Tag: news

Alcohol sales should be banned while Americans are isolating at home during the COVID-19 pandemic, wrote Peter Bach, a physician who directs the Center for Health Policy and Outcomes at Memorial Sloan Kettering Cancer Center in New York City, in a Boston Globe op-ed last week.

“States should immediately order the closures of liquor stores,” he writes. “They can reopen when home isolation is no longer needed.”

Bach writes that he supports such a ban because domestic abusers who also abuse alcohol are more likely to engage in unchecked violence during a quarantine, when “the isolation frustrates an array of safeguards we have in place to identify domestic abuse in the first place.” 

Indeed, reports suggest domestic violence cases have spiked across the country and around the world since the COVID-19 pandemic exploded. Other reports say calls to domestic abuse hotlines have done the same.

While terrible, the rise in domestic violence cases during this period is not terribly surprising.

“Domestic violence goes up whenever families spend more time together, such as the Christmas and summer vacations,” The New York Times reported this week in a story on the rise of domestic violence cases during the COVID-19 pandemic.

So why crack down on alcohol sales? Bach cites data from Finland, Sweden, and South Dakota that he says show alcohol restrictions can “reduce the frequency of home violence.”

Some leading domestic violence advocates don’t agree.

“[B]ecause drugs and alcohol aren’t the root issues of abuse (abuse is about power and control), achieving sobriety doesn’t necessarily end the abuse,” the National Domestic Violence Hotline—which can be reached at 1-800-799-SAFE (7233)—detailed in 2015. “There are plenty of people who use drugs and alcohol and don’t become abusive. Drugs and alcohol can affect a person’s judgment and behavior, but using them doesn’t excuse violence or abuse.” That comports with earlier research carried out by the group.

If alcohol use were a root cause of domestic violence, then one would expect rates of domestic violence to be lowest in countries that ban alcohol sales. But that’s not the case.

“One in every three women in Saudi Arabia is a victim of domestic violence,” a study in the International Journal of Public Health detailed last year. Alcohol is prohibited in Saudi Arabia, which only criminalized domestic violence in 2013.

South Africa also has some of the world’s highest rates of domestic violence. With that in mind, last month, South Africa’s police minister, Bheki Cele, banned alcohol sales—along with tobacco sales—in the country for the duration of the nation’s COVID-19 lockdown.

While rates of rape, murder, and other violent crimes have since dropped, domestic violence rates appear little changed. Reports suggest “gender-based violence complaints remained high” in the country despite the alcohol ban. (South Africa’s Gender-Based Violence Command Centre responds to domestic violence complaints.)

Here in the U.S., most states haven’t heeded Bach’s advice to ban booze sales. In fact, many have relaxed some longstanding restrictions on alcohol sales during the pandemic by, for example, allowing restaurants to sell to-go cocktails. Alcohol sales—most now for home consumption—have also grown nationwide during the pandemic.

Still, not every state has moved to facilitate booze sales. In Pennsylvania, Gov. Tom Wolf (D) deemed the state-run Fine Wine & Good Spirits “non-essential” and ordered the stores to close indefinitely last month. But state residents, anticipating the closure, went on a record-setting booze-buying binge before the ban took effect.

Fine Wine & Good Spirits stores reopened for online sales earlier this month after consumer backlash. But the online store promptly crashed due to high demand and seems not to have recovered.

That’s forced Pennsylvania drinkers to put themselves and others at risk, shirking shelter-in-place and social-distancing guidelines to buy booze by driving to other states—where they’re most unwelcome, due at least in part to the fact Pennsylvania has the seventh-most coronavirus cases in the country. In Delaware, police have taken to turning back Pennsylvania drivers who travel to the First State to buy booze. One West Virginia county also banned sales to Pennsylvania drinkers.

While the aforementioned booze bans show they eliminate neither alcohol sales nor domestic violence, other critics have suggested Bach’s proposal has serious public-health shortcomings. Alex Gertner, an M.D./Ph.D. student at UNC-Chapel Hill, tweeted out a thoughtful thread in response to Bach’s Globe op-ed. Gertner argues the ban would be counterproductive and dangerous for several reasons, including that it could harm or kill alcohol abusers—whether or not they are also perpetrating domestic violence.

For his part, Bach acknowledges that around 5 percent of alcohol abusers who quit alcohol cold-turkey can face life-threatening withdrawal symptoms. And he admits that banning alcohol sales would further wound the already battered economy. 

“Even with these possible downsides,” Bach argues, “the benefits to domestic violence victims and potential victims whom we have few other ways of helping through this crisis should be our priority.”

Gertner, for his part, proposes several ways to help domestic violence victims right now—none of which ban alcohol.

