Advocating genocide is never incitement

There’s a disturbing trend these days to claim or imply that language is violence. That, of course, is nonsensical rubbish that should have no place in a serious discussion, but here we are. (My history of urging that Philosophy 101 be mandatory at the high school level is reaffirmed as a good idea every single day.) In particular, there has been a growing position that advocacy of genocide is such abhorrent violence that it, in fact, is not free speech. Again, nonsensical rubbish. Here is one example of someone saying as much:

The growing fascist movement in the United States often claims that it is marching for โ€œfree speechโ€ and complains that Antifa and other opponents are violating their rights. Unfortunately, this cynical claim has won some credibility among liberals and even the ACLU. But the law does not protect the advocacy of violence any more than it protects child pornography. These well-established legal principles should be extended to prohibit the advocacy of genocide, the ultimate violence.

Arguing about the free speech rights of Nazis, fascists, and KKK members is a trap. The issue is not speech, it is violence. The fascists do not want to argue with us, they want to kill us.

I originally picked this article merely because it was a quick result on Google; my goal here was to generally address the issue of calling genocide-advocacy violence. However, the muddled understanding of free speech is too much to ignore. The article continues:

A brief review of U.S. law demonstrates that fascist advocacy of violence and genocide can and should be prohibited. In 1969 the U.S. Supreme Court ruled in Brandenburg v. Ohio that there is no free speech right to advocate violence when there is a likelihood that violence will actually occur. The Court traced the development of U.S. law from its earlier prohibition of even abstract teaching of the necessity of violence for accomplishing social change to protecting such speech โ€œexcept where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.โ€

As it so happens, I made this post because I wanted to specifically talk about Brandenburg. Nearly every person who claims speech is violence has never heard of the case. The fact that this article brings it up is both surprising and, for the author, embarrassing. Brandenburg is the precise reason advocacy for genocide is always protected speech:

The Court’s Per Curiam opinion held that the Ohio law violated Brandenburg’s right to free speech. The Court used a two-pronged test to evaluate speech acts: (1) speech can be prohibited if it is “directed at inciting or producing imminent lawless action” and (2) it is “likely to incite or produce such action.” The criminal syndicalism act made illegal the advocacy and teaching of doctrines while ignoring whether or not that advocacy and teaching would actually incite imminent lawless action. The failure to make this distinction rendered the law overly broad and in violation of the Constitution.

This couldn’t possibly be more on point. Advocating for genocide is 1) advocacy for a necessarily lengthy process and 2) often an advocacy for a change in law. Both of these points immediately fail the first prong of the test. A lengthy process – that is, systematic killing of an entire group of people – cannot possibly incite imminent action, lawless or not. Genocide is, by definition, not imminent. And where its advocates want a change in the law that allows for genocide…well, I mean. C’mon. That’s not only a lengthy process that requires years of lobbying and voting, but just imagine if you weren’t allowed to campaign for a change in the law because it was unpopular.

The article continues:

We are not proposing that offensive speech, or even speech that many consider hateful because of its abusive treatment of people based upon their race, gender or ethnicity, be outlawed. A free society must tolerate speech that is hurtful or offensive. But no civilized society must or should tolerate behavior by individuals or groups of people that promotes violence and even the total destruction of people based upon their color, gender, religion, or origin.

Notice the subtle bait-and-switch I’ve highlighted. We’re supposedly talking about speech, but the author here changes the issue to behavior. It’s a tacit surrender of the issue. Speech which fails to incite – and advocacy of genocide fails to incite, through and through – must be tolerated. Despite the incorrect interpretation of the specific ruling that renders the entire article wrong, the author acknowledges as much.

Just imagine if advocating for something violent was itself considered violence. We would have to lock up all the people who support the death penalty. Every shitty YouTube commenter who says [enter politician] should be hanged for [enter crime, usually treason] would have to be charged with criminal wrongdoing. And what’s the next step? If advocating for general violence at some indeterminate point in the future is violence, then would it also be violence for someone to advocate for the right to advocate for general violence? If I think neo-Nazis and antifa people should be able to advocate for violence, am I engaging in violent speech?

Here’s the bottom line. Advocating for genocide is free speech. You can talk about your desire to emulate Nazi Germany, if you wish. You can talk about your desire to kill all Jews or Muslims or Christians or blacks or whites. Take your pick. You can even say we should round-up and murder all the people who say we should round-up and murder other people. You are free to do that. It is 100% free speech.

