What's in the Polling Water in the Midwest?

When Abdul El-Sayed won the Democratic nomination for Michigan Senate in a nail-biter, there was some talk about this actually being a disappointing outcome for the insurgent left given late polling that suggested El-Sayed running away with the race. This struck me as basically centrist cope -- one doesn't get to claim a moral victory of losing more narrowly than expected when you outspent your appointment by approximately seven trillion dollars -- but it did race significant questions about what went wrong for the pollsters.

Tonight, David Crowley narrowly upset Democratic Socialist Francisca Hong to win the nomination for Governor of Wisconsin in another race where late polling had given the progressive a commanding lead. In contrast to the Michigan race, I think this really does reflect poorly on Hong, as for an "outsider" candidate she couldn't have asked for more a glide path to the nomination watching her field of competitors implode around her (Crowley actually dropped out of the race a month ago before jumping back in, which is wild).

(Meanwhile, in Minnesota, Lt. Gov. Peggy Flanagan easily won the Senate nomination over Rep. Angie Craig in another progressive/moderate showdown, though this felt more expected.)

So we now have two major midwestern Democratic primary races that were defined by huge polling misses, both in the form of vast overstatements of the strength of the lefty candidate. The big question is what does this mean for November? Does this suggest an electorate that is more conservative than polls are letting on? Or is it actually just showing that there are more "normie libs" whose voices are being drowned out? More than the results, that's the question that's going to keep me up at night.

May I Have This Walz?

Minnesota Governor Tim Walz has been selected as Kamala Harris' running mate.

I thought all of the major names floating for VP would have been fine picks. But now that Walz has gotten the official nod, I can say that I'm really enthusiastic about him joining the ticket. 

What do I like about him? To begin, he's got the support of the base while not doesn't seeming to have any particular clique or bloc of voters with a beef against him. In terms of immediate reaction and instinctual enthusiasm, he's all upside. He's already proven himself an effective messenger against Trump and Vance, which is really a VP candidate's number one job. His presentation is a best-of-all-worlds: moderate affect, but progressive results. What's not to like?

As a member of congress representing a swing district, he had a relatively moderate voting record. But his moderation never took the form of hippie-punching for its own sake. In contrast to a Sinema or Manchin type, he wasn't randomly looking to sabotage progressive priorities just so he could grandstand about how he's constraining the left. He just wasn't interested in putting on a show of being a bold maverick bucking the party.

That approach really has come through in his tenure as Minnesota Governor, where he's delivered a long list of progressive priorities that have made Minnesota a model for other states to follow. Some people were surprised at Walz's leadership, again taking cues from his moderate reputation. But Walz's progressivism is really a lot like his moderation -- it wasn't part of some big performance about taking on The Democratic Establishment or being leftier-than-thou, it was just the honest, grinding work of making progress when you can. And it turns out that when you have that orientation, you really can accomplish a lot that makes a lot of people's lives better.

In short, Walz is a pragmatist in the best possible sense: someone who concentrates on getting things done. And I've realized that I lot of what I like about Walz is what I like about Joe Biden. Sure, there's the folksy demeanor and the "moderate" reputation, and the underlying warmth and human decency. But fundamentally, Walz seems like someone who is in politics to actually make things happen -- not to talk about them, not to ride the talk show circuit and get a big book contract, and not to impotently fulminate about how the system makes any real change impossible. And when he's put in a position to make positive change, he's taken it. Just as Joe Biden surprised a lot of people with the muscularity of his domestic agenda (coming from a "moderate"), so too did Tim Walz as Governor of Minnesota. In both cases, the surprise was a product of mistaking an affect and a pragmatic orientation for antipathy to progressivism. And in both cases, the results speak for themselves. I have absolutely zero qualms about carrying that tradition forward.

So I'm delighted to have this Walz on the Democratic ticket. To victory in November!

Antisemitism in Oregon, Minnesota, and Beyond

I'm heading to Eugene tomorrow to do two events on antisemitism and Islamophobia at the University of Oregon (one Wednesday evening, one Thursday morning). Both events will be with Hussein Ibish, someone who I've long admired and am thrilled to collaborate with on this endeavor.

So what's going on in the antisemitic America this week? Well, the Minnesota GOP is trying to nominate Royce White to take Amy Klobuchar's Senate seat, in spite (or because) of him criticizing "the Jewish elite" and claiming that Jews use the Holocaust "to provide a victimhood cover for their own corrupt practices." It will shock no one to learn he is a Kanye West defender ("They called Kanye West antisemitic because he was pushing a Black Republican or Conservative message wrapped in the gospel."). And while sometimes the story of these far-right antisemitic GOP pols is that they decide to merge hating Jews with loving Israel, White is very much a hater of both: Israel is, he says, "the lynchpin of the New World Order."

In general, while there's a lot more antisemitism in today's GOP than many give it, er, credit for, Minnesota really does seem to stand out from the pack for the regularity with which antisemites emerge as top-level Republican politicos.

That said, while I think White is DOA against Klobuchar (who has throttled far more serious opponents than he), I am very idly curious to see whether he makes inroads amongst the "uncommitted" cadre that (unlike in some states) did seem to perform disproportionately well against Biden in Minnesota. I think the lefty complaint "Biden is worse than Trump on Israel" (or even "Biden and Trump are the same on Israel") is wildly off-base, it is actually arguable that if your only criteria is "who hates Israel the most", White is "better" than Klobuchar. For people looking for a permission structure, White's status as an African-American man who led racial justice protests in the wake of the George Floyd murder certainly helps. Moreover, the Muslim community in America is not as liberal as people sometimes think, and if there is a contingent of, say, the Somali Muslim community in Minnesota that is really committed to Palestine uber alles, well, this race arguably presents a genuinely interesting choice.

Again, I think that Klobuchar will win quite handily. But it wouldn't surprise me if there were some inroads in communities where Republicans historically have struggled. As I've said before, antisemitism is a major growth opportunity for the GOP in minority communities (not because minorities are especially antisemitic, but because minorities most likely to defect to the GOP are in fact disproportionately prone to be antisemitic), and by accident or intentionally they're starting to realize it.

Oh, and Donald Trump is promising a "unified Reich" if he's elected. So there's that too.

The Uncommitted Story, Part II

I've been trying my best to give a dispassionate account of how the "uncommitted" campaign is doing. Obviously, supporters have an incentive to pump up its successes; opponents have a perhaps more mixed set of incentives (you don't want to give the impression that they represent the true majority, but there can be benefit in promoting a scary monster lurking in the woods). 

