Why I Feel Bad Roundup

Are you watching "I Feel Bad"? I'm excited for it -- not the least because it features British-Indian-Israeli-Jewish actor Brian George. The conceit of the show is Sarayu Blue's character going through all the things in her daily life that make her feel bad (like "I'm turning into my mother"). So in honor of that, here are some of things in my life making me feel bad!

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If the Ben Wittes who wrote that bracing Atlantic article explaining why, even though he knows and respects Brett Kavanaugh, he couldn't vote to confirm him was possessed by a demon, he'd have written this Eli Steinberg article on why, despite (in the very barest possible sense) "believing" Ford he still thinks the only way to "return to normal" and "get[] politics out of the pursuit of justice" is to vote to confirm.

Iran's Supreme Leader uses clips of Aly Raisman, among others, to argue that if women dressed more modestly (namely, wore a hijab) they wouldn't be sexually assaulted. That sound you hear is Raisman preparing to break another world record, this time for longest and loudest continuous cussing out of a single human being.

The Canary Mission -- the "pro-Israel" blacklisting site of (mostly young) people who are too-associated with BDS or Palestinian solidarity politics (read my extended thoughts on them here) has very closely guarded its funding sources. But the Forward found one of the donors -- and it's the San Francisco Jewish Federation. (Why I feel slightly better: the Federation concluded that it's funding guidelines were violated and promised not to allow such donations in the future)

More Canary! Here's a Zionist professor noting that he appears on the Canary blacklist despite opposing BDS, simply because he's also opposed certain proposed legal anti-BDS countermeasures (I wonder if I'm on there too?).

An American student of Palestinian ancestry was blocked from entering Israel to study at Hebrew University. Shades of the Michigan letter of recommendation case, except obviously 98% of people are scrambling to invert their position 180 degrees. Oh, and the Israeli ministry that excluded the student (who obtained a visa from the American Israeli consulate in Miami)? It apparently relied on reporting from ... you guessed it: Canary!

Jonathan Cohn reports on one of those annoying political realities that makes academics' and wonks' heads hurt: Bernie Sanders' "Stop BEZOS" bill was both utterly idiotic as policy, and yet likely responsible (in substantial part, at least) for Amazon's announced $15 minimum wage. It's not just "bad policy = good politics". It's that "promoting bad policies is good politics that sometimes can grease the path to good policies"! For anyone who cares both about good political and policy outcomes and really doesn't want to be a hack, that's a recipe for a big ol' frown-y face.

On the Latest Academic Hoax

A new academic hoax story has broken, and it's bigger than ever before.

Three scholars wrote twenty papers, none of which contained the arguments the authors believed (and all of which contained arguments the authors considered to be ridiculous) and sent them off to journals in the "grievance studies" set. By the time they had to pull the plug on the hoax, seven had been accepted, six were either still under review or under some form of "revise and resubmit", and six were rejected outright.

This project was an expansion on an earlier hoax where a gibberish paper called "The Conceptual Penis" was published in a pay-to-publish journal. The present effort distinguished itself both in the number of papers written and in the decision to submit to what the authors called highly-ranked journals in their disciplines. On that latter note, it's hard to assess -- once you start getting into the sub(-sub-sub)field weeds, what really counts as "highly-ranked"? -- but at least a couple of the journals they scored with are recognizable names (Hypatia, in particular, was a good get).

It's also true, as any observer of peer-reviewed scholarly literature can tell you, that a lot of peer-reviewed scholarly literature even in top journals is dreck. So the fact that the authors were able to get arguments that are (or they viewed as, anyway) dreck published is not itself surprising; though perhaps it gives insight into exactly what and how dreck gets through the process.

Nonetheless, I think there are some important limitations on what one can draw from this "study", including significant ethical ramifications in how the "data" was presented. One might say I'm being overly credulous in even treating this project as one that seeks to earnestly improve the quality of academic publishing standards (hint: if that's your goal, sneeringly referring to your targeted disciplines as "grievance studies" is a bad way to start). But, since we should be self-reflective about the quality of writing and reasoning in academia, I'll take it on its terms.

First, the limits on the conclusion. The authors' methodology was to take arguments that they figured would be appealing to the editorial staff of a given journal but which they, personally, found to be outlandish, and see if they could get them published.

They say that proves a serious malfunction in the peer-review process. I say "haven't they just passed an ideological Turing test?"

An ideological Turing test measures one's ability to mimic the beliefs of the "other side". You "pass" if you successfully convince members of that side that you really are one of them. So let's say I, a liberal, adopt a pseudonym and submit an article to Breitbart. I do my best to make it look, feel, and sound like a Breitbart-style conservative article. Now clearly, I wouldn't believe what I was writing about. The key question is whether they'd recognize the sham: would they say "this sounds like what a liberal thinks a conservative sounds like" (which is, indeed, what it actually is) or would they believe that this is an actual conservative writing? If the latter, then I've passed the test.

The thing is, nothing about passing the Turing test, on its own, demonstrates the falsity of the beliefs or arguments successfully mimicked. Someone on Twitter (I can't remember who) suggested the case of a young-Earth Creationist who submits an article to a biology journal that "mimics" tenets and presumptions of mainstream biological science. If his "hoax" succeeds, would we say "aha! The biological sciences are hopelessly corrupted, to be taken in by this prankster!" No -- we'd say that the author has, albeit disingenuously, written an actual good argument (that he happens not to believe). Likewise, if I successfully spoof Breitbart, I doubt they'd take that as decisive evidence that they've gone off the rails.

The case for why these papers are different, then, can't simply turn on the fact that (a) the authors don't believe the arguments they made and (b) they were nonetheless accepted. There has to be something else in the argument that makes them objectively bad, such that it represents a failure (beyond the fact of the disingenuous motives of the author) for the journal to have accepted it. So what might these be?

This is hard to assess, because the authors don't link to the full papers (the accepted versions have, unsurprisingly, now all been retracted) and because their summaries are by design written to make their claims sound as outlandish as possible. But at least in some cases this isn't facially self-evident.

Take the paper they got into Hypatia. Its thesis is "That academic hoaxes or other forms of satirical or ironic critique of social justice scholarship are unethical, characterized by ignorance and rooted in a desire to preserve privilege." One certainly understands the extra-dose of gleeful "gotcha-ness" the hoaxers enjoyed in getting this paper into Hypatia. But it's hardly the sort of article whose "wrongness" transparently stands out such that reviewers should have obviously known, on face, that it was ridiculous. After all, one could absolutely believe that satirical critiques of this sort of scholarship are unethical and rooted in a desire to preserve privilege (the "characterized by ignorance" is, I concede, at least arguably performatively contradicted by the ability of the authors to sufficiently effectively mimic these arguments such that they got their papers published. But even then, that would just show that one prong of the element was, after the fact, demonstrated to be falsified).

Ditto their Fat Studies paper on fat bodybuilding. Again, the article isn't accessible anymore, but if the basic thesis is that there could be various ways to present "fat" bodies as (in the authors' words) "legitimately-built bodies" worthy of attention and praise, even now I won't say that is a transparently ridiculous assertion. Think of what the ESPN Body Issue has done on this score, for example -- quite a few of its models, at the very least, undermine the notion that "fat" and "athletic" (or even "muscular") are mutually exclusively categories (quoth one of the athletes, a Major League pitcher: "As a baseball player, if I'm pitching 35 times a season, seven innings a pop, 100 pitches a game, I need some fat. I need some extra meat on my body."). And to the extent the "obvious wrongness" is based on the thesis being "positively dangerous to health", I call foul both because it oversimplifies what the research actually shows regarding the linkage between health and what is deemed "fat" in contemporary American society, and because "mainstream" bodybuilding very obviously also doesn't represent the apogee of healthy living either.

Again, I'm not saying that either of these claims are clearly right. But they're not, at least as presented, transparently wrong such that nobody (not just not-the-authors) could find them believable or worth engaging with.

Another potential reason why we could say that reviewers "failed" in not recognizing the wrongness of the article is where there is outright falsification of data. This is something they (apparently) did in the "Portland dog park" paper (they claim to have "tactfully inspected the genitals of slightly fewer than 10,000 dogs whilst interrogating owners as to their sexuality"). Maybe a good reviewer should have recognized that this seemed suspicious. But here I'd say that peer review is actually quite bad at catching this sort of outright fabrication (political science had its own scandal on this score not too long ago). Perhaps unsurprisingly, peer review works best on the presumption that the author is earnestly presenting genuine arguments obtained by honest means. Our peer-review system would be even more dysfunctional than it already is if the first question reviewers asked is "is this paper lying to me?"

And that moves me to the ethical qualms I have in how the hoax authors have presented their findings -- most notably, in how they treat the peer reviewer comments. Each of the papers they submitted -- including those which were rejected -- comes with a selection of peer review comments, all of which are positive. The idea, presumably, is to demonstrate that even their worst papers that didn't get accepted nonetheless were not treated with the sneering dismissal they deserved.

