A First Amendment Right To Take In Information

Last week, the 8th Circuit decided Molina v. City of St. Louis, granting qualified immunity to police officers who shot tear gas at a group of lawyers (wearing bright green hats saying "legal observer") congregating on their own property while observing protests. The lawyers contended that the police gassed them in retaliation for exercising their First Amendment right to observe the protests. In a 2-1 ruling authored by Judge Stras, the court held that it was not "clearly established" in 2015 that there was any First Amendment right to observe protests.

(Because this is the Eighth Circuit, this is not even the most outrageous qualified immunity decision authored by Judge Stras of its week. That honor has to go to Leonard v. St. Charles County Police Department, where a jailhouse nurse simply refused to give a mentally ill inmate his prescribed medication, instead placing him under suicide observation -- the end result being jail staff "observing" the man claw out his own eyeball. Is just refusing to provide prescribed medical care "deliberate indifference" to the inmate's constitutional rights? Of course not! After all, the nurse did not do nothing -- she placed the man on suicide watch! That's what's great about modern medicine: everyone knows it can be freely swapped out with "do nothing but observe the patient" with no material change in outcome. This is why nursing is such an easy and non-stressful occupational path).

The interesting thing about Molina is that the Eighth Circuit had already in prior cases appeared to recognize that there was a constitutional right to observe the police. And under the "prior panel" rule, those decisions are supposed to be precedentially binding. But the Molina panel argued that those cases only concluded that it was a Fourth Amendment violation to seize someone for observing police (since there's no probable cause to believe any crime was committed). This does not establish, in the court's view (and notwithstanding the broad language in the case stating that there is a "clearly established right to watch police-citizen interactions at a distance and without interfering."), that there is a First Amendment right that's been established.

Judge Benton's dissent makes mincemeat of this finely-parsed distinction. But I wanted to flag a particular passage from Judge Stras' opinion that appears to embody a sort of vulgar textualism that's way too clever for its own good. In a footnote, Judge Stras argues:

It is not beyond the realm of possibility that a First Amendment right to observe police exists, but our Fourth Amendment cases like Walker and Chestnut do not clearly establish it. And it makes good sense why. It is one thing to conclude that officers cannot arrest someone passively standing by and watching as they do their job. After all, in the absence of interference, there is no crime in it. But it is another matter to say that watching is itself expressive. Expressive of what? Not even Molina and Vogel can provide a clear answer.

This, to me, seems to prove way too much, seduced by the allure of a hyper-literal reading of "expression". This argument, after all, would suggest that there is no First Amendment interest in reading a newspaper or watching a television program. Certainly, the speaker is expressing something, but what is the reader or watcher expressing? For them too, we could ask "expressive of what?" One can shoehorn in an answer ("they're expressing interest in or approval of the material"), but the more obvious answer is that the First Amendment encompasses interests on both the side of the speaker and the listener, and it is a fluke of grammar that "expressive" only directly captures the former. It seems obvious to me that the First Amendment encompasses some sort of right to take in information, not just to transmit it, and any reading that denies the former under the guise of interpreting the word "expression" is completely misunderstanding how to do legal analysis.

Incidentally, many years ago there was a similar thing with Justice Thomas in his Lopez concurrence, where he tried to bring constitutional Commerce Clause jurisprudence all the way back to E.C. Knight and claim that manufacturing is not "commerce". Among his arguments was the point that, grammatically speaking, you can't really substitute "manufacturing" for "commerce" in the clause -- while one can engage in "commerce" with a foreign nation, one can't really engage in "manufacturing" with a foreign nation. This was an argument that, again, proved too much. If there was a constitutional clause authorizing Congress to "wage war with a foreign power", would the power to "wage war" permit Congress to authorize the construction of warships? As a matter of grammatical substitution, it doesn't work ("construct warships with a foreign power"?). But all that means is the broader phenomenon of "waging war" can include activities which are not grammatically interchangeable with the phrase "wage war". And so too with "commerce", which also can refer to a range of activities which, taken as a whole, operate upon or in relation with foreign nations, Indian tribes, or the several states.

It is not a good thing, but also perhaps not an accidental thing, that the turn towards hyper-textualism corresponds to judges becoming increasingly bad readers of texts. The First Amendment obviously encompasses activities that are about receiving information alongside transmitting them. Pilpul about "expression" doesn't change that.

How Do Conservatives Explain Negative American Exceptionalism?

Over at the Washington Monthly, Keith Humphreys put up a chart comparing various countries along the axes of homicide rates and incarcerations rates.

Ideally, you'd want to be a country that has low homicide rates and low incarceration rates (Norway, Germany). Countries that have low murder rates, but get there by locking everyone up, are despotic (Iran). Countries that have low incarceration rates but high homicide rates are lawless (Mexico). And the finally, countries which throw everyone into prison but still have high crime rates are "disastrous", and of course, the U.S. of A. falls decisively into this category.

(Kevin Drum thinks violent crime rates are more useful than homicide rates for this sort of illustrations, which reshuffles some of the countries, but not in a way relevant to our purposes since the United States remains a clear disaster.)

I've long been curious how conservatives explain this sort of American exceptionalism -- metrics where America just clearly and unambiguously is far worse than nearly any other peer nation. Why, under the conservative telling, are we so bad at this compared to other countries?

Liberals don't have too much trouble with this problem -- partially because we're less wedded to chest-thumping about "greatest nation on Earth", more saliently because we have an easy explanation (guns + racism) ready to roll. But of course conservatives aren't going to be fans of that explanation. So what do they go with? It can't be "soft on crime" -- again, we're clearly "tougher on crime" than most peer nations (perhaps some "reforms" in that direction could push us into the "despotic" quadrant alongside Iran -- what a cheery thought -- but it doesn't seem to work as an argument). And I can't say I'm drawing much when I try to think about how they purport to explain this phenomenon. Do they just sit in denial of it?

Out/In List: 2022-23 Edition

 It's not as old as the New Year's resolutions, but I do enjoy creating the "Out/In" lists. So here it goes, slightly belated, for 2022-23!

Out                 LASIK Pack the US Supreme Court Scaramucci units Kari Lake is the media's worst nightmare Donald Trump Separation of Powers Attacking trans kids Marvel Universe Wordle Faux-allyship with Jews Joss Whedon Fascism disguised in a sweater vest Chess streamers Minnesota is maybe-competitive? Criminalizing abortion Rising inflation AI driving cars Space Force

In Corneal cross-linking Pack the Israeli Supreme Court Truss units Kari Lake was just a nightmare George Santos 5th Circuit as all three branches in one! Attacking trans kids and adults Extraordinary Vertex Real allyship with faux-Jews Infinite Buffy rewatches Fascism undisguised Chess boxing streamers Minnesota is a Dem trifecta Criminalizing miscarriages (and abortion) Purring economy AI writing law school exams Weather balloons

Bruen's Goose Continues To Not Apply to the Gander

The thing about the Fifth Circuit's recent ruling that the Second Amendment gives men under domestic abuse restraining orders an inalienable right to bear arms is that it is (a) insane and (b) absolutely defensible under the Supreme Court's Bruen decision. This is because the Bruen decision will regularly and predictably lead to insane results.

That said, I did want to flag something in the opinion that I've picked up on before -- namely, the inconsistent commitment to Bruen's supposed prohibition on weighing or considering "social policy" considerations. Judge Wilson, writing for the panel, expressly cites to this portion of Bruen, saying that while the prohibition on gun possession by domestic abusers "embodies salutary policy goals meant to protect vulnerable people in our society ... Bruen forecloses any such analysis in favor of a historical analogical inquiry into the scope of the allowable burden on the Second Amendment right." This principle is, perhaps above all else, the crux of Bruen's standard -- no matter how ridiculous, or absurd, or unfair, or chaotic the policy outcomes are, courts are not permitted to "weigh" them against the historical limitations that bounded the Second Amendment. The latter begins and ends the conversation.

Again, that principle is absurd. But it's Bruen's principle, and the Fifth Circuit gleefully cites it to explain why the prospect of terrified and murdered women can play no role in its legal analysis. But what happens if the historical arguments seem to counsel permitting more sweeping gun regulations than conservative jurists might like? All of the sudden, those social policy considerations come roaring back into view.

Addressing the historical precedents which did clearly envision government's authority to disarm "dangerous" persons, Judge Wilson explains that such exceptions must be narrowly construed so as not to apply to the case of domestic abusers. Why? Because, he asserts,

the Government’s proffered interpretation lacks any true limiting principle. Under the Government’s reading, Congress could remove “unordinary” or “irresponsible” or “nonlaw abiding” people—however expediently defined—from the scope of the Second Amendment. Could speeders be stripped of their right to keep and bear arms? Political nonconformists? People who do not recycle or drive an electric vehicle?

I take no position on whether the government's interpretation is so expansive. But note that this line of argument is expressly an analysis of the proper policy sweep of government regulation. We should tailor our interpretation of the Second Amendment's scope so as to avoid a policy outcome whereby too few people are guaranteed the right to keep and bear arms; to avoid an outcome where the government is permitted to disarm people who these judges think it would be manifestly unfair to have their gun rights taken away.