But for my part, I'd like to think we do ourselves no favors when we delude ourselves about the state of the world. If "uncommitted" is doing exceptionally well and demonstrating a genuine groundswell of opposition to Joe Biden's policies, there's no sense denying that just because one wishes it weren't so. If "uncommitted" is not performing especially impressively and doesn't stand out from always-present grousing at a coronated incumbent, then there's no sense denying that just because one wishes that weren't so.

So to actually figure out how "uncommitted" really is performing, it's important to establish our comparator. JTA put a piece up last night breathlessly comparing "uncommitted's" Super Tuesday support against how "uncommitted" fared in 2020. Framed that way, "uncommitted" had an outstanding night:

The uncommitted percentages barely dented Biden’s overwhelming win in each state, but far outdid 2020 percentages for uncommitted voters. In Minnesota, with 74% of votes counted at 10 p.m. Central Time, uncommitted was getting 20% of the vote; it garnered less than a half percent in 2020.

[...]

In Colorado, with 74% of the vote counted at 9 p.m. Mountain Time, uncommitted was getting 7.5% of the vote. It did not register at all in 2020.

In North Carolina,  at 11 p.m. Eastern Time, with 93% of the vote counted, uncommitted voters were 12.5% of those voting in the Democratic primary. In 2020, it was 1.64%.

In Tennessee, at 11 p.m. Eastern Time with 80% of the vote counted, uncommitted garnered 8% of the vote. It got less than a quarter of a percent in 2020.

In Massachusetts, with 51% of the count recorded at 11 p.m. Eastern Time, uncommitted was getting 9% of the vote. It got less than a half percent in 2020.

The problem is that 2020 is obviously not the right year of comparison -- an open Democratic primary with a sprawling field of candidates to choose from is very different from a reigning incumbent running for reelection (virtually) unopposed (if in 2020 you couldn't find a single Democrat of the approximately 531 running for president to "commit" to, I don't what your problem is).

So in terms of trying to give an objective assessment of "uncommitted's" performance, the actual comparison is to the last analogous presidential primary -- Obama 2012, since that was the last time we had an incumbent Democratic president running for re-election. 

In such cases, we would expect that there will always be some baseline number of people dissatisfied with the incumbent and looking to cast a protest vote. The question for "uncommitted" in 2024 is whether it is exceeding that baseline. Generously, we can assume that any overperformance compared to the 2012 figures is attributable to the "uncommitted" campaign vis-a-vis Gaza (though obviously, that might not be true). By contrast, if "uncommitted" isn't performing any differently (or worse!) than it did in 2012, then it seems unlikely that the "uncommitted" campaign is actually making much of a mark. So, for example, in Michigan "uncommitted" got 2.5% more in 2024 than it did in 2012, and then we have to decide what that level of improvement says about the strength of the underlying sentiment -- my conclusion was that this was a modest impact, but ultimately not too impressive save for the fact that Michigan's narrow margin makes anything meaningful.

With that in mind, how did "uncommitted" do compared to baseline expectations on Super Tuesday?

Unfortunately, Colorado and Minnesota didn't hold primaries in 2012, so we can't do a direct comparison. I will nonetheless eyeball agree that the 19% uncommitted took in Minnesota looks relatively impressive (though it actually isn't necessarily an outlier figure, as we'll see below). In the other three states, by contrast, things look very different for "uncommitted":

Massachusetts: 9% (2024) compared to 11% (2012)

Tennessee: 8% (2024) vs. 11.5% (2012)

North Carolina: 12.5% (2024) vs. 21% (2012)

These are all substantial underperformances compared to what we saw in 2012. Again, I understand why "uncommitted" backers are trying to juice them up, but these are not good showings! And these are the highlighted state where uncommitted did best! Except for Minnesota and Oklahoma (which seems to have a disproportionate share of randos on the ballot), Biden's broke 80% in every state he ran in on Super Tuesday. By contrast, back in 2012, Politico was running stories about Obama's primary weaknesses by pointing to states where he wasn't even cracking 60% of the vote (uncommitted got over 40% in Kentucky that year!).

So why is the media making a mountain out of this molehill? Certainly, "uncommitted" can give us some interesting microdata (the frustration among Michigan Arab and Muslim voters seems real, for instance, and notable). And in close states, any type of discontent can make a difference (though that proves too much -- any type can make a difference, meaning that any potential grouse or grumble is equally problematic). But I also think that we're seeing the effects of some relatively online journalists who are attuned to a relatively online campaign and so think there must be a "there" there. That, coupled with a deep-seated desire for anything that makes the horse-race story more interesting, and of course this is a tempting morsel.

But the reality seems to be that Biden actually is doing fine, compared to Democrats in analogous situations, of consolidating support. If anything, we've been seeing pretty persistent underestimation of his electoral appeal (itself perhaps a worthy topic for a post). "Uncommitted" right not seems to be mostly (not entirely, but mostly) sizzle rather than steak.

Wisconsin is a Failed State

Folks are cackling at a line-item veto Gov. Tony Evers (D-WI) made which took a one-year increase to the school budget and, though some clever deletions, turned it into a four-hundred year increase. The veto goes "for the 2023-24 school year and the 2024-25 school year, add $325." The new version reads: "for 2023-2425, add $325."

Obviously, this is hilarious and, as trolling goes, it's trolling for good. And there's nothing new about this in Wisconsin either -- when I teach about the line-item veto, I show an example from former Wisconsin Gov. Tommy Thompson, who similarly vetoed individual bits and bobs from an enacted law to create a brand new spending program where none previously existed.

But still, it's fair to say that this is not how a functioning government should proceed.

Meanwhile, Wisconsin Republicans have blocked a proposal to require schoolchildren be vaccinated against meningitis. It's become increasingly clear that the anti-vaxx takeover of the GOP no longer has anything to do with COVID, and has become a general opposition to public health initiatives of all stripes. While this isn't Wisconsin specific, it is another instance of the state's ludicrously-gerrymandered legislature drinking fully and deeply of the waters of the death cult.

Finally, I'd be remiss if I didn't talk about the chaos that has afflicted the Wisconsin Supreme Court in recent years. Of course, we all remember when one justice on that august court tried to choke out his esteemed colleague. More recently, members of that Court have repeatedly flirted with 2020 election denialism. One former member compared affirmative action to slavery. And while it may be the single funniest thing I've ever witnessed, having the Court's liberal faction celebrate the victory of a progressive challenger by marching into a watch party room to "it's bad bitch o'clock" also probably isn't exactly the sign of a perfectly healthy judicial body.

