how ancillary to civic progress is this peculiar, furious, and fantastical indoctrination. We seek sociopolitical change, yet we find on the vanguards a contingent who have founded a new religion. They insist hotly that they “really are right,” because racism is bad, isn’t it?

Indeed it is. But it is also bad for increasing numbers of Americans, out of fear for their social acceptance in wider society, pretend to subscribe to the semi-coherent tenets of an anti-empirical faith feigning higher wisdom with big words and manipulative phraseology. They see themselves as the heirs of bygone heroes who would actually have been sickened by them. Progressive Americans’ task is not to learn charismatic but purposeless self-flagellational routines, but to fight injustices with sense and logic. Only TWA adherents think the two are the same.

from Latest – Reason.com https://ift.tt/2BMl0H8
via IFTTT

Trump Said ‘You Don’t Have To Drop Bombs on Everybody.’ He’s Right

Donald Trump

Asked by Fox News host Sean Hannity last Thursday to detail his top priorities for a second term in the White House, President Donald Trump descended into an incoherence remarkable even by his standards. At the end of the ramble, though, he said something interesting: “I have great people in the administration. You make some mistakes. Like, you know, an idiot like [former National Security Adviser John] Bolton. All he wanted to do was drop bombs on everybody. You don’t have to drop bombs on everybody. You don’t have to kill people.”

That bit about Bolton, excised from the babble preceding it, has the seed of an idea that really would make a historic second term: Stop bombing people. Make good, finally, on your promise to end our endless wars.

This idea has three strengths for a second-term agenda. Most important—and likely least appealing to a man who revels in militarism, enthuses about torture, gets giddy over explosives, and both proposes and facilitates war crimes—is that it would be an overdue act of peace.

The United States has been floundering in Afghanistan for 19 years. We have been bombing Iraq since 2003, Pakistan since 2004, Somalia since 2007, Libya since 2011, Syria since 2014, and Yemen since 2015. Smaller U.S. military interventions—it is so difficult to know what to dub a “war” anymore—are ongoing in various African nations. U.S. bases pepper the Middle East, with thousands of troops at the ready to initiate, escalate, or stumble into conflict. These wars do nothing to help the United States and much to harm ordinary people who have the misfortune to live where Washington decides to fight.

American withdrawal from these conflicts would not spell their immediate end. But U.S. exit is a necessary condition for peace, even if it isn’t a sufficient one. The past two decades have made it inescapably clear that Washington’s military meddling cannot resolve the region’s political, religious, and cultural problems. Prolonging these wars only adds to the region’s suffering and chaos.

The second strength of Trump’s anti-bombing comment is its achievability. Speaking of constitutional procedure in Washington is increasingly farcical, but the president’s constitutional role as commander-in-chief does include the authority to end wars. The power to initiate conflict is given to Congress with the intent of slowing reckless rushes to violence, but there are no such barriers to ending military actions once initiated. Trump can stop bombing everybody at any moment of his choosing. He can withdraw troops whenever he likes. He could get started now—why wait for a second term?

That brings us to the idea’s third strength: It would make Trump’s many professions of interest in reforming American foreign policy into truths instead of indefensible lies. Like the three presidents before him, Trump pays lip service to restraint in U.S. foreign policy. He criticizes the length, cost, and humanitarian consequences of our wars. He promises to bring American forces home, to negotiate great treaties, to abandon futile nation-building projects.

And he does none of that. Trump has not ended a single war he inherited from his predecessor. He has escalated the war in Afghanistan, dropping a record number of bombs in 2019 (after setting a previous record in 2018). Afghanistan’s civilian, military, and police casualties are all at record highs as well. In drone warfare, Trump has found a signature Obama administration program he does not oppose; on the contrary, as The American Conservative‘s Daniel Larison reports, his “administration has significantly increased the tempo of drone strikes in a number of countries, and it has relaxed the rules governing the targeting of these strikes.” In Yemen, Trump has pushed past bipartisan congressional and public opposition to keep facilitating the horrific Saudi-led intervention.

This is the opposite of not bombing everybody. More bombs are falling. More innocent people are being killed. 

Trump has always sent mixed messages on matters of war and peace. Part of him sees war as a drain on American resources, a distraction from domestic issues, and an opportunity to showcase his self-declared deal-making expertise in its resolution. This is the Trump who says, “Great nations do not fight endless wars.” But part of him—apparently most of him—is bloodthirsty, self-serving and mercurial, petty and short-sighted, easily swayed by bad advice, and infatuated with the most garish displays of military might.

That Trump, the vengeful Trump who is angry the arch-hawk Bolton has publicly embarrassed him, is the Trump whose jabbering to Hannity accidentally stumbled into a good second-term priority while casting about for something Bolton would not like.

