Monthly Archives: November 2022

Ron “Contempt For The Constitution” DeSantis

Yesterday’s blog post noted that Florida man Ron DeSantis is a favorite of the New Right. A recent judicial opinion, striking down one of his many outrageous attacks on the Constitutional rights of Florida citizens explains why.

A federal judge on Thursday halted a key piece of the “Stop-WOKE” Act touted by Republican Gov. Ron DeSantis, blocking state officials from enforcing what he called a “positively dystopian” policy restricting how lessons on race and gender can be taught in colleges and universities.

The 138-page order from Chief U.S. District Judge Mark Walker is being heralded as a major win for campus free speech by the groups who challenged the state.

Among other “dystopian” provisions of DeSantis’ anti-woke law were rules about what university professors could–and could not–say in the classroom. As the Judge noted in his opinion, the law gave the state “unfettered authority to muzzle its professors in the name of ‘freedom.'”

Florida legislators passed DeSantis’ “Individual Freedom Act” earlier this year (a label reminiscent of George W. Bush’s anti-environmental “Blue Skies” Act..). The law prohibits schools and private companies from

leveling guilt or blame to students and employees based on race or sex, takes aim at lessons over issues like “white privilege” by creating new protections for students and workers, including that a person should not be instructed to “feel guilt, anguish, or any other form of psychological distress” due to their race, color, sex or national origin.

The judge ruled that such policies violate both First Amendment free speech protections and 14th Amendment due-process rights on college campuses.

The law officially bans professors from expressing disfavored viewpoints in university classrooms while permitting unfettered expression of the opposite viewpoints,” wrote Walker. “Defendants argue that, under this Act, professors enjoy ‘academic freedom’ so long as they express only those viewpoints of which the State approves. This is positively dystopian.”

This particular lawsuit challenged the application of the anti-Woke law to colleges and universities; other pending challenges assert that the law is illegal and unconstitutional when applied to  K-12 schools and to the workplace.

In a column discussing the law and the ruling, Jennifer Rubin noted,

The law, for example, bars discussion of the concept that a person “by virtue of his or her race, color, national origin, or sex should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion.” During oral arguments, when asked if this would bar professors from supporting affirmative action in classroom settings, attorneys for the state government answered, “Your Honor, yes.”

Walker cited that admission, finding:

Thus, Defendants assert the idea of affirmative action is so “repugnant” that instructors can no longer express approval of affirmative action as an idea worthy of merit during class instruction. … What does this mean in practical terms? Assuming the University of Florida Levin College of Law decided to invite Supreme Court Justice Sonia Sotomayor to speak to a class of law students, she would be unable to offer this poignant reflection about her own lived experience, because it endorses affirmative action.

The law so blatantly violates the concept of free speech that one wonders if remedial constitutional education should be a requirement for Florida officeholders.

No wonder the so-called intellectuals of the New Right see DeSantis as one of their own. He has consistently used his position and the power of the state to suppress the expression of views he dislikes. Rubin reminds readers of DeSantis’ “don’t say gay” law, his statute banning “critical race theory” in schools and his attempt to fire an elected county prosecutor who criticized his abortion policies. To which I would add his attacks on voting rights and his (successful) gerrymandering efforts.

DeSantis has also regularly flexed his power as governor: excluding media from events, taking public proceedings behind closed doors (including the selection of the University of Florida’s president) and exacting revenge on supposedly woke corporations such as Disney.

DeSantis’s contempt for dissent and his crackdown on critics should not be discounted. This is the profile of a constitutional ignoramus, a bully and a strongman. Voters should be forewarned.

DeSantis, Trump and the New Right sure don’t look anything like the libertarian, limited-government GOP I once knew…The only part of Rubin’s critique with which I disagree is her labeling of DeSantis as a “constitutional ignoramus.” It’s much worse than that.

Unlike Trump, who is an ignoramus, DeSantis knows better. He just doesn’t care.

