Thursday, March 24, 2022

Levin and Stevens Talk to Michigan's Jews

Michigan Reps. Andy Levin and Haley Stevens -- Democrats thrown into the same district following redistricting -- had a candidate's forum today hosted by the Jewish Democratic Council of America, which Ron Kampeas was helpful enough to livetweet. Levin (who is Jewish) is known as a strong progressive, while Stevens (not Jewish) usually presents as more of a moderate, so it was interesting to see how they pitched their message in this particular forum.

My takeaway -- and this is just from following Kampeas' tweets -- is that they actually didn't sound too different from one another. A lot more agreement than disagreement. There was some distance on issues like Israel and the Iran Deal -- Levin favored the Iran Deal and has spearheaded efforts to reinvigorate the two state solution, which has earned him the ire of AIPAC, while Stevens tends to take more modest and AIPAC-friendly line on these issues -- but they weren't wildly apart. And their rhetoric on domestic policy was pretty similar, and pretty progressive -- which is to say, it seemed like in front of this audience, Stevens was tacking closer to Levin than vice versa.

What does this mean? While I tend to think many intra-party divisions amongst Democrats are overstated, particularly when they're presented in flatly apocalyptic terms, that doesn't mean I think Levin and Stevens are basically interchangeable. Levin really is a more progressive option than Stevens is, rhetoric from this debate notwithstanding. And moreover, I suspect that in other venues Stevens may do more to accentuate her "moderate" credentials -- I don't think this is necessarily symbolic of how she'll run her entire race. What is interesting is that both Levin and Stevens apparently came to the conclusion that the way to appeal to the Jewish audience, specifically, was to emphasize their progressive bona fides. In contrast to some narratives of "Jexodus" or "Jexit" or whatever portmanteau neologism is being pushed this week, the betting line on how to talk to Jewish Democrats is to emphasize that you are a progressive Jewish Democrat. That's heartening to see.

Monday, March 21, 2022

What Can "Objectively Reasonable" Do For You?

A new study (summarized here, published and paywalled version here) explores how the phrase "objectively reasonable" -- a very important phrase in the law surrounding assessments of police misconduct -- changes American perceptions of police officers. The core finding is that "objectively reasonable" makes listeners -- and particularly racial minorities -- think more favorably of the officer so labeled (compared to saying something like "the average police officer").

It's an interesting study, though my initial instinct is that the takeaway from it may be exactly opposite of what the authors imply. The authors suggest that the use of "objectively reasonable", since it is associated with more positive perceptions of the police, primes listeners (such as jury members) to think of the police more favorably than they otherwise would. But I think the effect may be the opposite: by asking jurors whether a given officer acting as an "objectively reasonable" officer would, the fact that "objectively reasonable" brings to mind higher levels of professionalism and conscientiousness means that the actual flesh-and-blood officer being judged is effectively being held to a higher standard than he or she otherwise would have.

Consider a jury deliberating over whether an officer accused of misconduct violated the legally-relevant standard of behavior. If that standard is that of the "average officer", the juror might think "well, their conduct wasn't great -- but then, the average officer isn't that great either. Can I really say that this guy performed worse than average?" But if "objectively reasonable" calls to mind more conscientious behavior, that same juror might conclude that the officer in front of the court did not meet that more idealized conception of how an officer should behave. So telling the jury that the officer they're evaluating must have acted as an "objectively reasonable" officer would cause them to more rigorously scrutinize the officer's conduct.

In other words: an officer whom we've already stipulated is "objectively reasonable" will be viewed more favorably than one who we only stipulate is "average". "Objectively reasonable" is better than "average" (at least for non-White respondents). But for that very reason, an officer whose performance we are trying to assess on a blank slate should be less likely to surpass the standard of "average" than the standard of "objectively reasonable", since the latter appears to be a higher bar than the former. So insofar as jurors are instructed to ask whether an officer behaved in a manner that comports with an "objectively reasonable officer", that should make them less likely to answer "yes" compared to if their standard was that of the "average" officer.

On Comics and Speakers Who Bomb

Suppose you attend a stand-up comedy performance. You're excited to listen and giggle and laugh. But unfortunately, the comic in question -- let's not mince words -- bombs. The jokes don't land, or worse, they're outright offensive. The crowd, which started with a few half-hearted chuckles, starts to turn stony, and eventually downright ugly. Eventually, halfway through the set, the boos set in. Ultimately the comic is booed all the way off the stage.

Most of us, I think, would not view this as a successful evening -- either for the audience members or the comic. But would we say the comic's free speech rights have been violated? I doubt any of us would go that far. Free speech by no means guarantees a favorable reception.

Yet many of us -- myself included -- think things are quite different in the case of an invited university speaker who is "shouted down" by protesters in the audience, such that they cannot finish their talk. This is thought to represent a free speech threat. But what -- and I ask this question earnestly -- marks out the difference between this and the comic?

The answer typically given for why drowning out of the university speaker is wrongful is that it deprives those members of the audience who did want to hear the talk of their ability to do so. I do find this a compelling argument generally, but it doesn't to successfully distinguish the comic's case -- it is easy to imagine that somebody in the comic's audience also wanted to see how the set would have ended.

Another possibility is that the audience for the comic did not come to the show with the intention of blocking the performance. Their anger was unplanned and organic, in contrast to the university protesters, who we suspect came to the talk knowing from the outset that they wanted to disrupt it. If this is our distinction, it suggests that there is no foul in "shouting down" a university speaker some stanzas deep into their talk, if it is the result of genuine on-the-spot negative reactions rather than a planned disruption (though how one could tell the difference, I don't know).

Still another possibility is that a comic performance is only valued insofar as it pleases the audience, and so where the crowd turns against the performance there is no particular interest in the comic being able to continue performing. A university lecture at least nominally is not quite so hedonistic in its assessed value, and so we feel it is important that such talks be allowed to proceed notwithstanding the fact that the audience does not like what they hearing. This makes some intuitive sense to me, though it gets blurry with intentionally political stand-up comics, or university talks that are more performative than educational. I also struggle with how this accounts for a permutation of the hypothetical where a political speaker is speechifying on a public square soapbox and the crowd (while not violent) reacts deeply negatively to his speech, in a way that effectively drowns out the speaker. There, even though the talk is as "political" as a university speech, I do not tend to think there is a violation of free speech norms if the speaker ends up being drowned out. But why not?

Perhaps the answer is a lot more contingent than we might otherwise like to admit: certain spaces and events, like talks by invited speakers at universities, are ones where we stipulate heightened valuation for rules which allow for speeches to be given relatively uninterrupted in a fashion where they can be heard by any who care to listen. This is not a general rule of "free speech"; there are many other spaces where it does not apply -- but the very fact that there are many other spaces where the rules are different and responses can be more "raucous" (if you will) actually serves to further justify the importance of the validity of having a space with this sort of rule. It's good to have some known space where we can stipulate in advance that the speaker will be able to "complete their set" notwithstanding a possible hostile audience, and the fact that there are many other spaces where people are allowed to be more immediately expressive in their disdain mitigates the burden of foreclosing or limiting that sort of expression in this particular space.

Anyway, I don't have firm conclusions here, but this is a puzzle that I had been wondering about for awhile so I figured I'd sketch some preliminary thoughts here as I work through it.