Thursday, August 24, 2017

Free Speech and Emotional Injury

In 2012, the United States Court of Appeals for the Eighth Circuit, sitting en banc, decided City of Manchester v. Phelps-Roper. The case involved a city ordinance which prohibited picketing within 300 feet of a funeral service. The ordinance was challenged by (and pretty much aimed at) members of the Westboro Baptist Church, who had made a habit of protesting funerals of American soldiers because in their estimation God hates America for our various sinful practices (most notably tolerating homosexuality).

In an opinion by Judge Diana E. Murphy, the court unanimously upheld the ordinance as in keeping with the First Amendment. It was a decision that united both the court's liberals and its conservatives (though the Eighth Circuit is perhaps America's most ideologically lopsided court in terms its conservative bent -- Judge Murphy was at that point one of just two Democratic appointees on the court). I was clerking for Judge Murphy at the time, and I was proud to see the opinion released.

What immediately brought this back to mind was a decision earlier this month by a different Eighth Circuit panel upholding a similar Nebraska ordinance prohibiting picketing near funerals. But what I was particularly struck by, and what is germane to more current political controversies, was the rationale for why the ordinance was upheld.

America is famously absolutist in its free speech jurisprudence. Nonetheless, even absolutism is never quite absolute. Courts have allowed certain types of speech restrictions -- such as those which regulate only the "time, place, and manner" of speech without regard to its content -- albeit only after subjecting them to rigorous scrutiny. Such regulations must be "narrowly tailored to serve a significant governmental interest" and allow for "ample alternative channels for communication."

Why did the ordinance in Manchester survive that test?
A significant governmental interest exists in protecting their privacy because mourners are in a vulnerable emotional condition and in need of "unimpeded access" to a funeral or burial....
Manchester’s ordinance only restricts protests for a relatively short period, tailored to encompass a mourner’s time of highest emotional vulnerability and no longer.
In the Nebraska case, the court similarly focused on the extreme emotional injury mourners are likely to suffer when encountering picketers at a funeral. It quoted expert testimony that "vulnerable mourners can suffer significant emotional injury due to the picketers’ presence," and concluded that "Mourners, because of their vulnerable physical and emotional conditions, have a privacy right not to be intruded upon during their time of grief."

None of this is counterintuitive, of course. When one is burying a parent, spouse, or child, the sheer emotional agony of having one's services disturbed by protesters screaming about how God hates you is simultaneously impossible to imagine and yet all too evident. Nobody finds it odd, or weak-willed, or oversensitive to assert that the emotional injury caused by this speech -- which is just speech, just pure unadorned words -- is very real. And a unanimous court -- conservative and liberal alike -- found that this injury, in this context, could support a type of restriction on speech.

I mention all of this because, as someone who identifies as a free speech absolutist, I have read far, far too many of my putative allies dismiss the entire concept of an "emotional injury" caused by speech as nothing but snowflake-millennial nonsense. What kind of coddled baby do you have to be to say that your emotional health justifies a restriction on free speech?

This retort, of course, is an effort to take a hard problem and turn it into an easy one. The reality is that we have no trouble recognizing that -- in the right circumstances -- speech can cause extreme emotional injuries to persons with perfectly strong wills and tolerant hearts. And if I can imagine the sort of extreme emotional anguish I can envision being triggered by some homophobic thugs protesting a family members' burial, perhaps I can also imagine that sort of anguish resulting from a public speaker at, say, a university declaring one's religious group vermin, or one's ethnic group's entire presence in America parasitic, or one's sexual identity a disease, or one's gender worth nothing beyond sexual gratification. And if I don't condemn the first of these as the product of "intolerance" or emotional fragility, then perhaps I ought not be so quick to attribute that malady to the others.

Yet regular readers of this blog know that I do not support efforts to ban such horrible, injurious speech on college campuses. Why not? What does the free speech absolutist say to all of this?

I say that the Manchester ordinance did not distinguish between "good" and "bad" picketing -- it was "content-neutral" and justified on the basis that funerals were not a place where it was necessary to support the full to-and-fro of political and social exchange. I observe that college campuses are not like that and cannot be made like that, because they are designed as forums for the exchange of ideas and there would be no way to regulate the emotional injury caused by some speech without making appraisals as to content. I note that neither Berkeley nor any other campus would want an ordinance prohibiting picketing within 300 feet of a university. I say that emotional distress is not just caused by unjustifiable speech, and that sometimes being shaken up or made anxious is an important of the learning process. Finally, I say that the Manchester ordinance was justified not because the Westboro Baptist Church's speech was wrong (though I obviously think it was) but because nobody deserves to accosted that way at a funeral -- but college campuses are not like funerals.

