Hard Cases…

As I used to tell my students, cases rarely make it to the Supreme Court unless they’re difficult–unless there are persuasive arguments on both (or several) sides of the issue or issues involved. That admonition has actually become debatable as the current Court, dominated by religious “originalists,” has accepted cases that previous Courts wouldn’t have agreed to hear, but it remains largely true.

And hard cases, as the old legal precept warns, make bad law.

Which brings me to a First Amendment Free Speech case currently pending at the U.S. Supreme Court.

The question before the Court is the constitutionality of laws passed by Florida and Texas that restrict social media giants from removing certain political or controversial posts–in other words, from moderating the content posted to their platforms. As the Washington Post reported,

During almost four hours of argument Monday, the Supreme Court justices considered whether state governments can set the rules for how social media platforms curate content in a major First Amendment case with implications for the future of free speech online.

The laws being litigated are an effort to prevent social media companies from removing “conservative” viewpoints. The laws would impose strict limits on whether and when firms can block or take down content on their platforms.
At the heart of the matter is the issue highlighted by an exchange between Justice Alito and lawyer Paul Clement.
Justice Samuel Alito pressed NetChoice — a group representing the tech industry — to define the term “content moderation,” asking whether the term was “anything more than a euphemism for censorship.” “If the government’s doing it, then content moderation might be a euphemism for censorship,” said Paul Clement, an attorney representing NetChoice. “If a private party is doing it, content moderation is a euphemism for editorial discretion.”
I’ve frequently posted about Americans’ widespread lack of civic literacy–especially about censorship and freedom of speech. It is depressing how few citizens understand that the Bill of Rights is essentially a list of things that government is forbidden to do. Government is prohibited from dictating our beliefs, censoring our communications, searching or seizing us without probable cause, etc. Those restrictions do not apply to private actors, and for many years, courts have recognized the right of newspapers and other print media to decide what they will, and will not, print, in the exercise of their Free Speech rights.
Perhaps the most important question posed by the recent First Amendment challenges to Texas and Florida’s new social media laws is whether platforms exercise a constitutionally protected right to “editorial discretion” when they moderate speech. The platform’s central challenge to both laws is that their must-carry and transparency obligations infringe on that right by interfering with the platforms’ ability to pick and choose what speech they host on their sites. It’s the same right, they argue, that newspapers exercise when they pick and choose what speech appears in their pages.
In other words, whose First Amendment rights will we protect? Or to put it another way, does the First Amendment give all of us a right to have our opinions disseminated by the social media platform of our choice? Or, to ask that in a different way, if the First Amendment protects speech, does it also protect the right of powerful social media companies to suppress the speech of some number of people who use their platforms?
The Knight Foundation argues
The First Amendment is not concerned solely—or perhaps even primarily—with the maximization of speech per se. Instead, what it protects and facilitates is the kind of information ecosystem in which free speech values can flourish. Courts have recognized that protecting the right of speech intermediaries to choose what they do and do not publish—in other words, protecting their right to editorial discretion—is a necessary means of creating that kind of environment.
Most of us have concerns about the content moderation policies of these enormously influential and powerful sites. The question before the Court is–once again–who decides? Are those who run those sites entitled to decide what appears on them, or can government control their decisions?
Elon Musk’s takeover of Twitter (now ridiculous “X”) and his idiosyncratic definition of “free speech” has turned that site into a cesspool of anti-Semitism and conspiracy theories. The First Amendment currently gives him the right to make the site odious, just as Facebook has the right to remove racist and other objectionable posts. We the People decide which platforms we will patronize.
As I used to tell my students, the Bill of Rights addresses a deceptively simple question: who has the right to make this decision?

I’d Have Sworn This Was Satire

This isn’t satire. I kid you not.

The DeSantis administration has proposed a rule for Florida’s public campuses that would prevent the teaching of issues “that polarize or divide society among political, ideological, moral, or religious beliefs.”