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What The Right Really Wants

Vox recently published an interesting postmortem of the midterm elections, looking to see how right-wing intellectuals (a term which I consider an oxymoron) are responding to the lack of that promised “red wave.”

This New Right “intellectual” movement arose after the 2016 election; its approach to Republican politics is a commitment to relentless, aggressive culture war. (Fortunately–at least in the recent elections–voters have seemed unreceptive.)

The article describes three distinct, albeit overlapping, reactions. One is a call to display what the article calls “some tactical moderation” (most notably by bracketing abortion, which was clearly not a winner for the GOP); another “centers on whether Donald Trump or Ron DeSantis represents the movement’s future, and what reasons there are to prefer one over the other.” The third centers on democracy itself.

A minority of New Right thinkers responded to defeat by suggesting the electorate is too far gone for conservatives to ever triumph — and even questioning the value of democracy itself.

“Democracy did not end slavery, and democracy will not end abortion,” declared Chad Pecknold, a self-described “postliberal” theologian at Catholic University.

The “thinkers” pursuing all-out culture war want to discard the conservative commitment to limited government; they argue that limiting the power of the state “stands in the way of waging an effective counterrevolution.”  They believe that their culture war can only be won “by jettisoning libertarianism and using the levers of policy to roll back the left’s cultural victories. Out with tax cuts, in with bans on critical race theory in schools.”

Abandoning the culture war, on this perspective, is not mere folly but national suicide. For some on the New Right, the idea that their approach to these issues might be unpopular is unthinkable. 

One star of the New Right argues for switching allegiance from Trump to  DeSantis –saying that he “backstops his culture-war agenda with capable governance.” (Granted, no one in his right mind could argue that Trump can even spell governance,  let alone provide it.) This DeSantis partisan believes DeSantis will be more able to deliver on the New Right’s shared goals: “to clean house in America: remove the attorney general, lay siege to the universities, abolish the teachers’ unions, and overturn the school boards.”  In other words,  eradicate “woke-ness.”

If the DeSantis contingent doesn’t terrify you sufficiently, there are the New Right “integralists.” These are “Catholic arch-conservatives who believe that the United States government should be replaced with a religious Catholic state.”

Integralists are a part of a broader “postliberal” trend among right-wing intellectuals that traces the cultural decay of American society back to its ruling liberal political philosophy: the doctrine that government should liberate people to pursue their own visions of the good life. Liberalism, they argue, promotes licentiousness and a corrosive individualism…

Postliberals believe that instead of protecting individual freedom, government should aim to promote the “common good” or “highest good”: to create a citizenry where people live good lives as defined by scripture and religious doctrine. This leads them to support an even more active role for the state than even the national conservatives, endorsing not only aggressive efforts to legislate morality but also expansions of the welfare state.

And here we come to the crux of the anti-democratic argument. It isn’t new.

Liberalism–properly defined–rests on a belief that humans are endowed–born with– certain “inalienable” rights that government must protect. The liberal conception of the common good is a society in which government respects those individual liberties to the extent that their expression does not infringe on the rights of others.

A liberal polity will argue–often vigorously–about where that line should be drawn. As I used to tell my students, freedom of religion cannot excuse the ritual sacrifice of your newborn.Figuring out what it can excuse is harder. Every liberty protected by the Bill of Rights has sparked philosophical and legal debate over the extent to which government must respect it–does your freedom of religion allow you to discriminate against people your church considers sinners? Does your Fourth Amendment right against unreasonable searches prevent government from going through the garbage bag you’ve left on the curb for pickup?

What the New Right wants is statism.  

These “thinkers” assume that they will be the ones who decide what the common good looks like–and they want government, under their control, to enforce their vision. (They’re not so different from the Tech moguls who want to impose their beliefs  by remaking society in their own image.) That approach to governance is incompatible with the cultural assumptions of most American citizens–not to mention the U.S. Declaration, Constitution and Bill of Rights.

You can call this philosophy a lot of things, but it sure isn’t American. 

