Discriminatory Motives Have Consequences

The 4th Circuit has upheld the injunction against President Trump's anti-Muslim travel ban. Its opinion rests heavily on various statements by the President which evince a discriminatory motive -- over and over again he said that his goal was to target Muslims, and when he became convinced that an explicit Muslim ban was off the table, he conceded that the executive order he issued was a way to effectuate those discriminatory desires via alternative means.

I've already explained why it is normal -- indeed, legally required -- for courts to take President Trump's motives into account when assessing whether his order is discriminatory. You can't take "intent" out of "discriminatory intent." So the 4th Circuit's decision is entirely appropriate and in line with standard legal precedent and reasoning.

But there's another reason why this decision -- and the clear focus it puts upon Trump's discriminatory statements -- matters. Very early on, I suggested that the appeal of Donald Trump is directly tied not just to his various bigoted statements, but to the imperviousness he's demonstrated to any backlash against him for said bigotry.

When Donald Trump implies Obama is a Kenyan-born Muslim, when he suggests that Latinos are all violent criminals, when he legitimizes mass expulsion (or worse) of American Muslims -- maybe he's saying out loud what many people secretly believe but felt constrained in saying. Isn't this the root of the "anti-PC" backlash? "I used to be able to openly degrade women for having a menstrual cycle, but thanks to liberal elites and Feminazis I can't say that anymore! What happened to freedom in America?" The complaint of the anti-PC crowd is precisely that they have to keep quiet that which they'd rather broadcast (and once could broadcast, before we had to actually start listening to the desires of pesky minorities).

Most people can't say such things anymore, or at least they're constrained in their ability to do so. There are members of traditional outgroups in their workforce (maybe even their boss), or as powerful constituents, or major donors, or simply well-connected citizens. Saying such things comes with real costs, sometimes prohibitive costs. It can lose you your job, or your friends, or your reputation, or your candidacy. And some people resent that deeply even as they quietly stew and keep their true beliefs private.

But Donald Trump is different. He can say these things. He can't destroy his reputation -- he's his own brand. He can't be driven out of the race by outraged donors -- he doesn't need them. He can't lose his job -- he runs his own company. He doesn't have to defer to outraged outgroups -- what can they do to him? For someone with implicit biases, this may not matter -- he's so obviously over-the-top that his positions can't be reconciled with any sort of egalitarian commitment. But for the covertly-biased, he offers up a tantalizing vision where one can say all of those open, overt, explicitly biased things they genuinely believe and it's okay. They don't have to cover it up anymore.

Deeply rooted in Donald Trump's appeal is that one should be able to say or do racist, misogynistic, antisemitic, Islamophobic, xenophobic (take your pick) things -- and face no consequences whatsoever. There are many people who long for the days when they could exhibit those prejudices and it was simply fine. It didn't matter. And Donald Trump -- for so long entirely impervious to social or political consequence for his own explicit bigotry -- instantiates that dream.

And that, in turn, is why the 4th Circuit's decision matters. It tells the President and his followers -- using completely normal and unremarkable tools of legal analysis -- that these things do have consequences. In our society, governmental actions taken with a discriminatory motive are constitutionally infirm. When you go out and brag about your discriminatory motive, you put the resulting policy programs at risk. That's a known consequence of that decision; one built into our constitutional fabric promising freedom of religion and equal protection under the law.

So it's no wonder he and his supporters are so outraged. What Donald Trump promised -- the ideal he represented, and for a long time was able to live out -- was a world where bigotry ceased to have consequences. And the orders enjoining his Muslim ban represents the thing they hate the most -- accountability.

More Shocking News from the Fair-Weather Free Speech Brigade

Some people didn't want Linda Sarsour giving a commencement address at CUNY. Those people included notorious Islamophobe Pam Geller and alt-right troll Milo Yiannopoulos. Their protest ended up turning violent, with one counterprotester reportedly surrounded and beaten.

You might remember Milo as the guy whose speech at Berkeley was squelched by violent protests. That set off a lot of talk about free speech -- consider my own remarks condemning said protests. But I was never under illusions that the conservative defense of Milo was really about free speech, let alone that Milo himself was a principled defender of it. One defends Milo speaking at Berkeley for the same reason one defends the Nazis marching through Skokie. The prospect that the speakers themselves don't care about free speech doesn't really factor in.