Back in May, DeSantis signed into law Senate Bill 266, banning the state’s public colleges and universities from using public funds to “advocate for diversity, equity, and inclusion, or promote or engage in political or social activism.” But the law, which took effect in July, never defined those terms, instead leaving that up to the Board of Governors that oversees those state schools. Now the board has done just that. In draft regulation obtained by The Chronicle of Higher Education, the board proposes that the ban apply to all campus programs and activities in which the college or university “endorses or promotes a position” on “topics that polarize or divide society among political, ideological, moral, or religious beliefs, positions, or norms.”

This idiocy is the logical outcome of redefining education as job training–a belief near and dear to contemporary Republican hearts. Just crank out worker bees–and for heaven sakes, don’t let them learn anything from our human history of deeply-contested political, ideological, moral or religious theories and beliefs!

UnderS.B. 266, Florida’s public colleges and universities are prohibited from offering general education classes that “distort significant historical events or include a curriculum that teaches identity politics” or that include “theories that systemic racism, sexism, oppression, and privilege are inherent in the institutions of the United States and were created to maintain social, political, and economic inequities.” The law also bars public higher education institutions from using state or federal funds for activities or programs that “advocate for diversity, equity, and inclusion”—making Florida’s anti-DEI law one of the most restrictive of the dozens of such laws introduced across the United States. A DeSantis press release announcing the bill’s signing declared it is meant to “prevent woke ideologies from continuing to coopt our state universities and state colleges.”

I have a proposal: rather than this tortured effort to describe matters that will now be forbidden on campus, just reduce the bill to its essence: “Education will not be allowed.”

Think my snark is an over-reaction? Just look at the draft resolution:

In addition to defining “social issues” as “topics that polarize or divide society among political, ideological, moral, or religious beliefs, positions, or norms,” it defines “political or social activism” as “any activity organized with a purpose of effecting or preventing change to a government policy, action, or function, or any activity intended to achieve a desired result related to social issues, where the university endorses or promotes a position in communications, advertisements, programs.” “Diversity, equity, or inclusion,” meanwhile, “is any program, activity, or policy that promotes differential or preferential treatment of individuals, or classifies such individuals on the basis of race, color, sex, national origin, gender identity, or sexual orientation.”

As several pundits have observed, today’s GOP is the party of projection: the Florida effort to control what is discussed in the state’s classrooms is precisely the “indoctrination” that they pretend is occurring under “woke” auspices.

How does one teach the Crusades or the Reformation or the colonizing of America without noting the religious beliefs that polarized people living at those times? How do you teach philosophy without examining the contending perspectives of the philosophers, or discuss the role of women in politics without reference to the social “norms” that originally denied women the franchise? 

Are efforts to prevent rape on campus evidence of “differential treatment” of women? Speaking of “evidence,” what does evidence that a university is “promoting equity” look like? (I always thought “equity” meant fundamental fairness–I guess we don’t want that on campus….)

Education is typically defined as the process of acquiring knowledge and developing the powers of reasoning and judgment. Education may also extend to the acquisition of specialized skills needed for a career or profession, but it is usually understood to require the development of critical thinking, differentiating it from mere job training and from indoctrination.

DeSantis is well on his way to destroying higher education in Florida.

He began with attacks on New College of Florida, a public liberal arts college that was forced to alter its curriculum and programs. DeSantis installed conservative ideologue and education foe Christopher Rufo as a member of the college’s board of trustees, and together they worked to “remake” New College, which immediately lost more than a third of its faculty–a fact DeSantis hailed as permitting the “replacement of far-left faculty with new professors aligned with the university’s mission.”

I don’t know what that mission is, but it sure isn’t education.


State-Level Autocracy

If you resist believing that today’s GOP is intent upon replacing democracy with autocracy– controlled, of course, by the GOP–you need only look at what they are doing in the states. 

One person, one vote? How old-fashioned!

Efforts to negate the popular vote have moved way beyond gerrymandering. In Wisconsin, Republicans are exploring ways to undo the election of a state Supreme Court Justice who won by eleven points. Texas’ lunatic legislature has passed a different set of rules for cities populated by “those people,” who tend to vote Democrat. 