This is exactly the sort of policy analysis Bruen purports to forbid, only here the "policy" concerns are ones counseling in favor of greater freedom to bear arms rather than reduced freedom to bear arms. Perhaps it seems absurd to permit the government to take away arms from people just for getting a speeding ticket. But so what?  Bruen was emphatic that this sort of social policy assessment has no role in Second Amendment adjudication. If the historical analogues give the state that sort of latitude, then that is supposed to end the conversation. Again, it is baked in the Bruen cake that it will lead to results that may appear to modern eyes ridiculous, because Bruen expressly instructs courts that they aren't allowed to care about those consequences no matter how absurd they might seem to be.

But as the Fifth Circuit's ruling makes clear, the Bruen prohibition on weighing policy consequences is, unsurprisingly, a one-way ratchet. Conservative courts will portentously declare that Bruen forbids them from considering the disastrous consequences of countless terrified or murdered women if it means taking away domestic abusers' guns -- but if history and tradition start to point towards enabling gun restrictions that the right finds too onerous, then all of the sudden we get a screeching parade of contemporary policy horribles that are treated as legally dispositive. This is what generates such well-deserved cynicism about the state of the judiciary today -- it's not just that the legal rules the governing class of jurists announce are absurd, it's that these jurists do not even pretend to be bound by them the second they prove inconvenient to their underlying politics.

The other thing to note about this case is that, if the Supreme Court reverses it -- and they might -- their reasoning will almost certainly purport to be based on some alternate assessment and reading of the historical sources. But this will be a naked smokescreen, and everyone will know it. If the Court reverses the Fifth Circuit here, it will be entirely and solely because the Court finds it too unreasonable and intolerable to permit domestic abusers free reign to carry arms -- a contemporary policy judgment anyway you look at it, no matter how much effort is or isn't expended to cloak it in some faux-historical garb. None of these judges abide by the rules they purport to lay out.

Let That Be a Lesson For You, Part II

Way back in 2009, I wrote about a case in the Netherlands where an Arab NGO was prosecuted for hate speech after publishing an article insinuating the Holocaust was exaggerated. The thing was, the NGO did not actually think the Holocaust was exaggerated -- rather, it was trying to draw attention a claimed double-standard after Dutch authorities had dropped hate speech charges against right-wing Dutch filmmaker Geert Wilders for a film critics claimed insulted Muhammad. 

Drawing on entry #45 of advice for evil overlords ("I will make sure I have a clear understanding of who is responsible for what in my organization. For example, if my general screws up I will not draw my weapon, point it at him, say 'And here is the price for failure,' then suddenly turn and kill some random underling."), I observed that when a non-Jewish far-right extremist engages in hateful speech towards Muslims, the proper response -- even if one believes in tit-for-tat -- is not to turn and attack some random other minority group (here, Jews).

In the files of "all that's old is new again", a similar situation appears to be brewing in Sweden, where a Egyptian writer has postponed (but not cancelled) a planned "protest" of burning a Torah scroll in front of the Israeli embassy. Why is he burning a Torah scroll in front of the Israeli embassy? Because a far-right Danish journalist and politician (who is not Jewish) recently burned a Koran in front of the Turkish embassy. A hateful and despicable act, to be sure -- but why is the response to awful behavior by a right-wing, non-Jewish Dane to attack the Jewish community in front of the Israeli embassy? Burning a Christian Bible in front of the Danish embassy would not be justified, but at least it would have symmetry. But for some reason Jews are always the random bystander executed in situations like this.

I also want to emphasize that local Jewish community leaders credit the prevention of the Torah burning to Muslim leaders in Sweden speaking out against it. This "protester" is a hateful schmuck whose hate happens to illustrate a particular form of pathology I wanted to highlight. Fortunately, he's a hateful schmuck in the course of being repudiated, and that's a good thing.

Endless Stunt Investigations is All the House GOP Will Do, Because It's All They Can Agree Upon

Having finally secured his chair as House Speaker, Kevin McCarthy (R-CA) has given his caucus marching orders -- and those orders are "do nothing but launch petty performative investigations of the Biden administration".

Kevin McCarthy has told House Republicans to treat every committee like the Oversight panel — that is, use every last bit of authority to dig into the Biden administration. That work begins in earnest this week.

Several sprawling probes — largely directed at President Joe Biden, his family and his administration — set the stage for a series of legal and political skirmishes between the two sides of Pennsylvania Avenue. It’s all with an eye on the true battle, the 2024 election, as Biden flirts with a reelection run and House Republicans hope to expand their control to the White House.

After two impeachments of former President Donald Trump and a select committee that publicly detailed his every last move to unsuccessfully overturn the 2020 election results, GOP lawmakers are eager to turn the spotlight. And their conservative base is hoping for fireworks, calling on Republican leaders to grill several Biden world figures, including Department of Homeland Security Secretary Alejandro Mayorkas, retired chief medical adviser Anthony Fauci and presidential son Hunter Biden.

This isn't at all surprising, of course. In fact, it was probably inevitable after the Speaker vote fiasco exposed just how bitterly divided the GOP is (and how in thrall it is to its nihilist caucus). They're never going to forward an affirmative policy agenda, since they can't agree on any particulars beyond sloganeering (and also, policies tend to require money, which the GOP adamantly refuses to raise or spend unless it is on gut-busting upper-bracket tax cuts). But investigations? That doesn't require any policy agenda at all -- that's just mugging for the camera and talking about how much they hate Democrats. Right in their wheelhouse! 

That the GOP is still nursing ludicrous levels of grievance over the terrible unfairness of a House panel exposing why coups are bad only exacerbates their belief that this is naught but turnabout being fair play. And as the New York Times reported the other day, the GOP's view of "investigations" is to take it as a divine axiom that they and theirs are being abused, then pursue that axiom to hell and back no matter how little evidence ends up supporting the proposition.

So this is entirely within expectations for the new GOP House. Expect nothing but loud yelling investigations for two years as they throw everything they can at a wall and wait for something to stick. They don't agree on or even believe in anything else, but they can agree on doing that.

The Free Speech Chilling of Free Speech Protests

As some of you know, there's been a bunch of controversy recently about the "free speech culture" at Yale Law School, and particularly whether the school is hospitable to conservative speech. Several conservatives have argued that particularly raucous protests that have targeted conservative speakers have crossed over into effective censorship, negating Yale's claim to be a place where diverse views can be discussed.

On that note, David Lat reports on a recent talk at Yale given by an attorney for the right-wing, anti-LGBTQ group Alliance Defending Freedom (on a panel with former ACLU head Nadine Strossen and Yale Law Professor Robert Post). By all accounts, the talk, which had approximately 100 attendees, went off without a hitch. Far from the abuses of the past, this time there was not, in Strossen's words, "even a peaceful protest."

Now, I want to be very careful in articulating what I say next. I'm not a "protest" guy. I don't enjoy going to them, I don't find them especially inspiring even when I agree with them, and I'm probably predisposed to think of them as unreasonable. And I'm fully willing to believe that in the past some forms of "protests" at Yale (e.g., I don't think that protesters can be permitted to "shout down" views they disagree with).

All that said, it is also an element of free speech culture to permit some forms of peaceful, minimally disruptive* protests. Students quietly holding signs, or passing out flyers, or even booing the speaker when she's introduced -- those, too, are exercises of free speech, the protection of which is important just as protecting the ability of dissident speakers to come to campus and have a genuine, practical ability to present their views is important.

So when I read that there wasn't "even a peaceful protest", well, obviously one explanation for that is that no Yale students felt moved to protest this speaker, or that they were busy with other things. But given that this speaker is exactly the sort of figure who had been raucously protested in the past, and that presumably there are still a fair chunk of students who probably continue to deem her protest-worthy, what does it signify that no protest occurred? It seems highly likely that the steps Yale has taken to discourage illegitimate, censorial protest (and again, I'm inclined to think that there are such protests and Yale is right to tamp down on them) have had the additional chilling effect of deterring legitimate, non-censorial protest.

The conservative journalist who quoted Strossen as saying there were no "peaceful protests" also reported that "there were no ear-shattering chants, no profanity-laden signs, and no ad hominem questions." The first of these might be validly limited as a "shout down." The latter two, however, don't seem procedurally inappropriate (though of course one can agree or disagree with their on-the-merits substance). Free speech protects the right of attendees to have signs with profanity on them. Free speech protects the right of audience members to ask harsh or hostile questions. If those, too, were eliminated, then it seems Yale didn't just ban illegitimately disruptive protest; it also functionally squelched perfectly legitimate, normal forms of protest. As one sort of speech avenue opened, another closed.

The laudatory tone of the articles I've read praising Yale for successfully hosting this speaker suggest, however, that this ebb of free speech culture is not viewed as significantly worrisome. And perhaps the problems are not in equipoise -- one might think that obstructing invited speakers from presenting via "shout downs" is a more serious violation than deterring peaceful protests of speakers via perhaps overbroad or heavy-handed administrative initiatives. But it still worth recognizing that there appears to have been a free speech cost here as well as a benefit. A healthy free speech culture at Yale absolutely must allow speakers of diverse views the realistic, non-nominal opportunity to present their arguments. But such speakers are not entitled to be free from the normal pushback and protest that is also part of a culture of free speech. If the pendulum at Yale has swung so far back as to eliminate the latter, that cannot be deemed an unmitigated victory.

