Friday, December 04, 2009

WIP Talk Goes Car Talk

Douglas Baird presents "Car Trouble" -- how the Chrysler and GM bankruptcy fit into the broader state of bankruptcy law.

The Masuku Hate Speech Case Likely Court-Bound

Alana Pugh-Jones was gracious enough to send me a copy of the commission's report, and Ben Cohen has also posted it online here. The key excerpts:
21. On the day in question Mr Masuku was speaking to students who included both Jewish Zionists and Palestinian supporters. There appeared to already have been noted tension between these two groups. Therefore by Mr Masuku making those remarks he surely intended to incite violence and hatred that was already potentially imminent amongst these two groups. COSATU members of Palestinian supporters present at this rally could easily have been incited to hate, and even attack their Jewish counterparts. This is exactly what Section 16(2) of the Constitution seeks to prevent.

22. Mr Masuku’s heated statements made amidst an already tense audience appeared to advocate hatred against Jews and all other supporters of Israel. This is inciting violence based on religion, an area which freedom of expression does not protect.

23. Mr Masuku in his response to the allegations put to him by the South African Human Rights Commission, states that he was heckled by what he refers to “as a particular section of the audience – most of whom seemed to be members of the South African Union of Jewish Students”. This statement leave little doubt that the references made by him referred to Jews.

24. The statement that “it will be hell” for any group of students, taken in its proper context is intimidatory and threatening. It is conveyed as a warning to the effect that should one support Israel, one would suffer harm. Harm for the purposes of Section 16(2), as confirmed in the Freedom Front decision is wider than mere physical harm.

25. In responding to the allegations relating to the emails sent by him, Mr Masuku fails to deal with the context in which he used the words “…whether Jew or whomsoever does so, must not just be encouraged but forced to leave…” These words in effect come across that unless South Africans agree with his views they should be forced to leave South Africa.

26. In view of the content of the speech made and emails sent by Mr Masuku it is clear that the expressions amount to the advocacy of hatred and thus would not fall under the protection of Section 16(1) of the Constitution.

27. The comments and statements made are of an extreme nature that advocate and imply that the Jewish and Israeli community are to be despised, scorned, ridiculed and thus subjecting them to ill-treatment on the basis of their religious affiliation. A prima facie case of hate speech is clearly established as the statements and comments by Mr. Masuku are offensive and unpalatable to society.


28. In light of the above, the Commission hereby finds that the statements made by Mr. Bongani Masuku amounts to hate speech.

In terms of this ruling's impact on Masuku's Britain trip, reports are mixed. It is possible Masuku has been dropped from the program at Leeds University. But it also looks like Masuku is not being disavowed entirely, and in fact is and remains in Britain as a guest of the UCU itself, not BRICUP.

The HRC merely ordered Mr. Masuku to apologize to the Board of Deputies, and the Board expressed hope that it would be able to secure that apology without resorting to litigation. I went to bed last night without any reaction from Mr. Masuku and his affiliated organizations, but I was skeptical they'd comply (or at best, would give a Fatima Hajaig style one) -- though I thought there might be some chance Masuku would come under pressure from COSATU to mitigate the embarrassment. Alas, if this press released from the Palestine Solidarity Committee (purporting to speak on behalf of Masuku and COSATU) is any indication, it looks like we're headed to the courts on this one.

In that vein, I have several observations. The first is that I'm very nervous. I'm generally a cynic of the judiciary's ability to stand up and protect beleaguered minorities in the face of powerful institutional actors, and as I noted when these remarks first came out, COSATU's membership outstrips the number of South African Jews by nearly a factor of 30. It is particularly easy to justify such majoritarianism when one can falsely cast the marginalized group as hyper-powerful -- my law review comment focuses on how this has been the preferred argument of American courts seeking to deny equal rights to gay and lesbian claimants. Jews are, of course, particularly vulnerable to this move. The fusion of law and morality -- whereby courts are considered legitimate arbiters of not just legal/illegal, but right and wrong -- raises the stakes of these sorts of complaints dramatically. It is devastating to lose them, and I'm not optimistic about winning. Where the law is indeterminate (as it is here), and the facts malleable (as they are here), minorities tend to lose.