“Fortunately there are plenty of policy options to decrease domestic violence without these risks and downsides,” Gertner tweeted. “We can and should also expand programs that address violence directly. Let’s expand shelter capacity, ensure shelters can maintain physical distancing, develop innovative ways for victims to report abuse from home, and check in with known victims and known perpetrators.”

I couldn’t agree more with those suggestions. I’m sure there are other good ones out there, too.

According to government data, more than half of Americans have consumed alcohol within the past month. Responsible drinkers should continue to be free to enjoy a tipple whenever they’d like. People who commit violent crimes against family members (or others) should continue to be prosecuted for those crimes. If we need to devote more resources to combating domestic violence during the COVID-19 pandemic, then let’s do exactly that. But let’s leave Prohibition—even a temporary one—out of the equation.

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A New York statute, Penal Law § 240.50(1), defines the crime of “falsely reporting an incident in the third degree”: “knowing the information reported, conveyed or circulated to be false or baseless, … initiat[ing] or circulates a false report or warning of an alleged occurrence … of a crime … under circumstances in which it is not unlikely that public alarm or inconvenience will result.” The crime is not limited to making false reports to the government; it includes making them publicly. Last Thursday, New York’s intermediate appellate court in People v. Burwell held that the statute violates the First Amendment:

[I]nasmuch as this statute criminalizes a certain type of speech, namely false speech, the restrictions on speech are content-based, rather than time, place or manner limitations…. Absent certain historical categories which do not apply here (see United States v. Alvarez [2012]), even false speech is considered protected and, in that context, content-based restrictions are subject to “the most exacting scrutiny.” Under this exacting, or strict, scrutiny standard, governmental regulation of speech “is enforceable only if it is the least restrictive means for serving a compelling government interest.” “The First Amendment requires that the [g]overnment’s chosen restriction on the speech at issue be actually necessary to achieve its interest. There must be a direct causal link between the restriction imposed and the injury to be prevented.”

We have no trouble finding that Penal Law § 240.50(1) is designed to address at least two compelling governmental interests—preventing public alarm and the waste of public resources that may result from police investigations predicated on false reports. However, when examining whether the statute uses the least restrictive means for serving those purposes, as applied to defendant, we reach the conclusion that the statute is impermissibly broad. More particularly, neither general concern nor the Twitter storm that ensued following defendant posting the false tweets are the type of “public alarm or inconvenience” that permits defendant’s tweets to escape protection under the First Amendment, and, therefore, the speech at issue here may not be criminalized.

To that end, although it was “not unlikely” that defendant’s false tweets about a racial assault at a state university would cause public alarm (Penal Law § 240.50[1] ), what level of public alarm rises to the level of criminal liability? Indeed, United States v. Alvarez [Breyer, J., concurring] informs us that criminalizing false speech requires either proof of specific harm to identifiable victims or a great likelihood of harm.

Certainly, general concern by those reading defendant’s tweets does not rise to that level, nor does the proof adduced at trial, which established that defendant’s tweets were “retweeted” a significant number of times. In fact, because these “retweets” led to nothing more than a charged online discussion about whether a racially motivated assault did in fact occur, which falls far short of meeting the standard set forth in Alvarez [Breyer, J., concurring], we reach the inescapable conclusion that Penal Law § 240.50(1), as applied to defendant’s conduct, is unconstitutional.

Indeed, Penal Law § 240.50(1) is a “[b]lunt [t]ool for [c]ombating [f]alse [s]peech” and its “alarming breadth” is especially on display with respect to social media. Notably, “[t]he remedy for speech that is false is speech that is true” (Alvarez) and “social media platforms are information-disseminating fora. By the very nature of social media, falsehoods can quickly and effectively be countered by truth, making the criminalizing of false speech on social media not ‘actually necessary’ to prevent alarm and inconvenience.” This could not be more apparent here, where defendant’s false tweets were largely debunked through counter speech; thus, criminalizing her speech by way of Penal Law § 240.50(1) was not actually necessary to prevent public alarm and inconvenience. {Overbroad enforcement of speech restrictions may also result in a chilling effect as to political speech where opinion and facts often collide and “those who are unpopular may fear that the government will use that weapon selectively” against them.} …

Here is more from the court on the crime; the court upheld the conviction for falsely reporting a crime via a 911 call:

In 2016, defendant was charged in an 11–count indictment with assault in the third degree, harassment in the second degree and four counts of falsely reporting an incident in the third degree for her involvement in an altercation and its aftereffects that occurred on a city bus bound for the State University of New York at Albany (hereinafter SUNY Albany) campus. The indictment alleged that defendant, knowing the information to be false, reported, via an emergency 911 call, that “she was ‘jumped’ on a bus by a group of males, that it was a racial crime, and that she was struck by boys and called a ‘nigger'” (count 4). The indictment also set forth that defendant, knowing the information to be false, circulated—via social media and through an appearance at an event on the SUNY Albany campus—an allegation that she was the victim of a racially-motivated assault on a bus (count 7). After a jury trial, defendant was convicted of two counts of falsely reporting an incident in the third degree (counts 4 and 7)….

