Monthly Archives: May 2020

Frame Me A Story

When I think about what I learned in law school all those years ago, it really boils down to one truism: he who frames the issue wins the debate.

Okay, that might be a wee bit of overstatement, but a recent column by Linda Greenhouse— one of the most savvy reporters covering the Supreme Court–reminded me just how important framing is, not just in litigation but also in politics.

Greenhouse was writing about two “religious liberty” cases on the Court’s docket this term. As she noted, these cases involve a constitutional gray area; we know that the  Free Exercise Clause requires government to give religious believers room to practice their faith without undue interference. Courts must decide how much room, under what circumstances, and what interference is “undue.”

The cases the Justices must decide this term–Little Sisters of the Poor v. Pennsylvania and Our Lady of Guadalupe School v. Morrissey-Berru— both lend themselves to what Greenhouse calls “alternative narrative” packaging. Religious organizations have been in court ever since the Affordable Care Act was passed, protesting the Act’s requirement that health insurers cover contraception for employees that want it.

Which gets us to posturing. Despite Little Sisters’ name on one of the lawsuits, it has virtually no interest in the decision.

That’s because the order’s lay employees, not all of whom are Catholic, are covered by a church-sponsored insurer, the Christian Brothers Trust, which the government conceded in earlier litigation can’t be penalized for its refusal to provide the disputed contraception coverage.

In other words, the Little Sisters have already won. The actual dispute before the court is between Pennsylvania and New Jersey, on one side, and the Trump administration on the other. The states sued to block the administration’s rule that lifts the contraception mandate entirely from any employer — profit, nonprofit, privately held or publicly traded — with a religious objection to covering birth control, as well as from any privately held employer that claims a “moral” objection.

The actual issue raised by the states is whether the Trump administration complied with the Administrative Procedure Act when it issued the rules.

But that hardly comes through from headlines like “The Endless War on the Little Sisters of the Poor” on a Wall Street Journal op-ed by Helen Alvaré….. And Ramesh Ponnuru’s Bloomberg opinion column declaring that “The Left Is at War With the Little Sisters of the Poor” concluded by demanding, “Leave the nuns alone.”

Talk about a compelling story line. Except that it isn’t accurate, not by a long shot. On the table when the Obama administration left office was a proposed accommodation under which religious nonprofits would not have to do anything — hands off, completely, nothing to sign, no forms to fill out — to have the insurer, with reimbursement by the government, provide “seamless” contraception coverage. That was the Obama administration’s one nonnegotiable requirement. (The administration didn’t want women to have to shop for a stand-alone birth-control insurance policy.)

In other words, the nuns and all other religious employers, were not being asked to “pay for birth control,” far from it, and would have been untouched by the bureaucratic hand. But that still wasn’t sufficient, the religious employers said, to avoid their complicity in the sin of contraception because their insurance policy would still provide the link, however attenuated, between their female employees and contraception.

The court’s second religion case involves the “ministerial exception,” a doctrine that exempts churches from having to follow federal nondiscrimination laws when it comes to employees whose jobs are essentially religious. (As I tell my students, that means that a synagogue can’t be required to hire a Baptist as Rabbi, or a Baptist Church compelled to employ an atheist Sunday school teacher.)

Two Catholic schools in California dismissed fifth-grade teachers, each of whom taught fifth-grade subjects– including, twice a week, a class taught from a religious workbook. One was fired after she developed breast cancer and needed time off for treatment, who sued under the Americans With Disabilities Act. The other woman alleged age discrimination.

Both schools claim that the ministerial exception applies, and federal anti-discrimination laws don’t.

During last week’s argument, the justices and lawyers jousted over hypothetical questions: Would the exception apply to a janitor? To a football coach? To a football coach who led the team in prayer? An employee at a soup kitchen who leads grace before meals?

The case is being framed as the right of religious schools to select religion teachers. The actual issue is whether a teacher who teaches religion for two hours a week, along with math, social studies, English and everything else, is a “religion teacher.”

Here’s the real question raised by both of these cases: do Americans employed by religious employers forfeit their Constitutional rights?