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No, accepting a pardon does not mean accepting guilt

The claim that Joe Arpaio implicitly admitted guilt by accepting Trump’s pardon is junk. The proof people cite for this claim comes from dicta in a 1915 SCOTUS case. That is not binding law. Furthermore, the lower court prior to that ruling pointed out that there are a myriad of reasons why someone might accept a pardon. This was and is binding law because it is part of the reasoning for the ruling. Double furthermore, the US Attorney General’s office kept records for the reasons for pardons well after that 1915 case. Triple furthermore, there are federal laws that account for compensating people who are given pardons due to innocence. Quadruple furthermore, the 1915 case pre-dates Alford, which found that a defendant can explicitly maintain innocence while accepting a plea; the logic from Alford inherently says the use of something from the justice system is not an acceptance or blessing of that thing.

Joe Arpaio is a piece of shit and it’s garbage that Trump pardoned him, but the forced attempt at catharsis through a willful or ignorant misuse of a 100+ year old, irrelevant ruling is also shit and garbage. It’s shit and garbage all the way down.

Thought of the day

The social justice use of the word “privilege” is almost always wrong. What people cite as examples of privilege are more often examples of baseline treatment. And if you’re getting baseline treatment, that isn’t privilege. For instance, if I walk into a department store and no one starts watching me or following me with cameras, that isn’t privilege. If they have no particular reason to target me and they therefore don’t, in fact, target me, that’s baseline treatment. It’s what anyone ought to expect. However, if a black man walks into the same store and finds himself immediately watched for no reason other than that he’s black, he isn’t getting that same baseline treatment. That’s obvious discrimination. But racially-based discrimination does not somehow magically make baseline treatment a privilege in comparison.

Colin Kaepernick doesn’t have a job because he sucks

There has been a lot of talk since NFL free agent quarterback Colin Kaepernick opted out of his contract back in March. A lot of casual football fans knew his name years ago when he had some decent success in San Francisco, long before he made national headlines for kneeling during the anthem before games. So it has been a surprise to some that the season is well underway and he’s still unsigned. Some sports fans and many non-sports fans (“Sportsball! lol!”) have taken to claiming that his continued existence in free agency is due to racism. Even though many players have been kneeling, he was the first and he made all the headlines, so now owners and coaches are keeping him in his place as a black man, they say.

That’s bullshit.

Colin Kaepernick isn’t on an NFL team because 1) he’s a bottom-tier quarterback, 2) he wants to start, 3) he wants starter money, 4) he wants multiple years, and 5) he isn’t better than any current starter on a playoff-bound or playoff-bubble team.

I recently read an article where Richard Sherman of the Seahawks listed a handful of quarterbacks Kaepernick was better than. I’m going to address a host of quarterbacks and teams in a moment, so I won’t delve into the details of Sherman’s comment, but I will note one example he had. The Jets quarterback. He got the name wrong, but it’s who-gives-a-damn. (Okay, it’s Josh McCown.) Kaepernick is better than him. The Jets are also going to win 1 to 3 games this season. (I’m amazed they even won one so far.) So, sure, Kaep > McCown. But why in the hell would the Jets sign Kaep? What would the point be? They’re actively trying to tank this year.

So without further ado, I want to go through every NFL team and their starting quarterbacks to quickly see where Kaepernick might fit.

Bills – Tyrod Taylor is marginally better than Kaepernick with marginally greater upside. You could probably swap the two quarterbacks without noticing much offensive difference, but the Bills don’t know where their future is right now.

Patriots – Tom Brady is the greatest player in NFL history.

Dolphins – They replaced Tannehill with Cutler because 1) they only needed a one year replacement, 2) Cutler is comparable to Tannehill, 3) the Dolphins want a pocket passer, and 4) Tony Romo didn’t want to do it. This was Kaepernick’s best shot at getting on the field in 2017, but he wasn’t going to get multiple years and a big pay day in the process.

Jets – Like I said, Kaepernick is better than McCown without a doubt. The Jets are also intentionally tanking.

Chiefs – Kaepernick was Smith’s backup at one point. Smith is absolutely better.

Broncos – Is Trevor Siemian the future of the Broncos? I doubt it, but he has upside and he’s still only 25. Besides, the Broncos tried trading for Kaepernick, but he nixed the deal because he wouldn’t take a pay cut and no one wanted to cover his bloated salary. He isn’t worth as much as he thinks he is at the quarterback position.

Raiders – Derek Carr is wildly better.

Chargers – Philip Rivers is wildly better. He’ll finish his career in…sigh…LA.

Ravens – Flacco is slightly better, his most recent game notwithstanding. Rumor had Kaepernick working on a deal, but it’s unclear why it fell apart.

Steelers – Roethlisberger is a top 5 quarterback with at least this season left, possibly next season.

Bengals – Dalton is a mid-tier quarterback who has the job secured right now.

Browns – As always, the Browns are trying to build. Kaepernick is better than Kizer, who probably won’t be the future, but he’s still a rookie. At any rate, this team is not playoff bound, so why would they spend money on Kaepernick?

Titans – Mariota is severely underrated and he’s the Titans future for years to come.

