Tag: hit&run

On the weekend of January 18, 2019, a short video appeared on Twitter that purported to show a group of Catholic high school boys—one young man, Nicholas Sandmann, in particular—harassing a Native American elder named Nathan Phillips on the steps of the Lincoln Memorial.

One year later, the media’s reckless mishandling of the story stands as an important warning against the kind of agenda-driven, outrage-mongering clickbait that unfortunately thrives in the world of online journalism.

But no less noteworthy was the news cycle that followed the initial flawed coverage, which featured a host of ideologically-motivated partisans doubling down on their initial assumption, digging for new information to justify it, and reassuring themselves that they were right all along. Sandmann and his MAGA hat-wearing friends had identified themselves as members of Team Trump, and thus the national shaming they endured was deserved, this thinking went. Indeed, those who had defended the boys by disputing some aspects of the encounter—including me, in an article for Reason that changed many people’s minds about what had happened—were engaged in “gaslighting“: trying to make people think that something they saw hadn’t really happened.

Sandmann’s subsequent lawsuits have kept the Covington-sympathetic public focused on several of the outlets that misreported the initial story: CNN, The Washington Post, and others. Indeed, these publications certainly deserve criticism, independent of the merits of the individual lawsuits. But these outlets’ Covington-related sins pale in comparison to those who continued to malign the teens long after the additional video footage was available.

It’s important to recall that the mainstream media’s textbook rush-to-judgment about the Covington teens relied on two key pieces of faulty evidence. The first was the misleading video clip, which did not contain important context about what had happened immediately before the encounter between Sandmann and Phillips.

The second was Phillips’ brazenly inaccurate statements to the press: He claimed that he had intervened to protect the third group, the Black Hebrew Israelites, from the “predatory” boys, even though the boys were not threatening anyone. He also claimed he had heard a “build the wall” chant, even though no evidence of this has emerged in any of the additional footage. Phillips, it turned out, was a false witness: an on-the-ground source whose information seemed credible, but wasn’t. (In fact, Phillips is a charlatan with a long history of allowing the media to misrepresent him as a Vietnam War veteran, even though he never served abroad or saw combat.)

Since journalism in the modern era moves at a rapid pace, irrespective of the need to double- and triple-check facts, these two pieces of evidence were sufficient to launch dozens of stories in mainstream press that essentially indicted Covington’s students as racists. These stories employed some cautious language—allegedly, seemingly, etc.—and attributed the stronger statements to Phillips, which provided a veneer of objectivity, even though readers were given little reason to think there might be more to the story.

A truly discerning reader would have wondered why a trivial encounter that involved no one of significance and resulted in zero injuries or property damage was worthy of so much coverage at all. But no matter: The actions of Sandmann and his friends, as described by the media, generated apoplectic denunciation by conservatives, liberals, Catholics, celebrities, politicians, and virtually everyone else. Even ideological allies of the boys, who had come to Washington, D.C. to attend the anti-abortion March for Life rally, were quick to condemn them.

In hindsight, the slanted nature of the coverage is almost comical. The Detroit Free Press described the video as depicting “Phillips peacefully drumming and singing, while surrounded by a hostile crowd” and suggested that this “illustrates the nation’s political and racial tensions.” The Daily Beast‘s story was filed under “AWFUL” and described the video as “disturbing.” Its first several paragraphs quote directly from Phillips. NPR asserted that the boys had mocked the Native American man. In story after story, news outlets claimed the Covington kids had shouted “build the wall.” Again, the sole source of this claim was Phillips.

The news stories, at least, were edited; Twitter is not. Thus the reaction on social media was even more unhinged. Reza Aslan, a scholar and television pundit on CNN, tweeted that Sandmann had a “punchable” face. His CNN colleague Bakari Sellers agreed. BuzzFeed‘s Anne Petersen tweeted that Sandmann’s face reminded her of Brett Kavanaugh’s—and this wasn’t intended as a compliment.Vulture writer Erik Abriss tweeted that he wanted the kids and their parents to die. Kathy Griffin said the high schoolers ought to be doxxed. As a USA Today retrospective noted, “comedian Patton Oswalt called the students in the video ‘bland, frightened, forgettable kids who’ll grow up to be bland, frightened, forgotten adult wastes.’…Writer Michael Green, referring to Sandmann’s apparent smirking at the Native American man, wrote: ‘A face like that never changes. This image will define his life. No one need ever forgive him.’…Huffington Post reporter Christopher Mathias explicitly compared the students to violent segregationists.”

Within 48 hours, the truth had emerged. A longer video, which showed the Covington boys’ prior harassment at the hands of the Black Hebrew Israelites, made it clear that the kids had not directed racist invectives at Phillips’ crowd—they were cheering in order to drown out the Black Hebrew Israelites. Phillips then entered the teens’ midst, drumming and chanting at them. Some thought he was joining their cheer, a small few made inappropriate tomahawk gestures, while others seemed confused or even wary—correctly wary, since Phillips and his entourage had not come in good faith.

I wrote about the additional footage, and, over time, many commentators backpedaled. The mainstream media did as well. Case in point: The New York Times went from “Viral Video Shows Boys in ‘Make America Great Again’ Hats Surrounding Native Elder,” to “Fuller Picture Emerges of Viral Video of Native American Man and Catholic Students.”

