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In early July, a group of linguistics researchers published an open letter calling for the Linguistics Society of America (LSA) to revoke the organization’s distinguished fellow status from linguist and cognitive psychologist Steven Pinker, author of The Language Instinct, The Better Angels of Our Nature, and Enlightenment Now.

The signatories, many of them graduate and undergraduate students, pointed to years-old tweets of Pinker’s that they claimed revealed his racist and sexist biases. Almost immediately, a group of established scholars leapt to his defense. “The letter shows no familiarity with Pinker’s work, and takes statements out of context in a way that, with the merest checking, are seen to be represented duplicitously,” wrote Jerry Coyne, an evolutionary biologist at the University of Chicago. Academics from across the disciplinary and political spectrum joined Coyne in rebutting the letter, including linguist (and Reason contributor) John McWhorter, leftist firebrand Noam Chomsky, and formal semantics pioneer Barbara Partee.

In a conversation with Reason Science Correspondent Ronald Bailey on the day the LSA announced it would not take any action against him, Pinker explained what efforts like the LSA letter tell us about the state of debate in America’s elite institutions.

Q: This LSA letter is an astonishing document. 

A: I think it’s part of a larger mindset that does not see the world as having complex problems that we fail to understand and ought to try to understand better to diagnose and treat, but rather as a kind of warfare between powerful elites and oppressed masses. In the classic Marxist analysis, these would be economic classes, but they’ve been transformed to racial and sexual classes.

In this mindset, analysis, debate, evidence are just tools—propaganda exercised by those in power. What has to happen is not a deeper understanding of social problems, but a wresting of power from elites and redistributing it to the disenfranchised.

Q: You’ve said the letter wasn’t specifically about you, but it was quite targeted. 

A: It was quite targeted, but it’s part of a larger movement seeking monsters to destroy. That is, to look for prominent people and do “offense archeology,” which is to troll through tweets and statements seeking to find evidence, however tortured, that there’s some kind of prejudice behind them.

Q: The writers of the letter said that by challenging the claim that police are more likely to kill black people than to kill white people, you showed a “willingness to dismiss and downplay racist violence regardless of any evidence.” 

A: That’s completely wrong. It’s an open question to what extent police are racially biased. As a social scientist, I consider it my responsibility to try to understand that in light of the facts. You’re literally committing a logical blunder if you hold a belief that police are more likely to shoot unarmed African Americans and you don’t count up all the people police shoot. That is by no means a denial of the existence of racism.

There’s a distinct question of whether African Americans are subject to more sublethal harassment, and I think your former colleague Radley Balko wrote a very good summary for The Washington Post that shows there is evidence of racial discrimination in harassment and man-handling and arrests. But when it comes to lethal incidents, the evidence suggests that there isn’t.

Q: I’m trying to get a sense, from your point of view, of why your critics would misread what you are doing.

A: [There’s a] mindset that we evaluate what people mean based on whether the underlying idea is likely to be true or false; that we should use evidence in doing so; that all of us, in large part, start from a position of ignorance when dealing with social problems; and that the imperative is to understand their causes and therefore arrive at the best possible solutions.

There’s an alternative mindset in which the content of someone’s statements and attempts to evaluate them with respect to evidence are beside the point. The imperative is not to examine ideas that may be true or false; it is to maximize passion and solidarity. Because the elites are already in a position of power and the downtrodden have only their own solidarity and emotional passion as countermeasures, therefore anything that undermines the passion and solidarity is harmful in the struggle. And it is a struggle! It’s a kind of warfare that is zero-sum, and the imperative is to change the power balance.

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

 

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From the L.A. Times (Nina Agrawal), also echoed in (un-paywalled) Newsweek, based on a (paywalled) L.A. Times article, about the item I wrote about here:

This week a group of nearly 100 USC alumni, most of whom are Chinese by ethnicity or nationality, wrote to the school’s administration in support of their professor, saying his use of the Mandarin word for “that” was accurate and “an entirely appropriate and quite effective illustration of the use of pauses.”