Jaguars – Had the Jaguars cut ties with Bortles, I suspect Kaepernick would have ended up here, even with the team not being playoff bound. But they didn’t cut ties, so here we are.

Colts – I think Luck is overrated, but he’s a consistently in top 10 lists, and usually top 5. Jacoby Brissett is filling the role very well right now.

Texans – Watson is the future and he’s light years better than Kaepernick.

Eagles – They want Wentz to be the future.

Redskins – Cousins is either going to get franchise tagged or sign a huge long-term deal.

Cowboys – Dak is the future.

Giants – Eli, while mediocre, has 2-4 years left.

Rams – Goff might be the future. Probably not. But he’s a rookie. And the team is absolutely not playoff bound.

Cardinals – Palmer is a top 10 quarterback.

Seahawks – Wilson is a top 5 quarterback.

49ers – Well, this isn’t an option, now is it?

Vikings – Bradford is in the top half of quarterbacks. He’ll be around for awhile.

Lions – Stafford is criminally underrated and the leader of the Lions for years to come.

Packers – Aaron Rodgers is the second best quarterback in the league.

Bears – Glennon is trash and Kaepernick is absolutely better. The Bears also aren’t playoff bound, plus Trubisky is the intended future.

Falcons – Matt Ryan is one of the best in the league with years and years left.

Panthers – Cam Newton is their guy (though he’s really overrated).

Buccaneers – Winston is mid-tier and their guy.

Saints – Drew Brees has a couple of more years left and he’s one of the greatest of all time.

So, to recap, Kaepernick is better than Mike Glennon, Brian Hoyer (of the 49ers), Blake Bortles, McCown, Jay Cutler, maybe Tyrod Taylor, maybe Trevor Siemian, and maybe Joe Flacco. Two of those quarterbacks – Joe Flacco and Trevor Siemian – are on potential playoff teams. No deal was to be had in Baltimore, and Siemian has upside.

If Kaepernick was desperate to have any contract, including a cheap back-up contract, and no one would sign him, I’d be the first to say he was being blackballed. But as it stands, there’s no team that has a single reason to sign him to be their starter. If he wants to suit up, he has to be willing to ride the bench or wait until next year when he absolutely should get signed.

Thought of the day

Free speech has no legal restrictions in the United States. Not a single one.

  • Laws against incitement are not restrictions on free speech.
  • Laws against threats are not restrictions on free speech.
  • Laws against fighting words are not restrictions on free speech.

All of these things are outside the definition of free speech in the first place; free speech is any expression which does not violate the rights of others. To say that the illegality of something which violates a right is also a restriction on said right is nonsensical. No one argues that the illegality of murder is a restriction on one’s right to liberty for that very reason. Murder isn’t part of the definition of liberty in the first place. It can’t be. No rights violation can ever be part of the definition of the right(s) it violates.

Martin Shkreli engaged in protected speech

Martin Shkreli, the CEO that so-called news organizations inappropriately refer to by the nickname “pharma bro”, recently had his bail revoked:

Shkreli, 34, was hauled off to the Brooklyn Metropolitan Correctional Center on Wednesday night after a judge revoked his bail over a Facebook posting that offered $5,000 to any follower who would grab a hair off Hillary Clinton’s head during her book tour.

The former pharmaceutical executive โ€” who first came to national attention for hiking the price of a life-saving drug โ€” insisted the posting was a joke. The judge, however, wasn’t laughing.

(To be clear, I don’t actually care that he has been nicknamed “pharma bro”. I just think it’s dumb that allegedly professional news organizations have taken to actually using that moniker.)

Here’s Shkreli’s Facebook post:

Shkreli

This is what is immediately clear about that post. 1) It has absurd premises. 2) His offer is absurd. 3) It was posted to his Facebook page, which is run for the sake of being absurd and/or trolling.

None of those things were taken into account by Judge Kiyo Matsumoto. Furthermore, she failed to take into account any of Brandenburg. As a result, she made this incorrect and irresponsible statement:

“This is not protected by the First Amendment,” U.S. District Judge Kiyo Matsumoto said before revoking the $5 million bond. “There’s a risk that somebody may take him up on it.”

Matsumoto had wide latitude to revoke Shkreli’s bail, so it’s perplexing why she would so intentionally spread misinformation. She ought to be embarrassed that she didn’t even pretend she was applying any basic First Amendment test here. This is a Maeghan Maloney-level understanding of free speech rights.

Shkreli’s bail status notwithstanding, if someone wants to show that his Facebook ‘offer’ was not protected speech, they need to apply the three-pronged Brandenburg test – something the judge didn’t do. Did his speech demonstrate 1) intent, 2) imminence, and 3) likelihood of lawless action? I don’t think it showed a single one.