There are two problems with this presentation. First, I think it is actually capturing trends in peer-review to be more constructive, charitable, and supportive towards the papers under consideration -- all good things. One of the reviewers quoted (who had recommended rejecting the article) explained his more positive feedback as an attempt to "buy in" to the paper and provide constructive comments explaining why the article itself didn't work without discouraging the author from the field entirely. It is, I think, a good thing to read articles in their strongest possible light -- to try to think of the best interpretation of the claims the authors are trying to make rather than the most nefarious. This is a practice that hoaxes, in particular, exploit -- they gain their force precisely in the knowledge that their readers will commit the terrible sin of trying to take them seriously.

The second problem with the way the reviewer comments were presented is simultaneously more and less serious. Simply put: if the hoaxer's goal really was to provide a pathway for identifying what is and isn't "working" in these academic disciplines (and I concede that may be far too optimistic), then there is no justification for not including the negative or critical reviewer comments that (presumably) explained why papers were not accepted. Partially, this is simply a matter of misrepresentation -- only giving the positive comments but not the negative ones oversells how receptive readers were to these pieces.

But more importantly, the part of me that wanted to earnestly take this hoax seriously as a genuine effort to constructively critique certain academic disciplines was the most thirsty for learning the content of the negative reviews. What is it that gets a paper rejected in Sociology of Race and Ethnicity (or what have you)? Clearly, it isn't a wild west where anything goes so long as you mimic the right politics (the authors -- somewhat begrudgingly -- admit that their project conclusively falsified that hypothesis). Consequently, figuring out where the borders are, what raises flags and what doesn't, is actually incredibly important to the extent the project is actually meant to have any sort of constructive edge. That these weren't included is powerful evidence about what the ambitions of the hoaxers really were. So it's a more serious critique to the extent I take the hoaxers seriously as trying to have a constructive impact on academic publishing; and a less serious critique to the extent that ascribing such seriousness of purpose is absurd.

In any event. I don't need persuading that academic publishing includes a lot of terrible work, and I don't need persuading that there are certain common markers as to what gets terrible work published. But this hoax overshoots the mark -- mostly because its goal isn't really to build a better scholarly mousetrap but rather to grind certain ideological axes.

My recommendation, therefore, is revise and resubmit.

Why Left Anti-Semitism?

Below is the written version of the talk I gave at SF Hillel earlier today. They invited me to speak on the subject of left anti-Semitism after reading my article on Open Hillel's intervention in the litigation over antisemitism at San Francisco State University. I asked if I could specifically speak on the question "Why Left Anti-Semitism?", and this was the result (I've added some hyperlinks where useful for context).

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I was invited here to talk about “left anti-Semitism.” This makes sense: It is a topic I’ve written about frequently, including in the context of the ongoing controversies at S.F. State and at Berkeley. So it’s an issue that I’m comfortable talking about and which I feel is important to talk about.

But on another level, some might ask: why left anti-Semitism? Why, right now, should that be our specific focus?

I have an answer to that question, and I’ll get to it in a few moments. But it is a valid question to ask—for a variety of reasons, but I’ll lead with the one that casts the largest shadow:

In the United States, in 2018, the anti-Semitism most likely to put a bullet in my brain comes from the right.

It sometimes seems as if that obvious yet terrifying truth is overlooked. We are living in an America and a world seeing a surge—and mainstreaming—of right-wing antisemitism the likes of which haven’t been seen in my lifetime. A White Supremacist stabbed to death a gay Jewish college student in southern California. A man carves swastikas into his rifle and then killed 17 people at a Florida high school that is 40% Jewish. Printers at UC-Berkeley have been hacked into to spit out Nazi iconography; just one of a flurry of similar incidents occurring at colleges across the country.

By contrast, as of today, the death toll attributable to intersectional feminists remains firmly at zero. So why left anti-Semitism?

And it’s not just violent extremists. Right-wing anti-Semites are alarmingly mainstream. Many of you know of the American Nazi who’s running for Congress as a Republican in Illinois’ 3rd congressional district—perhaps that one can be excused, since his primary was uncontested in a deep blue district. But it’s harder to overlook Steve King, the Congressman from Iowa whose openly White supremacist rhetoric (“we can’t restore our civilization with someone else’s babies”; “demographics are our destiny”) is paired with regular and unapologetically retweets of Nazis and other right-wing extremists. Or Steve West, who thinks “Hitler was right” and who just won a contested GOP primary for a Missouri state house seat. Or Jim Hagedorn, who said Joe Lieberman voted for the Iraq war because he’s Jewish—he’s favored to win the race in Minnesota’s swing 1st district, which happens to be the one where my wife grew up and my in-laws still live. These things may feel distant for those of us in the Bay Area—but they’re not so distant for all of us.

So why left anti-Semitism? That question invites another: What is the relationship between institutional Jewry and the left?

The other day, I was contacted by a Jewish media professional hawking a new service providing “talking points” on matters of anti-Semitism and Israel. He told me that I “should consider them a consensus view across an extensive spectrum of North America’s Jewish community.” Of the groups he listed as participating in the project, not a single one represented the Jewish left. And I’m not talking about Jewish Voice for Peace—I’m talking about the Zionist left: J Street, Ameinu, Third Narrative, Americans for Peace Now, Partners for Progressive Israel—none were there (also noteworthy, none of the groups were associated with the non-European or non-Ashkenazi Jewish community either). I had to tell this guy that the “spectrum” of American Jewish life does not extend from the right all the way to the center. But too often, that’s been the reality—and it’s a reality that I shouldn’t have to say is deeply unrepresentative of the demographics of the actual American Jewish community (much less the young community Hillel serves on campus). Some would suggest that it is this non-representativeness that is the real answer to the question “why left anti-Semitism?”

At this point, the question “why left anti-Semitism” starts to overlap with another truth which the institutional Jewish community needs to face: Too often, in our community, we police the left to the letter while letting the right run wild.

Sometimes that policing is quite literal: the Forward broke the story the other day that the Israel on Campus Coalition, in partnership with Hillel, had been conducting clandestine surveillance of left-wing Jews on campus—an allegation which, if true, would represent an appalling betrayal of trust and abdication of mission. But it runs deeper than that. In Hillel we see it in the application of the standards of partnership. These standards are meant to establish a minimum baseline of civil and equitable principles that all Hillel community members are expected to follow. And in the course of their implementation, there have been countless cases of tension with left-wing students being judged and scrutinized and checked to make sure they don’t step a toe over the line. But the one time that a Hillel chapter even contemplated applying its standards of partnership to a right-wing speaker, last year at Princeton—the national organization couldn’t issue an apology fast enough. The message was evident: these rules bound the left. They don’t apply to the right.

It’s not just Hillel either. In our Jewish world, a commitment to the two-state solution is an absolute redline for the left—but nobody seems to mind the Zionist Organization of America openly flouting it on the right. In our Jewish world, it is absolutely beyond the pale to ever compare Jews or Jewish entities to Nazis or Nazi collaborators—unless you’re our ambassador to Israel. Then the President of the ADL will, on national television, dismiss it as a “stray comment” that it wasn’t his “job” to challenge.

And on that I have to say: many young Jews in the Bay Area have had the experience of being compared to Nazis because we stake out a left-Zionist position on campuses and in communities where even that is considered an unforgivable sin. We’ve nonetheless dug in our heels and stood our ground in defense of an Israel that is secure and democratic, a homeland for Jews and a state where all citizens are equals. And so it is impossible to overstate the sense of betrayal, when the nominee for the highest ranking American official in Israel was one who had said we were “worse than Kapos”, that the President of the ADL went on national television and said that it wasn’t any of his business. He sold us out. And each and every one of us knew that if it some left-wing adjunct professor of anthropology had called certain young Jews “worse than Kapos”, the ADL would have been all over it. But since it came from right, and targeted the left, it got a pass.

The message young liberal Jews have consistently gotten from our own community is that if we come under attack from a right-wing source with even a modicum of political influence, we’re on our own. And it hurts. It hurts to know, from repeated experience, that our community doesn’t have our backs. When accounting for the rise of groups like Open Hillel and IfNotNow (to say nothing of JVP), I don’t think mainstream Jewish organizations have internalized or reckoned with just how wounded, how abandoned, the community of young progressive Jews feels by those who supposedly represent them.

To be clear: we should support the two-state solution, and push back against those too eager to dispense with it. We should say Nazi comparisons are beyond the pale, and I agree with the IHRA antisemitism definition in thinking that such rhetoric is per se antisemitic. And I’m okay with Hillel having standards of partnership, to ensure community members engage equitably and respectfully with one another. But these principles and standards cannot cut one way. And too often, they do, and young liberal Jews notice. And so, in this moment, they might also ask “why left anti-Semitism”, and wonder if focusing on that, right now, is part of this same misbegotten pattern.

