One New Fact

In my civil rights roundup today, I referenced an AP analysis which argued that Sarah Palin's charge that Obama "pals" with terrorists had a "racial subtext", as well John Cole's claim that he really did not see it. I noted that while I essentially agree with Cole, I thought that the case raised some interesting hypotheticals worth exploring in a later post.

One of the favored modes of exploration in law school is the "one new fact" game. The way it works is that, after crafting a rule for a given case or scenario, the professor presses you as to what you'd think given one new fact. "What if X is true", or "what if we stipulate Y? Does that change anything?" These hypotheticals are not rhetorical -- they are genuinely meant to explore and are written with the presupposition that they represent difficult questions (and that is how I mean the questions written below -- they are not backhanded ways of saying "clearly, this would be racist!"). It's a good way to test the boundaries of certain moral and legal intuitions we have. I've always been a fan of a quote by Richard Delgado and Jean Stefancic in their book Critical Race Theory: The Cutting Edge: "Normative discourse ... is highly fact-sensitive ... adding even one new fact can change intuition radically." [Richard Delgado and Jean Stefancic, eds. Critical Race Theory: The Cutting Edge. Philadelphia: Temple University Press, 2000, pg. xvii].

So let's take the case at hand. Governor Palin is attacking Obama as associating with terrorists (the reference being to former Weatherman William Ayers). On the face of it, this is race-neutral, though still risible: I don't think there is anything in Obama's race that is necessary to the attack. If John Kerry was running and had the same association with Ayers as Obama, the attack would still make as much of what little rational sense it possesses.

But now let's stipulate some facts (these, to reiterate, are hypothetical -- I don't make any claim as to them being objectively true, though I do think they are plausible enough so that we can analyze them). People are more vulnerable to certain types of attacks based on our pre-existing perceptions about their qualities as persons. We're more likely to believe a charge the meshes or coheres to our broader view of a person. So if I think John is aggressive, and someone tells me he assaulted a kitten, I'm more likely to believe them then if my perception of John is as a big ol' softie.

So, suppose Obama's race makes him more likely to be seen as an outsider, which makes voters more receptive to the "associates with terrorists" claim, as outsiders are more likely to be friends with terrorists then "real" Americans. Is there a racial component then? What if we cut the intervening link: Americans think "terrorist = brown person", Obama is a brown person, and that is the mental link. Is that racist? Would it be racist of the McCain campaign to exploit that?

The calculus of running a political attack is that one assumes the political benefit of fostering negative opinions about your opponent outweighs the backlash you get for "going negative". If the backlash is likely to be greater than the gain, the attack won't be run. Suppose that the "bonus" negativity the McCain attack would produce due to Obama's race has an impact on the McCain campaign's decision of how often and where to run an ad focusing on Obama's putative terrorist ties -- for example, they decide to direct their spending in areas where the "racial bonus" is largest. Is that racist?

What if the racial bonus is such that it provides the marginal gain needed to make the ad worth the cost in terms of potential backlash? That is, the ad would not have been "worth it" against a White candidate because the backlash would outweigh the gain, but the extra negativity due to race makes the advertisement a net gain for the campaign? In that way, race would be the critical factor in deciding whether to run the ad. Is that racist? What if the McCain campaign stipulates that it simply wants to run the most effective ads possible, and avers that it does not study and does not care whether its ads are effective because they trigger associations due to race or associations due to the 60s culture war? If they make that stipulation, but know that this ad is (solely? more?) effective due to race, does that satisfy an "intent" requirement that many hold necessary to charge something as racist?

The point here isn't to say that any of these scenarios are true. Only that they represent potential facts which complicate simple, on-face efforts to analyze a given political claim as "racist" or "not racist" (or "racially-tinged" or what have you). It would seem, given the right fact pattern (e.g., McCain runs a facially race-neutral ad knowing that it gains a racial bonus, targeting the ad on the basis of that bonus, and that bonus giving the marginal gain necessary for the ad to be run in the first place), even Palin's charge could be tagged as "racist" under even relatively stringent definitions of what racist means.