But less well remembered than the mainstream media’s belated mea culpa was the absurd effort to re-legitimize the initial narrative.

On the next day, January 21, the New York Daily News published a contemptible hit piece attributed to its sports staff titled: “SEE IT: Covington Catholic High students in blackface at past basketball game.” The first sentence read: “This won’t help Nick Sandmann’s case,” as if the story was some sort of indictment of him. In fact, it had nothing to do with him, or any of his classmates at the Lincoln Memorial. The “blackface” incident was from a Covington basketball game years before, in which some attendees had painted themselves black to show school spirit. Ill-advised, in today’s rage-charged climate? Sure. An example of racial harassment? Probably not. In either case, it had nothing to do with Sandmann.

Not to be outdone, Ben Kesslen of NBC News published a story the next day with the headline: “Gay valedictorian banned from speaking at Covington graduation ‘not surprised’ by D.C. controversy.” Kesslen’s piece included critical remarks from the gay valedictorian, as well as a local Native American activist group for good measure. The Covington kids “were not blameless,” said the valedictorian. Readers who consumed the article too quickly may have missed that this student hailed from a different Covington school (albeit one in the same diocese), rendering his subjective impression of what may or may not have happened at the Lincoln Memorial fairly useless.

Then there was another video clip—this one just eight seconds long—that was widely cited as evidence that perhaps the Covington boys were up to no good, after all. It allegedly depicted a separate incident near the Lincoln Memorial, involving a group of boys who may or may not be students from Covington. The appear to yell something—perhaps “MAGA”—at a passing girl. It’s not clear what prompted this. It’s not clear if the girl initiated a conversation with the boys. It’s not clear if they meant to harass her. It’s not even clear that these boys are the same ones who encounter Phillips. It’s an eight-second video.

For some reason, Vox‘s Emily Stewart embedded the short clip in her January 24 piece about Covington. This isn’t even the most astonishing failing of the piece: She also uncritically cited Phillips throughout.

“Phillips told the Post that even before the confrontation, he and other Native American activists had issues with the students during the day,” wrote Stewart. “And it wasn’t just him and the Hebrew Israelites—a video surfaced on Twitter purporting to show the Covington boys harassing a group of girls as they walked by.”

Stewart’s piece is shockingly devoid of pushback, failing to note that Phillips’ account was misleading—even though the piece was written four days after his narrative had fallen apart. She made note of my piece, and a few others from those in the Fox News orbit, but her bolded points were “We’re probably never going to know exactly what happened on the Lincoln Memorial steps” and “These kids still don’t look great.”

On the latter point, she linked to a piece by Slate‘s Ruth Graham, who wrote, “There’s no mistaking the core dynamics of the encounter: Sandmann smugly grins in Phillips’s face and declines to step backward, and he’s backed by dozens of boisterous teens who are jeering and mocking the much smaller group of Native marchers.”

In a previous piece, she had referred to Sandmann’s face as “punchable and untouchable.” Her new piece contained no apology—indeed, she hardly changed her mind about him at all.

“The new facts about this small encounter this weekend in Washington are important, and worth clarifying,” wrote Graham. “But they don’t change the larger story, the one that caused so many people to react so viscerally to the narrative’s first, and simpler, draft.”

The most obnoxious entry in this series was penned by Deadspin‘s Laura Wagner, who actually attempted to shame those who had changed their mind about the Covington kids in the face of new evidence. “Nothing about the video showing the offensive language of Black Israelites changes how upsetting it was to see the Covington students, and Sandmann in particular, stare at Phillips with such contempt,” wrote Wagner. “I don’t see how you could watch this and think otherwise unless you’re willing to gaslight yourself, and others, in the service of granting undeserved sympathy to the privileged.”

That’s right—people who were sorry for making a snap judgment and condemning a teenager for not smiling the right way while caught in a confusing moment with a bad-faith interloper were “granting undeserved sympathy to the privileged.” (I responded to Wagner’s piece shortly after it was first published.)

One year after the Covington debacle, it’s actually the gratuitous cruelty of the Laura Wagners and Ruth Grahams that sticks out to me as worthy of ongoing criticism—far more than the significantly flawed but at least summarily retracted news articles by the likes of Washington Post and CNN. Covington is a story about a viral outrage-addicted media succumbing to a bad impulse and make horrible mistakes. But as the better-known news outlets continue to garner the lion’s share of the opprobrium, it’s important to remember that there are plenty of commentary writers who continue to think—wrongfully, and shamefully—that the media had it basically right the first time.

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Peaceful demonstration against increased gun regulation in Richmond. Virginia Governor Ralph Northam’s emergency declaration proves as silly as critics said it would, after thousands of Second Amendment supporters showed up in Richmond without starting trouble.

Before the statehouse rally on Monday—organized by the Virginia Civil Defense League—Northam warned that the event would likely bring out-of-town demonstrators who had “as their purpose not peaceful assembly but violence, rioting, and insurrection.” His emergency declaration (covering last Friday at 5 p.m. through today at 5 p.m.) meant that no guns could be brought on Capitol grounds and also allocated special police resources to the area.

But the rally “passed without incident,” as Northam put it in a Monday afternoon tweet.

Naturally, Northam took credit for keeping the peace with his security-theater shenanigans, saying that his teams had “successfully de-escalated what could have been a volatile situation.”