So yeah, Wisconsin isn't in great shape. Maybe folks should try Minnesota instead?

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.

Republicans Now Standing Up To the Jewish "Thought Police"

It's so nice to see Republicans finally showing the courage of their convictions, by not just making spurious Holocaust comparisons, but refusing to back down when the Jewish "thought police" cry foul:

“I want to speak to a little bit of a hubbub that’s been in the media lately about whether or not I was insensitive in regards to the Holocaust. I don’t believe I was,” [Scott] Jensen said in a Facebook video. “When I make a comparison that says that I saw government policies intruding on American freedoms incrementally, one piece at a time, and compare that to what happened in the 1930s, I think it’s a legitimate comparison.”

“It may not strike your fancy — that’s fine. But this is how I think, and you don’t get to be my thought police person.” 

For those unaware, Jensen is the GOP candidate for Governor in Minnesota this cycle.

Holocaust trivialization -- what antisemitism monitor Deborah Lipstadt calls "softcore Holocaust denial" --- is becoming epidemic in the Republican Party. That's not especially new, but what is at least newer (and reflective of the GOP's Corbynization problem) is that increasingly GOP politicos aren't even pretending to apologize when Jews call them out. Instead, they're rallying around the notion that their grotesque and inaccurate Holocaust comparisons are only being attacked by censorial PC thought police who can't stand free dialogue. Such a heartening development.

Chauvin Sentenced to 22.5 Years

Former Minneapolis police officer Derek Chauvin has been sentenced to 22.5 years in prison for the murder of George Floyd.

No sentence can bring George Floyd back to life, and hence no sentence can in itself create justice. Moreover, no sentence of Derek Chauvin can, in itself, reform the structures of policing that enabled George Floyd's murder. A single sentence, after the fact, does not change anything.

Nonetheless, the criminal sentence is important -- it is important for providing some measure of closure to Floyd's family, it is important as a signal of the seriousness with which we take crimes of this nature, and it is important as a means of communicating to other officers that this sort of behavior will be met with significant consequences. Chauvin faced a maximum of forty years; he asked for probation. The guidelines for an offender without a previous record would have been 12-15 years, but as the sentencing judge noted there were aggravating factors in this case.

Paul Butler said that taking all of that into account, an 18 year sentence struck him as appropriate. Twenty-two and a half years is more than that, but in the same ballpark. It strikes me as appropriate, proportional, and -- as far as can be achieved in unjust circumstances -- just. But my opinion is not especially important, so my main hope is that Floyd's family and community feel the same.

Why Is Minnesota Reddening?

In several places, I've seen folks say that Minnesota is state must likely to flip from Clinton to Trump in 2020.

Even for someone like me, who's generally confident about Biden's chance in the Land of 10,000 Lakes, it's hard to argue for an alternative (New Hampshire, maybe?). And Minnesota has hardly been some Democratic bastion over the past few years. It's had recent Republican Governors and Senators; in 2018 it was the only state where the GOP picked up Democratic-held House seats (two of them, in fact; off-set by two losses elsewhere in the state).

Yet for some reason, it still feels odd to me that Minnesota seems to be reddening. The Twin Cities are a redoubt of highly-educated urban professionals -- a demographic that ha turned sharply to the left in recent years. This doesn't mean it is a perfect progressive paradise (recall George Floyd was killed in Minneapolis), but to the extent that Minnesota's population is anchored around the Twin Cities and its suburbs, those are areas where Democrats should be performing better, not worse.

The answer to the riddle, I suspect, is that rural Minnesota took longer to go Republican than other rural areas. Collin Peterson has for 30 years held down a western Minnesota seat that is, by far, the Trumpiest in the country occupied by a Democrat. Until recently, Democrats were dominant in the "iron range" of northern Minnesota -- that region was where one of the two seats the GOP took in 2018 sat. It remains the case that Democrats remain solid in Minnesota's cities and are improving in the suburbs. But Minnesota's long tradition of prairie populism may finally be fading out, and that's made a bunch of historically blue voters finally swap to the GOP.

I don't, to be clear, think it will be enough for the GOP to win the state in 2020 (either at the presidential level, or in Jason Lewis' challenge to incumbent Democratic Senator Tina Smith). I do think that Collin Peterson's luck likely will run-out -- he's got a top-tier opponent and Trump's coattails are just too long to resist in a presidential year. And it's possible that Democratic gains in the suburbs will offset losses in rural locales.

But that's all just hypothesis at this point. Any other candidates for the apparent trend are welcome.

I Have To Talk About Omar and Melton-Meaux, Don't I?

I really don't want to. I really, really don't. But sometimes something falls too close to your wheelhouse to ignore it. And with separate antisemitism controversies hitting both Rep. Ilhan Omar (D-MN) and her main Democratic primary opponent Antone Melton-Meaux within a few days of one another, I -- writer on antisemitism and former resident of Minnesota's 5th congressional district -- probably can't sit this one out. As much as I want to. Which I do.

Both candidates are under some fire for things put in campaign communications. Melton-Meaux released an "FAQ" which included the questions "Why do you have so much support from Jewish people/pro-Israel people" and "Will the money you received from the Jewish community influence your policy decisions?" (to the latter of which he replied "no" and noted his opposition to many policies undertaken by Israeli Prime Minister Bibi Netanyahu). Omar's allies said that by implying that Jews only care about Israel-related issues and supposedly conflating "Jewish people" and "pro-Israel people", he was invoking in veiled fashion a dual-loyalty trope.

Omar sent out a campaign mailer accusing Melton-Meaux of being in the pocket of conservative, big money interests, with all of the named donors being Jewish (plus a "Michael from Scarsdale, New York"). This was alleged by Omar's opponents to be an allusion to his opponent being "bought" by Jews (cf. fellow Minnesota Rep. Tom Emmer (R) sending out a mailer naming three Jewish billionaires who had "bought" control of Congress).

What do I think?

Most importantly, while I don't think there is no fire behind this smoke, obviously a lot of the high dudgeon on display here from both sides is really just shots-of-opportunity. That's not exactly surprising, given the nature of politics and all, but still disappointing. I also reiterate my point that while people outside of the 5th District only care about this race for Israel/antisemitism/Islamophobia reasons, the dynamics within the district are generally concentrating on other things (including whether Rep. Omar is more concerned with her national profile than with the particular needs of her district).