It’s a shame that that’s all his comment appears to be. A president who spent four years not killing people would be an extraordinary president indeed.

from Latest – Reason.com https://ift.tt/3g9tmY9
via IFTTT

Kneeling in the Church of Social Justice

uigphotos324385

Over the past several years, a social justice philosophy has arisen that is less a political program than a religion in all but name. Where Christianity calls for people to display their moral worth through faith in Jesus, modern Third-Wave Antiracism (henceforth TWA) calls for people to display their moral worth through opposition to racism. In the wake of the murder of George Floyd, this vision has increasingly been expressed through procedures, routines, and phraseology directly patterned on Abrahamic religion.

America certainly has work to do on race. For one, while cops do not kill black people more than white people, they harass and abuse black people more than white people, and the real-life impact of this is in its way just as pernicious as the disparity in killings would be. If the tension between black people and the cops were resolved, America’s race problem would quickly begin dissolving faster than it ever has. But making this happen will require work, as will ending the war on drugs, improving educational opportunities for all disadvantaged black children, and other efforts such as steering more black teenagers to vocational programs training them for solid careers without four years of college. 

These are real things, upon which we must behold scenes like in Bethesda, where protesters kneeled on the pavement in droves, chanting allegiance with upraised hands to a series of anti-white privilege tenets incanted by what a naïve anthropologist would recognize as a flock’s pastor. On a similar occasion, white protesters bowed down in front of black people standing in attendance. In Cary, North Carolina, whites washed black protesters’ feet as a symbol of subservience and sympathy. Elsewhere, when a group of white activists painted whip scars upon themselves in sympathy with black America’s past, many black protesters found it a bit much.

Such rituals of subservience and self-mortification parallel devout Christianity in an especially graphic way, but other episodes tell the same story. Many conventional religious institutions are now rejecting actual Christianity where it conflicts with TWA teachings. At the Massachusetts Institute of Technology, a chaplain was forced to resign after writing a note exploring the contradiction between roasting the police as racist and the Christian call for love of all souls. Unitarianism has been all but taken over in many places by modern antiracist theology, forcing the resignation of various ministers and other figures.

The new faith also manifests itself in objections to what its adherents process as dissent. A friend wrote on Facebook that they agreed with Black Lives Matter, only to have another person—a white one, for the record—post this reply: “Wait a minute! You ‘agree’ with them? That implies you get to disagree with them! That’s like saying you ‘agree’ with the law of gravity! You as a white person don’t get to ‘agree’ OR ‘disagree’ when black people assert something! Saying you ‘agree’ with them is every bit as arrogant as disputing them! This isn’t an intellectual exercise! This is their lives on the line!”

This objection seems studiously hostile until we compare it to how a devout Christian might feel about someone opining that he “agrees” with Jesus’ teachings, as if the custom were to think one’s way through the liturgy in logical fashion and decide what parts of it makes sense, rather than to suspend logic and have faith.

The religious analogies pile higher by the week. Third-Wave Antiracism even has (metaphorical) sacrificial victims. The New York Times‘ food columnist Alison Roman is on suspension for criticizing in passing Marie Kondo and Chrissy Teigen for going commercial. Her sin? Criticizing not one, but two, people “of color.” (Kondo is Japanese, Teigen half white and half Thai.) Teigen has openly said that she does not think Roman deserves to be canceled for what she said, but no matter. At the Times, the TWA must have its way.

A great many intelligent people clearly consider all of the glowering postures, verbal laceration, and dismissals to be somehow an advance over how social change worked in America in the past. The seismic civil rights victories of the 1960s came about through protest, no doubt. But absent in the annals of how we got from Selma to the election of Barack Obama is this focus on individual psychology as opposed to national social and political structures.

Martin Luther King was under no impression that all white people were going to fully “love” all black people. He spent his time working for gradual change in the world as we know it via endless exchange and consultation with the powers that be, not agitating for a vague utopian conception of a society devoid of any racist sentiment. No matter what evidence people find of King’s fundamental radicalism, radicalism in his day was not centered around this recreationally aggrieved performance art, much less obsessively seeking to excoriate and destroy people suspected of impure thoughts.

The TWA adherent might object that today’s strategy is a second step—that the battle of yore was against overt segregation and disenfranchisement, but today making an even more equal society requires this different approach. 

But why is all of this agitprop and joyous defenestration an advance over forging political change in the ways that have had such effect in the past? Those of us watching incongruously and needlessly acrid media posts and the yanking down of statues cannot help thinking the real motivator of the TWA posture is a simple joy in indignation and destruction, along with the comforts of group warmth. The white TWA adherent cherishes displaying virtue. The black TWA adherent has fallen for the Siren call of the noble victim complex, affording one the status of a Cassandra, a survivor, even the granter of absolution, as we see in some of the protest videos.