Meanwhile, a Republican who bodyslammed a reporter just got elected to Congress in Montana. So perhaps we can dispense with the fiction that there exists in the modern conservative movement some deeply rooted commitment to free speech right now that runs beyond partisan politics. As much as commitment to free speech may be decaying on the modern left, it faces just as much threat on the right.

Today I Got Assaulted

Today, walking to lunch in Berkeley, I was shoved into a wall.

I'm fine, mostly. Some minor scrapes on my wrist and soreness in my shoulder (which took the brunt of the impact). And the lawyer in me needs to say that technically, it was a "battery" and not an "assault".

The man who attacked me was a member of the local homeless population, and I suspect has some form of mental illness (when I called my mom to tell her, her first thought was that it was a protester angry at something I had written on my blog. Leave it to a Jewish mother to instinctively assume that her son must be important enough to be targeted for violence. A nice career aspiration, I suppose.).

Anyway, we were walking past each other on the sidewalk -- me on the building-side, him street-side -- and as we passed he yelled something unintelligible at me and then kind of pushed/body checked me into the wall.

I was in a bit of shock, and didn't really know what to do, so I just kept walking. But looking over my shoulder, I saw him strike another pedestrian behind me, who was much more visibly upset than I was. And unlike me, he had a bunch of witnesses who urged him to contact the police (conveniently enough, all of this happened literally across the street from the UC-Berkeley Police). Once I saw him walk across the street to talk to the officers, I figured I might as well join him. Unfortunately, my co-victim said he had a final exam to take and quickly bolted, so I ended up being the only person to give a statement.

After quickly getting my information, the first thing they asked was whether I wanted to file a formal police report. Since no officer had witnessed the crime, they couldn't arrest the man (who claimed he was "tying his shoelaces" -- no, he wasn't) without a report. I asked what that would entail. One of the officers said that this was misdemeanor assault, and that in all likelihood he'd be cited, spend a few days in jail, and then be released. I asked if he was known to be violent -- if he was a known problem then that'd be one thing, but if this was a one-off I wasn't sure I wanted to make a big deal about it. One officer said he didn't know of any violent behavior the guy had done, but another said that he was on probation and that he was kind of day-to-day -- sometimes in a good mood and smiling, and other days ... more like this.

Ultimately, I decided to file the report (the decisive factor in my reasoning was that he had hit me and another guy). So I got to have my statement taken (along with pictures of my various scrapes and bruises), and chat with several officers in the process.

One of them was very invested in telling me that media coverage of police violence was completely overblown and that it overlooks all the circumstances or reasons why police use of force might be justified. That was academically a very interesting perspective to listen to, mostly because it was coming from a rank-and-file officer who giving his pretty unvarnished vantage (rather than something airbrushed through a PR office tailor-made to persuade liberal college students).

For example, one rationale one often hears from the "stop snitching" movement is that one shouldn't call the police on people because, when you do so, you're calling upon the tools of state violence which will impose that violence in quite predictable ways on vulnerable communities. And this (non-White, I should add) officer basically offered the same analysis -- except from the other side: he was upset that people call the police and then get angry that the police they call sometimes have to use force. "What did you think would happen," he said (my paraphrase), "if you call us, you're saying that the enforcement arm of the government needs to come in and act as enforcers! So don't act shocked and indignant when we do that!" He believed that the act of calling the police was an implicit license for whatever force was needed to protect the innocent, and thought that the public was two-faced in their desire for protection while disavowing the sorts of acts he felt were frequently necessary to facilitate that protection. Or at one point I thought I was being conciliatory and said something to the effect of "I know no officer thinks it's a good day when they have to use force ....", but he interrupted me and said that you don't become a police officer unless you like all aspects of the job, and there are days where he hopes some punk will give him a reason to take him down.

So again -- that was interesting.

Anyway, I asked what the next steps were, and the answer was "likely nothing" -- the case will almost certainly not go to trial, there will be a citation, a few days in prison, and then he'll be released. Which seems about right. This was not some violent superpredator who needs to be locked away for decades sort of deal.

I'll make one other comment, which may "cut against interest" so to speak. In the immediate aftermath, I was thinking that this was the first time I'd really been the victim of a semi-serious crime. But that made me think back further, and remember one time at Carleton where a bunch of bros (almost certainly drunk) were walking past me in a hall and did something very similar -- a sort of unprovoked push/body check as I was walking past. And my thought then wasn't "I've just been the victim of a crime", it was "wow, those guys are assholes!"