So why left anti-Semitism? I promised I had an answer to that question—and I should hope so, since as I mentioned I’ve devoted a considerably part of my career as a scholar and writer to discussing it—and I do have an answer. And that answer is just this:

For many us—for most of us (of course not all of us)—the left is our home. This is where our commitments lie, this is where we make our political stands. The liberal, progressive community is our community, is our family, and of course it is reasonable for us to pay extra attention and exhibit extra concern for what is going on in our own house. Yes, it’s true that anti-Semitic violence in the United States emanates predominantly from the political right. But I’m not a part of the political right, and I harbor no expectations out of the political right. The anti-Semitism that obstructs me from participating in causes, or joining movements, or fighting battles that are very much my own is far more likely to stem from the political left.

Framed in this way, the question “why left anti-Semitism” almost looks insulting. It treats Jews as if we have no stake in the left, as if it was not ours. But Jews do not come to the left as strangers. We have roots here, we have commitments here, and we have as much right as anyone else to lay claim to being part of the left. When people express befuddlement (or worse, rage) at Jews caring so much about left anti-Semitism, they implicitly deny our standing as insiders to that political community.

Progressive Jews often stand in a posture of perpetual probation—always under suspicion, always under review, always viewed as a potential Fifth Column such that if we do raise objections, it is not read as a family member laying claim to the narrative of their own community, but as a saboteur who has revealed themselves as one of the enemy all along. And so left anti-Semitism always comes with a double dose of betrayal: the first being turned upon by those we thought were our friends, the second being the realization that the betrayers don’t even recognize it as a betrayal—it never occurred to them that we were part of their group—that we were friends—to begin with.

So there’s my answer to “why left anti-Semitism”: it’s because Jews are part of the left, and we have every entitlement to care about the future of our own political community in which many of us have invested so much. Now you’ll notice that this is a contingent observation: it applies to those Jews who are part of the left, and while most Jews in America broadly identify as left-of-center, not all do. And that’s fine! Jews come in all political shapes and sizes, and while most are some form of Zionist and some form of left-of-center, deviation from that norm—whether it comes in the form of being a far-left anti-Zionist or a right-wing Trump backer—should not in any way be thought to detract from one’s Jewishness.

But without prejudice to those who break from the mold, I address the Jewish majority—broadly left-of-center, broadly Zionist. And the basic idea here is one that Rabbi Angela Buchdahl ably expressed in her Rosh Hashanah sermon just a few weeks ago: there is a special role in fighting anti-Semitism on your side. Among your allies. Those on the left do and should legitimately pay special care to anti-Semitism in their own ranks. And since most Jews are, broadly speaking, “on the left”, most Jews have every right to be especially concerned with anti-Semitism on the left, among our allies.

Yet here too, there is something that needs to be said about “allies”. To lay claim to the legitimizing power of fighting anti-Semitism “among your allies”, you actually have to be an ally. We can’t keep trotting out who marched with Martin Luther King in the 1960s—a chestnut which, as one prominent African-American Jewish activist observed, is starting to border on "Party of Lincoln" territory. If our best examples of participating in progressive social movements came a half-century ago, that’s a problem. We have to actually be in the room, putting in the work, today.

But if it is true that Jewish groups have more work to be done to be allies, it’s also the case that Jewish non-presence “in the room” is not purely attributable to apathy or closet conservatism. It also stems from conscious strategies of exclusion; indeed, it is a key feature of left anti-Semitism that it tries to lock Jews out of the room. It’s true that some Jews were late to join up with the Black Lives Matter movement. It’s also true that one of the earliest supporters of that movement, Rabbi Susan Talve, faced a concerted push from groups like Jewish Voice for Peace to muscle her out of the room—under the repulsive hashtag #RealTerrorist no less [Update: On further research, this needs some clarification. I'd say it is fair to characterize JVP as part of the movement trying to exclude Rabbi Talve, but they did not use the #RealTerrorist hashtag. They did, however, very pointedly decline to take a position on that hashtag -- saying it was "not a conversation we wish to have".].

The paradox of left anti-Semitism is that it indicts Jews for allegedly not showing up, and then pulls out all the stops in order to prevent Jews from showing up. It condemns Jews for not joining the struggle, and then it condemns Jews for asserting that the struggle is ours.

This is no accident. Decisions are made by, and authority is vested in, the people in the room. We’ve seen so many cases—at the Chicago Dyke March, at the Creating Change LGBT conference, at a civil rights fair here at S.F. State, in academic and cultural institutions across the world—of trying to lock Jews (or, at least, the “bad Jews”, which ends up covering most Jews) out of the room. The fact of the exclusion hurts, but it is not just sadism at work here. When groups mobilize to try to lock other Jews out, there are also trying to diminish the authority of those Jews to register claims demanding collective attention. When Jews—or the wrong Jews, the non-hand-picked Jews—aren’t present, then other voices can fill the gap to talk about Jews without listening to Jews. British sociologist David Hirsh has worried that a whole generation of leftists are being taught that Jews are the enemy, outside the community of the good. This project demands that Jews not be admitted into the spaces and organization and communities within which we could performatively contest that label, and instead take on the role of a friend. It is no wonder that our presence is resisted so.

So much anti-Semitism—left and right—is about degrading the authority and credibility of Jews to make claims. The most straightforward instances are also the most familiar: the persistent drumbeat that when Jews speak we’re part of a cabal, or a conspiracy, or an Israeli plot; that we’re lying, or deluded, or acting in bad faith; that we’re Hasbara shills or “crying anti-Semitism”; that we’re pawns of Soros or only interested in shielding Israel from all criticism. Each of these are examples of anti-Semitism taking on an epistemic dimension—it undermines Jews as witnesses and testifiers, as even candidates to possess knowledge that others might have a duty to heed. And the effort to exclude Jews and Jewish groups from progressive organizations and movements is part of this same dynamic. Directly, it impedes Jewish ability to speak for ourselves and to participate in conversations and causes we have very real stakes in. Indirectly, it sabotages our standing as members of our community—writing us out of spaces and places that are very much ours, and recasting us as strangers, enemies, and saboteurs.

The temptation, sometimes, is to walk away. But this isn’t really an option. For starters, where would we go? If the left is our home, then I paraphrase Du Bois: “I would not leave it if I could, I could not leave it if I would.” The right has no real place for us—even in the left’s worst moments, like we’re seeing now in the UK, the choice remains the Labour that snuggles up to Hamas versus the Tories who cozy up to Orban. More often, the choice is between a Trump and a Clinton, and if someone is making that decision by reference to left anti-Semitism, the only possible response is “why?”

In any event, the whole point of that opening soliloquy was that it is not objective danger but rather our familial and ideological bonds to the left that makes its iterations of anti-Semitism sting so badly—a woundedness that can only come from genuine attachment. The right isn’t a home for Jews for the same reason it’s never been a home for the Jews—and it is liable to get worse before it gets better.

But it’s also wrong to walk away because it plays directly into the hands of the anti-Semites seeking to drive us out. If they want to purge the Jews, why should we do their work for them? Why should we cede ground and space that we have every right to stand upon? Make them earn their inches.

“We are here and this is ours”—that was the rallying cry of Loolwa Khazzoom, an Iraqi-American Jewish feminist who organized the first anthology of Middle Eastern Jewish women writers. It also works as a rallying cry for the left-of-center Jewish majority when challenged as to why we care about left anti-Semitism. We care because we are here on the left, and we care because the left is ours as much as anyone else’s. And we shouldn't bow to anybody on either score.

Court Enjoins Arizona Anti-BDS Law

A federal district court has enjoined Arizona's anti-BDS law, saying that it likely violates the First Amendment.

This was the litigation I spoke to NPR about, and I remarked there that Arizona's representations in court of what the law actually did seemed far narrower than what was actually contained in the text. The judge here certainly agreed -- she flatly rejected Arizona's attempt to rewrite the law to forbid only a "total" boycott of Israel, and highlighted portions of the statutory text that swept considerably broader.

My main thesis when talking with NPR was many of these laws were passed to score ideological points and so were not drafted with particular care to ensure that they pass First Amendment scrutiny. Those chickens are now certainly coming home to roost.

One question that to me remains open is if Arizona (or another state) could prohibit a state contractor from boycotting Israel in the course of their fulfillment of the contract. The case in Arizona, for example, dealt with an attorney whose (solo practitioner) firm did pro bono work for state prisoners, but who sought to boycott certain companies implicated in settlement activities. His boycott doesn't really intersect with his work for the state, but to the extent that the Arizona law required him to certify he didn't boycott Israel even in his personal capacity in order to receive a state contract, the court here held that was an unconstitutional condition violating his First Amendment rights.