And then, of course, there’s Ron DeFascists’ Florida, where folks who voted for their local prosecutor can wake up to find that the governor has summarily dismissed their electoral choice. The Brennan Center (link unavailable) recently focused on his latest arbitrary and undemocratic dismissal of a popularly elected official.

In 2020, Monique Worrell was elected to serve as the prosecutor for the Orlando area. She’d campaigned on a reform platform that evidently was too “woke” for DeSantis, who proceeded to suspend her from office for “neglect of duty and incompetence.”  Worrell has filed suit in the Florida Supreme Court challenging her suspension.

Worrell’s lawsuit is one of a number of current state court cases that raise important constitutional questions about the scope of prosecutorial discretion — the power of prosecutors to decide when and how to charge crimes, seek bail or sentencing enhancements, or make other decisions about how they pursue cases. It’s an issue receiving scrutiny across the country, with laws recently enacted in Georgia and Texas authorizing prosecutors’ removal for certain uses of discretion.

The Florida Constitution authorizes the governor to suspend prosecutors like Worrell for specified reasons, including neglect of duty or incompetence. In her lawsuit, Worrell argues that DeSantis failed to allege any conduct meeting that constitutional standard.

Worrell’s office had no policy or practice of failing to enforce certain laws, and her charging decisions were well within the bounds of what most lawyers consider to be proper prosecutorial discretion. Policy differences between a local prosecutor and a governor are not legal grounds for suspension. 

This isn’t the first time DeSantis has targeted an elected local prosecutor. In 2022, he suspended Tampa-area prosecutor Andrew Warren, citing pledges he signed not to prosecute certain types of cases, including those related to abortion and gender-affirming health care.

A federal court ruled that Warren’s suspension violated both the Florida Constitution and the First Amendment, but the court held that it lacked the authority to reinstate him. The Florida Supreme Court — which would have the authority to overturn the governor’s suspension — then rejected a petition from Warren filed six months after his suspension after concluding he had waited too long to file. Worrell’s petition, filed less than a month after her suspension, will likely force the state high court to directly consider the relationship between the governor and local prosecutors in implementing criminal justice policy.

Similar issues are pending in other state supreme courts. In Pennsylvania, Philadelphia District Attorney Larry Krasner is challenging his 2022 impeachment by the state house of representatives, arguing that his exercise of discretion did not constitute “misbehavior in office.”  Georgia prosecutors are challenging a law imposing new limits on their discretion and creating new mechanisms to remove them from office. In Arizona, taking his cue from  Republicans, the state’s Democratic governor stripped local district attorneys of the power to prosecute cases under the state’s 15-week abortion ban, using an executive order to transfer that power to the state attorney general, who has vowed not to enforce it. 

These autocratic exercises significantly undercut democracy.

According to the New York Times, Ms. Worrell had been elected with 66% of the vote, and she released data showing that her prosecution rate was similar to that of two of her predecessors. Whether her performance was unsatisfactory was a question for the voters–not the Governor–to decide.

DeSantis justified her removal by citing several offenders who had committed crimes after serving their (presumably insufficient) sentences, or while out on bail; Ms. Worrell responded by pointing out that examples cited by the governor involved factors beyond a prosecutor’s control. Sentences and bonds are set by judges who are free to overrule prosecutors’ recommendations.

And she said that much of the information that was used to build a case against her came from local law enforcement officials who oppose her because she has prosecuted police officers, including one who shot an unarmed person.

“My message has been consistently, whether you’re a Democrat or Republican, whether you like me or you hate me: Democracy is under attack,” she said. “Duly elected officials should not be removed by elected officials who are not politically aligned with them.”

Autocrats-R-Us disagree. 


Really, White Christians?

The Religion News Service has reported on a recent survey from Pew:

In April, Pew asked Americans which was the bigger problem facing the country when it comes to matters of race: People overlooking racism when it exists or seeing racism in places where there is none.