TWA people, to be sure, claim that all of this is ultimately about changing society. But in practice, the performance and fury are the main meal while the mundane but urgent work of changing society seems distinctly underplayed. One treatise on white privilege after another gives this away, such as Őzlem Sensoy and Robin DiAngelo’s Is Everyone Really Equal? After almost 200 pages of teaching the reader that being a good antiracist requires bowing down to any claims anyone not white makes about race, we assume that the final chapter might show how this counterintuitive ideology is supposed to change the actual world. Instead, that chapter simply repeats the minatory mantras from the previous chapters.

If TWA were really a political program, it would focus much more readily on making change from the grassroots on up; the psychological cleansing would feel like a prelude cherished by a few but best gotten past as quickly as possible. The idea that political work must be preceded by a massive mental overhaul of the nation is not self-standingly obvious. It is a tragically fragile proposition that reveals TWA as in essence not politics but Sunday school.

The TWA world might raise another objection, one that must be heeded. Without the fever pitch of these voices, and the dread they instill in any white person chilled at the possibility of being outed as a racist in today’s society, Tina Fey would not have pulled a few episodes of 30 Rock out of streaming because they had blackface depictions, the Dixie Chicks would not have renamed themselves The Chicks, there would still be an awful lot of statues of Confederate racists standing, and Rhode Island would not be excising the word plantation from its full name. The TWA message asks whites to look inside themselves to examine the ways they contribute to racism. This is happening to an unprecedented degree.

Yet we can be quite sure that the TWA position on these things, no matter how many and no matter how widespread, will be to dismiss them as mere optics, as if such things weren’t what they seemed to be calling for in their furious policing of psychology. The new line will be that these changes didn’t matter because they left “structures” of society in place. This bait and switch will not be a cynical ploy, but an inevitable outgrowth of the fact that TWA is a matter of ideology and attitude, not progress and pragmatism. Its liturgy requires that America always be a racist snakepit, redeemable only by a mysterious day when the U.S. “comes to terms with” racism. Just what those terms would be is never specified for a reason, which is that if there really were no racism the TWA adherents would lose their sense of purpose. (No, reparations won’t do it. Look under the hood of the most prominent calls for reparations and you’ll see that they say reparations would only be a “beginning.”)

In any case, to be sure, names and icons are just optics. More substantively, TWA has helped create some movement in America’s conversation about the cops, a problem central to black Americans’ sense of discomfort and dismissal in America. But there are two problems. 

One is that truly reforming 18,000 different police departments, as well as the byzantine laws that quietly detour and destroy so many lives, will be a long, hard job of the kind King and his comrades so diligently and patiently forged. TWA activity, so focused on smoking out racist imagery, seems ill-suited to participate meaningfully in actual on-the-ground toil of this kind.

And second, we must ask: Is it necessary, for the cops to reform, that a food columnist be suspended for dissing a half-Thai model or that sincere Unitarian ministers lose their jobs?

Because this is so very much a TWA moment and because its perspective has been creeping into the fabric of educated American society over several years, we are becoming desensitized to how ancillary to civic progress is this peculiar, furious, and fantastical indoctrination. We seek sociopolitical change, yet we find on the vanguards a contingent who have founded a new religion. They insist hotly that they “really are right,” because racism is bad, isn’t it?

Indeed it is. But it is also bad for increasing numbers of Americans, out of fear for their social acceptance in wider society, pretend to subscribe to the semi-coherent tenets of an anti-empirical faith feigning higher wisdom with big words and manipulative phraseology. They see themselves as the heirs of bygone heroes who would actually have been sickened by them. Progressive Americans’ task is not to learn charismatic but purposeless self-flagellational routines, but to fight injustices with sense and logic. Only TWA adherents think the two are the same.

from Latest – Reason.com https://ift.tt/2BMl0H8
via IFTTT

Trump Said ‘You Don’t Have To Drop Bombs on Everybody.’ He’s Right

Donald Trump

Asked by Fox News host Sean Hannity last Thursday to detail his top priorities for a second term in the White House, President Donald Trump descended into an incoherence remarkable even by his standards. At the end of the ramble, though, he said something interesting: “I have great people in the administration. You make some mistakes. Like, you know, an idiot like [former National Security Adviser John] Bolton. All he wanted to do was drop bombs on everybody. You don’t have to drop bombs on everybody. You don’t have to kill people.”

That bit about Bolton, excised from the babble preceding it, has the seed of an idea that really would make a historic second term: Stop bombing people. Make good, finally, on your promise to end our endless wars.

This idea has three strengths for a second-term agenda. Most important—and likely least appealing to a man who revels in militarism, enthuses about torture, gets giddy over explosives, and both proposes and facilitates war crimes—is that it would be an overdue act of peace.