On the specifics: Melton-Meaux's FAQ is clearly styled as responding to "questions" that amount to hostile whisper-campaigns (i.e., that he's a stalking horse for far-right Jewish and/or pro-Israel interests). On one level, this is why I don't really see the first question as conflating "Jewish" and "pro-Israel" -- aside from the fact that they are listed separately, in context it denotes two variants of a similar question he receives (and the questioners probably aren't too fastidious about the distinction).

But the problem with such whisper-campaigns is that it can be really hard to respond directly to the allegation without in some way legitimizing or retrenching it. Imagine being asked if a candidate supports "the gay agenda" -- you can't really answer "yes" or "no", because the entire way the question is framed makes answering it a trap. This is why you don't accept your opponents' framing of questions, as any halfway competent campaign should know. Doing otherwise means you suddenly are putting out statements answering questions like, well, "Will the money you received from the Jewish community influence your policy decisions?" There's no good answer to that question, which is a good sign that Melton-Meaux shouldn't be asking it to himself. To the extent that some Jews cringe while reading it, he has no one to blame but himself.

As for Omar. While all of the named persons in her mailer are Jewish, none of them are specifically identified as Jewish (the theme of the mailer is that many of his opponents' donors are backing him solely because they hate her, which is probably true).  But on face, this doesn't distinguish her mailer from Emmer's, or Trump's 2016 "closing argument" ad which featured Hillary Clinton and then three Jews associated with money -- George Soros, Janet Yellen, and Lloyd Blankfein (none of whom were explicitly identified as Jewish either). For those in the right circles, Scarsdale is well-known as a very Jewish and very rich town (hence its appearance in the "JAP battle rap", featuring "two hard-as-nails she-brews from SCARSDALE!"). It is fair to say that few people in Minnesota are likely to know this though (had she called out donors from St. Louis Park, by contrast, everyone in her district would know what she meant even as nobody outside the Twin Cities would have a clue).

On the whole, my real takeaway is feeling more convinced than ever about the need to think about antisemitism less as a question of motives and more as a question of impact. It strikes me as implausible that Melton-Meaux was intentionally trying to antagonize the Jewish community by loudly disavowing his support; it was an awkward effort by a novice campaign staff to respond to a smear -- but one that nonetheless retrenched the perception that the Jewish community is a force one needs to declare his independence from. Melton-Meaux may be a political newbie, but he has an obligation to be attentive to that dynamic and not blunder into traps quite that obvious.

With respect to Omar, I likewise find it highly unlikely that her campaign staff went on a hunt for rich Jewish donors to her opponent in a sly bid to dog-whistle at her opponent being owned by the Jews. Nonetheless, it is probably the case that the Jewish associations of the people cited -- while not likely to be picked up by many if not most of her readers -- likely do help make the attack land more effectively for those who do spot the pattern. I've written elsewhere about how one thing antisemitism does is it greases the wheels of plausibility; when you're trying to tag your opponent as in the bag for big Wall Street money (or Marxism, or "globalism" for that matter) it just feels more right when there's a Jewish hook to go along with it. It's in accord with deep-seated background intuitions, it makes the entire package feel more harmonious. This is one reason why I think someone in the Omar campaign could have reasonably been expected to check and see whether everyone they're talking about is Jewish -- and if not, find some different names (one has to think that there are some non-Jewish rich people who also are pumping money into her opponent's campaign, yes?).

But ultimately, I think this is all relatively small fries. The hypocrisy is perhaps more bothersome than anything else. I get the frustration from Omar's allies that they think she's constantly being pelted with small-ball nonsense on the antisemitism front, and so perhaps they think turnabout is fair play when they can accuse Omar's opponent of being the "dual loyalty" trope guy (you can almost feel the catharsis from here!). But either they think stuff at this level is fair game or they don't; they can't have it both ways unless they really do believe that antisemitism can legitimately be treated as instrumental political football. And on the other side, regarding the conservative media ready to stand up and shout about "yet another instance of Ilhan Omar being antisemitic!" -- unless they're willing to concede that the bulk of the Jewish community was absolutely correct in saying that the contemporary GOP, what with its brazen targeting of Soros, Bloomberg, Steyer, etc., is shot through with antisemitism from root to branch, they need to sit the hell down. As always, however strong or weak you think the case for Ilhan Omar being antisemitic is, it's far less strong than the case for the GOP being antisemitic. If I have to listen to one more attempted gotcha from the Republican Jewish Coalition about Jewish Democrats staying out of the 5th District endorsement game, when they're affirmatively trying to put this guy into a Minnesota U.S. Senate seat, I'm going to have an aneurysm.

Okay, I've done my duty. As a palate-cleanser, please read this lovely column by a Minnesota Jewish Republican explaining, in touching and heart-felt terms, why he considers Ilhan Omar a dear friend. It really is a nice piece of writing from a man whom I have to assume has decided he never wants to have any role in Republican Party politics again, because any public dictation about Ilhan Omar that's friendlier than "she's a she-devil" is grounds for immediate ex-communication from the party. And, just so nobody thinks I'm endorsing one way or the other (I'm not, and will not), read as well this column from Avi Olitzky explaining why he is such a fan of Melton-Meaux.

What Do Ilhan Omar and Eliot Engel Have in Common?

I fully expect Rep. Ilhan Omar to cruise to victory in the upcoming Minnesota congressional primary election, notwithstanding the eye-popping amount of money raised by challenger Antone Melton-Meaux. But if she does end up losing her race, it will be an almost mirror image of New York Rep. Eliot Engel's apparent primary loss to Jamaal Bowman -- in that (a) the outside world mostly cares about the race because of Israel and (b) the actual reason for the challenger's success will be the incumbent's failure to pay sufficient attention to their home district.

It's flown under the radar, but (speaking as someone who used to reside in Omar's district, before she became congresswoman) there have been recurrent complaints that Omar has been weak on constituent services and local issues. Like Bowman, Melton-Meaux may be attracting outside money because of foreign policy, but his campaign focus is very much tailored to the local.

Ultimately, while the frustrations Melton-Meaux is tapping into are real among Democratic stakeholders in the Twin Cities, I suspect Omar is going to be fine in the primary -- she still seems relatively popular in her district. But the parallel between her situation and Engel's nonetheless amuses me greatly.