Overall, just about half (53%) of Americans said people not seeing discrimination where it does exist was a bigger problem. Just under half (45%) said people seeing discrimination where is does not exist is the bigger issue. 

What was most illuminating about this split in public opinion was the breakdown of who believed what.

Among religious groups, however, white Christians are most likely to say claims about non-existent racial discrimination is the biggest problem, including majorities of white Evangelicals (72%), white Catholics (60%) and white Mainline Protestants (54%), according to data provided to Religion News Service from Pew Research.

Few Black Protestants (10%), unaffiliated Americans (35%) or non-Christian religious Americans (31%) agreed….

Among Non-White unaffiliated adults, 71% say overlooking racial discrimination is the bigger issue, compared with 29% who give the opposite answer.  

Well, I’m just shocked. NOT.

The report noted that the wide divide over issues of race and racism has become more heated among American Christians over the past few years. It has prompted the so-called war against “woke” and has pitted those who believe America still suffers from systemic racism against those who dismiss any concern about those structural disadvantages as the dreaded (and totally mischaracterized) “CRT.”

That divide has fueled conflicts in the Southern Baptist Convention and other evangelical groups, led to feuds in local churches and Christian colleges, become a major debate during school board meetings and been a major talking point in the current race for U.S. president. The issue of race also led to concerns about the rise of white Christian nationalism in churches.

The divide wasn’t just between White Christians and everyone else; it was also–predictably–partisan:

Most Republicans and those who lean Republican (74%) said that people seeing non-existent racism is a bigger problem, while 80% of Democrats say the bigger problem is people not seeing racism that exists.

To be fair, one of the problems with polls of this sort is that language is imprecise. If a respondent defines “racism” as overt hostility–burning a cross on a black family’s lawn, or shooting random people because they are Black–that respondent is more likely to see the problem as people being labeled “Karens” for less blatant behaviors.

A recent column in the Guardian reacting to the recent racist shooting in Jacksonville, Florida illustrates what we might call the continuum of racism.

As the article noted, Jacksonville’s murders followed a larger mass shooting of Black Americans in Buffalo, New York. Both were motivated by an explicit desire to kill Black people.

The gunmen’s ideology of white supremacy, revealed in their rants, revolved around the perceived threat to White people from higher birth rates among non-whites, and included  animus against gays and Jews. The Buffalo gunman’s manifesto, for example, included his belief that gender fluidity is a plot by Jews to subvert the west (AKA White civilization), and that critical race theory is a Jewish plot “to brainwash Whites into hating themselves and their people.” 

Plenty of those who think American racism is overplayed harbor similar, albeit modified, versions of those beliefs: As the article points out, the idea that Whites face a threat of replacement by non-Whites explains much of the brutal treatment of immigrants, emerges in the mass incarceration of Black Americans, and helps explain the lack of action on America’s vast racial wealth gap and militarized police force. 

As the essay notes, politicians like Ron DeSantis “recenter the world through the lens of an America defined by whiteness and Christianity.”

Through this lens, it certainly does appear that America is under threat by non-white mass immigration. Critical race theory is indeed a threat to such a perspective, as is an education that also allows a Black perspective on US history, or one that normalizes LGBTQ+ citizens. It is a politics that has justified DeSantis’s treatment of immigrants as things. More recently, DeSantis has essentially suggested shooting migrants even suspected to be drug smugglers – here, he connects immigrants to crime, and uses that connection to justify killing some of them on sight.

It’s easy to make sense of the Pew survey. If you are a Republican White Christian American who  thinks “racism” is defined as overt violence against people who aren’t White Christians, then America is indeed overhyping its prevalence. If you dismiss as irrelevant the defense of privilege and the persistence of structures that operate to disadvantage those “others” then concerns about systemic racism are clearly overblown. 


Today’s Americans don’t just occupy different realities; we speak different languages.


Who’s Indoctrinating?