* Why "minimally disruptive"? Some take the view that any sort of "disruption" of a speaker's talk, even if de minimis, represents a form of censorship. This seems untenable: normally audience reactions like booing a poorly received point would fall into this category -- a speaker probably has to temporarily pause and regroup until the booing dies down, and so is "disrupted" -- but that can't be the standard for governing whether the speaker has functionally been obstructed from speaking.  On the other hand, some argue that protests are by their nature meant to be disruptive -- considerably more so than "minimally" -- which is what makes them a protest. I don't necessarily disagree with that point, but what I would say is that a protester who takes that approach is consciously refusing to submit to or cooperate with the prevailing legal or governance structures (that, again, is implicit in the disruption) and so cannot truly complain when those structures refuse to cooperate back (e.g., by imposing various forms of sanctions). "Minimally disruptive" I think walks the line appropriately.

New Depths of "Both Sides-ism": Gun Violence Edition

Commenting on the only-in-America news that the first 24 days of 2023 have already seen 73 Americans killed in mass shootings, Paul Campos points to a CNN article on the matter which he summarizes as

point[ing] out that fault lies on both sides of the political aisle for this epidemic, given that the Republicans don’t want to do anything about it, and the Democrats are unable to force the Republicans to do anything about it.

Ha ha -- good one, but obviously that's an exaggeration. Here's what the article says:

A partisan political system that is little help

Resignation that nothing will change is fueled by a political system that is so entrenched on guns that it can’t usually frame a meaningful response to shootings, let alone solutions. Offers of “thoughts and prayers” by pro-gun rights Republicans are routinely mocked by Americans looking for reform. Conservatives often divert blame to a national mental health crisis that they do little to alleviate.

Second Amendment absolutists often argue that if more “good guys” carried guns, everyone would be safer. In their own ritualistic response, Democrats often re-up demands for an assault weapons ban they know they can’t pass.

Sigh. 

Nobody Is More Gullible Than Alt-Center "Free Speech" Advocates

When Florida announced it was banning the AP African-American history course, 90% of Ron DeSantis' supporters know exactly what he's doing -- legally banning wrongthink on race to the greatest extent possible -- and support it on that basis. They know that's what he's doing because he's been crystal clear about his agenda from day one and entirely consistent in applying it.

But you still can easily find alt-center "free speech!" advocates who tie themselves in knots to plead that it's actually about "opposing indoctrination" or "ensuring that multiple perspectives are taught" or something that just has to be different from "rank censorship". Meanwhile, the Florida government just states outright that if the college board wants its class taught in the Sunshine State, "we expect the removal of content on Critical Race Theory, Black Queer Studies, Intersectionality and other topics that violate our laws." They're not even bothering to hide it, but the alt-center sorts are perfectly happy to pull the wool over their own eyes in order to maintain harmony on their Scales of Broder.

It is incredible, looking back, to remember that approximately 9 month period where conservatives went on a high horse about protecting "free speech" and "uncomfortable learning" in the educational space as against various real and imagined left-wing bugaboos. The rapidity to which they shifted without even breaking a sweat into "enact legal bans on left-wing ideas whenever and wherever we can", and the degree to which their "free speech" hangers-on just followed along without seeming to notice or care that they suddenly were becoming foot soldiers of legally-mandated censorship, is a development I still can't fully wrap my head around. At most, you get some "both sides" grousing about how while they aren't exactly fans of throwing librarians in jail if they stock books that deviate from state-imposed orthodoxy, they can't focus on that too extensively because it might distract them from finishing their 67-tweet thread on an overzealous student protest at Swarthmore, followed by a portentous statement expressing outrage that anyone would even think of withdrawing any honors or accolades from state-censor-in-chief Ron DeSantis.

But seriously -- has any movement more quickly demonstrated itself to be populated entirely by useful idiots than this one?

Hamline Faculty Vote No Confidence in President

Eugene Volokh has the faculty statement, passed by a vote of 71-12, asking the President to step down after her mishandling of accusations of Islamophobia against an adjunct professor who showed a painting depicting Muhammad in an art class.

Under the circumstances, this is the right decision, and it is heartening (though not surprising) that this appears to be the broad consensus of Hamline faculty.

If SCOTUS Had Its Way, Countless Michigan Jews Would Be Dead By Now

A Dearborn, Michigan man was indicted on gun charges stemming from an alleged plot to attack a Michigan synagogue. The suspect, Hassan Chokr, was blocked from purchasing a shotgun, rifle, and semiautomatic pistol following the conclusion of a background check, and federal prosecutors said that in his attempt to purchase a gun Chokr made "three false statements, any one of which would prohibit him from possessing a firearm." Those statements were denials that Chokr

1. Had ever been convicted of a felony;
2. Had currently pending charges of a felony; and
3. Had ever been committed to a mental institution.

Presumably, the background check revealed the existence of one or more of these flags in Chokr's record, thus preventing the purchase and likely averting a tragedy.

Given that, it's worth noting that all three of these bases for denying someone a gun purchase are currently on thin ice following the Supreme Court's Bruen decision, which radically circumscribed the government's ability to place limits on American's right to gun ownership.

On the first, the Third Circuit is in the process of reconsidering its earlier ruling that non-violent felons can be excluded from gun ownership (Chokr's conviction related to theft relating to a financial device such as a credit card, and so likely would be viewed as a non-violent felony).

On the second, a federal judge has already concluded that it is unconstitutional to bar those under felony indictment from possessing guns.

And on the third, prominent gun advocates like Eugene Volokh have aggressively challenged whether a per se bar on gun possession by persons who have been committed to a mental institution is constitutional.

In short, it is entirely plausible that the federal judiciary, following the Supreme Court's lead in Bruen, will conclude that all the failsafes that successfully prevented Hassan Chokr from purchasing guns he would have likely used to massacre Michigan Jews are unconstitutional and must be stripped from the books. It's not guaranteed -- while Bruen's language is expansive to the extreme, nobody knows how far the Supreme Court's nerve will go when push comes to shove -- but none of these objections can dismissed out of hand given Bruen's radical reinvention of Second Amendment doctrine.

Certainly, the Court has been crystal clear that the essential liberties of the Second Amendment are far more important than the countless lives its jurisprudence puts at risk. You know what they say: the tree of liberty must periodically be watered with the blood of tyrants innocent Jews.

New York Voters Who Elected George Santos Should Be Ashamed of Themselves

The degree to which George Santos appears to lie about everything really is jaw-dropping even in a post-Trump America. Is it worse to be the subject of a general list of one's "top 11 most absurd lies", or to be the subject of more specific headlines like "George Santos took $3,000 from dying dog’s GoFundMe, veterans say"? I can't even process.

I am curious, though, to see more interviews with voters in New York's 3rd congressional district, who just sent him to Congress. The NY-03 is a swingy enough district that I don't think Santos will be the beneficiary of too much "own the libs!" or "red right or wrong!" apologetics. Nonetheless, I want to know -- are Santos' constituents embarrassed? Not just of him, but of themselves? They picked this guy, after all. We get angry at politicians all the time, but in a democracy the choices of We the People are the responsibility of We the People. George Santos is first and foremost a failure of George Santos, but he is also in non-negligible fashion a failure of the voters who elected him.

It is I think too much to hope for that voters reckon with how they can taken in by such a naked fraudster and internalize some lessons that will inculcate them from future mistakes. But a boy can dream.

DEI's "Psychology" Double-Bind

The NYT has an op-ed today regarding DEI programs -- and in particular, the scant research suggesting that they actually, you know, work.

I'm familiar with some of the research in this area and while I could quibble on the margins, the core point is more or less accurate. There is fairly robust research evidence that establishes implicit bias is prevalent in our society, but there is not much in the way of verifiably effective interventions that combat it. Many DEI programs which purport to address implicit bias and other forms of prejudice are at the very least not proven to actually have an impact on the problem they purport to address. Finding an intervention that reliably and durably alters discriminatory attitudes (particularly implicit ones) is somewhat of a white whale for the social psychology profession. But in the meantime, the lack of evidence that many DEI programs tailored towards altering attitudes are effective suggests that a ton of time and money is being wasted.

Given that, the article makes the following suggestions:

So what does work? Robert Livingston, a lecturer at the Harvard Kennedy School who works as both a bias researcher and a diversity consultant, has a simple proposal: “Focus on actions and behaviors rather than hearts and minds.”

Dr. Livingston suggests that it’s more important to accurately diagnose an organization’s specific problems with D.E.I. and to come up with concrete strategies for solving them than it is to attempt to change the attitudes of individual employees. And D.E.I. challenges vary widely from organization to organization: Sometimes the problem has to do with the relationship between white and nonwhite employees, sometimes it has to do with the recruitment or retention of new employees and sometimes it has to do with disparate treatment of customers (think of Black patients prescribed less pain medication than white ones).