The alumni said they were “deeply disappointed that the spurious charge has the additional feature of casting insult toward the Chinese language, the most spoken in the world, and characterized it and its usage as vile.”

“We feel Marshall should be open to diversity in all areas,” they wrote..

I haven’t seen the alumni letter; if anyone can point me to it, I’d be much obliged. My personal objection here isn’t to the “insult toward the Chinese language” as such; it’s to USC’s treating some students’ objection to hearing the word as a sound criticism and a reason to apologize. Instead, USC should have recognized this as the students’ error—an error USC, as an educational institution, should strive to correct—stemming from lack of understanding about how people should perceive speech in foreign languages.

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For decades, the CDC has collaborated with the states to collect data on births in the United States. Among the data collected is “race.”

Let’s see if you can figure out what the rule was before 1989. If a child had an Asian father and and a black mother, the child was tabulated as being Asian. So let’s say a child had an white father and a black mother. Well, the rule must be is goes by the father’s race, right? Wrong.

Until 1989, it did go by the father’s race, but only if both parents were not white. If one parent was white and the other non-white, the child was tabulated by the race of the non-white parent. I can’t think of any good reason for this rule other than the racist assumption that the product of interracial marriage may not be deemed white, but is automatically a member of his non-white parent’s group.

Since 1989, the rule has been that a baby’s race is tabulating according to the mother’s race, regardless of the father’s race. This information is retained by the government, but modern birth certificates to not list the child’s race. A proposal to do so was shot down a while back, primarily on the theory that the parents may tell authorities that their child is race “X”, but as an adult the child might choose to identify otherwise.

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Critics are lining up to blast a report, issued by a federal committee earlier this summer, that urges the government to make steep cuts to the definition of moderate alcohol consumption. These critics are concerned because the group—the Dietary Guidelines Advisory Committee (DGAC), a rotating crop of experts that meets every five years—is the government’s primary vehicle for recommending updates to the nation’s dietary policies.

The DGAC, which was established in 1990, “provide[s] the basis for federal food and nutrition policy and education initiatives.” Those policies include everything from recommending how many servings of vegetables people should consume in a day to determining what foods to serve to troops, schoolchildren, and prisoners. Now that the DGAC has issued its final report, key federal agencies will review and consider its recommendations, along with public comments, before adopting formal guidelines. Alcohol is one area where the DGAC recommendations are stirring the most controversy.

The report argues in favor of “reducing consumption among those who drink… in ways that increase the risk of harms.” That sounds eminently reasonable, until you learn the DGAC decided, despite ample evidence to the contrary, that drinking “in ways that increase the risk of harms” means enjoying a second Bud Light.

Indeed, the report seeks to halve the DGAC’s longstanding definition of moderate drinking for men—no more than two drinks per day—to no more than one drink per day. (The recommendation for women, set for years at no more than one drink per day, remains unchanged.)

The proposed change to the alcohol-consumption recommendation is angering everyone from bourbon aficionados to the beer lobbies and wine connoisseurs, who—and this is probably an understatement—are “not happy with the report.” But top medical doctors and public health experts, along with lawmakers, are also raising objections.

Last month, five Harvard Medical School faculty doctors—including three who served on one or more prior iterations of the DGAC—submitted comments that are highly critical of the 2020 DGAC report. They argue the push to slash the maximum daily alcohol consumption for men is a “limited, arbitrary, and unsystematic treatment of alcohol consumption” that is based on “limited, arbitrary, and unsystematic evidence.”

While rightly noting the dangers of binge drinking and consistent heavy alcohol consumption in their comments, the Harvard doctors note the DGAC appears to have “ignored” three decades of research, drinking patterns, and “relevant recent evidence.” They also argue the recommendations demonstrate “scientific inconsistency” and an “arbitrary” and biased selection of research. “These arbitrary selections all appear intended to support claims made by members of the DGAC prior to appointment, rather than as systematic and transparent reviews of existing scientific evidence.” In other words, the researchers claim anti-alcohol DGAC members focused only on research that supports arguments those members wanted to make all along.