There’s a psychological mechanism called “projection,” — it’s when people accuse others of faults they themselves harbor. Several commenters to this blog have noted that the GOP routinely engages in projection. 

Ron DeSantis’ Florida just shot down any lingering doubts about the accuracy of that observation.

Over the past few years, Republican culture warriors have  become positively hysterical over the “indoctrination” of students by public schools and universities. To some extent, they’re right–after all, education imparts facts and–at best– enables critical thinking. A very expansive definition of “indoctrination” might stretch to include the broadening of a student’s frame of reference.

On the other hand, I have previously argued–and firmly believe– that what really upsets Republicans is the lack of indoctrination–the failure of educators to convey their preferred, albeit distorted, versions of history and science.

Florida has just proved my point:

Videos that compare climate activists to Nazis, portray solar and wind energy as environmentally ruinous and claim that current global heating is part of natural long-term cycles will be made available to young schoolchildren in Florida, after the state approved their use in its public school curriculum.

Slickly-made animations by the Prager University Foundation, a conservative group that produces materials on science, history, gender and other topics widely criticized as distorting the truth, will be allowed to be shown to children in kindergarten to fifth grade after being adopted by Florida’s department of education.

Actual scientists who have reviewed these and other videos produced by PragerU have characterized them as worse than inaccurate, describing them as a form of rightwing indoctrination bearing little resemblance to reality.

“These videos target very young and impressionable kids with messages of support for fossil fuels and doubts over renewable energy resources – they are trying to grow the next generation of supporters for fossil fuels,” said Adrienne McCarthy, a researcher at Kansas State University who has studied the activities of PragerU.

“It’s propaganda 101. Equating people concerned about the climate change with Nazis can have long-term impacts on young, impressionable people. The beliefs PragerU are pushing forward overlap with far-right extremist beliefs. The fear is that they will bring this sort of extremist beliefs into mainstream society.”

Prager is not a “U,” nor is it any type of academic institution. It is one of the country’s proliferating  number of rightwing advocacy groups. It produces magazines and videos about slavery that have been roundly criticized by historians, in addition to the videos emphasizing climate denial. It was originally generously funded by Dan and Farris Wilks, brothers who are petroleum industry businessmen.

One video shows two children being told by their “scientist uncle,” that “Wind and solar just aren’t powerful enough to power the modern world, the energy from them isn’t dense or robust enough,”  He also tells them sadly that “windmills kill so many birds.”  A climate scientist at the University of Pennsylvania said the decision by DeSantis’ administration to allow the videos “would make Goebbels himself blush”.

An essay in the Guardian ties the videos to the GOP’s goals:

PragerU’s latest annual report says that the company’s self-described “edutainment” videos racked up more than 1.2bn views in 2022, with more than 7bn since its founding. Its content has been mostly available online, particularly on Facebook and YouTube, but now it is making its way into US classrooms with the promise of fighting the so-called “woke agenda”.

 PragerU makes no secret of its own agenda. Its co-founder, Dennis Prager – a conservative radio talkshow host and writer who has been attacking progressive causes since the 1980s – was recently glib in responding to claims that PragerU “indoctrinates kids”. “Which is true,” Prager said in a speech to the conservative “parental rights” group Moms for Liberty. “We bring doctrines to children. That is a very fair statement. I said, ‘But what is the bad of our indoctrination?’”

PragerU Kids’ cartoon videos for children as young as kindergarten age not only soft-pedal the history of slavery, racism, colonialism and police brutality – they show sympathy for them. In one video, Leo and Layla Meet Christopher Columbus, Columbus tells young Leo and Layla: “Slavery is as old as time and has taken place in every corner of the world … Being taken as a slave is better than being killed, no?”

The effort isn’t limited to climate change and racism. In “How to Embrace Your Femininity,” a young blond woman with what is described as perfect hair and makeup explains that “gender stereotypes exist because they reflect the way that men and women are naturally different.” 

 People who want to revisit the 1950s will feel very comfortable in Florida–at least, until the hot rising waters get them….