Maplewood, MO Bond Trap Case Moves Forward

One of the more arcane, but important, issues to gain renewed spotlight in the wake of Ferguson is how the deeply fragmented municipal structure of the greater St. Louis area encourages abusive policing practices. Basically, the area around St. Louis is divided into countless tiny independent municipalities, each which often has their own police force, governmental units, judicial system, and so on.

It's not really economical for each of these small towns to run their own mini-government, and so many of them have resorted to policing-for-profit. They squeeze out revenue from vulnerable community members (often people of color) by exceedingly aggressive traffic law enforcement, predatory bond practices, overpolicing of minor regulatory violations, and other like practices (The DOJ report on Ferguson highlighted these practices as part of its findings that the Ferguson PD routinely violated the law and operated with an eye towards revenue generation rather than serving its own community).

Right now, for example, there is a lawsuit against the city of Maplewood, Missouri (population: 8,046) alleging that it has a deliberate policy of trapping poor motorists facing traffic finds with bond payments that they can't afford to pay. The plaintiffs

assert the City automatically issues an arrest warrant whenever someone ticketed for violating its traffic and vehicle laws fails to pay a fine or appear in court. Once arrested, the motorist is allegedly presented with a Hobson's choice: Either pay a bond the amount of which was set in advance without any determination of his ability to pay it, or sit in jail possibly for days. The plaintiffs further contend that once a warrant has been issued, a motorist cannot avoid it by voluntarily returning to the municipal court or paying the outstanding fine, but must either submit to a custodial arrest or retain a lawyer to argue a motion before the municipal judge to vacate the warrant. If the court does not grant the motion, the motorist, whose presence in court the judge allegedly demands, will be arrested and jailed. Jail, the plaintiffs assert, is the means by which the City attempts to coerce the motorist into paying the bond to secure his release. The complaint indicates that the City's policy or custom involves additional steps that can ensnare motorists in repeated cycles of arrest, jailing, and pressure to pay a bond irrespective of their ability to do so. 

Today, the United States Court of Appeals for the Eighth Circuit allowed that claim to proceed, rejecting city arguments that it is immune from suit. This is a preliminary ruling completely detached from the substantive merits of the case (for technical reasons not worth going into, it's easier to sue cities compared to states for alleged constitutional violations); no doubt as the case proceeds there will be textured arguments about the specific nature of Maplewood's bond practices and any viable defenses that they can put forward.

Nonetheless, it is absolutely a good thing that this sort of behavior is being spotlighted and will now have to stand up to federal judicial scrutiny. This is a case worth keeping an eye on.

White Supremacist Found Guilty in Beating of Charlottesville Counterprotester

A jury has convicted Jacob Scott Goodwin of malicious wounding after he was caught on film beating DeAndre Harris while brandishing a large shield and wearing a tactical helmet.

The trial studiously avoided discussing race -- for example, the fact that Goodwin was wearing an "88" pin (alluding to Heil Hitler) and another with the insignia of a White nationalist party -- until the very end, where Goodwin's defense attorney told the jury "They want you to convict this man because he’s white, and DeAndre is a black man."

The argument -- as well as Goodwin's claim that he was acting in self-defense when he broke Harris' arm and injured his spine while kicking him repeatedly on the ground -- apparently didn't sway the jury, which recommended a 10 year prison sentence.

Pay No Mind To Door #3....

Gail Heriot is now a regular Volokh Conspiracy contributor, but I kind of wonder how long she'll last. All of her posts thus far are rather generic right-wing hobby horses of the "actually, civil rights activists are bad for minorities"/"actually, feminists are bad for women"/"actually, we should be putting more Black people in jail" sort. And while there are any number of publications that would be delighted to put those thoughts into print, it doesn't really work well in the blogging format because they're too generic. For blogging to be sustainable, it generally is responsive to contemporaneous events (if only someone else's post). In my experience, people who blog their general abstract political views tend to get bored pretty quickly.

I guess we'll see. Anyway, today's entry is "actually, feminists should oppose the Equal Rights Amendment." The argument is that feminists like certain identity-conscious programs (and hence have opposed, e.g., Proposition 209 which banned affirmative action in California), but the ERA's sex equality language would place programs of that sort in jeopardy where they operate to the benefit of women. Given this, Heriot suggests, there are two possibilities:

(1) Feminists secretly want the ERA to fail; or

(2) Feminists are willing to see sex-conscious policies struck down as unconstitutional.

Maybe. But might I suggest there might be something behind door #3?

(3) Proponents of the ERA don't understand the term "equality" in the ERA to ban the sorts of programs Heriot has in mind.

Put another way, perhaps the most straight-forward way of parsing "feminists support the ERA and support sex-conscious policies where they facilitate gender equality" is that "the prevailing public meaning of 'equality' in the ERA's text -- at least as understood by ERA backers -- does not preclude the passage and enforcement of sex-conscious policies that facilitate gender equality."