Second, if we are going to win in front of the courts,* there will need to be a full-court press against the fulcrum of Masuku's defense -- that he was attacking "Zionists", not Jews, and thus his statements are categorically insulated from being anti-Semitism. As it happens, I think the case can be resolved without even going there, as at several points Masuku made clear that his target was Jews, not "Zionists" (in one of my favorite caveats of all time, the PSC itself could only say that "in the main" his remarks were not directed at Jews qua Jews). Mr. Masuku persistently singled out Jews as particularly worthy of inhumane treatment, including "harm" and hellish lives. Moreover, for Jews the baseline presumption was that they were worthy of this treatment (with affirmative steps needed to demonstrate that they should be respected as human beings), whereas non-Jews, presumably, had to affirmatively include themselves in the category of Zionists in order to be rendered worthy of scorn. Finally, Mr. Masuku implied that Jews were not real South Africans -- they "come all the way from wherever they come from to tell us where and how to march, they can do that in their own country, not here." But since I suspect that Masuku is going to try and predicate his defense on the firewall argument between anti-Zionism and anti-Semitism, it's probably going to be tough to avoid.

Fortunately, it is also not that difficult to respond to. The poles of this debate should be pretty well accepted: criticism of Israel is not necessarily anti-Semitic, but sometimes it can be. To use two extreme examples: "Israel's bus system is horribly inefficient" is clearly not anti-Semitic, "The kike state must die!" clearly is. The question, of course, is where any given critique falls along the continuum. While it must be demonstrated that Mr. Masuku's words are anti-Semitic, he cannot respond simply be asserting the existence of a fictive firewall -- the words must be defended on merits.

We start with the observation that attacks on an institution or ideology affiliated with a given group of people, even if not all of those people identify with that entity, can still be a manifestation of racism or bigotry towards that group where the attack is designed to subordinate or deny the social or political equality of that group. So, despite the fact that not all Blacks support the NAACP (indeed, some find it quite risible), one can very easily imagine an attack on the NAACP that constituted racism if it expressed itself in a way that denied social or political equality to Black persons. Responding to a racism charge by saying, in effect, "I don't have any problem with Jews Black people -- just the uppity ones" entirely misses the point, and should not be taken as a valid response.

Mr. Masuku's remarks are analogous. First, as the commission found they were directed at the Jewish students in the audience, with the motive or at least knowledge of their likelihood to incite violence and hatred against them. While some Jews may not, in fact, held the views Mr. Masuku was condemning, the whole reason we are vigilant about hate speech is that the perpetrators of ethnic violence are rarely so discriminating in selecting their victims.

But the second and I think most important area in which Mr. Masuku's words were anti-Semitic is that they clearly sought to deny the political and social equality of Jews qua Jews, by imposing differential public obligations upon them. Elsewhere in the emails that Mr. Masuku sent, he informed his interlocutors that Jews had to "prove[] themselves reasonable and humane" -- the baseline assumption being that "we thought all of them are inhumane." Moreover, he established his belief that Jews, specifically, had to engage in particular vociferous speech acts in order to be seen as equals, not "hiding and silently consenting or grumbling under tables." If the do not do this, they cannot "expect us to regard them as human beings." Importantly, this obligation is cast as one on Jews, not people -- non-Jewish South Africans are not demanded to stake public, unambiguously anti-Israel positions as a condition of political equality.

As in Venezuela, the baseline presumption that Mr. Masuku is holding is that Jews are (to quote the commission's report) "to be despised, scorned, [and] ridiculed", and it is incumbent upon them to prove themselves worthy of dignified treatment. This, of course, is wholly at odds with what should be our baseline presumptions -- that we all deserve respect until we demonstrate otherwise.

The PSC is right to say this is an important test case. It is, of course, extremely important to preserve the space for political expression and debate over hotly contested issues. Yet, this can't be taken as a firewall without completely eviscerating hate speech laws entirely. Nearly all hate speech has a political bent to it, as the haters generally wish to impress the point that the despised group is bad for society and should be expunged. To allow that hatred to be shielded because it is making a political point is to allow nearly all forms of ethnic hatred (including pro-apartheid arguments, which, after all, were in defense of a political arrangement).

The case for aggressive enforcement of hate speech laws is strongest when the speech in question is being used to block the equal political participation of the victimized group. Representation-reinforcement remains, in my view, the strongest rationale for counter-majoritarian judicial maneuvers. Here, Mr. Masuku was explicitly demanding that the Jewish community, as Jews, adopt a very specific political program (expressed in a very specific way). If they did not, he advocated their dehumanization, making their lives "hell", and ultimately, their expulsion from the country -- and pledged that he had nearly 2 million workers at his disposal to back him up. If these threats go unpunished, it will simply be impossible for Jews to be considered equal members of the political community, as their sphere of political action will be circumscribed to the point of non-existence.