And yet Virginia Civil Defense League regularly organizes “lobby day” rallies at the Virginia statehouse (as J.D. Tuccille pointed out at Reason yesterday) and such events have gone down without violent incident as well, despite a lack of gubernatorial fussing.

“Unbelievable,” wrote Washington Examiner Executive Editor Philip Klein in response to Northam’s de-escalation tweet. “This guy exploited stereotypes of gun owners to create hysteria about violent mobs and then when it turns out law abiding gun owners are law abiding, he takes credit for lack of violence.”

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FOLLOWUPS

Impeachment update: House “impeachment managers” in the Senate and President Donald Trump’s team will each get “24 hours divided over two days for their opening arguments in the Senate’s impeachment trial,” CNN reports, after obtaining a copy of Senate Majority Leader Mitch McConnell’s organizing resolution for the process. This represents “a break from the impeachment trial of President Bill Clinton, when the 24 hours were split over a four-day period,” notes CNN. General impeachment proceedings in the Senate start at 1 p.m. today.

Iran admits to causing Ukrainian plane crash that killed 176 people. “Investigators…discovered that two Tor-M1 missiles…were fired at the aircraft,” said Iran’s Civil Aviation Organization in a report on initial findings, released yesterday, about the January 8 crash.

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FREE MINDS

Ugh: Joe Biden continues to campaign against Section 230, the federal communications law that built the internet as we know it. “Section 230 should be revoked, immediately,” said Biden in an interview with The New York Times, published Friday. “For Zuckerberg and other platforms.”

As Eric Boehm pointed out on Friday, “Biden and Facebook have been feuding for months.”

When the Times interviewer responded that Section 230 is “pretty foundational” for “the modern internet,” Biden said “exactly right” before launching into a buzzword salad dressed with random rambling associations:

It should be revoked because [Facebook] is not merely an internet company. It is propagating falsehoods they know to be false, and we should be setting standards not unlike the Europeans are doing relative to privacy. You guys still have editors. I’m sitting with them. Not a joke. There is no editorial impact at all on Facebook. None. None whatsoever. It’s irresponsible. It’s totally irresponsible.

For more on what Section 230 really is and does, watch this:

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FREE MARKETS

We don’t need to ban (nicotine or THC) vaping, we just need to build better devices, writes Diane Nelson, a postdoctoral fellow in chemical engineering at Carnegie Mellon University:

The knee-jerk reaction by some states has been to pull e-cigarettes and vapes off the market. Even the federal government has suggested it might push for a ban on some vaping and e-cigarette related products. But these products have been shown to be effective at helping smokers quit — more effective, in fact, than any other nicotine-replacement therapy on the market, including nicotine patches and nicotine gum.

We don’t need to ban vaping. What we need to do is the research needed to build a better vape.

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ELECTION 2020

Yikes:

Whoa. This from Hillary on Bernie is going to cause quite a stir https://t.co/WdmkyTpjRU pic.twitter.com/HPe0j2vJQj

— Sam Stein (@samstein) January 21, 2020

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QUICK HITS

“More than 40 U.S. states could allow some form of legal marijuana by the end of 2020, including deep red Mississippi and South Dakota,” reports Politico.

Good news:

Great discussion with @realDonaldTrump on digital tax. We will work together on a good agreement to avoid tariff escalation.

— Emmanuel Macron (@EmmanuelMacron) January 20, 2020

• Miami continues to milk the Super Bowl sex-trafficking myth:

Not what I think? What I think is anti-trafficking campaigns are dumber than ever. Is the woman a baddie? Miami hyper-hype https://t.co/5cqtFihsOI pic.twitter.com/7nOO6sGiWw

— Laura Agustín (@LauraAgustin) January 20, 2020

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In Ferguson v. Waid, handed down Jan. 8, the District Court had concluded that Sandra Ferguson, a former client of Brian Waid’s but also a lawyer herself, had libeled Waid in online reviews; it awarded Waid damages but also issued an injunction.

The Ninth Circuit—in a nonbinding decision, but one that I expect will be fairly influential—held that the injunction was overbroad, but could be constitutional if narrowed to ban only repeating statements found to be defamatory:

Ferguson appeals from the district court’s post-trial order, entering an injunction “to protect Mr. Waid from further harassment.” The injunction is overbroad at section (a), which prohibits Ferguson generally “from contacting past or present clients of Brian J. Waid, either in person, via telephone, or by electronic communications.”  That prohibition is not supported by the district court’s findings of fact or conclusions of law regarding defamation, as its effect is to preclude Ferguson from having any communications with Waid’s clients, including about topics unrelated to Waid or this lawsuit.

Accordingly, we reverse and remand with instructions to revise section (a) to add the underlined language: “Sandra Ferguson is enjoined from repeating the same or effectively identical statements found to be defamatory in this case to past or present clients of Brian J. Waid, either in person, via telephone, or by electronic communications.” With that modification, the injunction will be “tailored to eliminate only the specific harm alleged.”

The court also upheld a different part of the injunction, which more generally barred Ferguson from repeating the libelous statements:

Ms. Ferguson is enjoined from publishing again the same or effectively identical statements found to be defamatory in this case; …

Ms. Ferguson shall remove or seek to remove any defamatory statements she has already published about Mr. Waid on the internet.