What I do not say is that the emotional injury isn't real, or isn't serious, or exists only in the mind of millennial babies who have never had to deal with a contrary thought.

Speech can cause emotional injury -- real ones, genuine ones, whose gravity we recognize, whose damage can be severe, and whose harms are not always resolvable by "counterspeech". If one is a free speech absolutist, one has to accept that those injuries are sometimes the cost of preserving the free exchange of ideas. But to pretend that there is no cost is an exercise of denial. I know the piper I have to pay.

Wednesday, August 23, 2017

Re-Recognizing Racism: The Case of Tucson's Mexican-American Studies Litigation

A federal court invalidated an attempt by the state of Arizona to shut down a Mexican-American Studies curriculum in Tucson high schools, concluding that it was motivated by racial animus. The opinion is here, and it is just brutal on the primary architects of the law and its enforcement: Tom Horne and John Huppenthal.

What's striking about this opinion is that it doesn't flinch from the ascription of a racist motive. The program in question improved educational outcomes and was favorably reviewed in an audit ordered by the very officials whose avowed agenda was to destroy the department. Reviewing statements and practices by the major players behind the bill, the court's opinion concludes in no uncertain terms that the reason this law was passed and applied against Tucson's Mexican-American Studies program was because of bias against Mexican-Americans.

I strongly suspect that the willingness to make that determination is impacted by our current political climate. For all the whining that conservatives have engaged in about always being called a racist every which way, for the most part when it comes to official organs of government that had pretty much fallen off the table. There was an unspoken agreement that the "racism" charge was just too, well, mean to form the basis of high-level normative discourse.

And so, even a few years ago, for a federal judge to accuse a high-ranking state official of being motivated by racism would have been virtually unthinkable.  Courts dealing with racial discrimination suits would bend over backwards to couch their judgments in ways that would not be read as simply concluding that the defendants were being bigoted. Unfair, maybe; inconsistent, perhaps; unlawful, occasionally -- but not the dreaded "r" word. It wasn't seen as plausible that someone of prominence and prestige could be so crass as to be racist.

What's different now? One change is that conservatives on the Supreme Court have diced up our constitutional protections against racial discrimination such that only conscious, intentional discrimination qualifies. So judges who made have in past years relied on face-saving alternative rationales for invalidating discriminatory policies now have no choice but to say, flat-out, "this was done because of racial bias."

But I also think there's a greater psychological willingness to draw the inference of discrimination. The rise of Donald Trump demonstrated that explicit racial animus remained a live force in American politics, one that had a significant presence even amongst "elite" and "respectable" figures. Moreover, while in past years we might have worried about the backlash of flatly declaring a significant political figure racist -- how rude! -- now the calculus has changed. For it turned out that wearing kid-gloves around the racism issue in no way dissipated White racial resentment -- no matter how delicately one tip-toes around the issue, certain White people are just aching to thunder "are you calling ME a RACIST?". And so there's really not a lot of reason to beat around the bush anymore.

Tuesday, August 22, 2017

What's The Opposite of "Partisan"?

One of Paul Ryan's constituents, a local Rabbi, asked him if he'd support a resolution censuring President Trump for his grotesque "both sides" response to White supremacist violence in Charlottesville. Ryan declined, saying that the resolution would be "partisan".

Obviously that's a tremendously cowardly response, and if that was all to say on the matter it might not be worth remarking on. Paul Ryan is nothing if not a political coward.

No, what's more striking about it is that it's obvious nonsense. Allow me to break it down simply:

Democrats introduced a resolution censuring Donald Trump. If Paul Ryan, a Republican, supported that resolution, it wouldn't be "partisan". It'd be bipartisan. That's the opposite of partisan!

What Ryan means, I suspect, is that Democrats would benefit more politically than Republicans would from passing this resolution, even if it had supporters on both sides of the aisle. And that may well be true. But let's be clear: that's the partisan reasoning here. Sometimes doing the right thing in politics means doing when it's hard, or when it's uncomfortable, or when it helps the other side more than it helps you. If you're not willing to issue a clear denunciation of white supremacy and its apologists because you're worried about the electoral fallout, you're a coward, but you're an obvious partisan coward as well.