Wesley Clark, a lawyer, professor, and medical doctor who is also the former director of the U.S. government’s Center for Substance Abuse Treatment, argued in comments he submitted that the DGAC’s “over-reaching” changes to the alcohol recommendations appear to result from “biased analysis” and might be “a sleight-of-hand vehicle for Prohibition.“

Other leading experts are also alarmed.

“There were very serious violations of scientific protocol regarding this proposal that need careful review,” said Sam Zakhari, Ph.D., chief scientific advisor with the Distilled Spirits Council and a former senior staffer with the National Institute on Alcohol Abuse & Alcoholism, in a statement emailed to me this week. “The committee acknowledged only one study examined differences in risk amongst men consuming two drinks per day as compared to one drink per day, which does not represent the preponderance of the evidence. Further, the committee members cited numerous studies that were outside of the 60 approved studies for review. It doesn’t take a scientist to see that the process was seriously flawed and that this proposal appears to be based on preconceived opinions, not science.” 

Many lawmakers in Washington aren’t happy with the recommendations, either. A joint, bi-partisan group of more than two-dozen members of Congress submitted comments opposing the DGAC’s dry-ish recommendations. Their comments single out a “lack of scientific evidence to justify any change in current moderate drinking recommendations.”

This DGAC controversy does not surprise me. Indeed, it’s no stretch at all to argue that the DGAC is best known—in recent years, at least—for its controversial recommendations. In 2015, I blasted the DGAC report for proposing new food taxes, pushing for restrictions on food marketing, and suggesting local food bans. In a separate column that same year, I spoke with a university researcher whose analyses, published in the esteemed, peer-reviewed Mayo Clinic Proceedings, suggests, as I explained, “that the DGAC’s work—and the research used to support that work—is so off base as to be scientifically useless.” I also detail major shortcomings with the 2015 DGAC’s recommendations around sustainability in my book, Biting the Hands that Feed Us.

The 2020 report isn’t all bad. For example, unlike in the 2015 report, I didn’t find any mentions of food taxes or bans in the 2020 report.

Thankfully, the DGAC report contains recommendations, meaning key federal agencies ultimately choose together whether or not to adopt those recommendations. On alcohol at least, the weight of the evidence suggests the federal government should reject the DGAC’s deeply flawed recommendations.

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9/5/1922: Justice George Sutherland takes the oath.

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In this month’s issue, we draw on decades of Reason journalism about policing and criminal justice to make practical suggestions about how to use the momentum of this summer’s tumultuous protests productively. Check out Peter Suderman on busting the police unions, Jacob Sullum on ending the war on drugs, Sally Satel on rethinking crisis response, Zuri Davis on restricting asset forfeiture, C.J. Ciaramella on regulating use of force, Alec Ward on releasing body cam footage, Jonathan Blanks on stopping overpolicing, Stephen Davies on defunding the police, and Nick Gillespie interviewing former Reasoner Radley Balko on police militarization.

“As it stands in America today, the police aid in the trampling of rights on such a massive scale that there is hardly a word sufficiently descriptive. Limited liability? The price of retribution due to the victims of the crimes committed by police on any single day would be beyond calculation, yet not only do these crimes go undenounced (for the most part), and the perpetrators, police and politicians, unpunished, but, even worse, the victims are forced through taxes to finance the operation and salaries of the criminals.”
Lanny Friedlander
“The Cops: Heroes or Villains?”
November 1969

In December 2017, the U.S. Court of Appeals for the 6th Circuit ruled that a former Ferndale, Michigan, police officer named Lowell Phillips violated the Constitution when he shot and killed a fleeing suspect. Laszlo Latits “showed a persistent intent to flee but not an intent to injure, and never placed the public or the officers at imminent risk,” the court observed of the incident, which began with a traffic stop over a wrong-way turn onto a divided boulevard and ended four minutes later with Latits dead of multiple gunshot wounds to the chest and abdomen.