I had filed an amicus brief arguing that properly tailored anti-libel injunction were constitutional, but that they had to have certain procedural protections (see here and here); the court rejected, without comment, my proposed protections, though it agreed with the substantive point. Note that two of my procedural objections to anti-libel injunctions—that they let people be criminally punished for libel (if they violate the injunction, which exposes them to criminal contempt) (1) without a jury finding that their statements were false and defamatory, and (2) without a lawyer who can argue that the statements weren’t false and defamatory—didn’t apply here: Ferguson waived her jury trial rights, and was represented by a lawyer (and in any event is a lawyer herself).

The decision leaves matters unsettled in the Ninth Circuit:

[A.] San Antonio Cmty. Hosp. v. S. Cal. Dist. Council of Carpenters, 125 F.3d 1230, 1239 (9th Cir. 1997), upheld an anti-libel injunction.

[B.] On the other hand, In re Dan Farr Prods., 874 F.3d 590, 596 n.8 (9th Cir. 2017), noted that “‘[s]ubsequent civil or criminal proceedings, rather than prior restraints, ordinarily are the appropriate sanction for calculated defamation or other misdeeds in the First Amendment context'” (quoting CBS, Inc. v. Davis, 510 U.S. 1315, 1318 (1994) (Blackmun, J., in chambers)), but without discussing San Antonio Community Hospital, which seemed to take the opposite view.

[C.] District Courts in the Ninth Circuit are divided on the subject, for instance, focusing just on 2016 and 2017 decisions,

• Andreas Carlsson Prod. AB v. Barnes, No. CV 15-6049 DMG (AJWx), 2016 WL 11499656, *5 (C.D. Cal. Oct. 11, 2016), concludes that “‘Injunctions against any speech, even libel, constitute prior restraints’ and are therefore ‘presumptively unconstitutional.'”
• New Show Studios LLC v. Needle, No. 2:14-cv-01250-CAS (MRWx), 2016 WL 7017214, *9 (C.D. Cal. Dec. 1, 2016), concludes that”injunction[s] against defamatory statements” are only allowed in “exceptional circumstances.”
• Vachani v. Yakovlev, No. 15-cv-04296-LB, 2016 WL 7406434, *7 (N.D. Cal. Dec. 22, 2016), concludes that “an injunction [to remove defamatory allegations and not to repeat them] is permissible.”
• List Industries, Inc. v. List, No. 2:17-CV-2159 JCM (CWH), 2017 WL 3749593, *3 n.1 (D. Nev. Aug. 30, 2017), cites various opinions but “takes no position” on the dispute.
• aPriori Technologies, Inc. v. Broquard, No. 2:16-cv-09561, 2017 WL 11319740 (C.D. Cal. Nov. 22, 2017), enjoins defendant from “Making any statement that refers to both aPriori or its officers, customers, investors, or affiliates, and Mr. Frank Iacovelli with respect to his alleged acts of child endangerment, child abuse or child molestation.”

This can be pretty confusing, as aPriori shows. Broquard’s Informal Brief argued that the injunction violated his “First Amendment Right to Freedom of Speech,” and Broquard and his codefendant had made the argument below. Defendants Joint Response to Plaintiffs Supplement Memorandum of Points and Authoriities [sic], ECF No. 115, aPriori Technologies, Inc. v. Broquard, No. 2:16-cv-09561 (C.D. Cal. Oct. 10, 2017). But, given Broquard’s lack of legal expertise, the Informal Brief did not offer any real legal analysis. The Ninth Circuit’s disposition therefore said only that, “Broquard’s contentions that the injunction violates his First Amendment rights [and other rights] are unpersuasive. We do not consider matters not specifically and distinctly raised and argued in the opening brief, or arguments and allegations raised for the first time on appeal.” Perhaps the District Court in aPriori was right in issuing the injunction—but it did so without sufficient guidance from the Ninth Court, and Broquard likewise lacked a clear statement of the legal rule around which he could have structured his argument.

Ferguson v. Waid, I suspect, will weigh in favor of allowing the narrow anti-libel injunctions (and against allowing broad anti-harassment injunctions that go beyond the material found to be libelous). But, as I said, the matter remains unsettled.

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1/21/2010: Citizens United v. Federal Election Commission decided.

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“A lot of people think the middle class is dead, dying, hollowed out,” says Russ Roberts, an economist at Stanford University’s Hoover Institution and host of the podcast EconTalk. “And that’s a view that’s held now increasingly by not just the left…but by conservatives, Republicans, and economists across the spectrum.” Roberts’ trademark optimism has been tested by the authoritarian shift of American politics in recent years, but he still sees quantitative reasons to celebrate the U.S. economy. He says leading proponents of the claim that the country’s middle class is dying have offered “a misreading of the data, or at least an incomplete reading of the data, [ignoring] a much fuller story of opportunity and progress.”

In August, Reason‘s John Osterhoudt spoke with Roberts about how to measure economic progress in a way that tells a more nuanced story about the middle class.

Q: What are the most common errors researchers make when measuring economic progress?

A: There are a lot of different choices you have to make when you’re doing a study on how the middle class has done over the last quarter-century. For instance, how do you correct for inflation? One study found that middle-class incomes went down 7 percent over a 40-year period, which would be terrible, because the economy grew substantially over that period.