The legwork it takes to actually understand and solve these problems isn’t necessarily glamorous. If you want more Black and Latino people in management roles at your large company, that might require gathering data on what percentage of applicants come from these groups, interviewing current Black and Latino managers on whether there are climate issues that could be contributing to the problem and possibly beefing up recruitment efforts at, say, business schools with high percentages of Black and Latino graduates. Even solving this one problem — and it’s a fairly common one — could take hundreds of hours of labor.

I have no intrinsic quarrel with this. Instead of looking for "bad brains" and trying to fix them, focus on tangible actions and outcomes. If your company has too few Black and Latino people in management roles, instead of trying to root out the deep-seated biases in your executives and HR staffers, just get to work directly on the problem.

But this anti-psychology turn is interesting for one particular reason: it flies in the face of the prevailing conservative formulation of what discrimination is: namely, discrimination occurs if and only if one can prove the presence of malign intent by a discrete decisionmaker. Unless someone holds racially discriminatory attitudes, there cannot be said to be racial discrimination at all. From that framework, which holds out psychology as the exclusive prerequisite of discrimination, it makes sense that an anti-discrimination initiative would have to be psychologically-inclined as well. And indeed, focusing on actions and behaviors in absence of establishing bad psychological intent is an anathema to the conservative (and, often, alt-liberal) framework -- that way lies "racial balancing" or "equality of result" or any number of terrible ghouls which are supposedly the patrimony of the progressive DEI edifice.

And so we have a double-bind: first, prominent political and social institutions (to say nothing of legal precedents) say that the only cognizable way to speak of discrimination is through psychology -- bad motivations. Then, when DEI professionals accordingly work within that framework and try to address the problem through psychology, they're pilloried because such interventions, it turns out, are only dubiously reliable and don't directly correlate with fixing the "actual problem" of underrepresentation of social outgroups. Which is fine as far as it goes, except that when DEI tries to pivot back to the "actual problem" without the baggage of wading through conscious and subconscious attitudes, they're lambasted as crying "discrimination!" without proof, since only psychology is said to generate valid evidence of discrimination in the first place. It's an impossible situation. 

Make Portland Normal

Portlanders are very much fans of the slogan "keep Portland weird!" For the most part, I agree -- I'm generally a fan of Portland's various quirks and idiosyncrasies. I definitely count myself as a Portland booster!

Nonetheless, there are a few areas where it'd be nice for Portland to act like a normal American city. I'll give two examples:

1) Fluoridate our damn water, like a normal city!

Finding out Portland is the largest U.S. city to not fluoridate its water is I gather a rite of passage for new Portlanders. I always thought of anti-fluoridation activists as falling in the same category as anti-vaxxers and chemtrailers, and on reflection, I still do. There is absolutely no reason why Portland needs to have unfluoridated water.

73% of Americans have fluoridated water. It's clearly fine. Don't be weird about it.

2) Maintain your streets, like a normal city!

Before I talk about this, I need to briefly rant about Portland's street grid, which (particularly in the west part of the city where I live) is by far the most confusing of any city I've ever driven in. I hate driving in Portland, which is full of absurd seven way intersections and freeway entrances that look like alley ways and poorly signed lanes which inexorably force you to cross a bridge.

Still, all that, I can forgive -- in part because I respect that Portland's hilly geography probably makes a straight grid functionally impossible, in part because it's too late to fix now without digging the entire city up.

But what I can't fathom is why, throughout the city, random, seemingly normal streets are unmaintained by the city.

To be clear: I don't mean "the city has fallen behind in providing maintenance." What I mean is that there are many regular streets that get normal, local through traffic, that the city intentionally disclaims responsibility for maintaining.

This is the best explainer I've seen for the phenomenon, and it doesn't explain much. And it means that you could be driving to a friend's house only to discover that the route suddenly becomes a pot-hole ridden cart track. Check out this interactive map -- the random red portions? Those aren't maintained by the city. They're listed as "private" roads, even though for every relevant purpose they are just as public as any other road. They're not some isolated track that only connects a few houses over private property. They're part of the normal street grid! And this is encoded into statute somehow!

Here's an example from my own neighborhood. The subdivision I live in is 14 city blocks long, west to east. On the west side, most streets outlet onto the "main" road, but on the east side only one street does (Coronado). The only way out of my neighborhood going east is via Coronado. And wouldn't you know it if Coronado is unmaintained for its last four eastbound blocks, leading to giant gaping potholes on my unavoidable route to work each day. Coronado isn't all unmaintained -- from west to east it's (a) unmaintained for two blocks, (b) maintained by the city for six blocks, (d) non-existent for two blocks (it doesn't go through all the way), and (e) unmaintained again for the last four blocks.

Don't be weird Portland -- just take responsibility for your own street grid.

Who's Defending Hamline?

By now, you've probably heard of the flare-up at Hamline University in Minnesota, where an adjunct professor of art history was dismissed following student complaints after she showed a historic painting that depicted the prophet Muhammad. Every account I've seen suggests that the professor presented the painting (which was created in Persia by a Muslim artist in the 14th century) in a respectful and sensitive fashion, including notifying students that it would be depicted in her syllabus and again before the start of the relevant class (and told students they were free to opt out of attending that session). Nonetheless, the college not only declined to renew her contract, they expressly accused her of "Islamophobia" and indicated that "academic freedom" should not have protected her ability to "harm" her student.

The decision to terminate the professor has been met with a firestorm of criticism (e.g.: FIRE, PEN America, the Muslim Public Affairs Council, Academic Freedom Alliance). I personally found this post by Jill Filipovic to be especially thoughtful. So far, though, the college has been emphatic in defending its decision.

On that note, however, one thing I've yet to see is any prominent figure defending Hamline. The closest I've seen is a local CAIR official who (at a university-sponsored forum) said that the lesson had "absolutely no benefit" and compared alternative Muslim perspectives on portraying Muhammad as akin to the existence of people who think "Hitler was good." I've also heard hearsay that some academic professional organizations have privately declined to speak out because many officers and/or members feel uncomfortable. But as far as public discourse goes, I've seen essentially nothing but wall-to-wall condemnation.

Indeed, the universality of the "Hamline got it wrong" position in some ways renders it impressive the degree to which the Hamline administration is sticking to its guns here. It is one thing to abandon principles of academic freedom under intense external pressure demanding censorship; it's another thing to abandon principles of academic freedom in the face of intense external pressure to abide by them. It does make me wonder if there are any unknown cross-currents of pressure that the college is responding to. It's not out of character for a university to make terrible, craven decisions, of course -- but it's a little out of character for a university to make terrible, brave decisions, which makes me think that there must be some point of leverage on the administration that they are succumbing to. Again, the prospect that these cross-currents exist doesn't at all excuse the college's actions here. If, for example, the decision to terminate the professor was widely popular amongst Hamline students (or groups that Hamline hopes to recruit students from), it would still be the case that the college had an obligation to stand up for the right principles. But at least that would be a normal, explicable failing.

But maybe I'm overthinking it. Maybe the Hamline administrators are that ideologically committed to being thoughtlessly censorial. Or maybe there's a line of Hamline defenders I haven't seen. But as far as I can tell, virtually everyone (left right and center) is onboard with the view that Hamline fouled up. The last people to agree, it turns out, are the Hamline administrators.

Things People Blame the Jews For, Volume LXII: Women Attending College

You might have heard the (latest) terrible news from Afghanistan, where the Taliban has enacted a ban on women attending college.

Now, I say "terrible news". But if you're Tyler Russell -- a White supremacist sporting an "America First" cap (ironic, given that he's Canadian!) -- you call it a "step in the right direction." Why? Since women only attend college because they're being "tricked by Jews".

Female education: a Jewish plot! Once again, our enemies sometimes seem to say far nicer things about us than our friends do!

(Dear readers: not only did my wife go to college, that's where I met her! Does that make me an apex trickster?)

Performative Brinksmanship is Obviously Stupid from the Outside

The farce that is the GOP House leadership fight continues, as Rep. Kevin McCarthy (R-CA) has just lost the eleventh ballot for speaker in the face of a small but entrenched far-right rebellion. The knot of far-right extremists who refuse to back McCarthy has led to chaos in the GOP, with no signs of a compromise being reached. Ringleader Rep. Matt Gaetz (R-FL) has even indicated that he'd be fine if the fallout of his putsch results in Democratic leader Hakeem Jeffries (D-NY) ascending to the speaker position (though if a compromise is reached with Democrats to thwart the right-wing rebellion, I suspect it will not involve Jeffries as speaker).

For the most part, pretty much everyone on the left-side of the political spectrum has been content to sit back, munch on popcorn, and watch the GOP eat itself alive. Democrats are enjoying making a show of unity against GOP irresponsibility; meanwhile, Republicans are literally arguing that their decision to cripple the House doesn't matter because if a real crisis occurs President Biden will be there to set things right (the infantilization of the American right continues apace). The whole thing is one ongoing trainwreck for the GOP, and I absolutely agree with what I take to be the Democratic Party conventional wisdom that we need not lift a finger to bail out the GOP unless we get some superb concessions for our trouble.