Phillips not only “repeatedly violated police procedures in both ramming Latits and running up to his car,” the 6th Circuit noted, but Phillips was ultimately fired by the Ferndale police department for that misconduct. “Considering the totality of the circumstances,” the appeals court noted, “we conclude that Officer Phillips’s use of deadly force was objectively unreasonable and in violation of Latits’s constitutional rights.”

But then the 6th Circuit switched gears and shielded the disgraced ex-cop from facing a federal civil rights lawsuit filed by the dead man’s family. “Caselaw existing at the time of the events,” the court said, “did not clearly establish the objective unreasonableness of Phillips’s actions in the circumstances of this case.”

Welcome to the bizarro world of qualified immunity, a place where the federal courts will acknowledge that a police officer violated the Constitution but then deem the officer not civilly liable for his unconstitutional actions because there was no prior court decision explicitly frowning on the same behavior.

According to the U.S. Supreme Court’s 1982 decision in Harlow v. Fitzgerald, state actors are entitled to immunity from civil suits arising from their official conduct so long as the conduct that they’re being sued over “does not violate clearly established statutory or constitutional rights.” But as 5th Circuit Judge Don Willett, a leading critic of the Court’s qualified immunity doctrine, has complained, what that means in practice is that “public officials [may] duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly.”

Something has gone seriously wrong in our criminal justice system when the federal courts are running this kind of interference on behalf of blatantly unconstitutional police actions. What happened?

‘Shall Be Liable’

The story begins in 1871. In the aftermath of the Civil War, numerous state and local officials throughout the former Confederacy turned a blind eye (or worse) to the racist domestic terrorism perpetrated by the Ku Klux Klan and other groups. Congress responded to this dire state of affairs by enacting a series of so-called enforcement acts, each one rooted in Section 5 of the recently ratified 14th Amendment, which gave federal lawmakers the power “to enforce, by appropriate legislation, the provisions of this article.” Among the provisions of the 14th Amendment was the requirement that states respect the constitutional rights of U.S. citizens.

Perhaps the most forceful of the enforcement acts was the Civil Rights Act of 1871, also known as the Ku Klux Klan Act. Among other things, it sought to hold state officials personally liable for the widespread civil rights violations that were occurring on their watch. It did so in part by declaring that “any person who, under color of any law, statute, ordinance, regulation, custom or usage of any State, shall subject, or cause to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States shall…be liable to the party injured in any action at law, suit in equity, or other proper proceedings for redress.”

“If the Federal Government cannot pass laws to protect the rights, liberty, and lives of citizens of the United States in the States,” declared the bill’s principal author, Massachusetts Rep. Benjamin F. Butler, a radical Republican and former Union major general, “why were guarantees of those fundamental rights put in the Constitution at all?”

Butler’s handiwork lives on today in modified form in Section 1983 of Title 42 of the U.S. Code, more commonly known as Section 1983. It features language almost identical to the Ku Klux Klan Act.

Guess what the law does not say? “Neither version of the text, you will notice if you wade through them,” University of Chicago law professor William Baude has observed, “makes any reference to immunity.” That part came later, when the U.S. Supreme Court invented qualified immunity for cops in the mid-20th century.

‘Clearly Established’

It’s common to think of Chief Justice Earl Warren as one of the towering figures of legal liberalism, a jurist whose record is practically synonymous with what progressives like to call social justice. In the approving words of The Oxford Companion to the Supreme Court of the United States, “Whether one looks at the Court’s record in matters of free speech, separation of church and state, apportionment, racial discrimination, or criminal procedure, Warren and his Court essentially asked the same questions: Is this fair?”