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Dense Pence Could Save The Democrats

Talk about life in a bubble…Mike Pence has been hawking his book (“So Help Me God”) and in a recent interview with Chuck Todd, displayed the perceptive characteristics that prompted what I’ve been told was his law school nickname: dense Pence.

Pence’s smarmy opinions will come as no surprise to Hoosiers who watched Mr. Piety with growing alarm during his gubernatorial term. In the interview, Pence doubled down on his support for anti-choice laws. When Todd asked him to reconcile that support with his purported belief in limited government–to explain how his declared opposition to “invasive government” co-existed with his insistence that  government force women to give birth– he simply repeated his clearly theocratic position.

Evidently, using the power of the state to impose the beliefs of fundamentalist Christians on everyone else isn’t “invasive government.” Who knew?

Pence also took the position that a fetus should be afforded constitutional rights–an opinion that places him at the very far reaches of the reactionary right.

As a snarky post on Daily Kos reported, however, he did exempt one medical procedure from the iron arm of the state: IVF–or fertility treatments. And why would this self-appointed “soldier of God” allow science to shape his approach to this method of assistingreproduction, when he pointedly ignores what medical science tells us about pregnancy and abortion generally?

Stay calm, America. While you’re taking some time to regain your breath after facing the raw, masculine courage it must have taken for a Republican to say out loud that maybe American citizens shouldn’t be thrown in prison for using a widely available infertility treatment that a creepy undercult of American society believes they and only they should be in charge of, you don’t need to be too surprised here. Yeah, it turns out a Republican thinks a particular medical procedure should not be criminalized only because it’s one that personally benefited his own family.

As that snarky post pointed out, this willingness to exempt a procedure because his family personally benefitted from it is patently inconsistent with the “theology” of “pro life” Christianists.  (But then, giving the state authority over reproduction is also inconsistent with the libertarian conservatism that opposed requiring masks and/or vaccinations during a pandemic…Pence evidently read Emerson to say that consistency–rather than foolish consistency– is the hobgoblin of little minds…) (Silly me–I doubt Mike ever read Emerson, or for that matter, anything but his bible…)

The problem with IVF, then, is that if you believe that the primary role of God is to police everybody’s sex lives and make sure nobody is either making babies or not making babies without the express written consent of Himself, Major League Baseball, and/or whatever local pastor has a bug up his rectory about it, then the IVF process of fertilizing multiple eggs and implanting each of them into the uterus in the hopes that at least one of them will successfully attach and grow means all the fertilized eggs that don’t get used or which don’tsuccessfully attach themselves are all full-fledged human beings and well, now you, your partner, and the doctors are all serial killers for not being able to bring all those fertilized eggs to term as well. Many far-right religious conservatives want would-be parents to go to jail for that, too.

If Mike Pence thinks his incoherent theocracy will sell to the American public, he really does occupy a very small bubble.

Research tells us that 24% of American women will have at least one abortion by age 45. Fifty-nine percent of those women are mothers. According to Gallup, the percentage of Americans identifying as “pro-choice” rose to its highest level in June of this year.

Pro-choice sentiment is now the highest Gallup has measured since 1995 when it was 56% — the only other time it has been at the current level or higher — while the 39% identifying as “pro-life” is the lowest since 1996.

Even among those self-identifying as “pro-life,” there is diminished support for the sort of complete ban favored by Pence and his theocratic cohort.

The latest data show Americans are less likely than a year ago to say abortion should be illegal in all circumstances, falling six points to 13%, the lowest Gallup has recorded for this position since 1995. At the same time, the 35% wanting it legal under any circumstances is the highest in Gallup’s trend by one point, after increasing slightly each of the past three years.

Pence’s obvious belief that his intransigence on this issue will help him electorally reminded me of something my kids would say to me after I uttered an observation that was wildly at odds with the national mood: “You don’t get out much, do you?”

Dense Pence doesn’t get out much.

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Hunter Biden And His Laptop…

One of the most interesting aspects of America’s current political environment has been the defection from the GOP of formerly high-ranking Republicans. These strategists and elected officials have recognized that today’s GOP is a very different animal than the party that once existed, and have been intellectually honest enough to say so.