Testimony of the People’s witnesses at trial revealed that, on the night of the incident, the route number 11 bus operated by the Capital District Transportation Authority (hereinafter CDTA) was travelling towards SUNY Albany at approximately 1:00 a.m., and the passengers on the bus were almost exclusively SUNY Albany students. Testimony revealed that a verbal altercation arose when defendant requested that a passenger stop singing in exchange for a sandwich and a heated conversation regarding differential treatment on the basis of race ensued between defendant and several passengers. The verbal altercation escalated when defendant and her friends rose from their seats and approached a girl seated in the back of the bus.

The evidence demonstrates that a physical altercation between two girls—Ariel Agudio, one of defendant’s friends, and a passenger—resulted. Multiple videos depicting the incident were admitted into evidence. One of these videos consists of footage gathered from eight cameras and three microphones on the bus. Although the bus cameras depict the incident from various angles, only portions of the incident were actually captured and the audio of the incident is largely undecipherable, with the exception of ambient background noise and occasional words and phrases.

None of the decipherable words was the “N-word.” Video footage of the incident recorded by four individuals on the bus was also admitted at trial, each depicting small portions of the incident. Although the audio is slightly better than that of the bus videos, it is not possible to clearly discern every word that was said during the incident. Again, of the words and phrases that can be deciphered in these videos, none was the “N-word.” As established by this video footage and the testimony, once the physical altercation began, several passengers intervened, resulting in defendant, her friends and other passengers being pushed and pulled and Agudio’s clip-in hair extensions being torn from her head.

Approximately 18 SUNY Albany students testified about the incident, some of whom were directly involved and others were merely observers. One of these students, Mary Glisson, testified that she was sitting in the back of the bus singing “99 Bottles of Beer on the Wall” and that her singing annoyed defendant and two of her friends—one of whom offered to give her a sandwich if she would “shut up.” Glisson testified that a friend of hers yelled, “you’re f* * *ing ignorant, get a job” to the group of women who offered the sandwich. Thereafter, Glisson recalls her friend getting punched in the face, though she did not see by whom, and that, during the incident, she heard the term “white ignorant bitch.” Glisson also testified that, preceding the altercation, defendant and her friends made statements about Glisson’s ability to sing loudly and annoyingly as a white woman and their inability to object to it as black women.

Mark Pronovost, who was also present during the incident, testified that he engaged in a conversation about race with defendant and her friends during the verbal argument, prior to the physical altercation. Pronovost explained that he attempted to discern the substance of the verbal argument and one girl stated that it was a “black issue.” Pronovost testified that he did not hear any racial terms used during the incident.

Gabrielle Camacho, who was also present during the incident, testified that, upon hearing a discussion regarding “ignorant bitches,” she cut defendant and her friends off by stating, “[A]re you f* * *ing kidding me, you’re ignorant, shut the f* * * up and get a job.” Thereafter, Agudio stood up, approached Camacho and the physical altercation ensued. Camacho testified that she did not hear any racial slurs. The majority of the remaining SUNY Albany students who testified stated that they did not witness any males striking females and that they did not hear the “N-word” or other racial slurs used. However, two witnesses did testify to hearing the word “whale” and another witness testified to hearing the word “ratchet.” One witness testified that he did not hear any racial slurs, but, in the days after the incident, he “heard” others saying that they may have heard the “N-word.”

Lisa Johnson, a 911 dispatcher with the Albany County Sheriff’s office, testified that defendant called 911 following the incident and stated, “I’d like to report the fact that me and my friends were just jumped on a bus for being black.” Defendant told Johnson that she and her friends were on a bus going to SUNY Albany. Due to confusion as to where the incident occurred, defendant’s call was transferred to police for the City of Albany. An employee of the City of Albany testified that, after she received defendant’s call, defendant identified herself and stated that “me and my friends were jumped on a bus because we’re black.” Defendant continued on to say, “These girls … they were calling us the ‘N’ word and hitting us and so were guys[,] and the bus driver didn’t do anything about it until we got to campus, and he stopped the bus and still … guys continued to hit us in the face.”