Alas, fair is not exactly the word anyone would choose to describe what happened in Pierson v. Ray (1967), the case in which Chief Justice Warren more or less concocted the idea of qualified immunity for cops. At issue was the 1961 arrest of the Rev. Robert Pierson and several other civil rights activists for entering the “Whites Only” facilities at a segregated bus stop in Jackson, Mississippi. In 1965, in a different case, the Supreme Court ruled against the anti-loitering law those activists were arrested for violating. Two years later, the Court weighed a lawsuit, filed by Pierson and his allies under Section 1983, against the local authorities who wrongfully shackled and jailed them.

Writing for the majority, Warren safeguarded the Mississippi cops from the lawsuit. At common law, he argued, “a peace officer who arrests someone with probable cause is not liable for false arrest simply because the innocence of the suspect is later proved.” The chief justice then grafted that reasoning onto Section 1983.

“A policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does,” Warren declared. “Although the matter is not entirely free from doubt, the same consideration would seem to require excusing him from liability for acting under a statute that he reasonably believed to be valid but that was later held unconstitutional.”

Fifteen years later, the Court doubled down in Harlow v. Fitzgerald. “Government officials are entitled to some form of immunity from suits for damages,” the Court said. “Public officers require this protection to shield them from undue interference with their duties and from potentially disabling threats of liability.” So long as government officials acting under color of law do “not violate clearly established statutory or constitutional rights of which a reasonable person would have known,” the Court held, those officials “generally are shielded from liability for civil damages.”

‘An Absolute Shield for Law Enforcement’

The problems with qualified immunity are self-evident. Not only does the doctrine shield rights-violating officers from facing federal civil rights lawsuits, but it incentivizes police departments (which are also shielded from liability) to retain bad cops on the payroll. In effect, qualified immunity functions as an anti-accountability measure.

What can be done? There are two possible fixes. The first is for the Supreme Court to reverse or modify its misguided precedents.

At least two justices may be ready to do just that. The Court’s “one-sided approach to qualified immunity,” objected Justice Sonia Sotomayor in Kisela v. Hughes (2018), “transforms the doctrine into an absolute shield for law enforcement, gutting the deterrent effect of the Fourth Amendment.” To make matters worse, “it tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”

Justice Clarence Thomas, meanwhile, has suggested that the doctrine itself might be unlawful. In Ziglar v. Abbasi (2016), Thomas wrote a lone concurrence “to note my growing concern with our qualified immunity jurisprudence” and to urge the Court to “reconsider” that jurisprudence “in an appropriate case.”

Earlier this year, when the Court declined to hear Baxter v. Bracey, a case involving the grant of qualified immunity to officers who allegedly unleashed a police dog on a surrendering suspect, Thomas blasted his colleagues for refusing to get involved.

Section 1983 “ma[kes] no mention of defenses or immunities,” Thomas pointed out in his dissent. “Instead, it applies categorically to the deprivation of constitutional rights under color of state law.” In other words, the judicially invented doctrine does not match the text enacted by Congress. “There is likely no [legal] basis for the objective inquiry into clearly established law that our modern cases prescribe,” he wrote. “I continue to have strong doubts about our [Section] 1983 qualified immunity doctrine.”

The other fix requires action from Congress and the signature of the president. Because this doctrine arose via the judicial interpretation of a federal law, federal lawmakers need only pass a new statute to expressly repudiate what SCOTUS has done.

That approach is slowly gaining adherents. “Qualified immunity protects police and other officials from consequences even for horrific rights abuses,” observed Rep. Justin Amash (L–Mich.) when he introduced the Ending Qualified Immunity Act in the House of Representatives in June. Amash’s bill had garnered 65 co-sponsors at the time this article went to press, though a majority of Senate Republicans have declared the idea dead on arrival.

The fight against police misconduct is fast emerging as one of the greatest civil rights issues of our time. Holding abusive officers civilly liable in federal court is a necessary and long-overdue part of that fight. One way or another, qualified immunity for cops deserves to be abolished.

 

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