Would framing these cases accurately win the debate?

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The End Won’t Be Televised…Or Reported

In January, the New Yorker ran an article focusing on one of the (many) issues that keep me awake at night–the disappearance of local news media.The title was: “What Happens When the News is Gone?”

I’ve shared the statistics before, and they’re grim–and getting grimmer. Last Tuesday, Axios  reported 155 layoffs at Vice, 80 at Quartz, 90 at the Economist, and 100 at Condé Nast , with furloughs at others. And that’s just at national publications, which continue to be comparatively healthy.

Cities and towns, however, continue to bleed the sources of information that are absolutely essential to local self-governance and the sense of community. The linked article begins with an anecdote that is all too telling: at a public meeting in the small town of Pollocksville, North Carolina, the subject was a proposed flood-damage ordinance. The mayor asked if anyone in the audience would like to comment on it.

Alice Strayhorn, a hairdresser in her late sixties who has lived in Pollocksville most of her adult life, raised her hand. “This flood-damage-prevention order,” she said. “How are we supposed to know about that? You can’t make a comment on something you don’t know about.”

Pollocksville’s newspaper was one of the estimated 25% of newspapers America has lost in the past few years, so the mayor had posted a notice in the New Bern Sun Journal, based in a neighboring county. Few people in Pollocksville read it. Surrounding counties with newspapers that do continue to publish–there are three around Pollocksville–are what the article called “ghost papers,” owned by the Gannett Company. Gannett (which also publishes what is left of the Indianapolis Star) controls more than two hundred publications nationwide.

The remainder of the New Yorker article focused upon the consequences of that news desert in Pollocksville, and the various attitudes about that lack of journalism expressed by the locals. (The mayor wasn’t exactly a fan of what we call “investigative journalism,” and tended to dismiss his constituents’ complaints about the difficulty of finding out what local government was doing.)

It would be difficult to overstate the effects of the last quarter-century’s dramatic changes to the way Americans get their information. The ability to occupy “filter bubbles” in which we consume only news that feeds our pre-existing prejudices–and the corresponding lack of trust in outlets reporting things we don’t want to know or believe–is only the most obvious of those consequences. The current media environment increases political polarization, exacerbates class and regional conflicts, and makes negotiation and compromise–essential for workable governance–incredibly difficult, if not impossible.

Those consequences are broadly recognized.

Less well understood is the way that the absence of common sources of information have fractured local communities and eroded the ability of city and town governments to function properly.

The problem isn’t the lack of information, exactly–it’s the fragmented nature of the sources of that information. Bubbles aren’t just an online phenomenon.

In Indianapolis, people who want to know what’s happening in education go to Chalkbeat; people who live downtown access the Urban Times; African-Americans subscribe to the Recorder; businesspeople and professionals read the Indianapolis Business Journal. There are several other specialized sources–papers for various neighborhoods and ethnic groups, websites devoted to the arts, etc. A great deal of information is available–to interested parties willing and able to seek it out.

The effect of this fragmentation– on politics, on government’s ability to communicate effectively with constituents, to any sense of community– is anything but positive.

As I have brooded about this, I’ve come up with an analogy: imagine that you live in a city with roughly equal numbers of citizens speaking fifty different languages, where each language group communicates primarily, if not exclusively, with others in that group, and where a third of the population doesn’t speak at all.

How do you communicate across those barriers? How do you connect to the others with whom you share an urban space?

Even in its heyday, The Indianapolis Star was hardly a symbol of great journalism; if we’re honest, we have to admit it was never a particularly good newspaper. It was, however, far, far better than it is under Gannett (it actually had reporters)–and the mere fact that it provided a common source of information to a significant proportion of the population was incredibly important–more important than most of us understood.

We once occupied a common information environment. Now, we don’t.

We were, as Mayor Bill Hudnut used to say, “citizens of no mean city.” Now, we just occupy adjacent real estate.

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Data, Privacy And Propaganda

Every so often, I become convinced that we are entering a not-so-brave new world dominated by the wunderkind who are able to manipulate the internet and social media.