Benjamin Nagy, an investigator with the SUNY Albany police, testified that he conducted a recorded interview with defendant following the incident. During her interview, defendant informed Nagy that she heard the “N-word” twice during the incident and that defendant was the only individual to provide him with information that that word was used. An inspector with the SUNY Albany police also testified, explaining that, in the course of his investigation, an individual who was on the bus stated that he did not hear the “N-word,” but that other people said they had heard it.

The People also admitted various statements, or tweets, made by defendant on her Twitter account in the days following the bus incident. The first tweets following the incident read, “I just got jumped on a bus while people hit us and called us the ‘n’ word and NO ONE helped us.” Defendant also stated, among other things, via Twitter, “I can’t believe I just experienced what it’s like to be beaten because of the color of my skin,” and “these were my fellow classmates[,] people that attend MY school.”

Defendant testified as to the incident. In that regard, defendant recounted that, while sitting on the bus, she noticed a girl singing loudly behind her and that she offered the girl her sandwich in an attempt to stop the singing. Defendant testified that she heard the “B” word and Agudio informed her that a girl had referred to them as “ratchet bitches,” which defendant testified offended her as she understood the word to mean “ghetto.” She also testified that the phrase is commonly associated with black women or a person who is inferior. Thereafter, Agudio engaged in dialogue with a girl in the back of the bus; defendant heard people telling Agudio to “shut the ‘F’ up.” Defendant testified that she then expressed to bystanders the racial distinction she perceived between people’s reaction—or lack thereof—to a girl loudly singing and their reaction to black women yelling loudly. Defendant testified that a male then referred to Agudio as a “whale bitch,” which she understood to mean something that is not human—a derogatory term for bigger women.

Defendant testified that following this dialogue, she stood up from her seat; she then felt her hair being pulled and was hit in the face. Defendant indicated that she began to fall over and attempted to get herself up; she eventually was pushed out of the commotion. She observed Agudio bent over a bus seat and that males and females were ripping her hair out. Defendant testified that she witnessed a man push Agudio down as others laughed. As defendant attempted to help Agudio, she was again pushed out of the commotion; she then felt someone grab her from behind and she turned to see a male pulling her backwards. Defendant testified that she was continuously pulled back by her arm and jacket, but no one was pulling back the people who were ripping out Agudio’s hair.

Defendant testified that she heard a male voice say the “N-word” twice. Defendant explained that, after she got off the bus, she called 911 pursuant to the SUNY Albany crime policy. Defendant also tweeted about the incident. Defendant testified that she characterized the incident as racially motivated because no one would have used the “N-word or ratchet but for her status as a black woman. She stated that she reported the incident because she was injured and afraid; the altercation should not have happened and she did not want to attend school with people “like that.”

The verdict is supported by legally sufficient evidence and is not against the weight of the evidence. In that regard, the trial evidence established that a verbal altercation arose that led to a heated conversation regarding differential treatment based on race. A verbal altercation ensued between Agudio and a passenger that resulted in defendant, her friends and other passengers being pushed and pulled and Agudio’s hair extensions being pulled out. The evidence is inconclusive as to whether the “N-word” was uttered on the bus; however, the testimony and video footage indicate that the word was neither heard nor spoken. Defendant thereafter reported to the police that she and her friends were jumped on a bus on account of their race; defendant reported that men and women participated in the assault and that the passengers called defendant the “N-word.” The evidence also demonstrates that defendant posted on social media that she was jumped on a bus, called the “N-word” and was beaten because of her skin color.

Based on the foregoing proof adduced at trial, we find that legally sufficient evidence exists to support both counts of falsely reporting an incident in the third degree. As to the weight of the evidence, although a different verdict would not have been unreasonable inasmuch as the jury could have credited defendant’s version of events, we find that the jury’s verdict is supported by the weight of the evidence. Deferring to the jury’s credibility determinations, the evidence supporting defendant’s convictions rests upon multiple sources that demonstrate that defendant knew she was not jumped on a bus by boys and girls as part of a racially-motivated assault and that she nonetheless falsely reported to a 911 dispatcher and posted on social media that she was beaten because of the color of her skin….

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4/11/1862: Chief Justice Charles Evans Hughes’s birthday.

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“There is a level of panic and catastrophizing about American politics that’s way out of proportion,” says David French. “And that is dangerous to our body politic.”

It’s ironic that French, a Tennessee-based evangelical Christian, has found himself in the position of trying to persuade his fellow conservatives to cool their jets. After all, the 51-year-old writer, litigator, and activist made a name for himself lobbing attacks on laws and policies that he felt were infringing on people’s rights. As president of the Foundation for Individual Rights in Education (FIRE), he helped file suit against college speech codes that were preventing students from voicing unpopular opinions on campus. As a columnist for the conservative magazine National Review, he regularly drew attention to religious liberty violations such as the Obamacare contraception mandate.

