Tag Archives: Trump

Okay–Let’s Talk About Free Speech

I haven’t posted about the indictment filed against Donald Trump by Jack Smith, because everyone  else in the universe is contributing to that discussion. But one element of those analyses/debates sets my hair on fire.

Nothing about this prosecution is about Free Speech. Nothing!

I taught my classes in Law and Public Policy through a constitutional lens. I spent the first part of the semester on what I call the “constitutional architecture”–very much including the Bill of Rights. (I was always shocked by the number of students who came to class totally unaware that the First Amendment protects citizens against government censorship–not from other people’s negative responses.)

When we came to freedom of speech, I wanted students to understand the difference between speech–defined as the constitutionally-protected communication of an idea, no matter how wrong or stupid or hurtful–and action, including action effectuated through speech.

Some of the examples I used:

  • I tell you I’ll make you a great deal on a diamond ring. It turns out to be a cubic zirconium. My representations that it was a diamond aren’t protected “speech,” they are fraud–a criminal action.
  • I call you every 15 minutes and scream at you over the phone. You call the police. I protest that I am engaging in freedom of speech. I’m wrong–harassment is an action, and the government has a right to proscribe it.
  • I’m a police officer, and I’m sitting in a restaurant booth. I hear the people in the next booth planning to rob the local bank. One says, “okay, I have the car. You have the gun. I’ve cased the place, and if you are there promptly at two, when the security officers shift, you should be able to get in and out by ten after, and I’ll be waiting.” A conversation of this specificity (unless they are actors rehearsing a scene!) constitutes the initial steps–actions–of the commission of a crime. I need not wait until they are in the middle of that bank robbery–I’m entitled to arrest them now.
  • You are a MAGA fanatic, and you regularly post diatribes to social media about how horrible Joe Biden is, how government and the “deep state” cannot be trusted and how you regularly pray for the painful death of all Democrats. Aside from your social media screeds, you take no action to harm anyone. That’s free speech, and you’re home free–at least, when it comes to the criminal law. (If you accuse specific political foes of being pedophiles or Satanists or whatever, you will risk a civil suit for libel or defamation, but absent credible threats and/or concrete actions to harm someone, you will not face criminal prosecution.)

Bribery, Insider trading. Identity theft and selling state secrets to foreign governments are other examples of crimes committed via speech.

One of the reasons people get confused about what free speech is and what it isn’t is the fact that “speech”–that is, transmission of a message– can be accomplished without words. (The legalese is “symbolic speech.”)

Burning a flag (assuming you own that flag and you aren’t violating a dry weather “no burning” ordinance) is protected by the First Amendment, because the whole purpose of that act is to send a message that the burner disapproves of the country. It’s a message that angers a lot of people, but that doesn’t justify government punishing it.

Nazis marching in Skokie, Illinois or Charlottesville, Virginia are sending an equally clear message, even without the latter’s accompanying chants. We all know what that message is, and–again, absent violence, vandalism or other hooliganism–it’s protected by the First Amendment.

The text of the Trump Indictment acknowledged that his lies were protected speech. Whether he believed them or not is irrelevant–so long as he was only posting his crazed diatribes and screaming about the election being rigged, the First Amendment protected him. Once he took concrete actions to overturn the results of the election and remain in power, however, the Free Speech clause no longer applied.

I’ve read several columns by people who should know better, gravely opining that prosecutors will have to establish whether Trump actually believed the garbage he was spewing, and noting that making such a showing is difficult. Those writers need to re-take  high school civics. As a better-educated pundit noted, I may be genuinely convinced that I am entitled to your car, but stealing it is still a crime.

Trump’s MAGA defenders can scream about the Department of Justice “criminalizing” Free Speech,  but those protestations will only sound plausible to people who slept through their high school government class.

This whole debate proves my point about the deplorable level of Americans’ civic literacy.

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Diagnosis And Prescription

In a recent opinion piece for the New York Times, David French shared his theory that the recent, astonishing number of sign-ups to Meta’s Threads occurred–at least in part– “because Elon Musk did to Twitter what Donald Trump did to America.”