But suppose instead Arizona said "what you do on your time is your business, but you have to certify that you won't boycott Israel in your capacity as a state contractor" (e.g., he couldn't refuse to provide representation to an Israeli-American prisoner, or he couldn't refuse to use some court software program on the grounds that he objected to its manufacturer's ties with the Israeli government)? Would that be permissible? I think it is, at the very least, a much stronger case, as it is more directly tied to the government regulating its agents behavior as workers rather than as citizens. The government has a strong interest in ensuring that its contractors qua contractors, at the very least, actually do their jobs in the manner prescribed. There is a large difference between the government seeking to limit an everyday citizen's (who happens to have a federal contract) ability to boycott HP products as a means of protesting Israel, and the government seeking to limit (say) it's own procurement officer from doing the same in his capacity as a state employee.

That said, even this version wouldn't be a slam dunk: there is significant potential for ambiguity in when a given (boycotting) action is taken "in your capacity as a state contractor". For example, if our attorney doesn't buy HP products because his firm boycotts Israel, is the failure to have an HP printer a boycott taken in their capacity as a state contractor? What if he buys a new printer during the course of his contract?

My instinct is that in neither case would the action be covered -- unless part of his contract tells him to "buy a printer", then the act of purchasing one is not one taking in his capacity as a state contractor. But the First Amendment's concerns about chilling speech thrives on cases of ambiguity, so I still consider this an open question.

In any event, the Arizona law we have doesn't get us close to that scenario, because the Arizona law is not a law that was drafted carefully to try to avoid First Amendment problems but rather one that written sloppily to make a political point. And if you're a Jewish institution unhappy with the political imagery associated with having prominent anti-BDS laws struck down as trampling upon constitutionally protected freedoms, it might be worth rethinking how confident you are in either the ability or the interest of right-wing legislators and apathetic state bureaucrats to invest in drafting and implementing these laws with the sort of care and precision necessary to survive legal scrutiny.

How To Infuriate With Scales

The University of Chicago Law School's grading scale goes from 155 to 186.

For awhile, it was 55 to 86, but employers kept assuming that our tip-top students were actually getting middle-to-low Bs. So they added a "1" to it, on the theory that completely opaque is better than affirmatively misleading.

Of course, within that 155 to 186 range, we still break up grades into the traditional As, Bs and Cs (180 - 186 is an A, 174 - 179 is a B, and so on). So the actual choice of numbers in the scale is pretty much arbitrary -- as the casual introduction of the "1" aptly demonstrates.

I was thinking about this while reading a story of a Florida teacher who was, the headline tells us, "fired for refusing to give students credit for homework not turned in". District policy was to give a 50 for unsubmitted homework; the teacher instead gave such assignments a zero, and so she was terminated.

The story is meant to be a lesson about participation-award style administrators and overly entitled post-millennial brats expecting credit even where they didn't do any work. As the teacher put it, "we have a nation of kids that are expecting to get paid and live their life just for showing up and it's not real."

But I read the story and just thought "aren't they just making a 50 a 0?"

The thing about the traditional 0 - 100 grading scale is that pretty much nobody uses the entire scale. As are (roughly) 90 - 100, Bs 80 - 89, Cs 70 - 79, Ds 60  - 69, and Fs -- a failing grade -- are anything below that, but for all intents and purposes 50 - 59. The bottom half of the scale is pretty much never used (save for something like right/wrong multiple choice tests -- but even those are frequently curved up). I don't think I've ever given a grade between 1 and 49 in my entire life.

So, in effect, the district's policy is simply formalizing what is probably already the functional practice: a grading scale of 50 - 100, where 50 is the lowest grade (reserved for, say, not turning in the assignment at all, or otherwise completely bombing it). Making 50 the bottom of the scale isn't any different (and doesn't represent any more coddling) than placing the bottom at 55, or 155.

Indeed, I think the formal 50 - 100 scale is just better. Assuming I'm right that the bottom half of the 0 - 100 scale is never used except for zeros in the case of simply not doing the assignment, then the primary function of that scale is to massively overweight not turning an assignment (getting a 0) as compared to failing it for another reason (which, presumably, would earn you between a 50 and a 59). It's the equivalent of a five letter grade difference. Whether that's appropriate or not is a normative question, and while I don't think it is beyond argument my instinct is to treat failing grades roughly alike. There is a difference between simply not turning in an assignment and turning in a failing quality assignment, but for me that difference exists inside the bandwidth of a normal F grade (it's the difference between, say, a 50 and 58).

But I doubt that the normative dispute is actually driving anything. I'd wager that all the sense of outrage here is an artifact of the perceived scale -- the idea that students are still getting "credit" for undone work -- which is based on the misapprehension that the numbers on the scale translate into some sort of objective percentage. The advantage of a 155 to 186 scale is that it doesn't delude anyone into thinking it represents anything but an a set of more-or-less arbitrary markers denoting cut-offs between As, Bs, Cs, Ds, and Fs.

Likewise, if the district announced it was switching to a 0 - 50 grading scale (where 0 - 9 is an F, 10 - 19 is a D ... etc.), I doubt anyone would care -- even though it was mathematically doing the exact same thing as having a 50 - 100 scale. Ditto if the scale was 25 - 75, or if it was 0 - 100 but every 20 points represented a different grade (so 80 - 100 was an A, 60 - 79 a B ....). None of those are actually different from one another, and none, I think, would provoke any sort of outrage.

Of course, things are probably not quite that neat (especially if the district hasn't abolished below-50 grades outright). Still, I wonder if the teacher -- so aggrieved at being forced to "give credit" for incomplete work -- actually understands that the real issue here isn't about objective "credit", but about arbitrary scales. I don't want to say she doesn't -- I don't have enough information to conclude that -- but the story as presented doesn't make me wholly confident that she does either.

Dinosaurs and Israel/Palestine

Have you ever met a five-year old who knows everything about one very specific thing?

Dinosaurs is a common candidate, but it also might be trains, or cars, or baseball. But we'll go with dinosaurs for our example.

You can talk to this kid, and he doesn't know the alphabet, or his address, or how to spell his name. But get him on dinosaurs, and suddenly he's using words like "pachycephalosaurus" and can tell you the dietary habits of every creature that lived in the Triassic period. Something about dinosaurs just causes him to collect knowledge like a packrat -- even though, underneath it all, he's still a five-year old with a five-year old's tiny five-year old brain. It's less knowledge than it is an obsession. And so, as fun as it is sometimes to listen to them talk breathlessly about the preferred habitat of the stegosaurus, it isn't really reflective of anything.

Very often, Israel/Palestine is "dinosaurs" for adults.

Obviously, there are plenty of people who do (really) know a lot about the issue, who have thought hard about Israel/Palestine affairs and given it the care and attention it deserves.

But for some reason, it is also true that there are seemingly infinite people who can't tell you their state's capital yet who know (or think they know) everything about it. They may not be able to tell you where the United Nations is located, but they can give you a six hour sermon about the 1922 partition plan or the relevance of the drafting history of U.N. Resolution 242 as it pertains to the final status of the West Bank. They haven't ever heard of John Locke, but they have intimate familiarity with Haj Amin Al-Husseini's public speeches or Ze'ev Jabotinsky's personal correspondence, and boy howdy do those letters tell you everything you need to know about Zionism or anti-Zionism in 2018.

It's a marvel to watch, in its way. And it exists on both sides, which means that internet spectators can, whenever the mood strikes, watch two figures with a combined nine emojis in their Twitter profiles go to war over whether Gaza is "occupied" under the legal framework set out by the Hague conventions.

But, underneath all that "knowledge", they still don't really know anything. It's an obsession, not knowledge. I've never once seen the sort of breathless recitation associated with this type result in a productive conversation. Not once. It's adults playing with their dinosaur dolls.

An Alarmingly Late Realization (About Rings)

You know that game people play, where they say some really obvious mistaken belief they held until were alarmingly old?

Well, I just recently discovered mine.

In The Lord of the Rings, there are various scenes where Frodo puts on the One Ring. In the mythology of the movies (and books), the One Ring makes its wearer invisible to ordinary mortals (say, orcs searching nearby) but quite visible to the ring's master Sauron. Moreover, we are told, the ring "wants to be found" -- it exerts a power over its owner, tempting its holder to wear it so that Sauron knows where it is so that he can get it back.

Anyway, in these scenes Frodo puts the ring on, and then encounters the terrifying gaze of Sauron, at which point he struggles to take it off. He pulls at the ring, which seems to resist him until finally with a great yank he pries it loose. And for all my life, I assumed Frodo was struggling because the One Ring was resisting him.

But now that I, for the first time in my life, wear a (wedding) ring, I've realized the more banal truth: rings -- of all kinds, even ordinary mortal wedding bands -- kind of require a bit of yanking to get off one's finger.

It just never occurred to me -- until age 32 -- that rings required effort to remove under perfectly normal circumstances.