Israel as Contagion

There's a narrative bubbling in certain areas of the left which seeks to tie American policing abuses to cross-training exchange programs some police departments do with Israeli counterparts. The narrative has its roots in Jewish Voice for Peace's "Deadly Exchange" campaign, which uses the claim as a means of further its campaign to see Israel isolated and ostracized in global society. As the issue of police violence surges to its place at the top of the public's deliberative agenda, the deadly exchange claim likewise attracted those eager for a anti-Israel or antisemitic hook. Just yesterday, new Labour leader Keir Starmer sacked Rebecca Long-Bailey -- a prominent Jeremy Corbyn ally and one-time rival for party leadership -- from her position in Labour's shadow cabinet after she approvingly shared an article where actress Maxine Peake claimed, without evidence, that "The tactics used by the police in America, kneeling on George Floyd’s neck, that was learnt from seminars with Israeli secret services."

This is not true. Many have cited an Amnesty International report where, they say, it is proven that Israeli police train their American counterparts in human rights violations. But Amnesty has since come out and said explicitly that "Allegations that US police were taught tactics of ‘neck kneeling’ by Israeli secret services is not something we’ve ever reported." This is not surprising, as the content of these exchange programs by all accounts rarely, if ever, focuses on what we might euphemistically call "interpersonal" or "tactical" elements of police activity (it generally concentrates on strategic questions regarding operational responses to mass atrocities -- a subject upon which Israeli security forces sadly carry much expertise).

So what is going on? The stock response from those objecting to the link is the simple but truthful observation that American police hardly need Israeli help on the subject of how to harass racial minorities. Some have argued that, because it is true that there are Israeli and American policing exchange programs (and apparently some Minneapolis officers had partaken), it is ipso facto fair to draw a connection between American abuses and those training seminars -- without any regard to what actually is or is not done in those programs. The argument, in effect, a contagion theory: anyone who associates with Israelis, we can assume, is at least partially corrupted by the contact. They're worse off coming out than coming in.

In apologizing for her comment, Peake said something very interesting: she said "I was inaccurate in my assumption of American police training and its sources." Assumption is the key word there: she had, presumably, read about Israeli and American police training together, and so she assumed that the bad American practices had Israeli roots. But the only evidence was the bare fact of contact -- that's what's driving the narrative. Hence: contagion.

This, I submit, is something antisemitism does. It allows such assumptions to become naturalized. They feel right. American police have done exchange training with counterparts in dozens of other countries, ranging from the UK to Germany to Mexico to Tanzania. Even those who take a dim view of, say, the Mexican police however would likely not jump from mere contacts to causality. If someone said "American police learned chokeholds from Tanzanian police," they'd ask for evidence. If the only evidence is "there are exchange programs between American and Tanzanian police", that likely wouldn't be sufficient. But antisemitism gives a smoother cognitive ride down -- it makes little connections look huge, and implausible leaps seem manageable. It is not accidental that the narrative is about Israeli police exchanges and not German or Mexican or Tanzanian ones.

This is an unorthodox but I think ultimately more accurate way of understanding what antisemitism does. We think of antisemitism often as a motive: because I hate Jews, I think or say or do this thing. But antisemitism is more often a force or process. We usually ask "did Burke or Long-Bailey say what they say because they hate Jews?" The answer to that may well be no. But that's not the right question. The right question is "did a particular way of thinking about Jews render what Burke or Long-Bailey said plausible or resonant in a way it otherwise would not have been?" And there I think it is quite clear that the answer is yes. It is because we think about Jews in a particular way that this contagion theory of Israeli culpability in American policing injustices -- a narrative which objectively stands on such a thin reed -- is plausible when it otherwise wouldn't be. That is the work of antisemitism.

Are Americans Grasping the Reality of Police Violence?

As the nation continues to be gripped by protests against police brutality, I've been struck by the near-constant footage of excessive police force against journalists and civilians who seem to be doing nothing more than exercising their constitutional rights. For me, it powerfully communicates the reality of a central theme of the protests: that the police are out of control and are acting as a tool of repression and violence against the Americans they nominally are there to protect.

But my vantage is only a partial one, and I've been waiting to see evidence about how the American people as a whole are reacting. We all still are living in the shadow of 1968, and there is the constant fear that the narrative that emerges will be one where the police are the victims and "law and order" must be restored. Is that what's happening?

Today, Kevin Drum links to new polling that gives cause for optimism: Asked over the weekend whether "police violence against the public" or "violence against the police" was a more serious problem, Americans picked the former by a 55/30 margin. Independents answered at roughly the same margin -- 54/27. Even White Americans agreed by a 50/35 margin (for Black Americans, the gap was a whopping 85/8).

It's just one poll, and just one question. But it does seem to point to a potential sea change (also on that note: a Minneapolis city councilor talking seriously about trying to disband the Minneapolis Police Department outright).

Meanwhile, it's primary night in several states across America -- off-hand, none of the marquee races seem like they'd be particularly impacted by the protests (maybe the effort to take out White Supremacist GOP Rep. Steve King), but I suppose we'll see.

Eighth Circuit Absolves Another Minnesota Police Killing

On Friday, the United States Court of Appeals for the Eighth Circuit handed down its opinion in Kong v. City of Burnsville, a case regarding the killing by Burnsville police of an Asian-American man in the midst of a mental health crisis (Burnsville is a suburb of Minneapolis). The district court had denied qualified immunity to the officers, allowing the case to go to trial. On appeal, however, the Eighth Circuit (by 2-1 vote) reversed, holding that the officers' conduct did not violate clearly established law.

The facts of the case are complicated. Early one morning, Burnsville police received a report of suspicious activity in a McDonald's parking lot. A man (Kong) had been spotted sitting in his car for thirty minutes, waving a knife and jumping around. Officers arrived and at first passively monitored the situation. Then they asked the man to put down the knife; he was unresponsive. It was pretty evident that he was undergoing a mental health crisis, but he had not committed any felonies and did not appear to be an immediate threat to anyone.

Eventually, police broke the windows of his car and tased Kong twice. Kong did not drop the knife; he stumbled out of the car and broke out running towards the street where traffic was still driving by. At that point, police officers opened fire, striking and killing him (one bullet lodged in the bumper of a passing vehicle).