Not that Twitter was so great before Musk acquired it–as French quite accurately notes,  understanding what Musk did to Twitter doesn’t require an exaggeration of Twitter’s virtues before Musk, “any more than we should exaggerate the health of our body politic before Trump.”

Even before Musk, Twitter had become a toxic force in American culture, so toxic that I wrote last year it might be beyond repair. The site lurched from outrage to outrage, and the constant drumbeat of anger and crisis was bad for the soul.
So, yes, when Musk purchased Twitter, it needed help. Instead, he made it worse. Much worse.

For all of Twitter’s many flaws, it was still by far the best social media app for following breaking news, especially if you knew which accounts to follow. It was also the best app for seeing the thoughts of journalists, politicians and scholars in real time, sometimes to our detriment. It wasn’t the American town square — there are still many places where we talk to one another — but it was one of our town squares. Twitter mattered.

French enumerates the numerous decisions that have made the platform much worse–decisions that rather clearly rested on Musk’s flawed understanding of its strengths and weaknesses.

French’s essay makes a point that is applicable not just to the marketing of a social media platform, but to policy–and for that matter, human decision-making–more generally. As he says,

The new right’s theory of culture and power is fundamentally flawed, and both Trump and Musk are now cautionary tales for any conservatives who are willing to learn.

According to French,

The new right’s theory of power is based on a model of domination and imposition, and it just doesn’t work. In the new right’s telling, the story of contemporary American culture is the story of progressive elite capture of the nation’s most important institutions — from the academy to big business to pop culture to the “deep state” — followed by its remorseless use of that institutional power to warp and distort American values.

And what’s the new right’s response to its theory of the left’s use of power? Fight fire with fire. Take over institutions. They tried to cancel us? Cancel them. They bullied us? Bully them.

The “cautionary tale” to which French alludes is actually pretty simple: in order to fix a problem, you need to diagnose it properly. Medical personnel understand that–duh!– if the disease being treated isn’t the disease from which you’re suffering, you won’t be cured. If a social dysfunction is rooted in X and policymakers insist upon addressing it by attacking Y, the likely result will just be additional dysfunction.

That axiom is simple, but of course, its application can be complicated. The actual roots of many social problems are complex. That said, a significant cause of America’s political divisions can be found in the wildly different diagnoses of the country’s problems offered by the GOP cult and by more thoughtful Americans.

The cult is convinced that America’s problems are rooted in a modernity that has discarded “tradition,” by which they mean the dominance of White Christian males. The cult’s frantic efforts to outlaw abortion and its attacks on efforts to increase diversity, inclusion and equity grow out of that diagnosis. The most recent example: House amendments to the bill funding the military– funding that passed only after the far Right attached provisions limiting abortion rights, gender transition procedures and diversity training in the armed forces.

When a diagnosis–an explanation of causation–is rooted in fantasy, the medicine prescribed is likely to make the condition worse. Gun violence won’t be ameliorated by making more guns available to “good guys;” the working poor won’t be helped by reducing taxes on presumed “job creators;” history won’t disappear if we pass laws against teaching it…

What happens when a sizable portion of the polity misdiagnoses reality–when the “medicine” imposed by people in power is exactly the wrong prescription? We’ve seen the result. As French put it, a government that needed reform “encountered a politician who broke far more than he built. A social media platform that needed repair was purchased by its most prominent troll. The results were predictable.”

We inhabit a complicated world. It isn’t always easy to locate the roots of our problems–but government by people whose diagnoses and prescriptions are  reliably simple and just as reliably wrong won’t cure what ails us.

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It’s All About Race

I have previously shared my youngest son’s analysis of the 2016 presidential election–an analysis with which I have come to agree, and which subsequent academic research has confirmed. As he put it, “there were two–and only two–kinds of people who voted for Trump: those for whom his racism resonated, and those for whom it wasn’t disqualifying.” 