Keeping the Important Questions in Mind

The recent allegations against Brett Kavanaugh, and the argument regarding whether what a "17 year old, presumably very drunk kid" might have done (e.g., sexually assault a fellow student) should have a bearing on his Supreme Court nomination, raise many questions that are important to think about. But some of these questions are more important than others.

Here's an example of an important question:

(1) Should a person who committed a sexual assault as a teenager, and who faced the appropriate legal consequences and has otherwise accepted responsibility for their act, be completely barred from all social and economic opportunities and permanently stripped of their basic participatory rights as citizens (e.g., to vote) for the rest of their life?

Here's an example of a much less important question:

(2) Should a person who committed a sexual assault as a teenager, who has faced no tangible consequences whatsoever at any point in their life and who never acknowledged responsibility, not be given a seat on the single highest judicial body in the country?

And here's an example of a question so utterly unimportant that it's baffling it'd even be asked:

(3) Should we spend any time puzzling through question #2 if we haven't, as a society and in our structure of criminal law and economic practice, unequivocally answered "no" to question #1?

Answer key: (1) No (2) Yes (3) No

Marvel's Spider-Man! Initial Thoughts

I've been playing Marvel's Spider-Man for the past few days, and it is blast. Some quick thoughts:

• While the web-swinging dynamic remains a little opaque to me -- I rely on button-mashing more than I'd like, and precise landings on small platforms is a skill I've yet to master -- swinging around New York is still an exhilarating experience.
• It also helps that it is New York. Not "Gotham", not "Bew Bork". Spider-Man as a character really is tied to a sense of place (for good reason -- as one wag put it, if Spider-Man lived in, say, Greensboro, he'd be restricted to fighting crime in a 3-block radius downtown) and the game is perhaps the best representation of a real-life city that I've ever experienced.
• The combat system, which emphasizes getting and staying in the air, represents an actually fresh take on the fun but somewhat-worn Arkham/Assassin's Creed/Shadow of Mordor beat-em-up model. Still kind of button-mashy, but I feel like I've gotten the hang of it and am dying a lot less frequently than I did in the early going.
• The game mostly looks beautiful -- occasionally I saw some rough textures on some cut-scene characters (Mr. Li, to be precise), but overall it is very sharp.
• J. Jonah Jameson is now a right-wing talk radio host, which is a good spin on his character. One of the most interesting parts of his portrayal is that his (expressed) beef with Spider-Man is basically that his presence as a Superhero is directly responsible for criminals escalating into supervillain-ery. Why do I find that interesting? Because it's, more or less, the posture the Christian Bale-era Batman films took towards that character, to much critical admiration.
• While there is plenty of similarities to the Arkham games, the tone is so different (understandably, Spider-Man and Batman are very different characters). In particular, this game has a brightness and cheeriness to it that Arkham could never have sustained. Ironic, given that Bruce Wayne is a billionaire and Peter Parker is teetering on the edge of homelessness (and Peter can see your dead parents, Bruce, and raise you a dead uncle, so don't even try to play that card).

Anyway, the game is a ton of fun, and I highly recommend it.

What the New York Democratic Primary Results Mean

Well the New York primaries are in the bag, and Andrew Cuomo smoked Cynthia Nixon by a 66/34 margin. The Cuomo-aligned candidates also won the downballot statewide races: Tish James soundly defeated two opponents to win the nomination for Attorney General, and Kathy Hochul held off a very spirited challenge from Jumaane Williams for the Lieutenant Governor's nod.

The news wasn't all bad for progressive challengers -- six of the eight turncoats in the IDC (a group of renegade Democrats who caucused with, and gave control of the state senate to, Republicans) lost last night. And most-scrutinized-state-senate-candidate-in-history Julia Salazar soundly defeated incumbent Martin Dilan (who was not IDC, but was viewed as a relatively conservative figure).

I had registered my predictions for some of these races, and I'd give myself a solid A- on my performance. Sure, "Cuomo will trounce Nixon" and "Felder over Morris" were chalk picks, but I give myself a little more credit for calling Salazar's comfortable win over Dilan (which I've heard described as "stunning" but which I was very confident in). My big miss was underestimating the IDC bloodbath (I set the over/under on IDC losses at "two"), but that's an area I'm happy to be proven wrong.

But enough about me. What are the larger implications of yesterday's results?

1. There really is some genuine anti-Democratic establishment sentiment coursing through the deepest-blue turf.

There have been more than a couple locales where candidates the left has been deeply excited about have won by either knocking off incumbents or beating more establishment-oriented candidates -- Alexandria Ocasio-Cortez is the obvious one, along with Ayanna Pressley in Massachusetts, Ilhan Omar in Minnesota, and last night Julia Salazar in Brooklyn. All of these races occurred in very similar types of district -- urban, very blue, cosmopolitan, and highly diverse. That's why Salazar's victory didn't surprise me -- her district fit the profile for where candidates like her have done very, very well this cycle.

2. This sentiment, so far, is not translating to Democratic politics on a broader -- statewide or larger -- basis.

While progressive insurgents have certainly won some high-profile successes, they've also been rather limited in scope. This is the flip-side of the "very similar types of district" argument: the left wave hasn't really gotten any momentum outside of these very friendly, urban environments. It's not just that Nixon lost last night -- a Nixon victory was always a long-shot. But it is quite notable that Nixon actually didn't improve on Zephyr Teachout's 2014 performance against Cuomo -- despite garnering a lot more media attention and working in a far more favorable political environment.

This isn't to say progressives haven't notched some victories in statewide races -- Ben Jealous in Maryland and Andrew Gillum in Florida certainly qualify. But Democratic incumbents on a state level -- Senators and Governors -- have had no trouble turning back progressive challengers.

It's important not to overintepret either of the above against each other. On the one hand, there really is a noticeable shift in Democratic politics occurring in the types of locales where Ocasio-Cortez or Salazar are winning. It's more than idiosyncratic, and it's wrong to dismiss it. On the other hand, it is a shift that so far is confined -- it isn't all places or all Democrats (there's an annoying heads-I-win-tails-you-lose quality to some progressive analyses of, e.g., New York, wherein Julia Salazar's victory shows that what the people really want is Democratic Socialism, and Andrew Cuomo's victory shows that the Democratic Party is hard at work suppressing what the people really want, Democratic Socialism).

3. For the most part, primary challengers are doing their job.

My view on primaries is that they should serve two important purposes. First, punish bad guys. And second, push incumbents to adopt better positions. On that score, I'd say that the results in New York were a rousing success.

Start with the latter metric. No, Nixon didn't win, but she absolutely pushed Cuomo to adopt a raft of more liberal positions, and that's almost as much of a victory as if she'd actually assumed office (one could argue that, given Nixon's lack of actual political or administrative experience, it's a better outcome. A savvy political operator like Cuomo pushing progressive policies may well accomplish more than a well-meaning but inexperienced novice like Nixon). That's the thing about establishment politicians -- if the established wisdom shifts, they'll follow right along.

And on the "punishing bad guys" front, the IDC bloodbath is beautiful political justice. Moreover, I do think that Nixon's campaign helped bring attention and energy to that campaign too (notably, while many of the IDC incumbents occupied districts that were of the left-friendly type I identified above, there was more diversity there -- David Valesky lost his Syracuse area seat, for example, and IDC leader Jeffrey Klein represents a mixed district encompassing parts of the Bronx but also Westchester County). Six Democrats who deserved to lose, lost. And I highly doubt the two IDC survivors will return to similar shenanigans in the future.

The interesting thing about primary challenges is that they can win even if they lose. Sometimes, entrenched incumbents need a scare put in them. A close primary fight keeps them honest, and ensures that they stay inline with where Democratic politics are going.

So overall, I consider last night to have been a heartening display. Sure, there are some incumbents who survived when I might've rather watched them go down in flames. But there were some instances of righteous retribution and, perhaps more importantly, those who survived the ordeal will emerge wiser for it. I think 2018 will be a very good year for progressive politics in New York -- in part because of who won, but maybe in large part based on who came to fight.

The Rutgers Antisemitism Investigation Isn't About Free Speech, But it is About "Free Speech"

Last week, the Department of Education announced it was reopening an investigation into alleged antisemitism at Rutgers University. This has led to some consternation -- see this very skeptical New York Times article or this statement of condemnation by J Street -- and the usual fretting that it represents an attack on "free speech". The case is being looped into larger discussions about the Antisemitism Awareness Act, the State Department/IHRA antisemitism definition, and when anti-Israel sentiment crosses into discriminatory antisemitism generally.

But the Rutgers case is a very different animal than how it's being portrayed. The legal (as opposed to factual) questions it poses do not appear related to any disputes about the ASAA or the State Department definition, do not implicate free speech concerns at all, and really should not be controversial to anyone who thinks rules against antisemitism are anything more than pro forma.