Monday, August 21, 2017

On Being in the Room

MaNishtana, a prominent African-American Jewish writer, has a bracing but well-worth-it post on the (generally White) Jewish reaction to a racial justice march being scheduled for Yom Kippur. In some ways, I consider it to be part of the same conversation I was having in my "On Asking Jews To Be More Anti-Nazi" post, although the march here -- being focused on police violence -- is more specified than that.

MaNishtana makes several points, but the core observation is simple: Decisions are made by the people in the room. If even one reasonably-observant Jew or Jewish organization had been involved in the march's organization, they could have pointed out the conflict in advance -- prior to the public announcement of its date. What does it say about us that none of us were in that room? How does that comport with our supposedly fervent desire to be included?

This also relates to the Jewish complaints about Black Lives Matter (really, the Movement for Black Lives platform -- the fact that many of the critics don't know the difference again belies at least some of the sound and the fury). If it seems like they take a hostile stance towards matters important to Jews, can't that be explained at least in part based on who is showing up? This was Jonathan Zasloff's point and one I concurred with in my own assessment of the MBL platform language -- it was, in part, a case of being out-hustled. When Jews aren't present, people who don't really know or care about Jews (or worse, those actively hostile to Jews) get to set the agenda. That those groups beat us to the punch in terms of getting a critical mass of influence inside these emergent grassroots organizations is not something to be proud of.

I also think MaNishtana makes a critical point about the overreliance of White Jews on the legacies of 60s, and particularly Andrew Goodman and Mickey Schwerner. As he observes, this is starting to border on "Party of Lincoln" territory: "If your most significant proof of social engagement and moral uprightness is an event from *three* generations ago, then that is a problem, and you need to figure out why." I agree that it is time to retire the 1960s as proof of Jewish "showing up" for racial justice. It's time for us to make our own history.

So all of that is an endorsement of a necessary critique. Yet, in keeping with my other post, I still think it's important to provide the counterweight. In any conversation about who isn't "in the room", there are explanations that suggest the absent group doesn't really wish to be there, and there are explanations that focus on ways they might be deterred from showing up. In feminist history, there were many instances of predominantly white women's groups "unintentionally" marginalizing women of color, in ways that almost certainly never would have happened if women of color were "in the room" in any significant numbers. And some of the white women would then wonder why they weren't in the room -- didn't they know they were welcome? Didn't they know they were desired? This was taken as axiomatic; it wasn't even considered that there might be reasons why they weren't in the room and that they might not actually feel welcomed or desired.

It is true that many mainstream Jewish organizations simply were flat-footed in getting involved in movements like Black Lives Matter, and their absence is what let groups and persons with a more hostile tone towards Jewish concerns take the lead. Some of that is an issue of medium: Compared to the 1960s, Jewish political organizing has shifted significantly in an institutional direction -- large organizations which seek to connect with and influence other large institutional players through means like lobbying, amicus briefs, political donations, and so on (think AIPAC, ADL, AJC, and so on). These groups actually have solid connections with the institutional elements of the Black community (e.g., the NAACP, or the Congressional Black Caucus) -- one of the reasons why I think the supposed Black/Jewish crack-up is widely exaggerated -- but they are not well-geared towards handling incipient grassroots activism that for the most part did not proceed through these channels. Beyond whatever ideological differences they might have from more institutional Jewish groups, one reason groups like IfNotNow are gaining momentum is that they have the agility to be part of this style of grassroots, street-level activism, in  a way that the hulking behemoths of the Jewish community simply cannot match.

All that said, there absolutely were Jews who really did "show up early" for these causes -- and, importantly, there were non-trivial efforts to push out them out of the room. The case of St. Louis Rabbi Susan Talve is a clear instance of that. The Jews kicked out of the Chicago Dyke March were showing and had been for years. Ditto those at Creating Change -- by definition, they were showing up. Or consider the headline Stacey Aviva Flint got hit with in the Atlanta Black Star when she expressed her ambivalence towards the MBL platform due to its Israel language: "Black Jews Stood with ‘BLM’ Until It Questioned U.S.’ Unrelenting Support to Israel." It's not a universal by any means; indeed, as I noted in my last post there is a strong and significant tradition of African-Americans in particular rejecting efforts to leverage their political organizing as a fulcrum to marginalize or exclude Jews. Certainly, the narrative that African-Americans are especially bad on this issue is simply unsustainable. But in left spaces such exclusion happens often enough such that many Jews will be hesitant to jump into the unknown -- a hesitation that cannot be reduced down to simple white fragility.