I’m old enough to remember–vividly!–when the internet was hailed as the great gift to democracy. Finally, people could express themselves free of the gatekeepers–the reporters, editors and other obstacles to unfettered communication. Instead, as one Brookings Institution scholar has noted, the business model of the internet—collecting and manipulating personal information to sell targeted services—has become a  tool for attacking democracy. Worse, as we learned in 2016, Russia and other foreign adversaries have proven especially talented in exploiting this capability.

Of course, the assaults on American electoral integrity don’t all come from other countries. In January–before media reporting became all Covid-19 all the time–the Independent Media Institute interviewed the producer of a film warning about the (mis)use of the Internet and social media by Republican operatives intent upon re-electing Trump.

The producer was Josh Fox, an Emmy-winning and Oscar-nominated filmmaker; his last documentary was “Gasland,” which has been credited with jump-starting the global anti-fracking movement. His new project, commissioned by HBO, is “The Truth Has Changed,” described in the article as “a live theater-based project that sounds the alarm on the right-wing disinformation campaign working to secure President Trump’s reelection.”

The Fox interview began with a fairly chilling description of the multiple  sophisticated ways in which fossil fuel companies had tried to discredit him and “Gasland.”

They created hate emails specifically designed for my personality. There were tweets threats; there were death threats on Twitter. They highlighted my life in the theater, my hairline, the fact that my family’s Jewish; they found out that I had quit smoking several years ago, but they found a picture of me with a cigarette in my hand online from the past, and they ran that as a pro-fracking TV ad in Ohio saying, “This environmentalist is a smoker.” They followed me around the country for years. They booked shadow tours of our films. They tapped into ethnic and regional stereotyping. And then they tried to paint me as some kind of rich, intellectual, New York City liberal, which is not the case. They flung all of these stereotypes at me. They gathered all this information about me—my background, my ethnicity, my age, my race, where I live, where I went to school, how much money I made, what I had done in my previous life before the films.

One of the people heavily involved in the campaign to discredit Fox was Steve Bannon. It didn’t take long for Fox to recognize that the techniques Bannon had used against him were being deployed against Hillary Clinton and the entire American electorate in 2016.

In developing “The Truth Has Changed,” I made two startling realizations. One was that the people who ran those campaigns against me had a very strong hand in influencing the 2016 election: Steve Bannon, who was running Breitbart when all these attacks were happening against me, took over the Trump campaign and his team profiled the electorate in the exact same way.

 Fox explained how the  techniques that allow advertisers to selectively segment audiences are used to influence voters. Political operatives have access to the personal data of tens of millions of people, and they use that information to create highly personalized ads that appeal to different personality types–and play to different prejudices.

The same folks are currently rallying white supremacists all across the world and are making a bid to get Trump reelected in 2020. Their digital campaign created 5.9 million different ad variations in 2016, versus just 66,000 ads created by Hillary Clinton’s campaign. It was so key to Trump’s victory that Trump’s digital campaign manager Brad Parscale is now his campaign manager.

Fox says that we have entered the “age of misinformation,” and the subsequent explosion of conspiracy theories about the  Coronavirus would seem to support that thesis. Perhaps his most chilling observation, however, was this:

If you put out a racist ad and only racists can see it, it causes absolutely no controversy, but it’s deeply effective in rallying people.

This is why privacy matters.

In our not-so-brave new world, if We the People don’t own and control our own data, it will be used by the corrupt and power-hungry in massive disinformation campaigns–campaigns of which we are totally  unaware–with truly terrifying consequences.

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Yes, Donald, It Is Your Fault

I still remember being furious with my middle son over something (a high school test he’d blown off, as I recall); I was beginning a long “motherly” diatribe when he absolutely shut me down by saying “yes, it was my fault.”

Admitting when one is wrong isn’t just a sign of maturity–although it is certainly that. As my son had figured out, it’s also an effective counter to other people’s anger. That’s one of the many, many things our profoundly immature President doesn’t get.

In the Washington Post, Paul Waldman recently noted an exchange between a (simpering) Maria Bartiromo and Trump, in which Trump insisted that “no one” blames him for the economic havoc wreaked by the pandemic.  And of course, he has also disclaimed any and all responsibility for the spread of the virus–it was The W.H.O. or the CDC or China, or his favorite target, Obama.