But since about the time Donald Trump made his presidential aspirations known, French has found himself in hot water with folks on the political right who fault him for not being a team player. The brief against him was epitomized by a now-infamous May 2019 essay in the Christian journal First Things in which New York Post op-ed editor Sohrab Ahmari complained that “liberalism of the kind French embodies has a great horror of the state, of traditional authority and the use of the public power to advance the common good, including in the realm of public morality.”

In October, French left his perch as a senior editor at National Review to join former colleague Jonah Goldberg and former chief of the now-defunct Weekly Standard Stephen Hayes in a new media venture called The Dispatch. In December, French sat down with Reason Managing Editor Stephanie Slade to explain that while he’s “every bit as conservative” as he was before the Trump era, he’s also deeply committed to the values of classical liberalism.

Reason: In one of your recent email newsletters, you used the phrases common good conservatism and nationalist conservatism. Can you tell us what those terms signify and how they differ from each other, if at all?

French: They’re mainly synonyms in my mind. The reason why I used common good conservatism is because I’m going with phrases used, for example, in some of [Sen. Marco] Rubio’s work and in a lot of the work you’re seeing out of Claremont, out of First Things. It’s emphasizing the role of the government in fostering the common good over the role of the government in protecting liberty.

They would reject, in many ways, this formulation from the Declaration of Independence that we’re endowed with life, liberty, and the pursuit of happiness, and then the next sentence following that, that governments were instituted among men to protect these liberties. They have much greater confidence, for example, than I do, that governments can in fact create economic conditions, can create social conditions that advance human welfare in a concrete and predictable way.

So you’re seeing a lot more emphasis on the right on central economic planning and a lot less emphasis on individual liberty—certainly a lot less emphasis on free speech, a lot less emphasis on economic freedom, more of an argument that because the market has been shaped a great deal by government, that essentially that means it must continue to be shaped as much as we can possibly shape it to advance the common good. It’s a sharp turn from what you would call classic Reagan conservatism.

What do you think caused that departure?

Well, there’s always been a strain of the GOP that is populist. And populism is rarely focused on small government and individual liberty, particularly the populism that you’ve seen in the South over the years….Populism in the South was public works: a big public intervention into the poor rural South.

There’s a very flawed belief that the principles of Reagan Republicanism and classical liberalism have failed this country—this is an argument you’ve seen from Patrick Deneen at Notre Dame—and that therefore we need a correction.

The thing that has come to exemplify everything that’s wrong with modernity for this crowd, as you well know, is Drag Queen Story Hour. Tell us what those words mean and then give me the Frenchian position on it.

Drag Queen Story Hour is a small movement of drag queens and friends of drag queens who will host, in public libraries scattered around this country, small gatherings of people who will listen to a drag queen read a children’s book. Children come to Drag Queen Story Hour. They see the drag queens and they interact with the drag queens. It’s come to symbolize the advance of the sexual revolution and, particularly, the way that the sexual revolution touches the lives of children. So the argument that was made was that classical liberalism is inadequate to address the threat of Drag Queen Story Hour, and that Drag Queen Story Hour is the product of liberty unrestrained. This is what happens when people are given too much liberty: Drag queens read books to kids.

My argument about this was really pretty simple. I don’t like Drag Queen Story Hour. I would not take my children to Drag Queen Story Hour. But I don’t have to go to Drag Queen Story Hour, and unless they violate anti-obscenity or indecency statutes or otherwise applicable and constitutionally appropriate laws, they enjoy all the protections of the First Amendment that everybody else enjoys. In fact, that open access to the use of public facilities has been a boon to social conservative groups like Christian organizations. There are thousands of churches that conduct worship services in empty classrooms and gymnasiums and cafeterias across this country, who have access to library facilities and other public buildings. They utilize those to say and preach and teach things that the common good conservatives would very much like and very much endorse. And you cannot have a legal system that allows the government to dictate which preferred viewpoint gets access to its facilities. If you embrace such a system, you’re not going to like the outcome.

The idea is that if conservatives can stop Drag Queen Story Hour from happening at the library, then why can’t progressives stop—

They can and will stop church services, Bible studies, Tea Party meetings, GOP gatherings. I mean, once you lift the [requirement of] viewpoint neutrality in access to public facilities, you lift it. It’s gone. And you better be in charge of everything, or you’re going to see your preferred viewpoint locked out of the public square.

Now, that’s a pragmatic response. I tend to think that liberty has independent value. A lot of [common good conservatives] think there is no independent value in liberty unless liberty is used for virtue. But I think the protection of liberty is a common good.