The majority held that it was not clearly established that the police could not open fire in this scenario. They contended instead that the officers reasonably perceived Kong as posing an imminent safety threat to the civilians driving by. Judge Kelly, in dissent, pointed out that it was obvious that Kong was undergoing a mental health crisis and he had never threatened anyone, and that in any event people in cars would not be in especial danger from someone holding a knife. A jury could therefore conclude that the decision to open fire on Kong was excessive.

I personally think this is legally a close case -- though close cases I think are generally best left to juries rather than plucked out by judges. But given the current circumstances in the Twin Cities and around the country, I thought it was noteworthy that this case was handed down this Friday, and wanted to give out the facts.

Qualified Immunity and Criminal Law

Normally, we think of civil cases as being easier to win than their criminal counterparts. The standard of proof is lower ("preponderance of the evidence" versus "beyond a reasonable doubt"), and many activities which are not subject to criminal penalties might nonetheless carry civil liability. There's a reason why O.J. Simpson was acquitted of murder but nonetheless lost the civil suit against him for wrongful death.

But, at least in the context of police brutality cases, there is one hurdle present in civil litigation that is not found in criminal law: qualified immunity.

Qualified immunity is a judicially-made doctrine that shields officers of the state (not just police officers, though they're the most common subjects of litigation) from civil liability for constitutional violations unless they violate "clearly established" law. In other words, it's not enough for the police officer to have violated the law, it has to have been obvious in advance that they violated the law. The judiciary has interpreted this in an exceptionally stingy fashion, insisting on extremely granular inquiries into whether the precise fact pattern alleged by the plaintiff had been specifically demarcated as unlawful in a prior case. The question isn't something like "has it been 'clearly established' that a police officer can't physical strike an non-resisting suspect?", it's instead more like "has it been 'clearly established' that a police officer can't specifically tackle a non-violent, non-resisting, non-threatening suspect who weighed 130 lbs?" If one doesn't find a case that mirrors those facts, the law isn't "clearly established" and the case fails. The Supreme Court itself has accordingly characterized qualified immunity as a shield for all except "the plainly incompetent or those who knowingly violate the law." And the Eighth Circuit (which includes Minnesota) -- well, it's insulated some pretty wretched behavior under qualified immunity's guise (and some of its judges think it hasn't gone far enough!).

By its nature, qualified immunity means that many actions which are concededly unlawful violations of Americans' civil rights are nonetheless protected from civil suit. But there is no qualified immunity in the criminal law: one cannot escape criminal punishment by arguing that there has not been prior case law "clearly establishing" that the conduct you're accused of is unlawful. I'm dubious about the ultimate viability of criminal law to serve as a systemic brake on police brutality -- I'm not sure that is a task it is well-suited for (though it is certainly appropriate in particular cases -- the George Floyd case appearing to be an obvious). But a criminal prosecution -- as much as it is (properly!) hamstrung by heightened burdens of proof compared to a civil suit -- does evade the strictures of qualified immunity. And given how aggressively the judiciary has interpreted qualified immunity to shield bad actors in the American policing system, that's a virtue which cannot be discounted.

Holocaust Trivialization Leads To Holocaust Mockery

A recent news story reports on two Minnesota high school students who released a TikTok video titled "Me and the boys on the way to camp." It was making fun of the Holocaust.

Elsewhere in the country, Republican and conservative leaders have gotten very trigger-happy comparing coronavirus restrictions to the Holocaust. An Idaho state representative insisted that stay-at-home measures were "no different" than Hitler sending Jews to extermination camps. The Colorado House Minority Leader said that Governor Jared Polis' (who is Jewish) efforts reflected a "Gestapo-like mentality".  We all saw the pictures of right-wing protesters in Michigan holding signs saying "Heil Witmer" [sic] with a swastika on them (referring to Michigan Governor Gretchen Whitmer). There are other examples.

These are not the same thing. But they are related. The latter is a form of Holocaust trivialization, where it gets employed in opposition to political moves that fall clearly and obviously short of concentration camps and mass extermination.* The effect of Holocaust trivialization is to make the Holocaust utterly ordinary and mundane; unremarkable save for how it can pack an emotional punch in ordinary and mundane political debates. And once the Holocaust is ordinary and mundane, one can do ordinary, mundane things with. Leverage it in attack ads. Use it as a bit of effective (if perhaps hyperbolic) rhetoric. And, of course, mock it. Ordinary and mundane events in the political sphere are legitimate subjects of parody and mockery. It is the Holocaust's status as something distinct from the ordinary, in a separate class, that justifies keep it insulated from such insults. Take that away, and why shouldn't it get its share of snipes and jabs? There is a direct line from trivializing the Holocaust to mocking it. The kids in Minnesota and the elected officials in the GOP are not doing the same thing -- but there is a familial lineage.

The past few years have seen the GOP talk a very big game about what great friends they are the Jews. They say it every election season, of course, and they always put on such a display of hurt and confusion when that friendship isn't reciprocated. Well, here's part of the reason why. Given the slightest opportunity, they'll cheapen our genocide in service of a destructive, paranoid, and frankly inane political agenda. They won't care in the slightest the damage it does to the Jewish community. Hell, I doubt they even notice it. But we do.

* Here is what I wrote, incidentally, on comparisons of  immigrant detention camps in the U.S. to the Holocaust. I did not and do not like them, though in that case at the very least there is non-frivolous basis for the comparison (though not on the axis of systematic extermination) which made me feel as if litigating the comparison was of subsidiary importance to keeping our eye on opposing the underlying policy. By contrast, there is no remotely plausible basis for comparing stay-at-home protocols aimed at fighting a pandemic to Nazism. It can do nothing but trivialize the Holocaust.

Republican Jewish Coalition Supports the Most Antisemitic Congressman in Recent Minnesota History

You might recall a brief blip of news last year where Ilhan Omar was deemed antisemitic for implying that pro-Israel Americans may have dual loyalty with Israel.

It was, to be sure, problematic. But here's the thing: Ilhan Omar is not the most antisemitic politician in America. Hell, even if we restrict the terrain to "most antisemitic member of Congress from the greater Minneapolis area who ran for election during the Trump administration", she still wouldn't place first. That honor has to go to ex-Rep. Jason Lewis (R-MN), who did not imply, but outright stated, that many pro-Israel actors in American politics had "dual loyalties" with Israel and that congressional Republicans were controlled by the "Jewish lobby". Everything Omar hinted at, Lewis outright said. He's the easiest of easy cases.