So here's my question for the peanut gallery. I'm sure the arson caucus of the GOP has its boosters among other far-right extremists. But is there anybody on the left side of the spectrum observing what's happening here and thinking "I may not agree with their policies, but this is a savvy play by Gaetz and co."? Does anybody think this sort of performative brinksmanship is smart politics?

It doesn't seem so to me -- progressives right now are laughing our heads off at a GOP in complete disarray, and rightfully so. We're not jealous of the far-right for having the gumption to take a stand; we see just how catastrophic this whole farce is for the conservative agenda (and thank god for that!).

So perhaps there's a lesson to be learned here. Thankfully, there are few if any Democratic equivalents to the bomb throwers currently making chaos in the House. Even our far-left members so far have known when to rein it in -- a quality which sometimes yields loud cries of "betrayal!" and "spineless!" from certain corners of the commentariat. I might suggest that next time such an instinct comes over you, you remember this moment. Remember how you didn't look across the aisle and marvel at the steely-eyed rebels who stood their ground and played hardball. Remember how what you actually saw was a bunch of children embarrassing themselves and self-sabotaging for their own self-aggrandizement. And then remember that it's probably a bad idea for Democratic progressives to emulate the GOP's dumbest members' most nihilist strategies.

UPDATE: And the winner for the first prominent left outlet to praise the GOP's political savvy and declare it a model to emulate is ... Jacobin Mag! Who's shocked?

On Being an Intellectual Submissive

I had an interesting experience the other day.

My wife likes to remark that, for someone as terminally online as I am, I don't know much about the standard pop-online memes and stories. I'm not very up on pop culture (I barely know who the Kardashians are, let alone what they're famous for). And while I'm aware of all internet traditions from a very specific corner of the internet, by and large I'm isolated from what the Kids (or even Adults) These Days are talking about.

As a fun game, my wife found a list of the top 50 "internet moments" of 2023 and went through them one by one to see how many I (and she) had heard of. She knew most of them. I knew maybe a quarter. And  when I didn't know, she'd gleefully try to explain some insane story about Jorts the Cat while I stared in incredulous ignorance.

Here's the thing: I loved this. Indeed, it was an experience that kind of made me "get" the phenomenon of high-powered corporate executives who are submissives.

The way that phenomenon is always described is that such persons are constantly asked to be authoritative, be in charge, make the decision, be the boss -- and so it's just freeing to let someone else take charge and be completely and utterly at the mercy of another.

The life of a high-powered corporate executive is not at all how I'd characterize my life. But what is true is that in my job (and my day-to-day persona), I'm expected to know things. I'm smart, I'm informed, I'm aware -- that's a huge part of who I (normally) am. And I've internalized this. For example, one of my emotional triggers is when I feel like I've made a specifically dumb mistake, or I can't figure out how to do something seemingly obvious. It fills me with shame way out of proportion to the actual "offense." I have an expectation (both internally and externally-imposed) that I am chock full of relevant knowledge at all times.

Given all that, I think I really enjoyed the experience of being in a situation where I did not and was not expected to know anything. Where I could sit back in doe-eyed ignorance and just be taught by someone else, with no expectation that I'd necessarily absorb, synthesize, or regurgitate the information. When it comes to popular internet memes, it's absolutely okay that I know nothing and that I sit in the recipient-learner position! That felt so freeing -- I loved it.

Anybody relate to this? I wonder if it's just a me thing or if any other academic sorts have had similar experiences.

Happy New Year!

I'm celebrating the ringing in of 2023 in two main ways:

(1) We're hosting a group of my college friends at my house (this group has met for new year's every year since graduation).

(2) I'm taking my laptop in for repairs, since it overheats constantly even when doing comparatively minor tasks, has done so since basically the day I bought it, and I want to get it fixed while it's still under warranty.

The latter, I imagine, means I will be without this laptop for at least a few weeks. It's possible I get a cheap netbook to tide me over. But it's possible I'll be computer-free for a little while. I can scarcely think of anything scarier (cornea surgery? Definitely not).

So if I am quieter around these parts through the beginning of the new year, that might be why. Regardless, I hope you have a happy and healthy new year, one full of all the best milestones and celebrations.

Lift Every Jewish Voice and Sing

Apropos my earlier post about the prospect of a Jewish florist asked to make an Easter flower arrangement, I found this article about Jewish singers who regularly sing in churches during the Christmas season to be quite interesting.

It seems quite clear that religious majorities and religious minorities have very different understandings about the degree to which they can be expected to encounter and interact with other faith traditions, including messages that contradict their own beliefs. Church singing was, above all, a good job in a profession where regular paydays aren't always easy to come by. The singers accordingly generally viewed church singing as just a job -- even though the hymns they sung would have (understandably) expressly Christian messages, even though they sometimes encountered direct antisemitism there. They draw a clear distinction between singing a rehearsed song versus praying in their own voice.

For what it's worth, I tend to view singers as towards the far end of a spectrum ranging from "jobs expected to serve anyone who comes in the door" to "jobs where the professional has absolute discretion to pick and choose clients." The further you proceed down that spectrum, the more justifiable it is for a professional to refuse to take a job for whatever reason they want -- so I don't feel it would be unreasonable for a Jewish tenor to turn down a church job, even as in practice they typically seem able to maintain the conceptual separation I argue the florist should have. But the nebulousness of the spectrum (where do florists fall? I think somewhere in the middle, but reasonable minds can disagree on that) is part of why the anti-discrimination/free speech issues here are so difficult.

In any event, though, I wanted to flag the piece less because it illustrates any major theoretical point, and more for it says about how many Jews think about these issues in practice. Simply put, we can't afford to be hypersensitive in the way that many Christians -- perhaps for the first time experiencing the barest hints of conflict between their religious precepts and the public arena -- demand the law provide protection for. To borrow from Kimmy Schmidt: "It's so funny what people who aren't minorities think is oppressive!"

New Year's Resolutions: 2023

It's that most wonderful time of the year: Debate Link New Year's Resolutions! Last year's resolutions are here, and here is the entire series. As always, we begin by reviewing last year's performance.

Met: 1, 4, 5, 6 (damn straight: 1522 -- over 300 points higher than my peak last year!), 8, 9, 12, 13, 14 (this reminded me to do that: I just donated to the Oregon Jewish Museum!).

Missed: 2 (it's been "under review" for almost a year and a half!), 3, 7, 11, 15.

Pick'em: 10 (does Salem count as a "sight"?).

Great job, 2022! Now onto 2023!

***

1) Host a successful conference on law and antisemitism. (Met)

2) Fully recover my vision post-surgery. (Met)

3) Go through the year with no other surgeries. (Met)

4) Get a book contract (it's been "under review" for almost a year and a half!). (Missed -- but we might be getting close?)

5) Improve my teaching. (Met)

6) Do more physical activity. (Met -- and how!)

7) Visit my friend Joel in Eugene (or have him visit me). (Met)

8) Attend my 15 year Carleton reunion. (Missed)

9) Go to a sporting event with friends. (Met)

10) Attend a boxing match. (Missed)

11) Find a reliable bagel place. (Missed)

12) Make Mastodon (or something not-Twitter) my primary social media platform. (Met -- it's BlueSky though)

13) Seriously consider one significant home improvement project or modification (including converting any room into a different purpose). (Met)

14) Get my laptop fixed. (Pick 'em -- it was "fixed", but not really, and then I just got a new one)

Was Blind But Now I See

Happy holidays, all (and Merry Christmas, some!). As some of you know, I had eye surgery earlier this week. Not LASIK, but the considerably more exotic corneal cross-linking. This was actually the third time I was scheduled to have the procedure. The first time, which I believe was the summer of 2019, was scrubbed due to insurance issues; the second time, which was slated for this past summer, I got COVID a week before the operation. That's frustrating for more than the normal reasons -- cross-linking doesn't improve your vision, it just stops further deterioration, so any vision loss I've experienced from the initial date to now is likely permanent.

But let's not dwell on that. The procedure itself was not really what I was anticipating: it was (as one tech very accurately put it) 90% putting in eye drops. Seriously: that was the overwhelming majority of the 90 minutes I spent lying on the operating table -- getting eye drops placed in my eye over two minute increments. For about half of it, I also stared into a UV light while getting still more eye drops. The miracles of science. I was anticipating more in the way of scraping or needles or lasers, but other than one period where they scraped a layer of cells off the top of my cornea (don't worry, some of those eye drops were the numbing kind), there really wasn't any of that.

The recovery has been a bit more of a slog. One consequence of the surgery is that I can't wear a contact in the affected eye for a week before and a month after the procedure. With my contacts in, I have close to 20/20 vision; without them in, I'm legally blind. So the upshot is I'm blind in my right eye until mid-January (including the first two weeks of teaching).