All of this flows naturally from the same suppositions as above: decisions are made by the people in the room. The same logic that says Jews should be in the room if they want the decisions to reflect Jewish concerns also tells us that people who want to subordinate Jewish concerns should try to push Jews out of the room. And the logic of racial capitalism, in turn, explains why dissident Jewish factions (in these contexts, generally anti-Zionist Jews -- though in other spaces right-wing Jews occupy a similar role) are often the prime movers perpetuating this exclusion: excluding other Jews enhances the power of the remaining Jews in circumstances where it is symbolically important to have a Jewish presence (as "diversity", or as a bulwark against charges of antisemitism). Put another way: JVP tried to push out Rabbi Talve because a BLM campaign where people like Rabbi Talve are present and active is one where JVP has less influence on BLM than a BLM campaign where people like Rabbi Ralve are excluded. It is a rational political strategy.

So we shouldn't be surprised that there will be barriers to mainstream Jewish participation in these movements -- plenty of people have an incentive to throw those barriers up. This doesn't mean that such barriers are the whole story anymore than it means Jewish apathy to racial justice is the whole story. As I said, I'm presenting a counterweight, not a counterargument.

There's one further thought that sprang to mind on this. There is a tension between the logic of the "if you want to influence the decisions you have to be in the room" argument" and the normative request that Jews or other Whites ought not "police" POC-led initiatives. MaNishtana's critique posits that Jews should have had enough presence and power within the organization setting up a march for racial justice such that they could ensure that the date didn't fall on Yom Kippur. Fair enough. But surely we all know that there are other critiques of (particularly, but not exclusively White) Jewish standing in such spaces that focus precisely on our alleged propensity to take over the spaces -- to arrogate decision-making power to themselves in a way that impeded Black self-determination of their own struggle. This controversy was what lay behind the decision by SNCC to forbid Whites from holding leadership positions in the organizations (which led to the expulsion of several Jewish leaders). Years later, in the early 1980s, it led to a boycott of the class Jack Greenberg was co-teaching with Julius Chambers on race and the law at Harvard Law School. Greenberg had helped argue Brown v. Board, succeeded Thurgood Marshall as chief lawyer for the NAACP, and was founding member of MALDEF. He was certainly someone who had absolutely been "in the room"; whatever else the controversy might have been about it, it couldn't be about that. That said, Black students were not wrong to be concerned that Harvard's record of hiring Black professors was appalling, and that there was something especially grating about the implied suggestion that even in the field of race the only option was for the class to be (co-)taught by a White guy.

I don't want to simplify these stories -- I think they are complex, and I think often they were more a case of Jews being caught in the cross-fire of a valid impulse towards self-determination than any conscious desire for antisemitic exclusion. At the same time, I think Jews are particularly vulnerable to this sort of "critique" due to antisemitic tropes wherein the Jews is portrayed as all-powerful, all-controlling, conspiratorial, pulling the strings, taking over the movement, and so on. The result is a catch-22 where, too often, there is virtually no gap between "why aren't Jews showing up" and "why are Jews dominating the space?"

Any non-trivial Jewish presence and participation -- particularly when it takes a critical form -- will quickly be recoded in this way. Rosa Maria Pegueros recounts her experience on a email list for contributors to This Bridge We Call Home where two -- two -- messages mentioning Jewishness were enough to elicit complaints that the listserv was turning into (in Pegueros' words) "a forum for Jews." I can relate (the complaint discussed in that post about "excessive" focus on Jewish issues was triggered by my own stint guest-blogging at Alas, a Blog. Barry Deutsch, the owner of the site, observed that even with my contributions the number of posts tagged "racism" outnumbered those tagged "antisemitism" by more than an 8:1 margin). Reacting to the Creating Change fiasco, one Jewish commenter lamented the exclusionary impulse which tried to kick out Jewish and Israeli LGBTQ organizations, but was more concerned that the Jewish community was publicly and effectively organizing to resist it, sympathetically describing the sentiment of conference attendees "that external Jewish power was dictating conference policies." (What they were "dictating" was that an LGBTQ conference shouldn't arbitrarily and at the last minute exclude either Israeli LGBTQ organizations or the North American Jewish LGBTQ groups who partner with them).