I was initially reluctant to accept so oversimplified an analysis, but in the years since, study after study has confirmed its essential accuracy, and research clearly connects the importance of racism to the continued allegiance of Evangelical voters to Trump.

An article from the Brookings Institution is instructive. The linked article begins by looking at the characteristics of  White Evangelical voters, and finds that, overall, they are older and predominantly Southern. The aging of the cohort is due to America’s declining religiosity, and the departure of younger Americans from a Christianity seen as intolerant of racial diversity and the LGBTQ community. As the authors delicately put it, younger Americans are more “progressive”(i.e., less threatened) when it comes to “diversity.”

Evangelicals are 30% of self-identified Republicans–and they vote. Fifty-nine percent of them are older than 50; 52% hail from the South; 42% have a high school diploma or less; 69% identify as conservative. They have been shrinking as a percentage of the population–White Evangelicals are currently 14% of all Americans.

Interestingly, the current political divide between Evangelicals and others  on the issue of abortion is actually rooted in racism,  as FiveThirtyEight.com has documented:

The movement to end legal abortion has a long, racist history, and like the great replacement theory, it has roots in a similar fear that white people are going to be outnumbered by people believed to hold a lower standing in society. Those anxieties used to be centered primarily around various groups of European immigrants and newly emancipated slaves, but now they’re focused on non-white Americans who, as a group, are on track to numerically outpace non-Hispanic white Americans by 2045, according to U.S. Census projections.

It’s been decades since the anti-abortion movement first gained traction — and the movement has changed in certain ways — but this fundamental fear has never left, as demonstrated by attacks on people of color, such as the shooter in Buffalo, New York, who expressed concern about the declining birth rates of white people. That’s because the anti-abortion movement, at its core, has always been about upholding white supremacy.

The Brookings  report focuses on Evangelicals’ continued devotion to Trump, which it attributes to “shared anger and resentments rather than a shared faith.” As the authors write,

White Evangelical politics is now predominantly the politics of older, conservative voters for whom ‘owning the libs’ and pushing back against cultural and demographic change has become a sacred obligation.

The movement of White Evangelicals to the GOP began long before Roe v. Wade–it was prompted by backlash against civil rights and voting rights. The continued role of racial reaction, which also prompts opposition to immigration, has been well documented.

In a 2018 poll conducted by the Pew Research Center,  38 percent of Americans said that the U.S. becoming more diverse would “weaken American customs and values.” This opinion was most prevalent among Republicans, who by a margin of 59 to 13 percent said that having a majority nonwhite population would weaken rather than strengthen the U.S. (Twenty-seven percent said it wouldn’t have much impact either way.) Another poll, conducted by The Associated Press-NORC Center for Public Affairs Research, found 47 percent of Republicans (compared with 22 percent of Democrats and 22 percent of independents) agreeing with the statement that “there is a group of people in this country who are trying to replace native-born Americans with immigrants who agree with their political views.”

It has to be emphasized that the allegiance of White Evangelicals to the GOP under Trump isn’t new–they have voted overwhelmingly Republican for a long time. What I’ve found hard to wrap my head around was the fact that more White Evangelicals “converted to Trump’s cause” during his presidency than defected from it. How rational people could view Trump’s bizarre behaviors in office and increase their support simply astonished me–and is inexplicable without reference to the increasingly blatant racism displayed by Trump and the contemporary GOP.

So what does all of this mean for the 2024 election?

The historical affiliation of White Evangelicals and other “racial grievance” voters with the GOP means they are probably unmovable. They can be counted on to vote–and to vote for any candidate with an R next to the name. They are not a majority even in very Red states–but absent effective GOTV efforts, their anger and cohesion can elect truly despicable people.

Massive turnout has never been more important.

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Why I Don’t Think The Midterms Were An Anomaly

I have a bet with my youngest son. He’s a political pessimist, especially when it comes to the state of Indiana. (The bet involves very expensive dinners…) The bet was triggered by my excitement–and optimism–about Jennifer McCormick’s announcement that she is a candidate for Governor. I think she can win, even in deep Red Indiana; my son has written off the possibility of any Democrat winning statewide office, and has dismissed any predictive value of Obama’s 2008 Hoosier win.