It’s true, though, that people on the left increasingly are trying to use the power of the state to impose their values on conservatives.

Oh, sure.

So why isn’t it true that at some point you have to fight fire with fire?

The fact of the matter is that we have systems in place that protect individual liberty increasingly effectively. This is something a lot of people miss. People who just started following politics recently tend to think that religious liberty is under unprecedented siege, when the reality is religious liberty has more protections right now from government interference than it has had in the last 25 years. People tend to think that free speech is under unprecedented attack, when right now people are more free from the threat of government censorship than they have been perhaps anytime in the whole history of the United States of America. There is an enormous advance of legal protection from censorship from the government over the last 25–30 years that is completely underappreciated.

What we face now isn’t so much the government imposing its values but private actors using the power that they have, whether financial or cultural, to try to crowd out competing voices from the public square. That would be, for example, when the Oscars doesn’t let Kevin Hart be a host. That’s one private entity telling a private citizen he can’t host their gathering. I am concerned about the culture of censorship that exists in a lot of these private actions. But it’s just a fundamentally different thing from the formal censorship that happens at the point of the government’s bayonet.

But we did just go through a presidential administration that wanted to make Catholic nuns provide their employees with birth control. We do have states trying to force bakers and florists to provide their services for gay weddings even if they object on religious grounds. So government power is being wielded.

It’s trying. And that’s been the case throughout American history. I mean, the wisdom of the necessity of the Bill of Rights was made manifest from the very first founding generation. As bad as the Little Sisters of the Poor case was or as bad as the Masterpiece Cakeshop case was, they’re not the Alien and Sedition Acts, and the Alien and Sedition Acts came in the founding generation.

There is a tug of war between government oppression and individual liberty that has been a part of the fabric of this country for 200+ years. I opposed the Obama administration’s legal position in Little Sisters of the Poor. I opposed their legal position in Masterpiece Cakeshop. And by the way, they lost. They lost. Individual liberty won.

Your former boss, National Review Editor Rich Lowry, has recently taken it upon himself to make the case for a “benign” nationalism. Is there such a thing as benign nationalism?

Only if the definition of nationalism is watered down to near meaninglessness. I think the United States of America is a different nation from virtually any other nation in the history of the world. It has a different history. It has a different composition. It is a collection of many nationalities. There’s that old phrase blood and soil nationalism. That’s difficult to translate into the U.S. I mean, whose blood? Which soil? So if you’re going to water nationalism down into, “Well, we have shared historical stories,” or “Most of us like the flag,” or “We’re stirred by specific events from our history, like Normandy Beach,” these things are symbols that matter. But as far as an organizing principle for a coherent politics, I think nationalism is dangerous.

What would nationalism look like as a political organizing principle?

In my view, it’s hard for nationalism to avoid becoming very centralizing—to avoid becoming statism, with the principal actor being the national government. Nationalism is in many ways a direct challenge to the fact of American pluralism. America is a continent-sized, multi-faith, multi-ethnic, constitutional republic. It’s hard to think of a nation anywhere in the world combining so many different nationalities and so many different and often competing strains of faith, with so many different geographies and subcultures.

You hear frequently this phrase used, real America. All of America is real America. The whole thing.

And you say that as somebody who lives in Franklin, Tennessee, a place that conservatives would call real America.

Oh, I’m in the middle of real America. The fact of the matter is that we have many different American experiences, many different American stories, many different perceptions of this country. And I agree: When you have that degree of pluralism, unity is a challenge. But I believe that unity is harmed more than it is helped when you try to centralize.

One complaint that nationalists make is that there’s a liberal elitist pastime of crapping on America. They think we need a renewal of basic pride in our country. You’re a veteran. You enlisted in the Army Reserves after 9/11. You served in Iraq. I imagine you’re a patriotic person. So do you feel like the nationalists have a point?

Yeah. I think that there are people who tell a very flawed story about this country, and I do think there are people who live within this country who don’t particularly like it. But because politics is the art of overreaction these days, I think that we conservatives paint with way too broad a brush about that.

There are people—I experienced that when I was in law school—who just look at the United States as this dreadful beast that was 200 years of greed, exploitation, and genocide followed by a couple of halfway decent social reforms that have made us only marginally less awful. I met people like that. They’re out there. But the idea that that is sort of a dominant strain of thinking—you see this all the time. You’ll hear someone on the right say, “They hate America.” That’s just false. You can nut-pick, and you can find an individual here and there, or even some sort of coherent intellectual movement coming out of some university, that does hate America. But this sort of “they hate America” talk, which is a tool of mass mobilization, is just a flat-out overreaction.