Medical professionals beg to differ.

My cousin, a cardiologist, recently blogged about a recent editorial in the Lancet, a well-regarded medical journal.  The editorial pinned responsibility squarely on the Trump administration for its  marginalization of the Centers for Disease Control and Prevention. It called the extent of that marginalization dangerous for both the U.S. and the world. In the editorial, the journal pled with Americans to put a president in the White House who will understand that “public health should not be guided by partisan politics,” and enumerated the ways in which the Trump administration had weakened the agency.

As Waldman pointed out, absolving Trump of responsibility for our economic disaster requires accepting the “misleading formulation” that we must choose between saving lives or reopening the economy. In his opinion,

this depression is absolutely Trump’s fault. He made a series of disastrous decisions that led us to this point, and other countries that have had far different experiences illustrate what might have happened if we had a president who wasn’t so utterly incompetent…we lost two months when we could have been preparing for the pandemic that would inevitably arrive in the United States. Though Trump was repeatedly warned by people inside and outside his administration beginning in early January that a pandemic was on its way, he continued to dismiss the threat, praise the Chinese government for its response and insist that there was nothing to worry about.

It is now late May, and the U.S. still doesn’t have a national testing and tracing strategy to contain the pandemic. Meanwhile, Waldman points to the experience of countries fortunate enough to have competent leadership.

South Korea saw its first case of covid-19 on the same day we did, Jan. 20. But its government acted quickly with an aggressive program of testing and tracing to contain the spread. The result is that, as of this writing, we have nearly 85,000 deaths, while South Korea has just 260.

Like us, South Korea is facing economic challenges stemming from the pandemic. But its unemployment rate in April was 3.8 percent.

To take another example, Germany has been hit harder than many places by the virus. The Germans have recorded a few less than 8,000 deaths — a lot, but still only about a third as many as the United States on a per capita basis. But because Germany had a system in place in which the government covers payrolls in an emergency, its unemployment rate is only 5.8 percent, while ours heads past 20 percent.

I have a son who lives in Amsterdam. The Netherlands, like Germany, has covered payrolls, and is projecting an eventual “cataclysmic” unemployment rate of something under 9%. (The Netherlands also keeps its infrastructure in tip-top shape, but that’s a matter for a different rant.)

Waldman says our disastrous situation could have been avoided “if Trump wasn’t so shortsighted, so ignorant, so inept and so unwilling to believe what experts were telling him.”

True. And if he wasn’t a walking, incessantly-talking illustration of the Dunning-Kruger Effect, or even if he was enough of an adult to acknowledge when he was wrong. But then, he’d be a different person.

A functioning adult.

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A Picture’s Worth A Thousand Words…

Sometimes, visuals convey more information than text. As the old saying goes, a picture is worth a thousand words.

As our mentally-ill President pretends he knows what he’s talking about and brags about what a “great” job his administration has done, and as too many states are fudging the numbers of dead and dying so that they can open much too quickly, a reality check is in order.

These pictures are from EndCoronavirus.com.They show the progress of various countries in combatting the pandemic. Spoiler alert: America is far–far--from being number one.

These countries do best:

A second, nearly equal number of countries, was shown at the link as “almost there.”

The third set was “Countries that need to take action”–i.e., countries doing the worst:

Picture this the next time Trump declares that we’re doing more testing than any other country–we aren’t, not even close–or that we’re ready to “re-open.” Better still, if you happen to come across Trump’s tweet about his proposed new motto–“Transition to Greatness”–click on this URL of the same name for the real story.

If his perverse refusal to listen to experts or learn only threatened the morons who insist that their “liberty” entitles them to ignore your safety, I might be inclined to say “let them go for it!” Unfortunately, they are endangering the rest of us.

As a friend pointed out recently, their “liberty” doesn’t allow them to drive 100 miles per hour on city streets, or to dispense with wearing clothing in public, either. Until they understand the legitimate limits of individual liberty, the “land of the free” won’t be free of the Coronavirus.

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