Mr. Masuku's words are a classic case of incitement and hateful speech directed at the Jewish people. The only question is whether, as a matter of law, we are willing to make a carve out to general hate speech principles to account for the cleansing power of anti-Zionism. The judiciary of South Africa should resist the temptation.

* I should say that, as is apparent, I am accepting the validity of hate speech proscriptions for the purpose of this post, as they are enshrined in South Africa's constitution. There are, of course, arguments against prohibiting hate speech, but given that the jurisdiction here unambiguously has those restrictions, I'm trying to parse out how they should be applied here.

Thursday, December 03, 2009

Masuku Sanctioned by SA Human Rights Commission

I've written before about Bongani Masuku, International Relations Secretary for COSATU (Congress of South African Trade Unions) and current guest of BRICUP (British Committee for the Universities of Palestine -- a leading proponent of an academic boycott of Israel). Masuku's anti-Semitic statements lead to an official complaint against him by the South African Jewish Board of Deputies lodged with the South African Human Rights Commission.

Now, according to Alana Pugh-Jones of that organization, the Commission has released its findings, holding that Masuku's statements did qualify as hate speech and recommending that the SAJBD pursue litigation against him to secure an official apology.

I'm looking for a complete copy of the commission's report. But this is fantastic news -- I am pleased to see that organs of the South African government are taking a strong stance against hate, and were not fooled by the canard that Mr. Masuku's vicious slanders against the Jewish community were somehow excused because of his anti-Zionist leanings.

UPDATE: I've now got the commission report, and give substantially more thoughts (particularly on the court battle that is likely forthcoming).

Wednesday, December 02, 2009

How Do You Abbreviate Jamal?

Ta-Nahisi Coates labels this bit two posts in one. And, this being Ta-Nehisi Coates, both are fabulous, but I want to focus on the first. It talks about an NYT article about Black men in this economy explicitly deracinating their resumes in order to compete in the job market. The debate plays out implicitly as part of Marianne Bertrand and Sendhil Mullainathan's recent and already famous study, "Are Emily and Greg More Employable than Lakisha and Jamal? A Field Experiment on Labor Market Discrimination" (94 Am. Econ. Rev. 991 (2004)), finding that, holding qualifications constant, persons with White sounding names (Greg and Emily) got more callbacks for job inquiries than those with Black sounding names (Lakisha and Jamal). So you see Black people with MBA's from the University of Chicago doing things like removing their participation in the African-American business students association, so as to not tip off employers to their skin color before it is absolutely necessary ("If they're going to X me, I'd like to at least get in the door first.").

As Adam Serwer points out, all this goes to the big lie in American society that racism is not only gone, but so far gone that being Black is an advantage nowadays. It is so obviously not true -- the empirical evidence is so overwhelming -- that it can be explained only as White folks trying to impute an unjust social order onto its victims. A study by Devah Pager Pager (The Mark of a Criminal Record, 108 Am. J. Soc. 937 (2003)) found that Black job applicants fared roughly as well as Whites with a felony conviction (again, holding qualifications even). That this effect is holding for even relatively elite Black persons (folks with MBAs, looking for management positions) is yet more support that class isn't all there is.

Tuesday, December 01, 2009

The Other Option

Lawrence Hart, a graduate student at CSU-Northridge, has an editorial in the Jerusalem Post entitled "The option no one wants to think about". Essentially, it says that Israel has lost its edge when it comes to counter-terrorism operation, and should take a page from Sri Lanka's book.
The Sri Lankans had more or less lived with this horror since 1983. Then 9/11 happened and a new dynamic, promoted by president George W. Bush and the United States, gave the Sri Lankans a new outlook. With a new administration elected on the promise of stopping the LTTE permanently, the country embarked on a full-scale military assault. It sent its army, much stronger than the Tamil tigers, into Tamil-occupied territory and began to take back town by town, going street to street in some cases, and killing anyone who resisted.

Jehan Perera of the Sri Lankan Peace Council said, "This government has taken the position that virtually any price is worth paying to rid the country of terrorism."

The price paid was indeed a heavy one. Many innocent people died. The Sri Lankan government deeply regrets the killing of innocent civilians, but most government officials believe they made a conscious choice to pay that price, and that the alternative status quo was simply no longer acceptable.