There's also the pain. After the surgery I was prescribed percocet, which should have let me know they weren't messing around, but for whatever reason I was underselling the pain side of the recovery period. The first day once the numbing drops wore off was pretty rough -- my eye had that stinging sensation like when you stare into a bright light for too long (another helpful tech reminded me that "you kinda did"), but it wasn't really fading. The pain came in waves, abating before it would come back, and as time has progressed the severity of the pain has decreased while the length of time between waves has increased. I'm hopeful that by today I'm out the other side, and the major side effect I'll still need to deal with is the aforementioned half-blindness.

In other news, the winter storm that hit Portland (and I gather everywhere else in America) froze a pipe and knocked out water to our kitchen faucet. More annoying than anything else, but it was the first "crisis" our house has really experienced since we bought it, so a good learning experience for us. Jill spent most of yesterday trying to get a plumber to come out before "frozen pipe" turned into "burst pipe". It took a long time -- everyone was booked until at least Tuesday -- but we finally got a guy who came out, found where the freeze was, and thawed it out. The whole experience really was more stressful because of the confluence of events (holiday season making it hard to find people, I'm half out of commission because of the surgery), but we got through it. Yay us!

A Tale of Two McCarthys

Abdul El-Sayed has an article in TNR about Florida Gov. Ron DeSantis' latest endeavor to stake out anti-vaxx turf, promising a full-scale legal investigation into "any and all wrongdoing in Florida with respect to Covid-19 vaccines." El-Sayed dubs DeSantis' strategy "vaccine McCarthyism", which is a term I appreciate. After all, is not today's GOP little more than equal shares of Joseph and Jenny McCarthy?

I tend to think that anti-vaxx politics are a trap for the GOP. Yes, anti-vaxx views are passionately held by the conspiratorial Republican base, which means that under the God-given rules of media fairness we must treat that position with the utmost seriousness. But anti-vaxx politics remain broadly unpopular even with Republicans, to say nothing of independents (or Democrats). Much like (either) McCarthy, opposing vaccines may gain DeSantis press and clout for a little while, but it's likely to make him an irrelevant laughingstock in the long term.

A Holiday Greetings Flowchart

How do I handle holiday greetings as a Jew? Here's the order of operations:

• If you say "happy holidays" to me and I don't know you or what you celebrate, then I say "happy holidays" to you in return.
• If I know you're Jewish, I say "happy Chanukah."
• If you wish me "Merry Christmas" and you don't know I'm Jewish, then I say "happy holidays."
• If you wish me "Merry Christmas" and you do know I'm Jewish, or if you say "merry Christmas" in any way that suggests that doing so is your way of striking back against PC liberal elites, then I say "happy Chanukah."
• Finally, if I know you celebrate Christmas but you nonetheless wish me "happy Chanukah" because you know that's what I celebrate, then I will wish you a "merry Christmas" in return as that's what you celebrate.

Feel free to use this in your own interactions. 

And from me to you: happy holidays to all, happy Chanukah for those for whom it applies, and merry Christmas to those who've earned it!

Where the Sun Does Shine

Arguably the most prolific antisemitic organization operating in America today, Goyim TV, is decamping from its Bay Area base and moving to Florida. Notorious for distributing flyers and dropping banners blaming Jews for everything from COVID restrictions to the Ukraine war, Goyim TV's leader, Jon Minadeo, has indicated that he is tired of his negative treatment in California and thinks Florida will be more hospitable to him and his message:

Despite his close family ties and following in Northern California, Minadeo had increasingly felt besieged by negative press and by criticism of his behavior by authorities. Minadeo’s family owns the historic Valley Ford restaurant Dinucci’s Italian Dinners, a popular road stop en route to the Sonoma Coast, and a source close to Minadeo said the 39-year-old once worked as a waiter at the restaurant, one of his last real jobs.

Yet he had developed a dismal reputation in the North Bay after a flood of media attention on his provocative antisemitic propaganda operation in J., the San Francisco Chronicle, the Santa Rosa Press Democrat and other outlets.

[...]

Minadeo hopes Florida will be more hospitable to him and his worldview, and he may have reason to believe that to be true. A recent report from the ADL described an upward trend of extremist and antisemitic activity in the Sunshine State, driven in part by new white supremacist groups including White Lives Matter, Sunshine State Nationalists, NatSoc Florida and Florida Nationalists. 

It is, of course, notable that one of America's most vicious antisemites looked across the country for more hospitable terrain and said "Florida -- that's the ticket". There is absolutely a straight line between the "anti-woke" neo-fascism promoted by Gov. DeSantis and the belief by the likes of Minadeo that Florida will be a welcoming home for his brand of hate. In fairness, Minadeo released a video targeting Florida Gov. Ron DeSantis for signing a bill targeting antisemitism and for visiting Israel; it's not that Minadeo views DeSantis as directly an ally. But the ideological consanguinity is real, to the point that I'm genuinely curious what would happen if an enterprising journalist asked the following question of some DeSantis press flack:

Jon Minadeo, proprietor of the prominent "Goyim TV" outlet, has announced he's moving his base of operations from California to Florida due to the former's ideological inhospitality and overall "woke" atmosphere. Do you credit Gov. DeSantis' policies for facilitating this sort of move, and do expect similar organizations to likewise flee states like California for Florida going forward?

I bet at least half of the press team on DeSantis' crew would give an answer praising the move and bragging about it. It'll be followed up by a clarifying disavowal, of course, but still, it'd be A+ trolling and I want someone to try it.

Testing a IFTTT Cross-Posting App

Apropos this post, this is a test to see if the IFTTT recipe I just created (with helpful guidance from the Boley Law Library!) works.

This block quote is simply to pad out the text of the post, though it does explain why I'm doing this:

For example: I use IFTTT to autopost links to my blog onto my Twitter account. This is incredibly important for me, as I'm pretty sure at this point virtually my entire readership comes from Twitter links. But as best I can tell, neither Post nor Mastodon has anything (whether via IFTTT or otherwise) that provides similar functionality. At the moment, I'm getting there sideways by an app which autoposts my Tweets to Mastodon (so my blog autoposts to Twitter, which then autoposts to Mastodon). But I've found no equivalent at all for Post. In general, cross-posting functionality is really important especially in the transition period where I want to be using both Twitter and its alternatives.

Wish me luck! 

UPDATE: It didn't work.

Why Is Biden Exceeding Expectations as a Progressive President?

Scott Lemieux makes the following observation explaining why Joe Biden has been a much, much better president than many progressives had predicted:

For those of us who lived through the 90s, pragmatism on the part of prominent Democrats was inherently suspect because it was generally used to justify feints to the right, sometimes plausibly rooted in public opinion but other times much more rooted in elite prejudices. For Biden, though, having a sense of public opinion isn’t just a pretext for moving to the right — sometimes it means sensing that the public is with you and going to be more with you and acting accordingly. 

[...]

Biden’s value as a president was going to be heavily context dependent — but, then, if LBJ had magically become president in 1952 or 1992 nobody would remember him as a great liberal on domestic policy either.

I don't disagree with this, but I'll add to it: Biden a good progressive president because he's a consummate party man in a situation where the Democratic Party has institutionally moved in a substantially progressive direction.

When I talked about what I liked about Biden back in the 2020 primary, one area I ranked him highly on is on the "staff positions with good people" metric, and that is part of this. Biden understands very well where the political center of gravity is both nationally and within the Democratic coalition, and acts accordingly. He is going to surround himself with smart, capable individuals who are roughly aligned with median Democratic Party opinion.  And under circumstances where the Democratic center of gravity is in a generally progressive place -- neither captured by bomb-throwing extremists nor slavishly adherent to chin-stroking centrism -- that's a recipe for happy outcomes for progressives.

Help Me Leave Bird App!

Speaking of off-ramps, I am trying to transition my main microblogging app off of Twitter and onto an alternative. But so far, the two sites I have accounts on -- Mastodon (@schraubd@mastodon.lawprofs.org) and Post (@schraubd) -- aren't fully meeting my needs, and each have problems that significantly deter their ability to fully serve as a Twitter replacement.

For example: I use IFTTT to autopost links to my blog onto my Twitter account. This is incredibly important for me, as I'm pretty sure at this point virtually my entire readership comes from Twitter links. But as best I can tell, neither Post nor Mastodon has anything (whether via IFTTT or otherwise) that provides similar functionality. At the moment, I'm getting there sideways by an app which autoposts my Tweets to Mastodon (so my blog autoposts to Twitter, which then autoposts to Mastodon). But I've found no equivalent at all for Post. In general, cross-posting functionality is really important especially in the transition period where I want to be using both Twitter and its alternatives.

I'm also finding it incredibly difficult to find people to follow, especially on Mastodon but to a lesser extent on Post as well. You can get some people via those sites that trawl through Twitter to see who has posted their new social handles online, but that's been limited so far in my experience. The easiest thing (albeit perhaps the most worrisome from a data privacy standpoint) would be one of those widgets where you plug in your email and it tells you all the accounts which are associated with emails in your contacts. I don't think exists yet for either site, and maybe it shouldn't for privacy reasons. The next best move is to go to the people you're already friends with and see who they're following. But Mastodon, in particular, makes this impossibly unwieldy by refusing to show followers from other servers. You can get there via the scenic route if you go to each profile on its own server, but then you can't just click a button to follow (since you're not logged into that server). It's slow and clunky and needlessly frustrating. And I'll note that even Mastodon's basic search bar functionality has, in my experience, been shaky.