My optimism about McCormick’s campaign is partially due to candidate quality (both hers and that of her likely opponent, the odious Mike Braun) but it is also based on what I see as a national trend: from top to bottom, the GOP is running truly horrible candidates.

At the very top of the Republican ticket, we are almost certain to get either Donald Trump or Ron DeSantis. American voters soundly rejected Trump in 2020, and he gets more certifiable as his legal woes mount. DeSantis appears to be basing his campaign on an “anti-woke” platform. Not only is DeSantis most definitely not a guy you’d like to have a beer with, his evident belief that a majority of Americans want to return to the 1950s, when “men were men” (and in charge), women were in the kitchen barefoot and pregnant, no one had ever heard the word transgender, and schools dutifully imparted White Christian propaganda, is simply delusional.

In a recent issue of his daily newsletter, Robert Hubbell noted that Democratic over-performance hasn’t abated since the midterms, when that predicted Red wave failed to materialize. He pointed to subsequent elections in Colorado Springs, Colorado, where voters selected the first non-Republican mayor since 1979 by a margin of 15 points;
a Pennsylvania special election to the state assembly where the Democrat won by 20 points and maintained Democratic control despite the fact that, going into the 2022 midterms, Republicans had held a 113-90 advantage; and a New Hampshire assembly race where the Democrat won by 43 percentage points, “eclipsing Biden’s 27-point margin in 2020.”

Hubbell quoted one analyst for the observation that

Democrats have overperformed the 2020 presidential results by an average of six points across 18 state legislative races this year. . . . They’ve also beaten their 2016 margins by an average of 10 points.

He quotes another analyst who focused in on the underlying reasons for that over-performance: abortion extremism, ongoing GOP-encouraged gun violence, extremist MAGA candidates, and a (finally!) fired-up Democratic grassroots.

In the run-up to the midterms, Republicans confidently pointed to Joe Biden’s disappointing approval ratings as a sign that they would sweep their gerrymandered House districts and retake control of the Senate. As we now know, despite the extreme gerrymandering and the vote suppression efforts, those victories eluded them.

As Morton Marcus and I argued in our recent book, the loss of Roe v. Wade was a major reason for that outcome. Women’s progress toward civic equality requires autonomy, control over one’s own reproduction, and most women who vote understand that. Republicans running for office in 2024 will have to “thread the needle” between primary voters who are rigidly anti-abortion and a general election electorate that is lopsidedly pro-choice.

Good luck with that…

Add to the abortion wars the daily gun carnage that feckless Republicans keep trying to blame on mental health–despite the fact that large majorities of voters, even majorities of NRA members, attribute the mayhem to the lack of responsible gun regulations.

Voters who aren’t part of the White Nationalist Cult that is today’s GOP look at Congress–at Republicans protecting George Santos, hiring Neo-Nazi staffers, threatening to ruin the economy if they aren’t allowed to deprive poor people of food and mistreat veterans...and a not-insignificant number of them are echoing the immortal words of Howard Beale in the classic movie Network:“I’m as mad as hell, and I’m not going to take this any more!”

It’s true that the GOP can count on its cult members coming to the polls. There are more of those sorry creatures than most nice people want to believe, and they absolutely pose a danger to all of us–but they are a distinct minority of Americans. We need to see them for what they are, and recognize the threat they pose to the America the rest of us inhabit, but they can’t win in the absence of majority apathy.

Democratic candidates, on the other hand, appeal to voters who (like Indiana’s McCormick) support public education and academic freedom, who believe in separation of church and state, in women’s equality, in civility and compassion and inclusion–in all those qualities that our parents taught us were admirable, but the GOP disdains as “woke.”

There’s a lot to be concerned about, but like Hubbell, I’m hopeful.