The United States has been floundering in Afghanistan for 19 years. We have been bombing Iraq since 2003, Pakistan since 2004, Somalia since 2007, Libya since 2011, Syria since 2014, and Yemen since 2015. Smaller U.S. military interventions—it is so difficult to know what to dub a “war” anymore—are ongoing in various African nations. U.S. bases pepper the Middle East, with thousands of troops at the ready to initiate, escalate, or stumble into conflict. These wars do nothing to help the United States and much to harm ordinary people who have the misfortune to live where Washington decides to fight.

American withdrawal from these conflicts would not spell their immediate end. But U.S. exit is a necessary condition for peace, even if it isn’t a sufficient one. The past two decades have made it inescapably clear that Washington’s military meddling cannot resolve the region’s political, religious, and cultural problems. Prolonging these wars only adds to the region’s suffering and chaos.

The second strength of Trump’s anti-bombing comment is its achievability. Speaking of constitutional procedure in Washington is increasingly farcical, but the president’s constitutional role as commander-in-chief does include the authority to end wars. The power to initiate conflict is given to Congress with the intent of slowing reckless rushes to violence, but there are no such barriers to ending military actions once initiated. Trump can stop bombing everybody at any moment of his choosing. He can withdraw troops whenever he likes. He could get started now—why wait for a second term?

That brings us to the idea’s third strength: It would make Trump’s many professions of interest in reforming American foreign policy into truths instead of indefensible lies. Like the three presidents before him, Trump pays lip service to restraint in U.S. foreign policy. He criticizes the length, cost, and humanitarian consequences of our wars. He promises to bring American forces home, to negotiate great treaties, to abandon futile nation-building projects.

And he does none of that. Trump has not ended a single war he inherited from his predecessor. He has escalated the war in Afghanistan, dropping a record number of bombs in 2019 (after setting a previous record in 2018). Afghanistan’s civilian, military, and police casualties are all at record highs as well. In drone warfare, Trump has found a signature Obama administration program he does not oppose; on the contrary, as The American Conservative‘s Daniel Larison reports, his “administration has significantly increased the tempo of drone strikes in a number of countries, and it has relaxed the rules governing the targeting of these strikes.” In Yemen, Trump has pushed past bipartisan congressional and public opposition to keep facilitating the horrific Saudi-led intervention.

This is the opposite of not bombing everybody. More bombs are falling. More innocent people are being killed. 

Trump has always sent mixed messages on matters of war and peace. Part of him sees war as a drain on American resources, a distraction from domestic issues, and an opportunity to showcase his self-declared deal-making expertise in its resolution. This is the Trump who says, “Great nations do not fight endless wars.” But part of him—apparently most of him—is bloodthirsty, self-serving and mercurial, petty and short-sighted, easily swayed by bad advice, and infatuated with the most garish displays of military might.

That Trump, the vengeful Trump who is angry the arch-hawk Bolton has publicly embarrassed him, is the Trump whose jabbering to Hannity accidentally stumbled into a good second-term priority while casting about for something Bolton would not like.

It’s a shame that that’s all his comment appears to be. A president who spent four years not killing people would be an extraordinary president indeed.

from Latest – Reason.com https://ift.tt/3g9tmY9
via IFTTT

Revenge of the Coronavirus

upiphotostwo750543

America might want to be done with the coronavirus, but the coronavirus isn’t done with us.

Despite promises from Vice President Mike Pence that new cases had stabilized around 20,000 daily, new case numbers surged nationally last week, with 45,255 new cases on Friday, beating daily case counts from April, which hovered around 30,000. 

In response to the spike in cases, governors in Florida, Texas, and California have rolled back re-opening plans, closing bars and warning residents to stop partying and stay home. Speaker of the House Nancy Pelosi and presumptive Democratic presidential nominee Joe Biden, meanwhile, have both backed national mask mandates.

Were states too quick to re-open bars and other businesses? Is testing to blame? What about schools? And how is all of this affecting the 2020 presidential election? On today’s Reason Roundtable podcast, Nick Gillespie, Katherine Mangu-Ward, Peter Suderman, and special guest Robby Soave discuss all of this and more.

Audio production by Ian Keyser and Regan Taylor.

Music: “Gain” by Text Me Records / Grandbankss.

Photo: KEVIN DIETSCH/UPI/Newscom.

Reopen the Schools!, by Robby Soave

Florida and Texas Close Their Bars In Response to Surge in New COVID-19 Cases, by Christian Britschgi

As New Lockdowns Loom, How Did We Get Here Again So Quickly?, by Elizabeth Nolan Brown

CDC Antibody Studies Confirm Huge Gap Between COVID-19 Infections and Known Cases, by Jacob Sullum

Trump Worries That More Coronavirus Testing Makes America Look Bad, by Peter Suderman

The Pandemic’s Economic Carnage Looks Worse Than Expected, by J.D. Tuccille

from Latest – Reason.com https://ift.tt/2BMLJn5
via IFTTT