One of those “refugees” from MAGA land is David Frum, a former speechwriter for President George W. Bush. Frum is currently a senior editor at The Atlantic and an MSNBC contributor. (He was also the author of Bush’s “axis of evil” description–a framing I personnally found unfortunate, but hey…)

Frum has an article in the most recent Atlantic in which he predicts the behavior of the slim GOP House majority over the next two years. He began by comparing the actions of Democrats under Nancy Pelosi with the behavior of  the chamber under Newt Gingrich and Tom Delay. Pelosi focused the Democrats on legislation–notably, the Affordable Care Act.

By contrast, the Republican majority elected in 1994 and 2010 lunged immediately into total war. In 1994, the leaders, Newt Gingrich and Tom DeLay, wanted and led the total war. In 2010, Speaker John Boehner opposed the lunge and tried, largely in vain, to control it. In both cases, the result was the same: a government shutdown in 1995, a near default on U.S. debt obligations in 2011, and a conspiratorial extremism that frightened mainstream voters back to the party of the president.

Frum says the signs all point to the likelihood that the just-elected Republican House majority “will follow the pattern of its predecessors.” It isn’t difficult to pinpoint one of those “signs”–intemperate MAGA warrior Jim Jordan will evidently head up the Judiciary Committee. Jordan has all but licked his chops when announcing the GOP’s highest priority: investigating Hunter Biden’s laptop and tying whatever is found to Joe Biden.

As he says,

Why Republicans would want to believe this holds little mystery. From 2017 to 2021, Republicans supported and defended a strikingly corrupt president whose children disregarded nepotism rules to enrich themselves and their businesses. The administration opened with a special favor from the government of Japan to Donald Trump’s daughter and closed with a $2 billion investment by the government of Saudi Arabia for the president’s son-in-law—despite written warnings from the Saudi government’s outside advisers about excessive fees, inexperienced management, and operations that were “unsatisfactory in all aspects.”

How do partisans try to neutralize four years of nonstop genuine scandals? By ginning up an equal and opposite scandal against the other team. The Trump family may have been the most crooked ever to occupy the White House, and on a scale impossible to deny or ignore. During Trump’s administration, his hotel business exacted payments on Pennsylvania Avenue from corporations, individuals, and foreign governments as a condition of presidential favor and charged the Secret Service fees simply so that it could do its job of protecting the president. Trump himself elevated his son-in-law to de facto positions as a chief of staff and a national security adviser. Meanwhile, the president’s other children headed family businesses that profited from the presidency.

If that record cannot be denied, then maybe it can be diminished or rendered somehow acceptable by alleging that Trump’s successor is doing the same thing.

Frum proceeds to explain why the GOP’s “whataboutism” is unlikely to work, harking back to comparisons with Bill Clinton’s impeachment. But here’s the thing: if indeed Hunter Biden turns out to have been guilty of legal misconduct, most Democrats I know would agree that he should be appropriately sanctioned for that misconduct. No one’s above the law.

My own guess is that the worst thing an investigation will be able to pin on President Biden is that he has been a loving and forgiving father to a disturbed son. As Frum writes the upcoming script:

Republicans: Do you know that Hunter Biden is a financial and emotional mess?

Voters: Now we do.

Republicans: Don’t you care?

Voters: No.

Republicans: Do you know that Joe Biden wrote notes telling his son he loved him despite his troubles, and also let his son stay in his house when his son was down on his luck?

Voters: That sounds like a good thing.

Republicans: What if we told you that Joe and Hunter Biden ran a massive international-crime syndicate and that they are implicated in sex trafficking and cover-ups?

You can foresee where this dialogue is heading.

The GOP is gearing up for a re-run of “Pizzagate.” Deep in their conspiratorial bubbles, many of them actually believe the QAnon-inspired stories. As Frum writes, they are so deeply embedded in those fantasies, they forget that they were the ones who first concocted them.