Finally, while comparatively minor Post has some user interface problems that are just outright annoying. Defaulting to the "explore" tab, which is not my feed but the feed of a (presumably curated) section of randos, is not what I want and I resent having to swap over to my personal feed every time I go to the site. Also, Post might suffer from having too generic of a name -- good luck finding an answer to any question you have about its functionality online (imagine Googling "how do I cross-post on post")

So what I want is basically (1) ability to cross-post across platforms, especially autolinking to my Blogger posts, and (2) a relatively easy and straightforward way to find and follow my contacts if and when they join the new sites. Whichever site (Mastodon, Post. or something else) perfects that cocktail may well be my winner.

Can We Convince Elon Musk To Declare Victory and Go Home?

It is clear, even to Elon Musk (one has to think), that Musk's acquisition of Twitter has been a disaster.

It is equally clear that Musk is far too much of a narcissistic egomaniac to ever admit it.

And while it would be nice to leave Twitter outright and hit greener pastures, the current main alternatives to Twitter -- sites like Mastodon or Post -- are not even close to primetime ready. The ideal outcome is Twitter being put back in the hands of the at least semi-reasonable before the site detonates outright.

What Musk needs is an off-ramp -- some way for him to get out of Twitter while still claiming it as a victory.

To be clear: No reasonable observer has to actually think Musk has accomplished anything or that this excuse be anything but a flimsy façade. Much like the US and Vietnam, every rational human will understand it as pure political dissembling -- "saving face" here means only an excuse that will satisfy Musk's most sycophantic fanboys. Fortunately, that cadre is the only group Musk seems to listen to anyway.

He's never going to be able to unload it for a profit -- that's out. But is there some other narrative he could spin ("It was never about the money!") where he retroactively will have "accomplished what he set out to accomplish" and can leave while saving face? Maybe he can say the "Twitter Files" exposed the dirty heart of old Twitter but now he's successfully cleaned house. Maybe he can triple down on the random staffers he's thrown under the bus as the "real problem" and now that they're gone, all is well (none of us have to believe it; again, this is all about spinning a yarn that will successfully soothe a narcissistic manchild who can't possibly admit he screwed everything up).

I don't know. It's weird to try to come up with "pathetic lie for Elon Musk to tell himself so he leaves the rest of us alone." But that's the best exit strategy we have right now, I think. Suggestions welcome.

You Can Take the Girl Out of the Green Party ...

Arizona Senator Kyrsten Sinema has announced she's leaving the Democratic Party and registering as an independent. It appears that Sinema will still be effectively caucusing with the Democrats (she's slated to keep her committee assignments), so to some extent this is just another performance and won't directly upset the balance of power in the upper chamber. Nonetheless, this is entirely in character for a woman whose politics are very slightly left-of-center but also mostly gibberish that she spins up as having a "maverick streak" and being too pure for the confines of the dreaded two party system.

I'm not exactly surprised by the news. Indeed, to some extent I think it's politically savvy. Sinema was a dead woman walking in a 2024 Democratic primary -- Mark Kelly demonstrating that one can be a normal Democrat and win in Arizona took away Sinema's only hope of staving off an inevitable progressive challenger. But formally identifying as in indie gives Sinema two big advantages. 

Rhetorically, as empty as this gesture is, it still will appeal to a certain branch of voter (and, more importantly, pundit) who salivates over "no labels!" and "independence!". At this point, that cadre is the only base Sinema could ever hope to have, so she might as well juice them for all they're worth.

More practically, by laying the groundwork for an independent run now, Sinema arguably boxes off a Democratic challenge more thoroughly than she ever could within the party. Sinema has effectively flipped a dead man's switch and promised to run in 2024 even if it means splitting the vote with an actual Democratic nominee. Do Democrats feel confident they can win in Arizona even with Sinema peeling off a non-trivial part of the vote? I bet that prospect has Democratic strategists feeling real nervous. There are several instances (Alaska springs to mind) where Democrats have simply lined up behind independent candidates in states knowing that they can't win if they split the vote, and Sinema is trying to make Arizona one of them. (The wild card is if Republicans decide not to run a candidate against Sinema, but that strikes me as vanishingly unlikely. The infuriating truth of American politics is that even in her most asinine and frustrating moments, Sinema still isn't even close to being as bad as even a normal Republican, let alone an Arizona Republican).

Indonesian Parliament Unanimously Passes Texas GOP Platform

Ted Cruz must be so jealous:

Indonesia’s Parliament unanimously voted on Tuesday to ban sex outside of marriage and insulting the president and state institutions.

Once in force, the bans will affect foreign visitors as well as citizens. They’re part of an overhaul of the country’s criminal code that has been in the works for years. The new code also expands an existing blasphemy law and keeps a five-year prison term for deviations from the central tenets of Indonesia’s six recognized religions: Islam, Protestantism, Catholicism, Hinduism, Buddhism and Confucianism. The code still needs approval from the president, and the government says it will not be fully implemented for several years.

The amended code says sex outside marriage is punishable by a year in jail and cohabitation by six months, but adultery charges must be based on police reports lodged by a spouse, parents or children.

Citizens could also face a 10-year prison term for associating with organizations that follow Marxist-Leninist ideology and a four-year sentence for spreading communism.

Making it illegal to be Communist and Jewish? The Fifth Circuit might have to reconsider its stances on citing foreign law!

Am I Nuts for Thinking a Jewish Florist Should Have To Make an Easter Arrangement?

One thing I tried to impress upon my Con Law students this semester (and every semester) is that the interplay between anti-discrimination law and freedom of speech (and freedom of religion) is complicated and raises a host of thorny questions that defy easy resolution. These issues, of course, lie at the forefront of the 303 Creative case currently before the Supreme Court, which I'm sure will address them with the care, nuance, and sensitivity they deserve [/sarcasm].

But on that matter, I want to flag a hypothetical offered by prominent First Amendment specialist and former federal judge Michael McConnell, to get folks' intuitions on:

What if a Jewish florist is asked to design the floral display of white lilies on Easter Sunday morning at a Christian church? Ordinarily, flowers are just flowers. But the lilies in church on Easter morning are a symbol of the new life in Christ. I cannot believe that a free nation would compel a Jewish florist to construct a symbol of Christ's resurrection—on pain of losing the right to be a florist.

McConnell frames this as his "personal favorite hypothetical", and clearly perceives it as a knockout argument for the pro-free speech/religious liberty side. But perhaps I'm not fully grasping the facts, because speaking as a Jew this prospect doesn't seem that frightening to me.

Suppose I'm a Jewish florist. A customer comes in and says "I've seen the lovely work you've done with white lilies, could you please make a similar display for me?" I agree, since I have loads of experience working with white lilies. The customer then says, "thanks -- we plan on putting this display up in our church on Easter morning!" This prospect ... doesn't upset me. I don't intuitively think I should be able to refuse the customer, notwithstanding the fact that I obviously don't believe in the divinity of Christ, and I don't view continuing to serve the customer as forcing me to avow any beliefs I don't hold.

At root, the reason why this prospect isn't bothersome is because I don't view my customer's use of my flowers as representing my speech. I just design the flowers; what they do with it is their business. If someone sees the arrangement at church and learns that David's Flowers created it, I do not expect them to think "wow, I had no idea David believed in Christ's divinity!" This isn't to say I have no free speech concerns regarding flower arrangements -- I would very much chafe at government regulations that, for example, regulate what shapes I can use in my designs. That part very much is my expression, would be attributed to me -- the churchgoer who compliments the pattern of the flowers would credit those decisions to David's Flowers (I wrote about this a few years ago as the problem of partially expressive conduct).

There are still plenty of tough cases at the margins. I show my customer a preliminary design; they twist their lip and say "I dunno ... it's just not capturing the majesty of Christ's resurrection, you know?" I'm at a loss ("So ... bigger?"). But I'm inclined to think that while such an example might demonstrate why I might be a bad choice to design the arrangement, it doesn't give me the right to discriminate against the customer if they are in fact thrilled with the work I do and have done for other customers.

For me, then, McConnell's hypothetical has the opposite effect than what he intended. And of course, for many Jews -- particularly Jews who live in predominantly non-Jewish areas -- the more salient threat is that local businesses will be given carte blanche authority to refuse to service any of our religious life cycle events lest it be seen as "approving" of them. To let vendors say "ordinarily, a cake is just a cake -- but a cake served at a Bar Mitzvah has religious significance that we, as Christians, cannot approve of" is not a door I want to open.

But perhaps some of my readers disagree. Curious to hear people's thoughts on this.

Hertz So Bad

Hertz Rental Cars has settled a lawsuit after allegations that it had falsely accused numerous customers of stealing cars, resulting in terrifying police encounters, arrest, and even imprisonment. 

The rental car company Hertz Global Holdings, Inc. announced on Monday that it would pay about $168 million to settle disputes with hundreds of customers who claim they were falsely accused of vehicle theft.