But alas. Overt antisemitism should hardly be expected to stop the Republican Jewish Coalition from fundraising on Lewis' behalf as he seeks to parlay his 2018 congressional loss into a 2020 U.S. Senate seat. Because while there are many Jewish organizations that earnestly care about antisemitism regardless of source, the RJC is most certainly not one of them.

What is Up With Minnesota Republicans and Antisemitism?

I know we all prefer to talk about she-who-must-constantly-be-named, but real talk: what is up with Minnesota Republicans and antisemitism?

First, there was 1st District Rep. Jim Hagedorn, who said Joe Lieberman's Iraq War boiled down to "Jew or Arab?" and accused his Democratic opponent of being "owned" by George Soros.

Then NRCC Rep. Tom Emmer, who holds down Minnesota's 6th District, sent out a fundraising letter accusing a triumverate of wealthy Jews (Soros, Michael Bloomberg, and Tom Steyer) of having "BOUGHT control of Congress" (when Minnesota Jews communicated their concerns that this echoed antisemitic verbiage, the response of the NRCC was essentially to tell them to get bent).

Now we have recordings of ex-Rep. Jason Lewis, until late of the 2nd District (and front-runner for the GOP nomination to take on Senator Tina Smith) claiming that Republicans (yes, Republicans) have "dual loyalties" to Israel and insisting that the "Jewish lobby" controls the Republican Party. He also raised concerns about persons who hold dual American and Israeli citizenship, falsely grouping John Bolton -- who's not Jewish -- into that category (gosh, I wonder what caused him to make that mistake?).

It almost makes you pine for the days of Michele Bachmann and her "chootz-pah" -- all she did was accuse American Jews of "selling out" Israel (and call for all Jews to convert to Christianity, though she did eventually apologize for that one).

For what it's worth, I haven't found any antisemitism in the record of the 8th District's Pete Stauber -- the only other Republican (alongside Emmer and Hagedorn) currently holding federal or state-wide elected office in Minnesota. So good on him, I guess (or maybe it's only a matter of time?).

UPDATE: It just. Keeps. Coming. Rep. Hagedorn is now under fire for calling Elizabeth Warren a "national socialist" (aka, a Nazi).

If You Can't Blame Omar ... Well, Buckle Up and Try Again

The other day, a thread by a right-wing commentator named Robby Starbuck made its way onto my Twitter feed, whipping up hysteria about "Somalis" beating up and robbing White people in Ilhan Omar's district.

If a gang of white people were targeting Somalis to brutally beat & rob them it would be the lead story at CNN, MSNBC, Washington Post & NYTimes. It’d be paraded as proof of a white supremacy problem in the country but when it’s gangs of Somalis in Ilhan’s district doing it... 🤷🏻‍♂️

— Robby Starbuck (@robbystarbuck) September 14, 2019

There are several problems with this, starting with the fact that none of the local coverage I've read says that the perpetrators are entirely or even primarily Somali, and moving onward and outward to the incredible allegation local street crime is generally national news and only isn't when the perpetrators are Black (hey, have you heard about the gang of White students who beat up a Black classmate in Florida? No? Somehow it missed out on its entitlement to being the lead story on the Washington Post!).

As it happens, I used to live a few blocks away from the area where these crimes occurred. Crime wasn't rampant, but it wasn't entirely unheard of -- especially crime of the "robbing drunk pedestrians leaving the baseball stadium and/or surrounding bars" variety, which by all accounts appears to be what happened here. It's not a race war, and the neighborhood isn't under siege. It's crime.

In any event, I noted that -- at least at the time of Starbuck's tweet -- most non-Minnesotans probably hadn't yet heard about the arson targeting a synagogue in Duluth,* probably because it occurred in Rep. Pete Stauber's (R) district and thus couldn't be pinned on Ilhan Omar.

Of course, I'm giving people too much credit, because of course now I am seeing folks doing the whole "what about the synagogue fire!" at Rep. Omar -- and yet not, strangely-or-not-strangely enough, Rep. Stauber. For the record, Rep. Omar tweeted about the Duluth arson -- which occurred 150 miles away from her district -- on September 10th, while Rep. Stauber (who, to reiterate, actually represents Duluth) did so on September 12th.

Believe it or not, I don't bring that up as a "gotcha" at Rep. Stauber -- politicians move at different paces and one can always play the "why didn't you speak up on this faster" game. I raise it because it should, by all rights, conclusively falsify the notion that Omar was anything but way out in front on this tragedy, and deserves nothing but credit on it.

But it doesn't matter. Too many people, including too many people in my community, have been driven utterly, completely, unjustifiably bonkers by Ilhan Omar. It's fine to disagree with her on policy -- I disagree with her on (some) policies, most notably her backing of BDS. It's not fine to drop in on her any time something bad happens to a Jew within a 4,000 miles radius and go "Well? Well!?!" You want to talk about "tropes", or "implicit bias", or "double-standards" -- start right there and take a nice long drink from the fountain. It is a constant, ever-present feature of the discourse around Ilhan Omar, and it should sicken us.

* Following an arrest of the suspect, a local homeless man, police say they do not believe it was a hate crime. Of course, it still was a devastating loss for the Duluth Jewish community -- which had ample reason to fear that it was a hate crime, and certainly is following the ongoing investigation with interest.

Partial Expression and Anti-Discrimination Law

Today, the Eighth Circuit Court of Appeals, by a 2-1 vote (Judges Stras and Shepherd in the majority, with Judge Kelly dissenting), held that it was unconstitutional to apply Minnesota's anti-discrimination statute (which covers sexual orientation discrimination) to a videography company that wanted to get into the wedding video business but objected to filming gay weddings. Insofar as the statute required the videography company to treat same-sex and opposite-sex marriages alike (i.e., film both of them), it violated the videographer's free speech rights, since it effectively compelled them to express favorable attitudes towards same-sex marriages (which they in fact object to on religious grounds).

In the context of anti-BDS law debates and others, I've been writing a fair bit about how cases like this well-illustrate why liberals should be wary about endorsing sweeping interpretations of the First Amendment as conflicting with (and trumping) anti-discrimination claims. As "First Amendment Lochnerism" swells in influence, there is more and more of a risk of huge swaths of anti-discrimination law being struck down as unlawful discrimination. After all, anti-discrimination law inherently asks that people associate with those they'd rather not associate with, and implicitly register their approval of social relations they might not approve of. If this is interpreted as an affront to their free speech rights, then anti-discrimination law as a whole is in mortal peril.