Let's start with J Street's statement:

The initial Rutgers investigation into an event held by a Palestinian group on campus was triggered by a complaint from the Zionist Organization of America (ZOA) — an ultra-right group that has sought to suppress virtually all activities critical of Israeli government policy, and which regularly traffics in anti-Palestinian and anti-Muslim bigotry. The complaint was thoroughly investigated and dismissed by the DOE in 2014. Its reopening is not about upholding civil rights or a serious effort to combat anti-Semitism, but about advancing a right-wing agenda that seeks to silence open discussion and debate of the Israeli-Palestinian conflict.

To do so, the Trump administration intends to wield a controversial definition of anti-Semitism that equates criticism of Zionism with anti-Semitism — and which was never intended for use on college campuses.... At J Street, we strongly oppose anti-Semitism in all of its forms. We work to challenge ill-informed criticism of Israel and Zionism — including on college campuses, through the efforts of our student movement J Street U. We strongly believe that such criticisms can and must be treated as constitutionally-protected free speech — not banned and punished by Congress or the executive branch. 

As you might expect, I have no quarrel with how ZOA is described here. But it is notable that the statement gives zero details on what the investigation is, you know, investigating. Instead, it just vaguely complains about a chilling effect on free speech, and asserts its opposition to any efforts to "ban and punish" such speech -- along with a shot at the State Department/IHRA "definition" of antisemitism which they likewise accuse of silencing "criticism of Zionism" (I'll sidebar here and say no, the State definition does not "equate criticism of Zionism with anti-Semitism" -- indeed, it does not mention "Zionism" at all -- and given the central role that canard is currently playing in the UK Labour antisemitism disaster-show it's not a good look for J Street to just casually drop in on the side of the Corbynistas).

And that's a problem, because while the J Street statement invokes the scary prospect of government regulators stepping in to "ban" speech, from what I can tell (and unfortunately I haven't been able to get my hands on the letter DoE civil rights head Ken Marcus sent reopening the investigation, so I'm relying on media reports) the Rutgers investigation isn't investigating or targeting anyone's speech at all. And neither does it (or at least must it) rely upon the State Department/IHRA antisemitism definition to get its wheels going.

As it is being reported, the renewed investigation of Rutgers looks at only one incident: allegations that a pro-Palestinian event, initially advertised as free and open to the public, began charging admission fees upon perceiving that many of those seeking entrance were Jewish and/or Israeli (and accordingly committed either ethnic or national origin based discrimination). The key bit of evidence is an email by one of the organizers saying "We need to start charging because 150 Zionists just showed up!" but that “if someone looks like a supporter, they can get in for free" (this email wasn't considered in the initial agency decision, hence why the matter is being reopened). The argument is that, in this context, "Zionist" stood in for "Jewish" (or "Israeli").

Now, whatever else you want to say about this allegation, it simply isn't a free speech case. Questions about when "speech" becomes a form of discriminatory harassment are among the most difficult ones courts and civil rights agencies have to grapple with. There are cases like that -- ones where, e.g., Jewish students are alleging that a given speaker's words (whether directed at Israel or something else) created a hostile environment that interferes with their full and equal access to a public good. And those cases really do raise genuinely difficult and nettlesome free speech questions.

But this case isn't one of them. The DoE is not investigating any claim that the speaker at this event said certain bad words about Israel or Jews which qualify as discriminatory. The investigation is into a much more run-of-the-mill form of discrimination: Charging differential rates to Jews versus non-Jews, or hiking prices because too many Jews were showing up, is discrimination in its most uncomplicated and unproblematic guise. It just cannot be the case that J Street thinks that requiring public events to not hike prices when the Jews show up constitutes "silencing" of anti-Israel speech.

Now, of course, while hiking prices because too many Jews are showing up is definitely discriminatory, it is entirely fair to say that the email quoted above, in the abstract, does not provide unambiguous evidence that this is what happened. The argument in favor, as Marcus expressed, runs thus:

“In other words, the visual perception of a group of ‘150 Zionists’ referenced in the email could have been rooted in a perception of Jewish ancestry or ethnic characteristics common to the group,” Marcus wrote, adding that it was unlikely organizers polled each of the 150 entrants on their views regarding Israel. “In cases such as this, it is important to determine whether terms such as ‘Zionist’ are actually code for ‘Jewish.’”

The letter also noted that some students who reported being charged had a Jewish appearance (like wearing a yarmulke, for example).

Basically, while it's not clear how the organizers would know that attendees looked "Zionist", they perhaps could tell that the prospective attendees looked Jewish -- because they had on religious garb, for example, or perhaps had Hebrew-language clothing. Consequently, it is fair to infer that what really triggered the email was the Jewish (or Israeli) appearance of the guests, not their alleged Zionism (or put more finely, the organizers saw a bunch of unfamiliar Jews, figured they must be Zionists, and responded by raising prices). And if that inference holds up, then one has a very straightforward case of antisemitic discrimination.

[A parallel example might help illustrate. A "Men's Rights" organization on campus hosts an anti-feminist speaker known to be controversial. People start to arrive before the speech, and this initial group is predominantly -- though not exclusively -- male (and, perhaps, people generally known by the organizers to be sympathetic to the speaker). But a few moments later, a huge crowd of women arrive in line to hear the talk. An organizer panics, and sends an email: "we need to start charging -- 150 feminists just showed up". Is this sex discrimination? I think plausibly. The organizer doesn't actually know the political orientation of the new arrivals. What he sees is their gender, and then makes an inference regarding their politics (and their favorability towards the speaker) based on that, which is used to justify raising prices. To me, that'd be sex discrimination. And it'd still be sex discrimination even if a few "cool girls" were involved in the hosting of the speaker].

"Zionist", of course, doesn't always equal "Jewish". But sometimes it does, and frequently enough so that in cases like this it's worth looking into as a possibility. And in particular, there are elements in the record here that make it especially likely that "Zionist" was functioning as "Jewish" (similar reasoning is how we can infer that Jeremy Corbyn was using "Zionist" as a stand-in for "Jewish" when he spoke of people who'd lived in England "all their lives" and yet didn't understand "English irony"). The reliance on visual perception -- how does one "look" like a Zionist without "looking" like a Jew -- significantly strengthens the inference that the Jewishness of the prospective attendees was doing dispositive work.

The basic principle -- that "Zionist" sometimes can be used as a code for "Jew", and that consequently the naked use of the word "Zionist" doesn't act as a definitive defense against an antisemitism claim -- should not be controversial and is something I can't imagine J Street actually disagrees with. If one needs the State Department definition of antisemitism to operationalize that principle, that's a huge point in favor of codifying the definition -- but I actually don't think the State definition is necessary to get us there, because again, the structure of the antisemitism claim here actually isn't that complex (here in particular I wish I had Marcus' letter, as I'm curious what work the State Department definition is purportedly doing for the investigation).

Still, perhaps it does illustrate what I've sometimes termed the "cleansing power of anti-Zionism" -- the inversion of the classic "not all criticism of Israel is antisemitic" argument into the much more robust "if something is framed as criticism of Israel, then ipso facto it is not antisemitic." That move is one that it is very important to check, and the ease at which people fall into that groove is perhaps strong evidence of why a more rigorous definition of antisemitism absolutely is required.

Now, I've been treating these allegations as if they were affirmatively established, and they're not. It's possible the email in question wasn't written by an event organizer, or that if it was written it wasn't the cause of the decision to charge for admission, or that there is some other evidence that the Jewish or Israeli character of the prospective attendees was irrelevant to how the pricing change proceeded. My (very) quick glance at the record suggests that some of these defenses might have legs. But there is a huge difference between dismissing this complaint because (say) the email in question didn't cause the pricing change, and dismissing it because in concept the pricing change could not have been antisemitic because the email used the word "Zionist" rather than "Jewish". That's a spectacularly dangerous precedent to set, and so it's disappointing that J Street seems willing to go down that road in a statement that doesn't even seem to recognize the stakes on the table.

Put another way, it's entirely reasonable to contest the alleged facts here. But there are to my eyes only two substantive legal questions at issue:

1. Does hiking admissions prices based on the perception that too many Jews are attending an event qualify as anti-Jewish discrimination; and
2. Can, in concept, "Zionist" be seen as a stand-in for "Jewish" when assessing whether a given act was discrimination against Jews?

The answer to both of these has to be yes. It would be really, really bad if a civil rights agency answered "no" to either of these questions, which means it's really important that, however the investigation ultimately is resolved, it makes clear that it is not giving such a negative answer.

Finally, I want to circle back to the "free speech" focus. Again, on substance the Rutgers investigation just doesn't have anything to do with speech. Either the organizers hiked prices in response to perceived Jewish attendance, in which case it is a straightforward case of antisemitism, or they didn't, and it isn't. Speech just doesn't come into play. Which raises the question: Why did J Street and others instinctively run to that well?