Like with the last post then, my ending line is meant to be ambivalent. There absolutely is a propensity within the Jewish community to rest on the glory days of the 1960s as an excuse for why we need not do the hard work of jumping back into the racial justice fray today. That needs to stop, and while different people participate in the cause in different ways, simply venerating dead Jews who marched with King is not actually a form of participation. Yet a full look at why -- to the extent it is so -- Jews are hesitant to fully link up with contemporary social justice organizing has to critically engage with the full structure of antisemitic exclusion, an inquiry which necessitates a deep dive into how antisemitism and Jewish marginalization manifest historically and contemporaneously. It can, after all, be simultaneously true that some Jews don't want to participate in contemporary racial justice causes in any way beyond the perfunctory, and that others really are trying to "show up" but face genuine barriers, both prejudicial and structural. And on the situation of White Jews particularly, I firmly believe that an intersectional analysis that seriously looks into what Whiteness and Jewishness do to one another is the only way to get a clear handle on the actual circumstances being faced here.

Thursday, August 17, 2017

Subbing Out Roundup

I took my final subfield exam today, in the History of Political Thought. For those of you who don't know, "subfield exams" were introduced as a means of exploring the "chicken" game: the student really doesn't want to study (for obvious reasons), and the examiner really doesn't want to fail the student (since that would necessitate writing and grading another exam). The equilibrium is for the student to level a deeply mediocre exam, and the examiner in turn to excoriate the student in comments before passing him or her. How it made the jump to Political Theory remains unknown.

What I'm trying to say is, I'm feeling good about my History of Political Thought Exam. But I am very tired, and about to hop on a plane to celebrate a friend's engagement. So ... roundup!

* * *

Leon Wieseltier on Charlottesville, Trump, and the alt-right. He doesn't pull punches. Definitely worth a read.

Somebody finally did a profile piece on rural people of color.

Fascinating article on Egyptian Israeli Arabs, and their strained relationship with a state nominally at peace with Israel.

Zachary Braiterman gives his spin on the perennial "are Jews White" topic.

Phoebe Maltz Bovy on why antisemitism needs to be seen as a distinct axis of oppression.

Very much enjoying this article by Rae Langton on "Blocking as Counterspeech."

What's worse than refusing to pay out valid worker's compensation claims to undocumented immigrants? Refusing it and using the claim as an excuse to deport them from the country. Grotesque.


Wednesday, August 16, 2017

Hungry for Apples?

There's an episode of Rick & Morty where Rick is trapped in a simulation by alien scammers seeking to steal some of his scientific discoveries. But somehow, Rick's idiot son-in-law, Jerry, is in the simulation too. Not wanting to be distracted from the primary mark, the aliens cap Jerry's part of the simulation at 5% power and let him be.

The result is a "simulation" of a human experience that is comically skeletal. Jerry's coworkers respond to every question with a simple "yes!" A few pedestrians (bodies reused) speak a single phrase on loop when they're not phasing into and out of trees. The radio plays "human music", a series of isolated beeps and boops.

Jerry loves it. He "sells" an ad campaign ("Hungry for Apples?"), has sex with his barely-mobile wife ("the best sex I've ever had!"), even talks himself into a promotion and an award for his apples slogan. Eventually, he declares it not just the best, but the most meaningful day of his life -- at which point simulation suddenly ends. Jerry is devastated; Rick patronizingly consoles him by asking "So what if the most meaningful day in your life was a simulation operating at minimum complexity?"

I was thinking about this in relation to the Russian bots which spread pro-Trump and pro-Putin propaganda throughout the right-wing ecosystem. The people who write these posts can barely speak English. They by design have no grasp on reality. It's not just that they appeal solely to people's baser instincts, it's that they appeal to these instincts in a transparently moronic way. They are a simulation of political reality, running at 5% complexity.

And yet a huge chunk of Americans are never happier than when they are gobbling it up. They love this. It's not just that they don't realize that it's all fake. It's more pathetic than that: they've never found more meaning than that which they get from automated Russian twitter accounts spitting out half-literate reactionary fantasies too stupid for Rush Limbaugh to run.

Basically, Trump's base is a bunch Jerrys. That was today's epiphany.

Tuesday, August 15, 2017

Two Jewish Stories

No substantial commentary. Just felt like linking to the following stories about some very different Jews.

Ha'aretz does a feature where they interview people coming and going at Israeli airports. This one features a discussion with a Ugandan Jew who just finished his first trip in Israel.

Meanwhile, the Forward ran a piece by a woman raised in the ultra-Orthodox community of Kiryas Joel who ended up attending Wellesley, and what happened when her father came to visit her at college.

Both  are interesting reads. Enjoy!