You and your family have been targets of some pretty heinous and horrible speech online. In the time since that started, this has become a highly politicized topic. There’s a lot of talk about needing to regulate social media companies to require them to monitor their users’ speech and make sure that users are not doing things like bullying or spreading false information. Where do you come down on that?

Just going back to my family’s experience: To the extent that true threats are communicated through social media, they should be prosecuted.

Social media companies…should have the liberty to be able to build and foster the kind of community that they seek to cultivate with their product. My general view is the government should take its hands off of social media companies, but that social media companies, when in doubt, should privilege free expression. What I’ve long argued is that social media companies should voluntarily try, as much as is practical with their given platforms, to track the First Amendment. Now, it’s different with different platforms. If you’re a Facebook and you want Instagram to be a much more kid-friendly space, sure. Fine. No nudity. Just like broadcast television without violating the First Amendment restricts profanity and nudity, etc. You can build the kind of community that you want. But as much as possible while doing that, try to avoid outright viewpoint discrimination. When in doubt, err on the side of free speech.

That’s not the government’s business. You hear a lot of argument right now that the government needs to step in to make sure that Facebook or Twitter or YouTube or whoever is sufficiently protective of “free speech” as the government defines it. And they pinpoint Section 230 of the Communications Decency Act [which says that web platforms are generally not liable for the speech of their users], and they say, “That needs to be repealed or substantially reformed.” Let’s be super clear about this: If the government repeals Section 230, it would ultimately create one of the biggest waves of censorship in the whole history of the United States of America. It would not have the effect that people think that it would have.

Why is that?

Section 230 basically says you can have good-faith moderation of user content without turning the moderator into the speaker. What does that mean practically? It means if I write a comment on Facebook, I’m responsible for my comment. Facebook is not. And Facebook can even moderate my comment and delete it if it has racial slurs or whatever. But the moderation of my comments does not make Facebook liable for my speech.

This was enacted as a reaction to two different cases, both out of New York. In one, a court said that an early internet platform that moderated user content was going to be responsible for user speech. In another, the court said that you’re not responsible for user speech if you don’t moderate at all.

What’s the problem there? If you don’t moderate at all, then you’re Gab [a social media site popular on the far right]. And Gab is a sewer. I know there are people who are on it, but Gab is an absolute open sewer, and a company like Facebook will not exist like that.

Because not enough people will want to use it.

Nobody wants to play in the sewer, right? These companies are not going to become the raw open sewage of the internet.

What’s the alternative? If they’re responsible for user speech, they’re going to be vetting your speech. Which means the voices that will exist will be voices that have access to the levers of power [and the ability] to speak in the way that journalists speak or the way that celebrities speak. Average people will not have an opportunity to speak.

Imagine if I can’t comment on Yelp about a restaurant unless Yelp fact checks me. I can’t comment on Facebook about my beliefs about the flaws of the University of Michigan football coach unless Facebook fact checks me. What? So this notion that good-faith moderation is key to allowing the internet that we use and take for granted, it’s absolutely true. It’s indispensable for regular, average, ordinary, everyday Americans to have a public voice. You revise this and you’re going to place these companies in a box: Submit to the government or be a sewer. And that would be a tremendous practical act of censorship.

Let’s get a little more explicitly political. Nobody saw Donald Trump coming, but everybody seems to have a pet theory about how he got elected. Do you have an explanation that you think is the most plausible?

I think there are a couple of factors that are underappreciated in the rise of Trump. One is just his raw celebrity. How many hundreds of millions of dollars were spent by the [Mitt] Romney campaign to brand him with the American public? Hundreds of millions of dollars. And this is a guy who was a governor. He headed up the Salt Lake City Olympics. He had run for president before in ’08. And still, if you’d ask an average American to name three facts about Mitt Romney, even the average American voter, what would they have been? So politicians have to spend a ludicrous amount of money [to brand themselves]. A lot of us who live and eat and breathe politics don’t fully appreciate this.

Donald Trump has been one of the most famous Americans for decades. And his brand, which was particularly enhanced through [his game show] Celebrity Apprentice, is “I’m an entertaining, super smart, super successful businessman.” And then because of his massive celebrity, think about the free media he got. As much as all politicos were like, “Oh, Marco Rubio: rising star. Ted Cruz: the new constitutional conservative,” millions of Americans just didn’t know those guys, and they knew Donald Trump.

And then Donald Trump—the very famous, successful celebrity—sold a very simple, potent message. I should’ve been more aware of just how potent this message was with voters who are not super political but really tired of the status quo. I was buying a truck in Columbia, Tennessee, and I was talking to the salesperson…and he said, “I like Donald Trump because he won’t apologize for America and he kicks ass.” And I thought, “You know, that’s a pretty compelling, simple message: He’s strong. He’ll fight for America.”