Which they were. Physically attacking other people is an assholish (or, potentially, congressional) thing to do. But the distinction does raise the question of why that event was coded as "assholishness" while this one was coded as "crime". And there are perfectly neutral reasons I could give: For one, the Carleton event didn't cause any cuts, scrapes or bruises. For two, I didn't see the Carleton guys do this to anyone else, whereas I did immediately see this guy attack another pedestrian. And for three, here several witnesses specifically urged the (other) victim to contact the police (who were literally within eyeshot) and he did so -- I just followed along to corroborate.

Still, it seems very likely that part of what explains the difference was the social construction or narrative of what constitutes "crime" or "criminal". When relatively privileged college students push someone around, that makes them dicks, bullies, or jerks. When a homeless person who speaks little English does it, that makes them a criminal. The fact is that two people at various points in my life did effectively identical things to me that violated the same formal criminal proscription, and only one of them now has an arrest record for it. And the reason for the divergence is, at least in some part, due to social positionality.

I don't have cutting commentary to add to this. Just an event that happened that I figured I should reflect upon.

Mitch Landrieu on Confederation Commemoration

New Orleans Mayor Mitch Landrieu recently decided to take down several city monuments honoring various Confederate leaders. Unsurprisingly, he faced significant pushback for this decision. This is a link to the speech he gave explaining why he did what he did.

It is one of the most powerful and unflinching speeches by a White southerner on the matter of race, the "lost cause", and southern identity that I've ever read. It's not long, and I'm not going to excerpt. Just read it in full.

Parodying While Minority: The Burden of "Black and Jewish"

A few weeks ago, I read another article (in the UK's Independent) about the latest set of antisemitism controversies in the UK's National Union of Students. There is a lot -- a lot -- that could be written about antisemitism in the NUS, and most of the article struck me as entirely fair play. But one of their examples was the following:

Meanwhile, another current NUS officer, LGBT+ Officer Noorulann Shahid, who uses the pronouns they/them, posted a link on Twitter to a comedy video that includes a number of anti-Semitic tropes and said they had “laughed out loud” at the clip.

The video, titled “Black and Jewish”, is a parody of rapper Wiz Khalifa’s song “Black and Yellow” and makes jokes about Jews having big noses and being stingy. It features two black women dressing up in traditional Jewish attire and singing lyrics including “my ass and nose, they’re both big” and “don’t spend no money but you know I’m rich”. The tweet dates from 2012.

I remember seeing this video when it came out. I thought it was funny (though not uproariously so), and not particularly offensive. Clearly others disagree. But there's one aspect of this video that was completely overlooked in The Independent's coverage (and virtually all the other stories I've seen):

Both of the black women in the video -- Kali Hawk and Kat Graham -- are Jewish.

It is initially notable that, despite the title of the video being "Black and Jewish", it did not seem to occur to the authors that the artists were, indeed, Black and Jewish. They just assumed that the women were dressing up in foreign cultural attire and mocking Jews. So, as a commentary on the erasure of non-White Jews, this story seems to capture that in a very literal sense. And lest we think this is only a function of an ignorant non-Jewish media source, Algemeiner (which ought to know better) also alluded to Shahid "shar[ing] a video that includes tropes of Jews being stingy and having big noses."

But beyond the failure to recognize the existence of Black Jews, I think there's also a more subtle form of marginalization in play here. It's not that Jews cannot make antisemitic remarks. But jokes like "my ass and nose, they're both big" are hardly far removed from Woody Allen-esque self-deprecation that has long characterized Jewish humor. And such self-deprecation, in turn, has long been a coping mechanism for Jews and other outgroups -- we dissipate the power of hurtful stereotypes by mocking them or applying them tongue-in-cheek.

Yet my strong suspicion is that if you're a minority-within-a-minority, that release valve can be closed off. There's much greater pressure to be, not just hyperauthentic, but hyper-earnest about it all in a way that I can only imagine must be maddening. Again, their participation in a rather ordinary form of self-parody is taken to be not an act of Jewishness but an act of antagonism towards their Jewishness -- in a way I don't think would happen if they had a background and an appearance more like, say, mine.

If, as one might say, certain jokes or mockeries are "ours" (as in I can mock Jewish noses, but you, the goyish reader, most certainly cannot), that raises the question of whether Hawk and Graham are really included in the "our". To the extent their Blackness renders their Jewishness permanently provisional, that functions as an exclusion from the full expression of their Jewish identity. Ironically, the demand that they constantly prove themselves authentic Jews (in a way that, say, I rarely am asked to do) operates to make that request impossible to meet.