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Women Will Save America

The “chattering classes” are still churning out their reactions to the mysterious non-appearance of a Red wave in the midterms, and several of those analyses echo that of conservative-but-not-crazy Bret Stephens. In his weekly back and forth with liberal Gail Collins in the New York Times, Stephens summed up Democrats’ surprising performance by concluding that– however American voters might feel about inflation or crime or the overall direction of the country — they weren’t ready to give up reproductive rights, endorse election denialism or cast ballots for “Republican candidates who have the intelligence of turnips and the personalities of tapeworms.”

A politically-savvy friend says voters had crazy fatigue…

Whatever else was in play, the enormous importance of reproductive rights to those election results has become increasingly obvious. All five states with abortion measures on the ballot voted for women’s bodily autonomy, including deep-Red Kentucky. More importantly, in virtually every state, turnout by women–many of whom had only recently registered to vote–increased.

That increase was consistent with longer-term trends; as The Center for American Women and Politics reports

Women have registered and voted at higher rates than men in every presidential election since 1980, with the turnout gap between women and men growing slightly larger with each successive presidential election. Women, who constitute more than half the population, have cast almost 10 million more votes than men in recent elections.

Once again, more women voted, and the message they sent was unmistakable: women are not going backward, not handing their reproductive choices to state legislators.

In a VoteCast exit survey, pro-choice voters (those who said abortion should be legal in all or most cases) were far more likely than pro-life voters (those who said abortion should be illegal in all or most cases) to say that the Dobbs decision had a “major impact” on which candidates they voted for. The partisan gap was more than 30 points– 65 percent of Democrats said Dobbs was a major factor, compared to 32 percent of Republicans.

It isn’t just through voting.  Women are protecting America in other forums, too.  A recent column by Jennifer Rubin detailed the current status of the investigation into Trump’s efforts to steal the 2020 election being conducted by Fulton County District Attorney Fani Willis. 

A voluminous new report from the Brookings Institution provides a legal road map for the potential prosecution of Trump. The report debunks defenses that Trump will likely deploy and underscores the real possibility that his closest associates might flip in the case, given how many might face criminal liability.

The Brookings Report to which she cites enumerates the multiple efforts made by Trump and his associates to subvert the election results in Georgia, and concludes that those efforts violated several relevant criminal statutes, including: 1) solicitation to commit election fraud, Ga. Code Ann. § 21-2-604(a); 2) intentional interference with performance of election duties, Ga. Code Ann. § 21-2-597; 3) interference with primaries and elections, Ga. Code Ann. § 21-2-566; and 4) conspiracy to commit election fraud, Ga. Code Ann. § 21-2-603.

Meanwhile, in New York, another female Attorney General, Letitia James, has sued the Trump organization for fraud.

That lawsuit is currently being tried, but James already won an important interim victory: a New York court granted James’ motion for a preliminary injunction, finding that the claims in her lawsuit are likely to succeed at trial. The Court ruled that Trump and the Trump Organization “cannot transfer any material assets to another entity without court approval, are required to include all supporting and relevant material in any new financial disclosures to banks and insurers, and ordered to appoint an independent monitor to oversee compliance with these measures.”

Going into the midterms, there was considerable debate about whether American democracy would prove robust enough to withstand the obvious and significant challenges it is facing from White Christian Nationalists and MAGA Republicans. Democratic governance requires adherence to one of the most important elements of the rule of law: the principle that no one is above the law–not rich people, not celebrities, not elected officials, and not Presidents.

That essential principle–accountability– is one of the (multiple) aspects of American governance that Donald Trump and his corrupt cohorts utterly fail to understand. If there is any one thing Donald Trump clearly believes, it is that rules are for other people–that the rules don’t apply to him.

Thus far, one of the very few Republicans who has had the cojones to tell him otherwise–forcefully and publicly– has been another female: Liz Cheney. 

As Rubin noted in her column, it takes courageous women to do “what hordes of sniveling Republican politicians, donors and insiders cannot: hold Trump accountable.”

Don’t mess with us….

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