It was bloody and dirty, and they took a lot of criticism for it. The UN estimates that during the final months of fighting in Sri Lanka, at least 7,000 Tamil civilians were killed and 13,000 were wounded. But they also wiped out the scourge of terror, not stopping until total victory was declared last May. Today, Sri Lankans can once again walk the streets of their cities, visit the marketplaces and conduct business without the fear of being murdered in such gruesome ways that not even their loved ones can identify their bodies. It is a new dawn for Sri Lanka.

Israel can take a real lesson from this experience. The threat facing the Jewish state from the West Bank, Gaza and Lebanon is no different than the threat to the north of Sri Lanka, and its coastline into the south that the Tamils occupied before the Sri Lankan army began its war of elimination.

THE TIME has come to admit that there might not be a solution to the Palestinian problem, but there is a way to end it. The next time terror forces Israel to take military action, this option should be considered. Israel must realize that there will be no peace with an intransigent enemy that refuses to act in good faith. Palestinian rejectionism and Iranian-backed Hizbullah threats to our existence will never be placated; they will not stop until Israel is destroyed. Once the population realizes this unfortunate reality, there is only one way to change it. Israel must take the Sri Lankan initiative and move into these areas one by one, cornering, enveloping and killing off all armed resistance.

We've already discussed how Sri Lanka can be a very instructive example. But I want to take a look at Mr. Hart's particular comparison, because I think it reveals something that is both very dark and very important at the same time.

Mr. Hart's proposal represents a possible future -- call it the Sri Lanka option. It is one where Israel simply abandons the idea of a negotiated settlement, recognizes its superior military might, and crushes all who get in its way. Effectively, it is the path that anti-Zionists seem to suspect Israel wants to take. What isn't clear, though, is why Israel hasn't taken it yet. The uninformed, of course, call Cast Lead (or the occupation generally) "genocide", but clearly they have no idea what the term means. If Israel was attempting to launch a genocide in Gaza, then they are the Keystone Kops of the genre (1,200 deaths out of a population of over 400,000? Please.). Trust me: if Israel was interested in genocide, they could do a far more thorough job of it.

There is a segment of Israel's most passionate critics -- a very naive segment, but perhaps not a consciously malicious one* -- whose political action rests on a simple premise: things can't get worse there. And if they do, the world won't tolerate it. And that's the ultimate check against Israel ever adopting the Sri Lanka option. If you tell them that their actions are likely to give succor to the Israeli right and diminish the prospects of the Israeli left, they'll say "as opposed to what? Israel can't make things worse. And if they do," say, by adopting Mr. Hart's eliminationist proposal, "the world won't stand for it. The whole edifice would come down." There is an upside, and no downside, to increased pressure, isolation, demonization, and hatred. Things can't get worse.

The history of the world (not to mention Sri Lanka itself), alas, does not seem to bear this outlook out. It is quite rare to see a state fall. When they do, it generally is either because of intractable domestic violence or a completely collapsed economy. One thing that almost never destroys a state, however, is wrongful conduct. North Korea is still around. China is still around. Burma is still around. Cuba is still around. Iran is still around. Zimbabwe is still around. Uzbekistan is still around. States don't fall because they do wrong.

We have an incredible capacity to allow the most hideous evils to pass by with only shocked gasps. We have an incredible capacity to look past grievous sins with only occasional tuts. I have an Israeli friend from Sderot, the town best known for serving as Hamas' local firing range and for being mostly ignored by the international left. He told me once that Israel's original sin was not the Nakba, it was not finishing the job. Not because such an act would have been justified -- it wouldn't have been, it would have been gravely evil, just as Mr. Hart's proposal is. But he simply observed that had they done so, they'd have come in for far less criticism than they do today for comparatively far milder harms. This observation, first expressed by Machiavelli, has been made before.

And Mr. Hart seems to be operating under the same logic. If Israel took its advice, it would come under virulent criticism. The trade unions would be outraged. The UN would be outraged. I'd be outraged. And all of our outrage would likely be for naught. States don't fall because they do wrong.

Maybe the rules for Jews are different. It's plausible. The normal standards don't apply to us, after all -- it is quite easy for me to imagine that a world which yawned through countless acts of barbarism, massacre, torture, mutilation, and murder would suddenly see its passions aroused when Jews are the perpetrators -- to the degree that they would be willing to intervene and stop it. But I'm doubtful. I think we'll see what we usually see: angry words, little action, and lots of forgetfulness.

