Thursday, June 13, 2019

Off To Minnesota

It's double-Minnesota-trouble!

I'm heading off to Minnesota tomorrow. First item on the agenda: a wedding in Lutsen (way in the northeastern corner of the state). That's this weekend. But next weekend is my college reunion, down in Northfield (pretty far south, relatively speaking). We'll be staying with my in-laws in Owatonna (as featured in the New York Times!) for the interim.

So I'll be pretty busy. Looking forward to the trip, but not looking forward to the long flight or equally long car rides. Minnesota is actually pretty big, especially once you stop ignoring the northern two-thirds of it!

Wednesday, June 12, 2019

What Do Holocaust Museums Do?

I thought this was a very powerful line from Dara Horn's criticism of Holocaust museums as a presumed panacea for curing antisemitism:
That the Holocaust drives home the importance of love is an idea, like the idea that Holocaust education prevents anti-Semitism, that seems entirely unobjectionable. It is entirely objectionable. The Holocaust didn’t happen because of a lack of love. It happened because entire societies abdicated responsibility for their own problems, and instead blamed them on the people who represented—have always represented, since they first introduced the idea of commandedness to the world—the thing they were most afraid of: responsibility.
Then as now, Jews were cast in the role of civilization’s nagging mothers, loathed in life and loved only once they are safely dead. In the years since I walked through Auschwitz at 15, I have become a nagging mother. And I find myself furious, being lectured by this exhibition about love—as if the murder of millions of people was actually a morality play, a bumper sticker, a metaphor. I do not want my children to be someone else’s metaphor. (Of course, they already are.) 

Tuesday, June 11, 2019

Arkansas Anti-BDS Law Exposes Rifts in the First Amendment -- and Anti-Discrimination -- World

Arkansas is one of several states to have passed laws restricting state contractors from engaging in BDS (its law is, I think, unique in that it doesn't prohibit such contracts outright, but instead requires that the contractor give the state government a substantial discount). It is unique in that it is, to my knowledge, the only state that has so far prevailed in litigation -- a decision that now goes up to my old court, the United States Court of Appeals for the Eighth Circuit.

Aside from its juicy public salience, the case is interesting for how much it has divided First Amendment scholars -- and not along "typical" lines. The Knight Institute for First Amendment Law at Columbia filed an amicus brief urging that the Arkansas law is unconstitutional, signed by some major First Amendment luminaries. These include Katherine Franke -- a prominent BDS supporter -- but also Geoff Stone, who was keynote speaker at the annual conference of the anti-BDS Academic Engagement Network a few years back, as well as UC-Berkeley Law Dean Erwin Chemerinsky, another high-profile boycott opponent.

Meanwhile, another smaller group of First Amendment scholars filed their own brief defending the constitutionality of the law. While it's only signed by three people, they're quite serious names in their own right: Eugene Volokh (UCLA), Andrew Koppelman (Northwestern), and Michael Dorf (Cornell). Volokh is a libertarian-conservative, but Koppelman and Dorf are high-profile liberals -- and Koppelman in particular is a major figure in anti-discrimination law.

And the threat to anti-discrimination and public accommodations law is the major theme of their brief (in this, it is actually Volokh's sign-on to the brief that is most intriguing, as he has long been concerned that anti-discrimination laws intrude on First Amendment-protected speech). Dorf wrote an explanatory post that he opposes laws like Arkansas as policy, but crafting a doctrine that renders them susceptible to First Amendment challenge but doesn't open a wide door to challenging a raft of anti-discrimination law is hard -- and harder still with a Supreme Court that seems very thirsty in the latter regard. Says Dorf:
I agree that there is no compelling interest justifying the Arkansas law or others like it. Indeed, I think such laws are unwarranted. I oppose them on policy grounds. I also agree that there is a compelling interest in public accommodations laws. However, one must think strategically about such issues. The question is not what some liberal law professors regard as a compelling interest but what a majority of the Supreme Court will ultimately regard as compelling. I have no confidence that the Court would find a compelling interest in forbidding discrimination on the basis of LGBT status.
This dovetails with a more general worry about the Lochnerization of the First Amendment -- something I've written about as well -- which ought give pause about expanding the sorts of expressive-refusals which qualify for First Amendment protection. The more we're willing to code conduct as speech because it's done for expressive purposes -- well, can refuse to care for a trans patient for expressive reasons; one can refuse to enroll in Obamacare for expressive reasons; one can refuse to offer contraceptive coverage to one's employees for expressive reasons; one can refuse to transport a Muslim or Jew or Christian in your taxi for expressive reasons ... it goes on. Some of these we already are seeing, and seeing ratified by the conservative judiciary. If that's a trend that alarms you, one might hesitate about creating new doctrine that appears to accelerate it.