Now, to be sure, Heriot might not be wrong that the ERA, if ratified, "would very likely be interpreted to invalidate the many state-sponsored 'affirmative action' programs that currently give preferential treatment to women and women-owned businesses." The "colorblind turn" in Fourteenth Amendment jurisprudence has been notorious in not resting on even a purported attempt to discern the original understanding of the relevant constitutional text; a point of considerable embarrassment for the Court's originalists. So it strikes me as perfectly likely that the Court would give the ERA the same treatment -- ignoring powerful evidence of how what its backers and ratifiers understood themselves to be doing in favor of a particular, contested viewpoint of "equality" as sex-blindness. Still, it seems rather telling that even the prospect that an alternative view of "equality" is being appealed to here -- one that harmonizes the positions Heriot sees as inconsistent -- isn't even recognized as a possibility.

They Would Still Say It About Jews; They'd Still Say It About Others Too

The Army is investigating its own lead chaplains in the elite 101st Airborne Division after they summarily terminated (with no explanation) the division's longstanding Jewish lay leaders. The chaplains had refused to ever attend Jewish services despite multiple invitations, and at one point tried to block the Jewish leaders from hosting Passover services because they'd occur on the same day as Good Friday. At the moment, Jews at Fort Campbell, Kentucky are left without any Shabbat and High Holiday services for the first time in decades.

Meanwhile, the top-polling Republican candidate for the California Senate race (and second overall in the Golden State's frankly idiotic top-two "jungle primary") is a raging antisemite who's calling for a government "free from Jews" and running on a campaign of "counter-semitism".

I group these together because I think they're both examples of discrimination that many people would use as an example of the sort of thing "we'd never tolerate if it were happening to Jews." But they do happen, and they're happening now. They're also not unique to Jews -- other minority groups, such as Muslims and immigrants and Blacks, face their own iteration of such bigotry, in the public square, right now.

As Faulkner wrote: "The past is never dead. It isn't even past." These things we say nobody ever says, or believes, or does? They're still done. They're still done to Jews. They're still done to others too.

The Problem With Canaries

A group of pro-Israel, anti-BDS students at a variety of college campuses issued a statement harshly criticizing the Canary Mission for hindering their efforts on campus and unjustly maligning fellow students. They wrote:

Canary Mission is an anonymous site that blacklists individuals and professors across the country for their support of the BDS movement, presumed anti-Semitic remarks and hateful rhetoric against Israel and the United States. 

As a group of conscientious students on the front lines fighting BDS on our campuses, we are compelled to speak out against this website because it uses intimidation tactics, is antithetical to our democratic and Jewish values, is counterproductive to our efforts and is morally reprehensible. 

This blacklist aggregates public information about students across the country under the guise of combating anti-Semitism. It highlights their LinkedIn profiles, Facebook pictures, old tweets, quotes in newspapers and YouTube videos. The site chronicles each student’s involvement with pro-Palestinian causes and names other students and organizations with whom the given student may be affiliated. 

We view much of the rhetoric employed to villainize these individuals as hateful and, in some cases, Islamophobic and racist. In addition, Canary Mission’s wide scope wrongfully equates supporting a BDS resolution with some of the most virulent expressions of anti-Semitism and anti-Israel rhetoric and activity.

The ADL initially supported the students, referring to Canary as "Islamophobic & racist". Critics quickly contested what, exactly, Canary did that was "Islamophobic & racist", and a day later the ADL backed off, apologizing for "overly broad" language.

I want to talk through why I think objections to Canary as Islamophobic are potentially justified. But I want to do so in what I think is a more nuanced and specified way, because there really are interesting questions here regarding the ethics of counter-antisemitism (or counter-racism, or counter-Islamophobic) discourse that I think are being elided in the usual rush to back our friends and lambaste our enemies.

Let's stipulate for sake of argument that Canary doesn't use specifically Islamophobic rhetoric (in the form of racial slurs, conspiratorial claims about creeping Sharia, and the like), and that in general the factual claims they make about the targeted persons (that they did say X or join group Y) are factually accurate. I'm open to the possibility that they do use such rhetoric or that their claims aren't factual (in which case the argument that they're Islamophobic becomes trivially easy). But I make the stipulation because the case I'm going to make doesn't depend on any such behavior by Canary.

Instead, let's focus on what we might think of as Canary's strongest possible foundation: factual revelations of things the profiled individual has definitely said, or groups they have definitely joined, absent any additional commentary. Again, I'm not saying that this is, in fact, all or even most of what Canary does -- I'm saying that this sort of thing would presumably represents the formulation of Canary's mission that would be most resistant to a claim of Islamophobia.

So. First, I do not generally think it is a smear or otherwise wrongful to simply republish a terrible thing somebody has said (with appropriate caveats about not taking things out-of-context, omitting apologies, etc.). For example, the other day Seth Mandel accused me of a "smear" and a "lie" towards him in the context of my column on sexist responses to Natalie Portman not attending to the Genesis Prize. The irony of Mandel's complaint was that he was actually never mentioned in the column at all; he only appears in the context of two of his tweets being republished, verbatim, with no additional commentary or interpretation directed towards him whatsoever. If you can be "smeared" simply by quoting your own words back to you, then I suggest that the problem lies inward.