It turns out if you use a different measure of inflation, you get middle-class income growth of about 14 percent. Now, 14 percent is not very good at a time when the economy as a whole doubled, but even that number is flawed because your money actually buys a lot more today than it did 40 years ago. You can say a TV today is roughly the same price as a TV 40 years ago, but the TV today is a lot bigger. Do you want to correct your comparison for the size of the TV? How about the fact that modern TVs basically never break?

Q: Is there a more accurate way to measure wealth in 1975 vs. today?

A: A recent study found the bottom half of the income distribution today makes the same on average as the bottom half 35 or 40 years ago. That’s extraordinarily depressing, if true. It implies the top is just doing way too well. But a handful of studies have instead taken people in 1975 and followed them through time to see if the rich truly did get all the gains. When you do that, you find out that the people at the bottom have the largest percentage gains and often the largest absolute gains over time.

Q: Your colleague, the economist Donald Boudreaux, argues that we also need to look at benefits when comparing wealth across decades.

A: There are 10 different things to look at! Yes, you want to look at full compensation. Benefits and fringe benefits are a much larger proportion of compensation than they were 40 years ago. If you only look at money earnings, you’re going to get a distorted picture.

Q: Talk about the snapshot issue with the top 1 percent.

A: Let’s think about professional basketball. In the 1980s, the two best basketball players were Larry Bird and Magic Johnson. They made a lot of money and a lot more money than the people in the stands watching them. Now let’s come to the present, when LeBron James and Kevin Durant make a lot more money than the people in the stands. The gap between the best basketball players’ salaries and the average fan salary is bigger than it used to be, because basketball is more popular today than it was 30–40 years ago. But note that Larry Bird and Magic Johnson didn’t get those gains. Basketball players have gotten richer over time relative to their fans, but also relative to past basketball players. The bottom half is not static over time, and the 1 percent is not static over time. So when we use the snapshot model and say, “The top 1 percent has gotten all the gains”—they’re not the same people!

That’s kind of good, right? Sergey Brin and Larry Page founded Google. Sergey wasn’t born in the United States. He came here with his parents as an immigrant child. He wasn’t rich when he left graduate school. His parents weren’t rich. Yet he became one of the richest people in America. The 1 percent changes, and sometimes the poor don’t just get richer, they become truly rich.

Q: We shouldn’t throw the baby out with the bathwater.

A: The United States has a lot of cronyism we should get rid of. There are a lot of barriers for the poor. We give them a horrible education through the public school system. But the average person can make a lot of progress, and has. Economic progress doesn’t necessarily make us gloriously happier. But we also don’t want to conclude that the entire system is rigged simply because the measurements we have of economic progress are flawed.   

This conversation has been condensed and edited for style and clarity. For a video version, visit reason.com.

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Berlin’s construction industry has come to a near halt, with no new major construction and landlords performing only emergency repairs. The cause is a new rent control ordinance expected to take effect in just a few weeks. The city government plans to freeze rents for five years. Meanwhile, activists are collecting signatures to put a referendum on the ballot to seize the property of larger developers and operate it as public housing. City officials admit that the rental control law is extreme but say it is needed because of soaring rents and a housing construction market that has failed to keep pace with demand.

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The first of the two articles of impeachment on which Donald Trump is about to be tried by the Senate focuses on “abuse of power.” In my view, Trump’s scheme to withhold aid from Ukraine in order to pressure that country’s government into investigating a political adversary is also a violation of the Constitution and criminal law. An abuse of power can also be an illegal and criminal act. But the article does not require proof of illegality for conviction.

Despite claims to the contrary by newly appointed Trump defense lawyer Alan Dershowitz, there is overwhelming evidence that the original meaning of the Impeachment Clause permits impeachment and removal for abuses of power that are not criminal or otherwise illegal. That is actually one of those points on which there is a fairly broad consensus among constitutional law scholars across the political spectrum. For good summaries of the relevant evidence, see recent analyses by Gene Healy of the Cato Institute, and prominent conservative legal scholar Michael Stokes Paulsen (here, here, and here).

But critics of the abuse of power standard nonetheless contend it should be rejected. They fear it would create a slippery slope under which presidents can be impeached and removed for frivolous or vague reasons. Dershowitz, for example, worries that abuse of power is a “vague, open-ended” criterion that could lead to a “slippery slope.”

Unlike Dershowitz, my co-blogger Josh Blackman admits that “Congress can convict a president for conduct that is not criminal.” But he too fears that impeachment for abuse of power depends on “subjective judgment” and therefore “the predicates of the Trump articles will set a dangerous precedent, as impeachment might become—regrettably—a common, quadrennial feature of our polity.”

On this view, almost any president can potentially be accused of “abuse of power” by political adversaries in Congress. And then he might be impeached and removed for relatively trivial misconduct, or even just because of partisan animosity or policy differences with Congress.

I. Why the Slippery Slope Argument Against Impeachment is Overblown.

Such concerns are to some degree understandable. Every president has partisan adversaries who who would be happy to “get him” if they can. Nonetheless, slippery slope fears about impeachment are misplaced. If anything, there is much more reason to fear that presidents who richly deserve to be removed will get away with serious abuses of power.

The biggest reason why we need not worry much about frivolous impeachment and removal is that removal requires a two-thirds supermajority in the Senate, as well as a majority in the House of Representatives to impeach. The former is almost always impossible to achieve unless many senators from the president’s own party vote to convict him. They are highly unlikely to do so for frivolous reasons.