This is a risk I think that the anti-anti-BDS campaign simply has not paid sufficient attention to, in part because it bristles at the suggestion that it is defending a form of "discrimination". But the fact that it's been generally overlooked is precisely why it's so important that it be expressly grappled with as the doctrine starts to settle. There are, after all, elements of BDS campaigns which in my view represent quite straightforward cases of national origin discrimination, and to the extent that people are starting to reflexively cry "First Amendment" because the discrimination is expressively-motivated, that's a big problem.

To be sure, I'm not fully convinced by the Volokh/Koppelman/Dorf argument (and there's a serious problem with the "dueling hypocrisy" issue surrounding Masterpiece Cakeshop). There clearly seems to be something different about applying an "anti-boycott" law to a consumer buyer versus demanding a business be neutral in who it sells to (much less hires). How does one even police a consumer boycott (people don't buy Sodastreams every day!)? Perhaps the issue is that the laws targeting a consumer boycott takes otherwise clearly lawful conduct (not buying a Sodastream) and subjects it to civil sanctions solely based on the surrounding expression (I'm not buying a Sodastream because I'm anti-Israel, versus because I don't like carbonated beverages).

Yet as I've previously observed, this actually isn't that far off what discrimination law does on a daily basis: it's legal fire someone, but not legal to fire someone if one's doing it to "express the message" that "I hate Latinos". The latter, too converts conduct from licit to illicit based on something that very easily could be described as "expressive". This is why I find this issue to be genuinely nettlesome.

Of course, Dorf himself notes there might be a valid First Amendment claim against these laws "if the record contained evidence of censorial motivation on the part of the [state] legislature," namely, if the law was passed "for the purpose of suppressing the message sent by boycotts of Israel rather than because of what they regarded as the economic impact of boycotts of Israel." I think the evidence of such an expression-based motive is pretty strong in many of these cases (note how easily it could be avoided if legislators took my advice in crafting these bills!). So perhaps that's our out.

But the crux of the issue, for me, is that however this gets resolved, the resolution better take an eyes-wide-open approach to how the new doctrinal rules interrelate with anti-discrimination law, especially in the context of the ascendant conservative judiciary. So I am very glad that we are seeing someone raise the issue of how the anti-anti-BDS argument might threaten anti-discrimination law.

There are very good reasons why we intuitively think of boycotting as an expressive act that should be protected. There are also very good reasons why "boycott = expressive" runs the risk of taking a torch through important areas of anti-discrimination and public accommodations law. It is hence very important -- especially if we end up taking the boycott-protective position -- that we do so in a way that is careful and conscientious of the discrimination issue.

Botswana Court Decriminalizes Homosexuality

The law, a relic of British colonialism which carried a prison sentence of up to seven years, was tossed by the high court as a violation of the dignity, privacy, equality, and liberty to gay and lesbian:
"A democratic society is one that embraces tolerance, diversity and open-mindedness," Justice Michael Leburu said, according to CNN. Discussing the broad costs of discrimination, he added, "Societal inclusion is central to ending poverty and fostering shared prosperity."
Botswana is Africa's oldest continuous democracy.

Is Biden Lying About Bipartisanship?

Kevin Drum makes an interesting point, regarding Joe Biden's oft-mocked paeans to bipartisanship and the supposed willingness of Republicans to "work with him" once the Trump era has passed.
I have no idea what Joe Biden “really” believes about working with Republicans. But I will say this: he’s a politician. There’s zero reason to think he truly believes what he’s saying here. There’s also zero reason to think he doesn’t believe it. The fact that he said it is simply a null input. 
At the same time, Biden isn’t an idiot. Of course he knows what the modern Republican Party is like. But like Obama before him, he also knows that lots of people really like to hear paeans to bipartisanship. We political junkies may hate it, but ordinary people who don’t inhale cable news are suckers for the idea that we can all get along if we just give it a try—and there are way more of them than there are of us. Biden knows this, so that’s what he tells people. Whether he really believes it or not matters not a whit.
It is strange, when one thinks of it, that the possibility that Biden is simply mouthing a platitude that appeals to Joe Average Voter but which he knows full well is probably BS doesn't even occur to us. After all, I myself have talked a bit about the importance of being earnest -- of keeping a straight face and talking about bipartisanship and norms and neutral rules of procedure, even if one really is planning to string the opposition up by its entrails.

I'm not saying Biden is making this play. He's certainly the sort of beltway lifer that could be convinced that the modern GOP can be bargained with. But he also might be the sort of savvy inside player who understands that's now impossible. The whole problem is that either possibility should observationally yield Joe Biden singing the praises of bipartisanship.

Monday, June 10, 2019

The Role of Jewish Activists at the DC Dyke March

One thing that's been bandied about in the controversy about the DC Dyke March's decision to ban Jewish Pride flags (for being allegedly too similar to an Israeli flag) is the role that Jewish members of the DCDM played in proposing the policy, defending it public, and later in enforcing it, as part of the group of bouncers seeking to keep Jewish counterprotesters outside of the event.