You briefly thought about running as a conservative challenger to Trump in the 2016 general election. Do you think that’s why you’ve become the subject of so much ire?

There were a couple of waves of anger. One wave was in late 2015/early 2016, when I wrote very critically about the alt-right, and that triggered just this awful backlash. Then when I considered running, there was another wave. And then I think the most recent [reason] is that there are very few Christian conservatives who were publicly Never Trump in the election who have maintained that stance. Very few.

Why have you been so stubborn on that?

I’m every bit as conservative as I was the day before Trump came down the escalator. I just think Trump is fundamentally incompatible with what I thought the conservative movement was, and I’m not willing to concede what I believe the conservative movement should be to him.

I reject this idea of all of these Americans sitting around going, “I need a president to fight for me.” You don’t. You’re a free American citizen. There is a level of panic and catastrophizing about American politics that’s way out of proportion. And that is dangerous to our body politic. I just do not believe that the defense of the values that I care the most about and have fought the hardest for in my life—I don’t think those values need Donald Trump as their champion. I don’t believe the pro-life movement needs him. I don’t think the argument for religious liberty needs him. I don’t think the argument for free speech needs him. I don’t think we need him.

We already were living in a world where progressives watch MSNBC and conservatives watch Fox News. With sites like The Dispatch and Breitbart and Jacobin, now everybody can choose the precise echo chamber that they want to live in. Does that worry you at all?

It worries me a ton.

This is a large issue, and it’s creating huge gaps of knowledge in the politicized portion of the American electorate, those people who pay close attention to politics. It’s creating a complete distortion field in our perceptions about each other.

I don’t know if you saw the More in Common research that said that the people who are most well-informed about politics are most wrong about the political beliefs of their opponents—they tend to believe that their opponents are far more extreme than they really are. That’s the product of people engaging with media that feeds that perception. It’s exacerbating divisions. If you think the Democrats are 25–30 points more extreme than they really are, doesn’t that raise the stakes of the election a lot in your mind?

Yeah, we’ve got a real problem. And I live in the heart of Trump country, and I see it every single day. If you read Twitter, progressives will say, “Look at all those bad people in Trumpland who see all of these terrible things that Trump has done and love him anyway. What a pile of hypocrites those people are.” Well, that applies to some people. It applies to an awful lot of the very vocal Trump supporters you’ll see online, because they know everything Trump does. They have histories of condemning the same behavior in Democrats and then they just flip around.

But your average, regular, everyday Trump voter doesn’t see the world like that. The media that they watch is very effective at defending Trump and very effective at highlighting Democratic excesses and Democratic wrongdoing. So if you talked to somebody at random in Franklin, Tennessee, about Donald Trump and they pay attention to politics, they’re going to know all the best defenses of Trump about Ukraine, and they might believe that they know terrible things about Biden that have been spread around conservative media. Is it really true that they have accepted all the bad that Trump has done? No. They don’t believe it.

I’ll never forget, I had a conversation with a sweet lady at my church. She said, “Why do you, David, still not support our president?” And rather than have a long conversation…I said, “You know, I just want a president who doesn’t lie all the time.” And she looked at me, and she said, “Donald Trump lies?” with all sincerity, with every ounce of sincerity in her. This is somebody who watches Fox primetime, who listens to Rush [Limbaugh] or Mark Levin. She would be able to talk to me about the basic outlines of the Ukraine controversy or the basic outlines of the Russia investigation. But the defense of Trump comes through so powerfully that there is no perception of the truth of the underlying indictment.

Do you have any optimism about our ability to break out of this place that we’ve gotten into as a country?

Not in the short term. I don’t think that there is any significant social, cultural, political, religious trend that is pulling us together more than it’s pushing us apart. Politics is only one part of that.

There was a book written several years ago called The Big Sort. All of the trends that were identified in that book have only accelerated. We tend to live around like-minded people more than we used to. The percentage of Americans living in landslide counties, counties that went for one candidate or another by 20 points or more, is higher than it’s been since we’ve been measuring the statistic. If you look at everything from [college football to Game of Thrones], a lot of pop culture preferences map with political preferences….And then if you look at the map of faith—where do people who go to church regularly live?—it is not an even distribution across this country. These are tectonic forces that are dividing us.

In my view, that’s one of the things that is so dangerous about nationalist conservatism. The response to these tectonic forces should not be forced centralization. It should be enhanced federalism. Let San Francisco be San Francisco. Let Franklin be Franklin. Nancy Pelosi needs to be less important in my life. And Ted Cruz needs to be less important to a San Franciscan’s life.

This interview has been condensed and edited for style and clarity.

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