Moreover, I'd suggest that there actually is something important about revealing the prevalence of antisemitism that exists amidst certain social movements (on campus or not) -- if only because Jews are so frequently gaslit on this subject. Just this week, the Interfaith Center at Stony Brook University had to release a statement (cosigned by a wide range of campus Jewish, Christian, and Muslim groups) in solidarity with campus Hillel after a campus SJP member demanded that Hillel be expelled from campus and replaced with "a proper Jewish organization" (proper, the student confirmed, meaning anti-Zionist). This blog had already covered the Vassar College SJP chapter distributing literal (1940s-era) Nazi propaganda about Jews. These things happen, and there's something off-putting about claiming that it's a form of cheating or a smear to document it. Too many people think that naming and shaming antisemitism is by definition a witch-hunt. That cannot be right, and we should be very suspicious of political arguments which act as if it is right, or act as if the very act of accusing someone of antisemitism (or, for that matter, racism, or sexism, or Islamophobia) is dirty pool or foul play.

So what accounts for my unease? Well, for one it might be the sense that college students, in particular, often say dumb things they regret, and there shouldn't be an entire website dedicated to spotlighting them and inviting people to berate them for it. How much one sympathizes with that point would seemingly correspond to how much one dislikes "call-out culture"; if you're not a huge fan of it (especially when it comes to young people not otherwise in the public eye) then Canary would seem to be one manifestation of a generally malign social trend.

Another basis for objection might be the distinctively chad gadya character of many of Canary's entries. If one reads the site, very frequently a profiled individual is listed because he joined a group which hosts a speaker who supports an organization who bit the cat that ate the goat ... and so on. There's a very distinctive "guilt-by-association" character to what Canary does that I think is obviously objectionable, regardless of how you label it. And note how it resonates with the way blacklists are being deployed against Jews and Jewish groups right now (e.g., the announcement by several NYU student groups that they were boycotting a bevy of Jewish organizations -- including the ADL). Such calls very frequently proceed by similar logic: the group supports a program which hosts a speaker who said a thing ... so on and so forth. Such logic could be used  to ensnare essentially anyone who affiliates with anything -- which means in practice it must be deployed selectively to delegitimize certain groups and causes under the guise of neutral idealism. If that stunt makes us uncomfortable when it's deployed against Jewish groups, it should make us uncomfortable when it's deployed against Muslim groups.

And here is where I think the Islamophobia charge has legs. I don't want to say "imagine if this were done to Jews", because it is done to Jews (albeit perhaps not in quite as organized a form). But there absolutely are cases of blacklisting Jewish students simply because they've joined pro-Israel groups, without any claims that the student has said or done anything remotely racist or Islamophobic. And such behavior I think is rightfully thought of as deeply chilling, and striking too deep in terms of the way it polices to the letter Jewish political and communal participation. Many Canary entries seem to be based entirely on groups the individual has joined (everything from Students for Justice in Palestine to the Muslim Students Association -- the latter of which, it is worth noting, joined the letter in solidarity with Hillel at Stony Brook), rather than any specifically antisemitic things that the individual has said or done. That seems to be as dangerous as equivalent blacklist efforts targeting Jews who are part of Hillel, or Students Supporting Israel, or J Street (yes, J Street).

Indeed, I could go further. Let's take the case of the students who have, themselves, said antisemitic things -- they're on the record. Surely there could be nothing Islamophobic about including them in a database?

Yet even here, I'm conflicted -- and again, the mirror-case involving Jews perhaps reveals why. Imagine there was a website which cataloged people -- mostly, though not exclusively, Jews -- who were members of Zionist or Zionist-affiliated groups for the purpose of declaring to the world that they were racist and should not be worked with. Wouldn't we view that as being antisemitic in character? Suppose that it limited itself solely to those persons who had engaged in Islamophobic remarks -- with the goal of showing the degree to which Islamophobia and racism were prevalent in Zionist discourse, in a way that gave the impression that such views ran rampant amongst (Zionist) Jewish college students. Could that be viewed as antisemitic?

My instinct is yes. It is an instinct that is, admittedly, at war with my above acknowledgment that documenting the real and non-negligible existence of antisemitism that exists in pro-Palestinian movements is not a form of cheating (and I'd likewise agree that documenting the real and non-negligible existence of Islamophobia that exists in Zionist movements is likewise not wrongful). But in both cases it is a delicate thing, lest the impression be given that Jews Are The Problem or Muslims Are The Problem. It isn't wrong to demand that groups be attentive to that possibility and work proactively against it, and it isn't wrong to be suspicious of them when they seem indifferent to it.

What was it that Maajid Nawaz said? “Who compiles lists of individuals these days?" Of course, the answer is "many people and many groups," and maybe that's not per se wrong (or even avoidable). But certainly it is something that requires considerable care and concern, and Canary -- given its propensity for guilt-by-association, given its wide sweep, and given the range of individuals it includes under its ambit -- doesn't strike me as expressing said care and concern. Is that Islamophobic? Depends on how you define it, but I would suggest that there is a prima facie case of a sort of moral negligence directed at Muslim students. In other circumstances, that same sort of moral negligence impacts Jews. Either way, it's a wrong, and it's entirely fair to label it as such.