E-Pluribus | July 26, 2023
The Seattle Times and Godwin's Law; what comes next for affirmative action; and what hate speech means to today's students.
A round-up of the latest and best writing and musings on the rise of illiberalism in the public discourse:
Vladislav Davidzon: Hitler and The Seattle Times
The title of this essay sounds like the ultimate example of Godwin's law, but the facts of this situation certainly justify the reference to the Nazi leader. Tablet Magazine’s Vladislav Davidzon explains how a conversation he had with journalist David Volodzko (“young liberal journalist of Jewish and Slavic descent”) ultimately led to Volodzko losing his job at the Seattle Times.
[I] proffered Volodzko some quick thoughts about what it means to dismantle or topple statues. I explained my own position as a social proceduralist on the issue. Once a statue goes up, I suggested, it has some basic rights in the public sphere. If it is to be taken down, the process of doing so should be a transparent, democratic, and fair one that is led by the local authorities and includes input from numerous stakeholders. It is my opinion that throwing down statues by force just radicalizes the people who support it, while alienating opponents. That is the liberal position, with which Volodzko agreed wholeheartedly.
Volodzko included my thoughts and quoted me at the conclusion of his first and last Seattle Times column, which turned out to be a thoughtful, measured, moderate, immaculately liberal article ruminating on how a society should treat controversial statues. It also raised the question of why we as a liberal society accept (and ironically smirk at) statues of a totalitarian mass murderer like Lenin. After all, the author argued, we would be rightly horrified by the idea of a statue of a figure such as Hitler being unveiled in the middle of a major American city.
The column garnered a lively and thoughtful response from the Seattle community, though it was laced throughout with the historical sensibility of an American of Eastern European descent who understood what Lenin and his friends had done to our region. This being Seattle, though, a number of unironic defenders of the Lenin statue—both among sneering hipsters and among unreconstructed old time leftists—did complain. “What I did not understand was that the editorial board of the newspaper was seen in some quarters as being conservative,” Volodzko informed me. “To a degree the leftist and liberal community saw my first column come out, and probably assumed that I was also a conservative, since my first column critiques a socialist hero. After that they took up arms.”
[. . .]
What distinguishes this idiotic story from the others of this genre that we have all gotten used to over the last few years is that it contains a neatly packaged manifestation of most every facet of the psychosis of our ever-cruder culture wars. The misusage of memory politics. Frenzied social media mobs destroying lives for pleasure. Fake laptop warriors celebrating their fake wars on nonexistent Nazis. The total lack of social norms regarding the way that Americans discuss and use or misuse history. The pathos of those who violate in some minor way the puritanism of those who wish to destroy sinners without any chance of reprieve. The manifest cowardice of the scribbling classes. The lack of backbone from institutional elites and gatekeepers who refuse to stand up for institutional values or their own staff. The illiteracy and stupidity of what passes for debate. Every element is present in this parable of the insipid and sad moment that we are now living through.
Read it all.
Judge Glock: Affirmative Action in Contracting Faces Legal Peril
The Supreme Court’s recent decision strikes down racial preferences in university admissions has both opponents and supporters of affirmative action anticipating more to come on the subject from the high court. At the Wall Street Journal, the Manhattan Institute’s Judge Glock says that government preferences for minorities in government contracts could very well be the next domino to fall.
Minority contracting requirements have had deleterious effects on almost every aspect of government for decades. They have cost taxpayers countless billions, degraded government services, and deepened racial divisions. Almost a tenth of the American economy goes through government contracts, which involve everything from building submarines to installing software. Federal, state and local governments have set goals for percentages of these contracts that should be awarded to minority-owned businesses. To hit the goals, government officials can “set aside” contracts for minority firms, offer no-bid deals to minority contractors, or select minority contractors with higher bids than competitors.
Because of current racial obsessions, the scale of such favoritism is increasing. The federal government has awarded about 10% of its available contracts to minorities, but President Biden announced that he wanted to increase that to 15% by 2025. New York City and state have set goals of 30% of contracts going to businesses owned by minorities or women. Mayor Eric Adams has demanded more no-bid contracts.
[. . .]