And really– sex trafficking is so much more interesting than governing…

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Trust, Safety And Twitter

The New York Times recently published a guest essay by the former head of Trust and Safety for Twitter, who has now resigned.

 In some ways, Yoel Roth’s essay was “more of the same,” for readers who’ve been following the chaos at Twitter since Musk acquired it. But what struck me was Roth’s recitation of all manner of complicated issues that Musk had obviously never considered: as he says, “even Elon Musk’s brand of radical transformation has unavoidable limits.”

The influence of advertisers has perhaps been the most obvious limitation, since it has been highlighted in a number of news reports. You’d think it is one aspect Musk would have understood, since –according to Roth–ninety percent of Twitter’s revenue comes (came??) from advertising. When Musk’s acquisition was immediately followed by a wave of racist and antisemitic trolling, wary marketers took a pause. They’re still paused.

But  even if Mr. Musk is able to free Twitter from the influence of powerful advertisers, his path to unfettered speech is still not clear. Twitter remains bound by the laws and regulations of the countries in which it operates. Amid the spike in racial slurs on Twitter in the days after the acquisition, the European Union’s chief platform regulator posted on the site to remind Mr. Musk that in Europe, an unmoderated free-for-all won’t fly. In the United States, members of Congress and the Federal Trade Commission have raised concerns about the company’s recent actions. And outside the United States and the European Union, the situation becomes even more complex: Mr. Musk’s principle of keying Twitter’s policies on local laws could push the company to censor speech it was loath to restrict in the past, including political dissent.

You would think someone able to pay 44 billion dollars for a social media platform would have good lawyers–and would have consulted them about the legal landscape he was about to enter, but evidently not. (The first clue that he’d failed to do so was his immediate, wholesale firing of half of Twitter’s employees–a move that neglected legal niceties like required notice.)

Regulators have significant tools at their disposal to enforce their will on Twitter and on Mr. Musk. Penalties for noncompliance with Europe’s Digital Services Act could total as much as 6 percent of the company’s annual revenue. In the United States, the F.T.C. has shown an increasing willingness to exact significant fines for noncompliance with its orders (like a blockbuster $5 billion fine imposed on Facebook in 2019). In other key markets for Twitter, such as India, in-country staff members work with the looming threat of personal intimidation and arrest if their employers fail to comply with local directives. Even a Musk-led Twitter will struggle to shrug off these constraints.

As daunting as the legal landscape, however, is a constraint of which I’d been totally unaware–and something tells me it hasn’t been at the forefront of Musk’s mind, either: the app stores operated by Google and Apple. The author says that  “failure to adhere to Apple’s and Google’s guidelines would be catastrophic, risking Twitter’s expulsion from their app stores and making it more difficult for billions of potential users to get Twitter’s services.”

Apple’s guidelines emphasize creating “a safe experience for users” and stress the importance of protecting children.

The guidelines quote Justice Potter Stewart’s “I know it when I see it” quip, saying the company will ban apps that are “over the line.”

In practice, the enforcement of these rules is fraught.

In my time at Twitter, representatives of the app stores regularly raised concerns about content available on our platform. On one occasion, a member of an app review team contacted Twitter, saying with consternation that he had searched for “#boobs” in the Twitter app and was presented with … exactly what you’d expect. Another time, on the eve of a major feature release, a reviewer sent screenshots of several days-old tweets containing an English-language racial slur, asking Twitter representatives whether they should be permitted to appear on the service.

Reviewers hint that app approval could be delayed or perhaps even withheld entirely if issues are not resolved to their satisfaction — although the standards for resolution are often implied. Even as they appear to be driven largely by manual checks and anecdotes, these review procedures have the power to derail company plans and trigger all-hands-on-deck crises for weeks or months at a time.

As the author points out, Musk has criticized the capriciousness of platform policies. (I believe this is an illustration of a pot calling a kettle black).

In appointing himself “chief twit,” Mr. Musk has made clear that at the end of the day, he’ll be the one calling the shots.

And  the “chief twit” is nothing if not arbitrary and capricious..

I hope I have enough popcorn…

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