That said, it is clearly the case that there are genuine and nettlesome free speech problems that can emerge in cases like this. And I do not think they can be ignored just because the plaintiff is engaged in for-profit work. Movie-making is, after all, often a for-profit business, yet it would be catastrophic if the government could say therefore there is no free speech rights available to directors or screen-writers in the content of their creations.

So -- are wedding videographers or photographers different? And if so, how?

The core distinction the majority seems to rely upon is that between "expressive" and "non-expressive" activity. Something like making a movie is an expressive act. It is artistic, it requires editorial judgment, it is the creation of art. Movies are thought of as a reflection of a creator's expressive vision; a medium for them to transmit a particular thought or view about a slice of the world. Contrast that to serving food at a restaurant: this is not typically thought of as a means of sending a message. Compelling someone to make a movie they don't want to make would do violence to their First Amendment rights. Compelling someone to serve food to someone they don't want to feed would not.

To be sure, all activity can be "expressive" in some sense -- for example, a bigot might say that requiring him to serve a black customer at his restaurant implicitly expresses the view that the customer is his equal and worthy of service. But the idea behind the distinction is that most people do not typically view the act of serving food at a restaurant to be expressive, and so requiring restaurants to serve customers in a non-discriminatory fashion doesn't burden speech even if it "incidentally" has certain expressive feature (like "I'm willing to serve this customer").

The court concluded that making a wedding video is an expressive activity. The videographers, in their words, use their "unique skill[s] to identify and tell compelling stories through video." "They exercise creative control over the videos they produce and make 'editorial judgments' about 'what events to take on, what video content to use, what audio content to use, what text to use . . . , the order in which to present content, [and] whether to use voiceovers.'" This is all quintessentially expressive in nature, and so compelling a business to effectively "editorialize" in favor of a wedding they disapprove of is a First Amendment violation -- it forces them to directly, not incidentally, express thoughts they disavow.

There's some force to this. But something about it kept nagging at me, and I was trying to nail down what it was. Here's my best stab at it:

Nobody hires a wedding photographer or videographer for the purpose of expressing their genuine views about the wedding. Their job is to make the bride and groom, and their special day, look and feel great. For all I know, our photographer showed up to our wedding and thought that the decor was tacky and that Jill and I were a disaster for each other and that the Jewishness of it all was an offense to God. But of course, he didn't express any of those views, even in his "expressive" photographs. That's not his job, and he knows it, and everyone who sees his photographs knows it too. The flip side is that, when people look at our (lovely) wedding photographs, nobody says "wow -- your wedding photographer must have really thought your wedding was beautiful" (let alone "he must have really approved of your wedding").

A wedding photographer does engage in expression -- but only partially. There are expressive elements to what our wedding photographer did, that can be directly imputed to him: the virtuosity of a shot, or the way he used lighting, for instance. But note the contrast: if I look at my wedding photos, I do impute to the photographer artistic decisions about the staging of the shot, but I don't impute to him views about the merits of the wedding itself. Photography is expressive, but in this case not comprehensively so. It is, we might say, "partially" expressive, and it seems reasonable to say that First Amendment protections only extend to the part of the expression that reasonably, not incidentally, is imputable to the author of the speech.

Compare this to the words spoken by a wedding officiant. When she delivers remarks at the altar, most listeners would reasonably take them to be an expression of her own views -- if she says "you two make a great couple", that is (with perhaps some latitude for puffery) her own expressive view on the matter. And so if she was uncomfortable speaking positive words about any particular marriage (for religious reasons or otherwise), it would be wrong to compel her to do so.

But the distinction isn't between visual and verbal or textual mediums. On the one hand, a movie (as in one shown at the theater), is fairly thought to represent the vision and expression of the directors (and actors and screenwriters, perhaps collectively) "all the way down" -- not just in terms of technical attributes like how to frame a given scene, but also in terms of the message being communicated. If a documentary filmmaker presents a given subject in a positive light, that's generally imputed to the filmmaker -- they think positively of the subject -- in a way that doesn't track for a wedding videographer.

And on the other hand, if a restaurant serves a dessert that says "happy birthday!" on it (i.e., writes a text), nobody thinks that the chef is actually doing so to express his or her substantive views on the merits of your birthday (I hate to burst anyone's bubble here). That's true even though there may well be expressive elements to the dessert that I do attribute directly to the chef. If I see a beautifully designed cake that says "happy birthday" on it, I view the chef-qua-chef as expressing his or her own message in the design far more than I do in the "happy birthday".

So it's not enough to draw an expressive versus non-expressive distinction. I agree that making a wedding video is expressive, but I disagree that (under normal circumstances) it is expressive as to the merits of the wedding. Along that dimension, the videographer's implicit "endorsement" of the same-sex wedding they film stands on identical footing to the restaurateur's implicit "endorsement" of racial equality with regard to the Black customer they serve. In both cases, it is incidental, and so in neither case should it significant weight.

Indeed, it cannot be the case that any expressive component in a business transaction sufficed to render it entirely expressive and therefore wholly insulated from regulation under the First Amendment. Even in the food service example -- which we've relied upon as our easy case -- very much can incorporate an expressive dimension, for example, in decisions on plating, interpretations of dishes, and so on. A restaurant can say, accurately, that it exercises "editorial discretion" on these matters, and so could potentially have a First Amendment difference if the state tried to regulate its "editorializing" in these domains (I say "potentially" because while a state law which seeks to declare how a veal marsala must be plated would assuredly fail under the First Amendment, one which insists that a "veal marsala" must contain veal -- "interpretation" notwithstanding -- could at least feasibly survive). But surely the expression here is confined to that domain, and it does not mean that the choice in who the restaurant serves is now expressive as well.

Put (sort of) simply, the question is not whether the conduct has any expressive character. It's whether the expressive character of the conduct is what generates the allegedly compelled speech. If it doesn't, then the fact that a given piece of expressive conduct also comes attached to an implicit endorsement of a view that speaker disapproves of is incidental, in the same way that it is incidental where the conduct is not expressive at all.

I don't pretend that I've just offered a simple, knockdown solution to one of constitutional law's thorniest dilemmas. But I do think we live in an era where wildly expansive understandings of the First Amendment are being wielded as a weapon against huge swaths of the regulatory state, and anti-discrimination law is one of the most inviting targets. We need to start thinking more carefully about limiting principles, lest virtually all discrimination become enshrined with constitutional protection.