We might still worry that members of a House controlled by the party opposed to the President will impeach for frivolous reasons in order to do him political damage, even if he is ultimately acquitted. But this overlooks the reality that a frivolous impeachment can backfire on the party that does it. The impeachment of Bill Clinton notoriously backfired on the Republicans because most of the public decided that the charges against Clinton weren’t serious enough to justify removing a president.

Of course, it’s possible that skilled partisans will find an impeachment charge that is simultaneously frivolous yet also appealing to swing voters. But that risk is endemic to political life, and is not unique to impeachment. In a world where voters are often ignorant and biased, there is no way to prevent politicians from sometimes successfully damaging opponents’ reputations with dubious charges.

Some might fear that a hostile House can tie up the president with impeachment investigations even if there is no chance of conviction (and perhaps even if the House never actually votes to impeach). But a hostile Congress can already harass administrations with questionable investigations, even if impeachment is not the purpose of the inquiry in question. Congressional Republicans effectively proved that with their two-year long Benghazi investigation, which was far longer and more costly than the Mueller and Ukraine investigations of Trump, despite the fact that impeachment was never a serious possibility in the Benghazi case.

Moreover, to the extent that frivolous impeachment is a genuine concern, the problem cannot be “solved” by limiting impeachment to criminal offenses. The scope of federal and state criminal law has grown so great that almost anyone can be charged with some crime if investigators work hard enough to find one. If a president cannot be charged with frivolous supposed abuses of power, he can still be accused of committing some petty crime. And most adult Americans probably have in fact committed one at some point or other in their lives.

Perhaps this possibility is precluded by the fact that the text of the Impeachment Clause is limited to “high Crimes and Misdemeanors” (emphasis added). But the difference between a “high” crime and a minor one is at least as subjective as that between an abuse of power and ordinary, supposedly non-abusive, policymaking. Those of us who lived through the Clinton impeachment remember how Republicans claimed that Clinton’s offenses were grave affronts to the republic, while Democrats argued that they were minor, or at least nowhere near serious enough to justify impeachment. Whether a crime is “high” enough to justify impeachment is at least as subjective as the abuse of power standard is. If the word “high” does serve as an effective safeguard, it can do so with abuses of power no less than crimes, by limiting impeachment to serious abuses, as opposed to petty, insignificant ones.

Ultimately, the main safeguard against slippery slopes here is the combination of the need for a two-thirds majority in the Senate for removal and the danger of political backlash. It may not be a perfect safeguard, but it is very formidable nonetheless.

II. Barring Impeachment for Abuse of Power Creates Slippery Slope Risks of its Own.

Limiting impeachment to specific criminal or otherwise illegal conduct creates a slippery slope risk of its own. It creates a risk that the president can avoid impeachment even for grave abuses. Trump defense lawyer Alan Dershowitz gave a great example of such when he admitted that, under his approach, a president could not be impeached for the following conduct:

“Assume Putin decides to ‘retake’ Alaska, the way he ‘retook’ Crimea. Assume further that a president allows him to do it, because he believed that Russia has a legitimate claim to ‘its’ original territory… That would be terrible, but would it be impeachable? Not under the text of the Constitution.”

If impeachment is strictly limited to statutory crimes and misdemeanors, a president could also avoid impeachment for gross violations of the Constitution that do not amount to crimes. For example, he could order his subordinates to discriminate on the basis of race, ethnicity, or religion, to violate freedom of speech, and so on. Such presidential misconduct is illegal, but generally not a crime.

Over the last several decades, presidents have all too often engaged in serious violations of the Constitution and grave abuses of power and gotten away with it. President Obama launched two wars without constitutionally congressional authorization—as serious a breach of the constitutional separation of powers as any. He got away with it. Donald Trump has gotten away with his brutal—and illegal—family separation policy, and with massive  cruelty of his travel ban motivated by religious bigotry. Even if you agree with the Supreme Court’s dubious ruling that the judiciary was required to defer to the president on the latter policy, it was still a gross abuse of power. Each of these examples was actually a far more severe abuse of power than the Ukraine case,  especially if judged by the scale of the harm caused to innocent people.

Presidents have strong incentives to abuse their power and violate laws any time it seems likely to promote their partisan and electoral interests, or advance their policy agendas. Impeachment for abuse of power can provide a counterweight, albeit perhaps a fairly modest one.

III. Which Danger is Greater?

Let us assume the worst: if impeachment for abuse of power is allowed, occasionally a “good” president will get the axe even if he or she didn’t really deserve it. That strikes me as a price well-worth paying for putting a tighter leash on presidents who genuinely abuse their power.

In criminal cases, there is good reason to avoid conviction unless the charge against the accused is an offense clearly delineated by law, and guilt has been proven beyond a reasonable doubt. The reason why is that the defendant stands to lose her liberty or property—or even her life. By contrast, the risk facing an impeached president is removal from a position of enormous power.

Unlike unjust deprivation of life, liberty, or property, removal from power doesn’t violate anyone’s human rights. When real human rights are at stake, it may make sense to allow ten guilty people to go free, in order to save even one innocent from conviction. When it comes to positions of power, almost the opposite is true: Removing ten “normal” politicians is more than justified if that is the only way to get rid of one who engages in grave abuses of power. It’s not as if we suffer from a shortage of ambitious politicians who would be happy to take the places of those who get removed.