The company, which filed for bankruptcy in 2020, occasionally recorded certain vehicles as stolen, even after customers had extended and paid for their rental periods, sometimes leading to frightening run-ins with the authorities, and even jail time, according to lawsuits filed on behalf of customers across the country.

As many have noted, this is all things considered a pretty light punishment -- a monetary fine that will mostly be covered by insurance, and no tangible consequences for the executives responsible for the policy itself.

I have a general rule of thumb when transacting in a business sector with a somewhat skeezy reputation: Always work with the company that most recently was caught in a high-profile scandal, because they're most likely to be on their best behavior in the near-term (it's why I bank at Wells Fargo!). But even taking that rule into account, I stay away from Hertz. The bespoke Grand Theft Auto expansion pack is just the start of their customer service trainwreck.

We Are Not Ready for AI

Two AI developments in rapid succession have me, I'll be honest, a bit rattled.

The first development was a study where an AI player managed to perform very well in an online Diplomacy tournament. Diplomacy is a board game which prioritizes negotiation and manipulation to achieve one's ends (so it's not like a game like Chess, which is purely a matter of raw calculation). Leaving aside my general discomfort with "we've successfully trained an AI to lie and manipulate humans to achieve a goal of world domination!", this represents a huge leap in AI's ability to effectively use natural language and discourse in a way that I think, until recently, would have seemed beyond the realm of possibility.

The second was using OpenAI to answer short answer prompts that might be found on a law school exam. It did ... decently. Not perfect, and sometimes quite wrong, but not awful either, and sometimes more or less correct. For example, here's what it gave me when I asked "How did Twombly and Iqbal change pleading rules?"

Twombly and Iqbal changed pleading rules by raising the standard for the sufficiency of pleadings in federal civil actions. The Supreme Court held in Ashcroft v. Iqbal that "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." This ruling effectively raised the bar for pleadings in federal civil actions, meaning that plaintiffs must provide more detailed facts in their pleadings than they had to under the old standard. The Court also held in Bell Atlantic Corp. v. Twombly that a complaint must contain more than mere labels and legal conclusions, and must instead contain factual allegations that show that a claim is plausible. This ruling established a two-pronged standard for the sufficiency of pleadings in federal civil actions, requiring plaintiffs to provide more detailed facts in their pleadings than they had to under the old standard.

That's not perfect, but it's not terrible either. And since OpenAI is available to the public, I assume there are more proprietary AI models out there that can do an even better job.

My colleagues are worried about what this means for open book law school exams (students can enter the prompt and have a decent answer spat back out). But I'm not worried about having to adjust my exams (I don't use short answer prompts anyway). I'm worried about what this means for needing human lawyers. Not quite yet, but we're getting there.

All of this, in turn, brought to mind two articles by Kevin Drum on the issue of AI development. The first made the point that once it comes into full bloom AI will not just be better than humans at some jobs, it will be better than humans at all jobs. This is not a problem that is limited to "unskilled labor" or jobs that require physical strength, deep precision, or even intense calculation. Everything -- art, storytelling, judging, stock trading, medicine -- will be done better by a robot. We're all expendable.

Article number two compared the pace of AI development to filling up Lake Michigan with water, where every 18 months you double the amount of water you can add (so first one fluid ounce, then eighteen months later two fluid ounces, then in eighteen more months four fluid ounces, and so on). Both "Lake Michigan" and "18 months" weren't chosen at random -- the former's size in fluid ounces is roughly akin to the computing power of the human brain (measured in calculations/second), and the latter reflects Moore's Law, the idea that computing power doubles every 18 months.

What was striking about the Lake Michigan metaphor is that, if you added water at that pace, for a long time it will look as if nothing is happening ... and then all of the sudden, you'll finish. There's a wonderful GIF image in the article that illustrates this vividly, but the text works too. 

Suppose it’s 1940 and Lake Michigan has (somehow) been emptied. Your job is to fill it up using the following rule: To start off, you can add one fluid ounce of water to the lake bed. Eighteen months later, you can add two. In another 18 months, you can add four ounces. And so on. Obviously this is going to take a while.

By 1950, you have added around a gallon of water. But you keep soldiering on. By 1960, you have a bit more than 150 gallons. By 1970, you have 16,000 gallons, about as much as an average suburban swimming pool.

At this point it’s been 30 years, and even though 16,000 gallons is a fair amount of water, it’s nothing compared to the size of Lake Michigan. To the naked eye you’ve made no progress at all.

So let’s skip all the way ahead to 2000. Still nothing. You have—maybe—a slight sheen on the lake floor. How about 2010? You have a few inches of water here and there. This is ridiculous. It’s now been 70 years and you still don’t have enough water to float a goldfish. Surely this task is futile?

But wait. Just as you’re about to give up, things suddenly change. By 2020, you have about 40 feet of water. And by 2025 you’re done. After 70 years you had nothing. Fifteen years later, the job was finished.

If we set the start date at 1940 (when the first programmable computer was invented), we'd see virtually no material progress until 2010, but we'd be finished by 2025. It's now 2022. We're almost there!

That we might be in that transitional moment where "effectively no progress" gives way to "suddenly, we're almost done" means we have to start thinking now about what to do with this information. What does it mean for the legal profession if, for most positive legal questions, an AI fed a prompt can give a better answer than most lawyers? What does it mean if it can give a better answer than all lawyers? There's still some hope for humanity on the normative side -- perhaps AI can't make choices about value -- but still, that's a lot of jobs taken off line. And what about my job? What if an AI can give a better presentation on substantive due process than I can? That's not just me feeling inadequate -- remember article #1: AI won't just be better than humans at some things, it will be better at all things. We're all in the same boat here.

What does that mean for the concept of capital ownership? Once AI eclipses human capacity, do we enter an age of permanent class immobility? By definition, if AI can out-think humans, there is no way for a human to innovate or disrupt into the prevailing order. AIs might out-think each other, but our contribution won't be relevant anymore. If the value produced by AI remains privatized, then the prospective distribution of wealth will be entirely governed by who was fortunate enough to own the AIs.

More broadly: What does the world look like when there's no point to any human having a job? What does that mean for resource allocation? What does that mean for our identity as a species? These questions are of course timeless, but in this particular register they also felt very science-fiction -- the sorts of questions that have to be answered on Star Trek, but not in real life, because we were nowhere near that sort of society. Well, maybe now we are -- and the questions have to be answered sooner rather than later.

The Judeo-Christian's Junior Partner

It's hardly a revelation at this point to observe how the "anti-CRT" style bills have quickly become tools to censor Jewish and Holocaust education. A recent story out of Florida, where a school district cited Florida's "don't say gay" bill to block a parent from giving an educational (but non-theological) presentation to teach students what Channukah is, wouldn't even be especially noteworthy (the district did eventually reverse itself). But there were some details in the story that I thought were illustrative about the location Jews are perceived to occupy in religious pluralism discourse versus the position we actually occupy.

The first thing to note about this district is that it is not some sentinel of secularism. The schools reportedly are replete with "holiday" decorations that are very much tied to Christmas. Nonetheless, when the parent tried to schedule her yearly Channukah presentation, the district demurred on the grounds that if the school allowed such an event, "“they would have to teach Kwanza and Diwali."

To which the Jewish parent replied: "I think that would be awesome!"

What we see here is how "Judeo-Christian" renders Judaism the (very, very) junior partner. Christians won't actually give Jews equal standing with Christians in terms of holiday exposure; as the "junior" they're not entitled to such largesse. But Christians assume nonetheless that Jews remain partners in the desire to maintain "Judeo-Christian" hegemony against upstart interlopers like Hindus or African-Americans. The idea that Jews would not be horrified by, but would in fact welcome, greater inclusion for other minority faiths and creeds -- that Jews actually identify more with other minority faiths and creeds than they do with hegemonic Christianity -- is incomprehensible.

The reality is that this unequal partnership is a creature of the Christian, not Jewish, imagination. Even if "Judeo-Christian" ever actually were a relationship of equals -- and I can scarcely imagine it -- the fact is Jews do not see ourselves as part of this "Judeo-Christian" collective with a shared interest in standing against other minorities. That religious outsiders might be included is for us a feature, not a bug.

An Alum Reaches Out With a Question

It is the nature of being a law professor that one sometimes fields questions from alumni, who naturally turn back to their alma mater's faculty whenever they have a question about some burning issue of the day. I'm typically happy to get these emails, as it is nice to stay engaged with the broader university community and help provide what insight I can to the areas I'm claim expertise in.

For example, just today I received an email from a Lewis & Clark Law grad, class of '80, who had the following inquiry (reproduced below in full):

Question: Why is it considered ant-semitic [sic] to point out Jewish domination of the media, international finance, and Hollywood? 

It's so nice to be recognized as a subject-matter expert.

The email came from the guy's official law firm email address, which for some reason I find tickling. (I also find tickling that he was given a stayed suspension from the practice of law in 2020, which follows a censure and a reprimand all within the past five years). Nonetheless, I think I'll decline to reply to this one.