There is, in other words, another option. The choices aren't "status quo" or "just peace". There is also "ethnic cleansing". And the more Israel sees that adopting liberal policies or using the tools of reconciliation yield no quarter from its critics (as when its most integrated, reconciliation-minded soccer team is the target of protest), the more likely these options become.

It can get worse. It can always get worse. And if it does, the world will do what it always does: ignore it.

* There is another segment, of which I genuinely think groups like the STUC belong to, that also does not believe things can get worse but also has no interest as to whether they get better. These groups are fundamentally malevolent, and insofar as they exist in a deliberately symbiotic relationship with Israeli extremists to further their own cynical ends, they ought to be held to account with their partners in Israel if the horrors they stoke come to pass.

UPDATE: A repost to this quote of the evening seems appropriate:
I have yet to see a serious act of violence that was not provoked by the experience of feeling shamed and humiliated, disrespected, and ridiculed, and that did not represent the attempt to prevent or undo this "loss of face" -- no matter how severe the punishment, even if it includes death.... [T]hese men mean it literally when they say they would rather kill or mutilate others, be killed or mutilated themselves, than live without pride, dignity, and self-respect.... The emotion of shame is the primary or ultimate cause of all violence.


DC Approaches Gay Marriage

The DC City Council approved a law legalizing gay marriage on a 11-2 vote. There needs to be a second vote two weeks later, followed by the signature of mayor Adrien Fenty, and then it must survive a period of Congressional review. However, it is expected to surmount all of these hurdles.

The two no votes were cast by Marion Barry (D-Ward 8) and Yvette M. Alexander (D-Ward 7). Barry was adamant that his vote was not a repudiation of the GLBT community:
Before casting his vote, Barry gave an impassioned speech noting that he is a longtime supporter of gay rights. But Barry said that his constituents oppose same-sex marriage, and that he believed the council should have authorized a referendum on the issue.

"I stand here today to express in no uncertain terms my strong commitment to the gay and lesbian, bisexual, transgender community on almost every issue except this one," Barry said.

He then went on to plead with gay and lesbian residents not to hold his "no" vote against him.

"It's not fair to make this one issue a litmus test as to one's commitment to human rights, to justice, and I resent those who would make it a litmus test," Barry said.

It is up to the GLBT community to determine what is and isn't a "litmus test" for their support. If I were them, I would not accept Barry's plea. I guess it is fortunate for the former mayor that I am not them.

In any event, congratulations to the District for taking such a big and important stride forward in our nation's ongoing quest for equality.

UPDATE: Ta-Nehisi Coates writes that there is very little difference between Barry and Barack Obama. That may or may not be true, and I imagine it is fortunate for Obama that he isn't being placed in a situation where he'd have to cast a vote on this.

Monday, November 30, 2009


There is a soccer match coming up between Celtic FC (a Scottish club) and Hapoel Tel Aviv (Israeli). The Scottish Trade Unions Congress, generally sympathetic to boycotting Israel, wants to attend this game and protest Israeli policies by waving a bunch of Palestinian flags. Apparently subscribing to the Limbaugh/Klein school of thought, which assures its supporters that the targets of a political protest would be absurd to consider themselves targets of a protest, the STUC writes that they are "making clear that we attach no blame either to Hapoel Tel Aviv players, nor their fans, for the outrageous actions of their government."

That's good to know, because as it happens, Hapoel Tel Aviv is known as the quintessential left-wing team, and indeed is currently captained by an Israeli Arab. Hell, it's even rocking the hammer and sickle on its logo ("Hapoel" means "the worker"):

The team also sponsors the Mifalot project, designed to create interfaith and interethnic soccer teams to help bridge divides and promote peace (endeavors which the BDS campaign has come out explicitly and definitively against). I'm sure that Hapoel would love more international support for these sorts of bridges. I'm equally sure that the STUC has absolutely no interest in providing it, because the STUC has absolutely no interest in ending the conflict.

But sure, what the hell, launch the protest. Why seize the opportunity to express solidarity with a prominent Israeli institution doing the hard work of building peace, when it is so much easier and more satisfying to entrench hatred instead?

UPDATE: FC Celtic is reportedly quite unhappy with the proposed protest, and is urging the STUC to call it off. Their objection seems to be two-fold: first, they don't want their soccer game politicized, and second, they are concerned about safety in the confines of a crowded arena.