Imprecise delineation of  standards is also  far less problematic when it comes to removal from power than criminal punishment. If criminal laws are vague, people will fear to use their liberty, lest they accidentally run afoul of  the law. Such a “chilling effect” on liberty can be deeply problematic. If standards for impeachment are vague, the president might shy away from exercises of power that might be abuses, even if it is not entirely clear whether they really are. Such a chilling effect on power is more a feature than a bug, especially in a context where numerous other incentives incline presidents towards overreaching.

But perhaps the above underrates the harm caused by removing a “good” president. Such removal, it is said, is tantamount to “reversing” the outcome of an election. Not so.  A true reversal of an election would bring to power the president’s opponents. Thus, Trump’s election would be reversed by impeachment if his removal would bring Hillary Clinton to power. In reality, of course, impeachment elevates the president’s own vice president, who comes from the same party, and usually has a similar policy agenda. Elevating Mike Pence to the presidency may or may not be a good idea. But no one is likely to confuse him with Hillary Clinton—and not just because of the difference in gender. It is possible to imagine scenarios where the president and VP both get impeached and removed, thereby elevating the Speaker of the House of Representatives (who will often belong to the opposing party).

Such scenarios are great fodder for political thriller novels. But if it is extremely difficult to get a two-thirds majority in the Senate to remove a president in favor of a successor of the same party, it is virtually impossible to do so in order to elevate a political opponent such as House Speaker Nancy Pelosi. Michael Stokes Paulsen offers some additional responses to the “overturning elections” argument here.

Ultimately, the real danger we face is not that too many good presidents will be removed from power unfairly, but that too many grave abuses of power will go unpunished and undeterred. I am not optimistic that impeachment alone can solve this problem. The supermajority requirement that prevents frivolous impeachment also prevents it in all too many cases where it is amply justified. But the threat of impeachment for abuse of power can at least help at the margin.

Let presidents—even “good” ones—lose more sleep over the possibility of impeachment. The rest of us will then be able to sleep a little easier, knowing we are that much more secure against abuses of government power.

 

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A Pew Research Center 2017 survey gives us some estimates: Black gun ownership is lower than white gun ownership—but not by much. For whites, 36% of respondents report that they own a gun personally, and 49% report that they live in a household in which someone (whether they or someone else) owns a gun. For blacks, the numbers are 2/3 of that: 24% and 32%. (The numbers are lower for Hispanics, 15% and 21%.) In raw numbers, there are about 40 million blacks in the U.S., so about 13 million (or likely about 10 million adults) live in gun-owning households.

This seems to closely track different gun ownership based on ideology. Blacks generally vote about 90% in general elections for Democratic candidates, so it’s fair to say that they are generally Democrats or lean Democrats. Among all respondents who said they were Democrats or leaned Democrat, the numbers were 20% personal gun ownership, 30% household. Assuming that the great majority of blacks fall in this political category, white and black gun ownership among Democrats and Democrat-leaners seems to be virtually identical.

But in any event, there are lots of black gun owners out there, just as there are lots of Democrat gun owners. I can’t speak to what fraction of gun rights activists or gun rights enthusiasts are black—it’s certainly possible that black gun owners are on average less likely to focus on this issue politically than white gun owners. But it seems pretty likely that many black gun owners do care in considerable measure about their right to own guns, whatever fraction of them might or might not show up to, say, gun rights rallies. (Naturally, this tells us nothing about what is good gun policy; I am speaking here only of demographics.)

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A new academic paper published in Politics and Religion explores the source of evangelical Christian support for Israel. There are a host of complicated religious and political factors, some of which are benign, and some of which will undoubtedly make some Jews uncomfortable–many evangelicals believe that the establishment of Israel is a necessary prelude to Jesus’ Second Coming, which according to many will involve Jews converting to Christianity.

The most important bit of information I gleaned from the study, however, is that by far the strongest correlate of evangelical support for Israel was their opinion of Jews. In other words, evangelicals who are favorably inclined toward Jews (a strong majority) are strongly inclined to support Israel, and the minority of evangelicals who have an unfavorable opinion of Jews tend not to support Israel.

I can’t tell you how many times I’ve heard that evangelical support for Israel masks an underlying antisemitism, that evangelicals only support Israel so that Jews can be gathered in one place to be destroyed as part of the Second Coming, and thus their support for Israel is actual a reflection of anti-Jewish hostility. This turns out to be wildly wrong; whatever their theological views of the Second Coming, pro-Israel evangelicals are also pro-Jewish.

My statistical skills are pretty basic, so I checked with one of the authors to make sure I was reading this right. He responded, “I agree with you 100%. They [evangelical supporters of Israel] are not antisemites, but philosemites.”

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Here’s Prof. Johnson’s post: you can find his book here:

When W.E.B. Dubois patrolled his home with a shotgun after the 1906 Atlanta race riot, he was an aberration. But not how you think. Dubois reports that he was unusual among his contemporaries because until that point he did not own a gun.