In Richmond v. Croson (1989) and Adarand Constructors v. Pena (1995), the Supreme Court said that government could use minority contracting programs only under rare circumstances and to remedy past discrimination. Instead of adhering to these rulings, governments have fostered an industry of “disparity studies” firms. Governments pay these contractors—themselves often minority-owned—hundreds of thousands of dollars to tell them they’ve been discriminating against minorities in contracting.
Governments then use disparity studies’ findings to show courts why they must discriminate in novel ways. As the California Supreme Court noted in a 2010 ruling, the City of San Francisco issued legislative findings that it was still “actively discriminating against women and minority groups in its contracting.” Rather than simply stop discriminating, the city claimed it was justified in discriminating in favor of women and minority groups.
Read the whole thing.
Amy Lai: Teaching Hate Speech to a Class of Students from Different Jurisdictions
Lawyer and journalist Amy Lai teaches at the Free University of Berlin, thus giving her the opportunity to instruct students from varying backgrounds and societies in the way various countries treat hate speech. The varying responses of students are both instructive and at times even a disturbing window into the impact of this nebulous and much-abused legal concept. Via Heterodox Academy.
My lecture on freedom of expression examined laws prohibiting inflammatory expressions and hate speech in the U.S., Germany, Britain, and Canada, as well as the rationales and policy reasons behind these differences.
The students were surprised, but not triggered, by the permissiveness of American law, which prohibits expressions “directed to inciting or producing imminent lawless action and is likely to lead to such action” (Brandenburg v. Ohio, 1969). Incitement of illegal activity in an indefinite future is legal, as is incitement that does not target any individual (Hess v. Indiana, 1973). “This law is no good,” said some German students. “It allows a broad array of destructive expressions that harm individuals and society both short and long term.” I offered numerous examples and asked students to apply the legal standard to determine whether the speaker would be found guilty under American law, and they easily found the correct answers. It was hardly surprising, as most expressions, despite their provocativeness, would be clearly legal due to the high legal threshold.
[. . .]
After the lecture, I asked the students to determine whether several expressions would likely constitute hate speech in the U.K. and Canada. Besides several obvious examples of hate speech, students noted correctly that the line “Hitler was right!,” which was a BBC reporter’s Twitter post in response to the Israel–Palestinian conflict, was borderline hate speech, as it indicated that the Holocaust was morally justified, hence essentially only one step away from an incitement of genocide of the Jews.
However, regarding the case where an individual expressed his personal disapproval and hatred of his Jewish colleagues (as in “I have had several Jewish colleagues. They are bad workers and I hate them!”), the class was torn. Although the statement is disgraceful, insensible, and likely reflects the speaker’s immature attitude, it is an expression of personal sentiment toward the speaker’s former and present colleagues rather than the group more generally, and by no means rises to the level of an invocation of genocide or hatred against the group.
At least a few students were not convinced that the statement itself would unlikely constitute hate speech. Their misjudgment and disbelief were likely due to their feeling of disgust toward people expressing such sentiments. One student—of Jewish descent—became very emotional. She said the statement was clearly anti-Jewish. I pointed out that even strong sentiments against any group alone would not suffice. She claimed that the statement would nonetheless be “hurtful” and would “violate the dignity” of the group. I emphasized that dignity plays a relatively small part in the legal landscape of these jurisdictions and no part in their hate speech laws.
While I expected some degree of shock in students’ responses to the cultural and legal differences, I was taken aback by her strong emotional reactions. I clarified to the class that the laws did not reflect my personal preferences, and that what is legal is not necessarily moral: Very often, it is not the case. I even reported the incident to a senior colleague, who thanked me profusely for taking on this challenging topic and assured me that my approach was good. The strong responses might be a good thing, she said, as it showed that the students were truly engaged in the topic—it was exactly what should happen in a classroom. However, that student seemed unable to recover from the shock: In subsequent classes, she asked me why I kept focusing on the bad things that people do to others. Well, I thought, this is a law class, not a travel agency!
Read it all here.
Around Twitter
Via the Foundation for Individual Rights and Expression, Angel Eduardo, an endorsement of an essay on the value of asking questions:
Here’s an insider’s take on DEI via the Foundation Against Intolerance & Racism (FAIR). Dr. Tabia Lee explains how, for her, diversity, equity and inclusion was anything but (click for video):
And finally, Rudy Giuliani in a court filing admits he lied about Georgia election workers in 2020. But "for purposes of this litigation only". “America’s mayor” has come a loooong way.