There's recently been a raft of scholarship on what's been called the "New Lochnerism" or "First Amendment Lochnerism". For those of you who haven't suffered through law school, Lochner was a turn-of-the-century Supreme Court case which stands in for a judicial era where courts repeatedly struck down progressive economic and social regulations. For decades, popular democratic legislation protecting workers was strangled by a deeply activist Supreme Court's interpretation of the Fourteenth Amendment's due process requirements. The "New Lochnerism" perceives a similar trend today with respect to the First Amendment, which is also slowly being weaponized to undo progressive electoral accomplishments recast as forms of compelled speech. Janus (public-sector union agency fees) is one prominent example, Citizens United (campaign finance) is another, Masterpiece Cakeshop (anti-gay discrimination) is a third.

Discrimination law is particularly vulnerable to this line of argument, because discrimination claims almost always implicate expressive values. I've been saying that the Rutgers case clearly isn't about speech, but a clever philosopher could reframe it that way with little trouble: "I dislike X group, and the way I express my dislike for them is by charging them more money if they want to attend my events." Or "I express my dislike by refusing to hire them" or "I express my dislike by refusing to do business with them." If one accepts that frame, pretty much all anti-discrimination law represents a First Amendment threat: one is being forced to associate with people one would rather not, and one is foreclosed from acting based on specific (discriminatory) motives when other viewpoints are entirely permissible bases for action.

Fortunately, courts have not taken things that far. But the New Lochnerism suggests a growing trend in that direction, and the hysteria over the Rutgers case fits right inside of it. In my writings on antisemitism and discrimination law more broadly, I've emphasized how certain patterns of discourse about antisemitism reflect broader conservative legal trends that threaten a raft of progressive priorities -- not just an antisemitism, but on anti-racism, anti-sexism, anti-Islamophobia (the interpretation that encompasses Jews under Title VI and gives the DoE jurisdiction over the Rutgers case in the first place is the same one that enables anti-Muslim bigotry to be covered), and other bases as well. That "progressives" don't recognize or don't care about these parallels is either remarkably short-sighted or remarkably dangerous.

The Rutgers case isn't about free speech -- there is no free speech interest in raising prices because you're worried too many Jews will be in the room otherwise. But it is about "free speech", the totemic invocation that anytime, anywhere, anyway that outgroups allege they face discrimination, what's really happening is a form of silencing. It's a powerful argument, and therefore a tempting argument -- even in cases like this, where it doesn't remotely fit the facts. But that doesn't make it a good argument. It leads to a very particular, and very unlovely, end point.

There are discursive tropes which suggest that White people are being "silenced" by overbearing, overexpansive, all-encompassing accusations of racism. These tropes in turn support a backlash against anti-racism efforts across the board. There are also tropes which suggest that men are being silenced by overbearing, overexpansive, all-encompassing accusations of sexism; these support a backlash against anti-sexism efforts across the board. And there are identical tropes which suggest that non-Jews are being silenced by overbearing, overexpansive, all-encompassing accusations of antisemitism; these, too, power a backlash against counter-antisemitism efforts globally.

There isn't necessarily perfect overlap between those who find these various tropes appealing. But they're all based on the same principle, and together they all entrench a particular moral and legal vision of anti-discrimination law that is hobbled to the point of impotency. One can't indulge in the one without getting all the rest.

New York State Politics Quick Picks

New Yorkers go to the polls on Thursday, choosing primary candidates for state races (the federal primaries -- where, famously, Alexandria Ocasio-Cortez knocked off Rep. Joe Crowley -- were held on a separate date).

I'm not a New Yorker, but I still will venture some predictions on a couple of races of note. To be clear, these are predictions, not endorsements -- I'm saying who I think will win, not who I'd like to win.

Governor's race (Cuomo vs. Nixon)

I've always been a "hey, all the Democratic candidates are basically fine, so don't sweat it if your guy loses the primary" sort of guy. That was true in the 2008 presidential primary, and it was true in the 2016 presidential primary. Many people think Cuomo has been gearing up for a 2020 run, and if he was somehow nominated .... boy, would that test my commitment to the principle (for the record: yes, if by some Bad Place horror-show we're faced with a Cuomo/Trump race in 2020, vote for Cuomo).

Cuomo is one of my least favorite prominent Democratic pols. He's heavy-handed, he's entirely happy to keep Albany's dysfunctional machine intact so long as he holds its reins, and he's worked to stymie progressive priorities throughout his tenure (his fingerprints are all over the repulsive IDC traitors who gave Republicans control over the State Senate -- more on them in a moment).

The good news is, I think Cuomo has been sufficiently damaged that his 2020 ambitions are dead in the water. The bad news is, I think he's going to win his primary this week. I'm not a huge fan of celebrity candidacies, and at times Cynthia Nixon has sounded more like a speak-and-spell of d'jour lefty talking points than an independent personality. Still, I have no doubt she'd make a competent governor, and given how wretched I find Cuomo that's more than enough to justify casting a ballot in her favor. Plus, some of those rote-repeated talking points are actually pretty good policy!

But Nixon has badly lagged in the polls, and her campaign has never gotten much traction upstate. Backers will point to other prominent polling "misses" recently, e.g., Andrew Gillum in Florida or Ayanna Pressley in Massachusetts, where left-wing candidates have blown past expectations in Democratic primaries. But those races either have been (a) open races (Gillum) or (b) single-district elections in deep blue, urban turf (Pressley, Ocasio-Cortez). We haven't seen anti-establishment anger translate into a Democratic incumbent losing statewide yet, and (regrettably) I don't see that changing. Nixon got a late gift with a ill-conceived state party mailer tying her to antisemitism (when even Dov Hikind thinks you've gone too far....), which will only further inflame her base and emphasizes the really grimy nature of the New York Democratic establishment, but I don't think it will be enough.

New York State Senate

A couple of races here have gotten some national attention. The most important, in my eyes, are the challenges to eight former members of the Independent Democratic Conference, a group of breakaway Democrats who until recently caucused with Republicans and gave them control of the state senate (despite a nominal Democratic majority). It was dirty Albany politics at its worst, and in this Trumpist era Democratic primary voters are in no mood for collaborationists. I hope all of them go down, and hard.

Unfortunately, I've seen no polling in these races and the IDC members are scattered among very different districts all across the state. So it's hard to draw any general predictions about whether they'll win or lose. If I had to venture a guess, I'd say that a few scalps will be claimed but that most are going to survive. In a sense, it's a shame that these races haven't gotten the attention of a certain other NY state senate race, since a sense of national momentum could've made all the difference. Alas.

Said "other" race, of course, is the ab-so-lutely wild contest where Julia Salazar, a working-class(?) Jewish(?) immigrant(?) democratic socialist (pretty sure on that, one at least for now) is challenging incumbent Martin Dilan. Every other day seems to bring a new revelation, each more nuts than the last (the most recent is that she's about to be outed as a sexual assault survivor which -- not cool, whoever's doing the outing).

Of course, with Salazar getting all the focus, I was left wondering what exactly was the deal with Dilan. He's not, to my surprise, IDC, which was my initial assumption for why he'd be the subject of such intense progressive vitriol. The line I've heard more recently is that Dilan is seen as too close to developers, though I haven't gotten much more details than that.

One might think that all of this negative press might kneecap Salazar's chances. But I think she's going to win, and going to do so handily. Rightly or wrongly, I think Salazar's backers think of this negative press as a smear campaign that targeting a non-establishment progressive, and so if anything it will make them more enthusiastic about her chances. And while I don't think an AOC or Pressley style insurgency can overcome incumbency advantages statewide in New York, the Brooklyn area that Salazar is running is another matter entirely. Plus, Dilan (again, for whatever reason) doesn't seem to be that popular in his district -- his last challenger got 41% against him, and 2018 is shaping up to be a much better year for candidates of Salazar's ilk.

Finally, there's one other New York State Senate race worthy of mention, also falling in the "technically not-IDC" category. That would be incumbent Simcha Felder's contest against challenger Blake Morris. Felder isn't IDC, but only because he caucuses with the Republican Party outright despite nominally running on a Democratic line. That turncoat status was enough for the New York Times to endorse Morris.

Felder represents a heavily Orthodox Jewish district in New York (including Boro Park), and has distinguished himself by fighting against state oversight of Yeshiva education (alongside an otherwise generally conservative, if unremarkable, voting record). Morris, a secular Jew, says he's counting on "secret" Orthodox Jewish opposition to Felder to ride to victory. Call me old-fashioned, but I prefer to see public signs that a challenger has backing in his community before I predict an upset. I think the Orthodox community will stick with Felder, and he will continue to be a massive thorn in the side of the Democratic caucus in Albany.

Short version:

Cuomo over Nixon

Salazar over Dilan

Felder over Morris

Over/under IDC candidates defeated: Two

Klum and Gunn Leaving Project Runway

I have to admit, I had a pretty clear idea of how I thought the future of Project Runway would proceed.