Dubois’s gun purchase and his aggressive statements following the riot were not passion-of-the-moment things that he would regret. They were part of a continuing engagement of the practice and philosophy of armed self-defense. As editor of the NAACP’s flagship magazine The Crisis, Dubois continued to champion armed self-defense as a core private interest. Indeed, in some instances, Dubois seemed to cast self-defense as a duty. After a lynching in Gainesville, Fla., he wrote: “No Colored man can read an account of the recent lynching in Gainesville without being ashamed of his people. Without resistance they let a white mob whom they outnumbered two to one, torture, harry and murder. In the last analysis lynching of Negroes is going to stop when the cowardly mob is faced by effective guns in the hands of people determined to sell their souls dearly.”

Dubois also offered an important caution that reflects the core principle of the black tradition of arms and models Martin Luther King’s admonition decades later about respecting the line between self-defense and political violence. In commentary following the 1919 Chicago race riot, Dubois urged robust self-defense with “bricks and clubs and guns.” But then he cautioned, “We must never let justifiable self-defense against individuals become blind and lawless offense against all white folk. We must not seek reform by violence.” In 1921, he invoked self-defense again as he urged blacks to migrate to the comparative safety of the North. He acknowledged that “troubles will ensue with white unions and householders. But we have learned how to meet it by un-wavering self-defense and by the ballot.”

In this respect, Dubois was no aberration within the early leadership of the NAACP. Walter White also would rise to pull heavy oars at the association. Walter White was from Atlanta. He was just a boy in 1906. While Dubois paced the floor with a shotgun, across town, Walter White sat with his father, both of them clutching guns. Later White wrote about his father’s somber caution as the two of them crouched in the dark peering out the parlor window of the family’s neat bungalow: “Son, don’t shoot until the first man puts a foot on the lawn and then don’t you miss.”

The stories of Dubois and White begin chapters five and six of Negroes and the Gun. The decision to begin each chapter with a period leader who embraced armed self-defense might have been a problem. The instinct is that such things are rare. But actually the problem was the opposite.

The record is so thick that the difficulty was choosing who got top billing. Because they were of different generations, White and Dubois head separate chapters. But this meant that another NAACP stalwart, Louis Wright, the first black chairman of the NAACP and a graduate of Harvard Medical School, had to go deeper into the lineup. Louis Wright’s armed preparations come to us secondhand from Roy Wilkins, who writes: “Louis came from Atlanta. Like Walter he had been through the 1906 riot, and like Walter he had watched through the darkened windows of his home, gun in hand.”

The gun stories of Dubois, White and Wright make it easier to digest the fact that the NAACP cut its organizational teeth supporting black people who used guns in self-defense. The first major litigation that the NAACP supported was a case of armed self-defense by black sharecropper Pink Franklin against a planter who laid claim to him under a peonage contract. The NAACP took on the case in 1910, and by 1919, Pink Franklin, who had shot a planter and a deputy marshal in self-defense, walked free.

The saga of Sgt. Edgar Caldwell ended differently. Caldwell, a WWI veteran, shot and killed a trolley driver who was stomping him after throwing him from the whites-only section. The NAACP raised money for his defense with a plea in The Crisis: “We want 500 Negroes who believe in Negro manhood to send immediately one dollar for Caldwell’s defense.” His defense funded by the coins and bills of anonymous black folk, Caldwell survived two years on death row before he was executed. Under the deft editorial touch of Dubois, The Crisis spills over with reports and commentary that frame armed self-defense as a crucial private resource for blacks. Giving broader coverage to this material might easily have added another hundred pages to Negroes and the Gun.

One of the most important early cases supported by the NAACP anchors chapter six. Dr. Ossian Sweet had the grand ambition to move his family into a nice house on a neat corner lot in a white neighborhood. He was familiar with the risks. Several black families had been run out of their new homes by mobs. Sweet’s colleague, Dr. Al Turner, did not even get to spend the night in his new home. Turner was reviled among blacks as the story spread of him fleeing the scene, cowering on the floor of his chauffeured car.

Ossian Sweet feared both mobbers and the shame of being called a coward when he walked into his new home, carrying a sack full of guns and ammunition. It was not long before the mob gathered. Missiles flew. And by the end of it, one of the white men in the crowd was dead from Negro gunfire.

The NAACP hired Clarence Darrow to defend the Sweets and used the case to fuel a fundraising juggernaut. After Darrow wrestled the prosecution to a mistrial, the Sweets became national heroes among black folk. Their tour of NAACP branches raised enough money to pay Darrow, with surplus left to fulfill James Weldon Johnson’s dream of a standing fund that could support important litigation without pushing the organization to the brink of insolvency. This was the beginning of the storied NAACP Legal Defense Fund.

Of course, the NAACP was not the only game in town. It was the progeny of disparate early organizations, and that diversity reflects the potential divisions within the early 20th century leadership. When Dubois exhorted black men to fight in WWI, A. Philip Randolph countered that he would not fight to make the world safe for democracy, but was more than willing to die at home to “make Georgia safe for the Negro.” Marcus Garvey represented another strand of thought and was disdained by both Dubois and Randolph. But on the question of armed self-defense, the three of them found basic agreement.

This reflects what we have long known. The principle of self-defense is near universal. It demands no sophisticated ideology. Even in the most civilized of societies, it is an essential practical allowance for self-help against imminent threats in situations where it is impossible for the state to act. As I will discuss tomorrow, this ancient principle runs like a torrent through the modern civil rights movement.

See also this article by my UCLA School of Law colleague Adam Winkler from 2011, about MLK (at least in his early years):

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