But "role" is a vague term, and I'm curious about the specifics. Specifically, I can imagine three potential roles the Jewish members could have played in bringing about the Jewish Pride flag.

  1. The policy banning Jewish Pride flags was proposed by other members, and the Jewish members agreed to it, ratified it, or otherwise signaled it was permissible.
  2. Some policy regarding Jewish symbols was proposed by other members, and the Jewish members modified or modulated it -- possibly to make it more limited (i.e., initially it was a ban on all Jewish symbols), or possibly to make it more expansive (i.e. initially it was solely a ban on the Israeli flag, as such).
  3. The Jewish members proposed this policy sua sponte -- it was their idea to have a policy whereby Jewish Pride flags were banned; DCDM wasn't really considering having a policy regarding Jewish Pride flags until the Jewish members brought it up.
In all of these, to one extent or another, the Jewish members might be thought of as having "set up" the DCDM, at least to the extent they presented the policy as a valid compromise that would be viewed as permissible within the Jewish community when anyone could have known it would provoke a furious backlash. But in some they have considerably more agency than others.

On that note, though, the third possibility -- or the "more expansive" iteration of the second -- is the most interesting, because it raises the possibility that the DCDM as a whole viewed itself as deferring to its Jewish members and might have even been taken aback by the strength of the broader communal response. That's hard to process because it's so obvious to us the way in which a policy like this is harmful to Jews, polices Jews, and gatekeeps Jews. But I have to remind myself that most non-Jews don't know that much about Jews, and in particular don't know enough to necessarily realize that the Jews in their little circle who are assuring them "this is fine, this is okay, if anyone gets upset it's just the usual right-wing rabble-rousers" aren't actually representative.

And likewise, remembering that Jews generally pay more attention to Jewish issues than non-Jews means the Jewish DCDM members were among the most likely to have vivid memories of Chicago, and most likely to have strong opinions about what the Jewish Pride flag represents. It strikes me as entirely plausible that they leveraged their "insider knowledge" to present a narrative where this flag was the banner of the infiltrators and the pinkwashers -- a threat that they knew of and were doing the service of warning DCDM about in advance. From their vantage, they were dissipating a threat to Palestinian or Arab safety at the march that otherwise might have gone unnoticed -- like someone who knows a subtle "insider" gesture of White supremacy that, precisely because of its superficial banality, can normally be made in public settings without challenge.

Or maybe not. The Jewish members could have been in reactive role, agreeing with a proposal made by others, and had little to do with placing this issue on their agenda. Most obviously, this could have been a position spearheaded by Palestinian members (or people who identify strongly as "pro-Palestinian" -- though the latter group, of course, overlaps significantly with the Jewish members). As I said, the particular role that the Jewish members played in promulgating this policy is opaque -- other than that they stood (literally) on the front lines to defend it.

But I don't think that it's implausible that their role was a relatively active one -- that at least in part this happened because they wanted it to happen. It is an interesting fact about what I call "dissident minorities" that they often have a material interest in not making the spaces they occupy inclusive to the broader membership of their minority group. A DCDM where more Jews feel comfortable marching is a DCDM where these Jews, in particular, are less influential and less powerful. And so, far from being the brake that prevents the space from going to far, often times they're the accelerator pushing it forward and the bouncers standing between their "compatriots" at the entrance (as was quite literally the case here).

So it's reasonable to wonder if that's what was going on here -- anti-Zionist Jews, in a sense, egging the march on, trying to maneuver it into an antagonistic position towards the broader Jewish community while simultaneously using their own identities to ratify the legitimacy of the posture.

Sunday, June 09, 2019

I'm Taking A Break

I just took my Twitter account private (thread here) and announced that I'm taking a break from that site for an indeterminate period of time.

I do not intend for that break to apply to the blog -- though since virtually everyone who reads my blog nowadays gets to it via Twitter, it may be a bit of a moot point (ironically, since the blog auto-posts to Twitter, anything I write here becomes the exception to the general "Twitter break").

In any event, I wrote a long (like, 3,500 words long) essay explaining exactly why I was departing -- but it's sitting in my draft folder for now. Maybe I'll publish it later. Maybe not. Maybe I'll do it with some deep editing. Depends on how I feel.

I am going on vacation later this week -- a wedding in (far) northern Minnesota (like, way-past-Duluth-northern-Minnesota), followed by Carleton reunion. So even absent this formal break, I might have been quieter anyway.

I mentioned in the thread that I was -- in large part due to how I was relating to Twitter -- feeling sad, and that's true, but I do want to stress that I'm not in any serious emotional crisis or anything like that. So, while I would appreciate any nice thoughts that might be sent my way, I don't want any of y'all to worry on that front.