The show was a Harvey Weinstein production, which, of course, is rightfully toxic. So I assumed it would go on hold until it was sold to someone else, but then would return pretty much as normal. Alternatively, it was possible that they'd cancel the show outright and replace it with something functionally identical but under a new name and management.

But apparently we're getting a mix of the two: Project Runway is coming back (on Bravo) ... but Heidi Klum and Tim Gunn have jumped ship. They're joining a new fashion competition project on Amazon, which seems to me like a very good poach by Amazon.

It's hard to imagine Project Runway without Klum and Gunn (which is why it didn't occur to me that the show would continue without locking them down). Indeed, I'm not wholly convinced it can survive without them. With their departure, the only member of the original team still attached the show (as far as I know) is Nina Garcia -- and while I love me some Nina, I doubt she exerts enough gravitational pull on her own to keep in viewers. Ditto Zak Posen (who replaced Michael Kors some years ago).

And if they go to the bench squad from the various "All-Star" seasons, well, let's see. Joanna Coles was great as a mentor, but she hasn't been associated with the show for years (ever since the show switched its sponsorship from Marie Claire to Elle Magazine). Georgina Chapman is fine but probably won't be associated with the show going forward for obvious reasons. Alyssa Milano is ... competent. Zanna Roberts Rassi is execrable. Isaac Mizrahi is whatever word is somehow worse than execrable. None of them can compete with Planet's Best Human Tim Gunn and the wonderful, ageless, possibly-succubus Heidi Klum.

So this may well be, in effect if not in formalities, the end of Project Runway. And if so, you've given us a lot of fun, a lot of fashion, and a lot of look. Auf wiedersehen.

(For fun, here's an oral history of Project Runway's very first season)

On The UK's "Not Anti-Semitic" Teacher Case

A story is currently floating through the Jewish press about a UK tribunal ruling which, we're told, concluded that a dismissed teacher who said (among other things) "Every sane human is anti semitic" was "not anti-Semitic."

Is this accurate? Kind of, though I think it's a bit misleading. But it's also a bit revealing. It's certainly a good illustration of why you should always try to read the actual opinion.

The teacher, one Harpreet Singh, was facing suspension of his license for a variety of alleged infractions, including having engaged in "offensive and/or racist comments" on social media. "Every sane human is anti semitic" was one example, another was "Of course we hate Jews". So pretty straightforward. His defense was, as one might expect, that he does not hate Jews "as such", that he was actually targeting Israel and its supporters, that his comments were taken "out of context," that while they were certainly wrong they were "provoked," and that they were ultimately a "reactive response" regarding an issue he felt "passionate" about.

The tribunal hearing the case concluded that Singh's posts were indeed racist, and that he had accordingly failed to show due tolerance and respect towards the rights and beliefs of others. Perhaps most interestingly, they also found that while Singh had recognized his comments were wrong and offensive, his repeated attempt to contextualize them by noting how they occurred in the context of "passionate" public debate suggested that he was at least potentially at risk to reoffend (in circumstances where said passions were again roused). Consequently, the tribunal voted to suspend his teaching license indefinitely (though he can try -- without guarantee of success -- to try to get the ban lifted after three years).

So why did the tribunal say at one point that it "accepted that Mr. Singh is not anti-Semitic" (and it did indeed say that)? Given that the tribunal did find that Mr. Singh had engaged in racist remarks and did impose a substantial punishment, it doesn't seem quite right to say that the panel was implicitly excusing what Singh said. More likely, it was trying to say something of the form that Mr. Singh was not anti-Semitic "to the bone", that it accepted that these comments were out-of-character, that they were motivated not by hatred of Jews "as such" but rather some desire to come to the defense of Palestinians. It matters that the tribunal nonetheless concluded that the comments were racist -- after all, not everyone agrees that racist targeting of Jews exists in circumstances where it is motivated by anything other than hatred of all Jews-qua-Jews.

Yet even though along the tangible metrics the tribunal seemed to reach the right outcome and apply an appropriate sanction, there still may be some grounds for unease. In his book Contemporary Left Antisemitism, David Hirsh speaks of the phenomenon of "pleading guilty to a lesser charge". Those accused of antisemitism are frequently willing to cop to many things -- they'll accept that their statement was offensive, outlandish, over-the-top, bullying, insensitive ... "to anything so long as it is not antisemitism" (14-15). And ditto those tasked with assessing claims of antisemitism -- they'll agree that the comments in question were extreme, uncivil, nasty, disrespectful, (maybe) even racist -- but for whatever reason they won't be willing to actually pull the trigger on "anti-semitic".

So it is notable that while the tribunal opinion repeatedly labels Singh's comments as "offensive", as "intolerant", as "racist" -- it never once refers to them or him as "anti-Semitic." Indeed, across the entire opinion the only mention of the term -- other than when they quote the comment where Singh effectively calls himself anti-Semitic -- is when the tribunal goes out of its way to absolve Singh of that particular charge.

Now maybe there's an innocent explanation for that. I'm unfamiliar with the particulars of how British professional licensing proceedings are structures; perhaps there are technical reasons for why certain words get used and others not. But there's still that nagging sense that, no matter how clear the case, "anti-Semite" seems to remain a bridge no one is willing to cross. Lesser charges, yes, but not that.

The Race Is On

The challenge of the 20th century was that humanity could go extinct if a few well-positioned people happened to be reckless, extreme, paranoid, or (in the right cases) deceived.

We managed to meet that challenge (so far).

The challenge of the 21st century is that humanity could go extinct if all of us just keep on living our lives in our normal pattern.

That's a far more difficult challenge to tackle.

We are, as you don't need me to tell you, rapidly racing towards ecological catastrophe. Global warming is approaching runaway levels, threatening a chain-reaction of climatological forces which may well be irreversible and would make human life on Earth impossible. Estimates differ, but the breakout point is almost certainly within this century.

But ironically, along a similar timeframe, we're also racing towards the technological developments that could save us. These are (a) limitless renewable energy and (b) genuine artificial intelligence. If those two currencies -- energy and intelligence -- start to get on a runaway train, then all of the sudden we're back in business. Infinite energy + infinite computing power = ability to solve essentially any problem (certainly in particular the problem of freezing, or potentially even reversing, greenhouse gas emissions). And the breakout points for each of these are, I'd wager, also within this century. So short-term strategies with respect to climate change might simply be delaying actions (see: how nukes might save the world). What we need to do is buy the computers enough time to save us all.

But basically a race. Can we get to free energy and free computation before we get past a climatological point of no return? What's amazing to me is that I genuinely, truly believe it's a toss-up -- and that we'll probably find out the answer (one way or another) in my lifetime.

Of course, the advent of true AI might bring about a whole new host of existential/extinction-level problems (one of the most interesting aspects of the lore of Horizon: Zero Dawn is that they make it quite clear humanity managed to avoid the ecological apocalypse ... only to stumble into a self-replicating killer robot apocalypse). But one disaster at a time.

The Bachelor's Roundup

Today is a big week.

It is my last week as an unmarried man. This coming Sunday, September 2nd, 2018, I will be married. 9/2/18 -- it's very mathematical, and mathematical around the number "18" too, which is nicely auspicious.

Jill has been out of town since Wednesday -- she says on a work trip, though I think she's just having a second bachelorette party. She gets back late tonight, and then we both fly to Minnesota together on Thursday.

So ... this might be a light posting week. Or not! I'm unpredictable.

* * *

The Washington Post has a long article on the Lumbee Indians of North Carolina and the unique neither-fish-nor-fowl status they have under federal Indian law. I had a case that tangentially connected to the Lumbee when I was at Covington, so I actually was familiar with their situation -- and this article does a good job providing additional depth.

There is little doubt in my mind that, if Trump goes down, his hardcore followers will blame the Jews.

A fascinating -- if chilling -- essay by Cass Sunstein on how ordinary Germans experienced the rise of Nazism. The takeaway is that, for them, things still always felt "ordinary". They went camping, they hung out with friends, they made jokes. We have a very wrong idea of the phenomenology of authoritarianism -- at least for those persons not directly targeted for suppression.

David Hirsh goes into detail to explain what should be obvious: why Jeremy Corbyn dismissing "Zionists" as people who have "lived in this country for a very long time, probably all their lives," and yet "don’t understand English irony" is antisemitic. It leverages specifically antisemitic tropes, and it does so in a way that's only sensible if one is leveraging those tropes (the idea of "Zionists" retaining status as perpetual aliens who remain unassimilable outsiders no matter how long they live in their "host" countries is incoherent without supervening on "Zionist as Jew").

Who could have guessed that, if the fringe group Jewish Voice for Labour put on a forum on antisemitism, it would become a forum for antisemitism? Everyone, that's who!

Regarding the French Open's ban on Serena Williams wearing a "catsuit", it's simultaneously amazing and not at all amazing that misogynoir so easily trumps the truckloads of money and attention Williams -- one of the biggest stars in global sports -- brings to women's tennis.