Let’s start with intent. (This can include instances where a person should have reasonably expected his speech would result in lawless action.) Look at the post and how absurd it is at every turn. He said the Clinton Foundation has murdered people. He said he potentially already has Clinton’s DNA. He offered a tiny sum for a huge risk. It’s wildly clear that he isn’t even remotely serious. Even when he responded to someone where he said “I’m serious”, it’s impossible to believe him. He’s a 4chan poster without the anonymity. No reasonable person could believe that this was a real offer.

Next is imminence. How could this possibly result in imminent lawless action? Someone reading that post would have to 1) be in the same area as Clinton, 2) know she was in the same area, 3) know where to find her in the very near future, and 4) have a way to get close to her. It is 100% impossible that Clinton could have been in imminent danger. Even if a person was in the same city as Clinton and knew it, and even if she was in public at the very moment Shkreli made his Facebook post, that person would still have to have a way to get to her and to get access to her. And if they were across town and had to get in their car to drive to a convention center where they had to buy a ticket to get in? You’ve just lost your imminence.

And finally, likelihood. Give me a break. For it to be likely that someone would take him up on this offer, all of the following would have to be true of someone who read his post:

    They would have to be unaware that Shkreli is a dedicated troll.
    They would have to believe he was serious.
    They would have to be motivated by $5,000 per hair that had a follicle.
    They would have to think that more than one follicle was necessary for some reason, and that’s why Shkreli was incentivizing the capture of multiple strands.
    They would have to believe that The Clinton Foundation murdered one or more people.
    They would have to believe that Shkreli had Clinton’s DNA already.
    They would have to be willing to risk their freedom at the least and their life at the most.
    They would have to know where Clinton was and when she could be found in public.
    They would have to be near that location.
    They would have to be able to get near Clinton’s head.

There are two things in that list that are likely. One, people actually do think the Clintons have murdered people, so it’s not a stretch to say there are probably people who think their foundation has been complicit in killing. Two, I’m sure Clinton’s tour schedule has been published somewhere. But other than that? You could argue that it’d be possible to yank a hair from her head during some fan photograph session, but I don’t imagine that would go unnoticed by her Secret Service detail.

Martin Shkreli’s Facebook post fails every single part of the Brandenburg test. Every. Single. Part. It’s not even a close call that what he said was entirely protected speech – at least outside a bail hearing. And, once again, that’s what makes this so perplexing. Judge Matsumoto didn’t need to make up an incoherent First Amendment claim in order to justify revoking bail. She could have just done it. She ought to be embarrassed at her actions on the bench.

No, you don’t get to conflate correlation and causation because it fits the narrative you want

Racists of a handful of varieties (neo-Nazis, white supremacists, white nationalists, etc) descended upon Charlottesville, Virginia this past weekend. They quickly clashed with counter-protesters, resulting in their previously-legal parade being declared unlawful. Soon after this declaration, one of the racists got in his car and attempted an act of terroristic mass murder that resulted in one death and at least a dozen and a half injuries. This horror was, ultimately, spurred by the racist hatred and ignorance of the racist marchers, but the ostensible reason for the protest was the proposed removal of a Confederate statue. This faux excuse to promote racist views has, thankfully, caused a number of Confederate statues and memorials to either be removed or be proposed for removal. Unfortunately, this faux excuse has also caused some bad science. Take this MotherJones article:

Most of these monuments were not erected right after the Civil War. In fact, all the way to 1890 there were very few statues or monuments dedicated to Confederate leaders. Most of them were built much later. And since Iโ€™m not an academic, I feel comfortable squeezing this history into a very short, oversimplified summary:

1861-1865: Civil War.

1865-1875: Reconstruction Era.

1875-1895: Reconstruction Era ends. Blacks are steadily disenfranchised, allowing Southern whites to enact Jim Crow laws. In 1896, Jim Crow is cemented into place when the Supreme Court rules it constitutional.

1895-1915: With blacks disenfranchised and Jim Crow laws safely in place, Southern whites begin a campaign of terror against blacks. Lynchings skyrocket, the KKK becomes resurgent, and whites begin building Confederate statues and monuments in large numbers.

1915-1955: Jim Crow reigns safely throughout the South.

1955-1970: The civil rights era starts after the Supreme Court rules in Brown v. Board of Education that Jim Crow laws are unconstitutional. Southern whites mount massive and violent resistance, and start putting up Confederate monuments again.

Yes, these monuments were put up to honor Confederate leaders. But the timing of the monument building makes it pretty clear what the real motivation was: to physically symbolize white terror against blacks.

Oversimplified, indeed.

The case being made by MotherJones is right there in the last paragraph: due to timing, we know these statues were built to symbolize white terror against blacks. That is, they were specifically built to first and foremost scare black people into submission and to remind them of their place in this country. Unfortunately for MotherJones, the facts don’t support this argument.

First, let’s look at the MotherJones chart and another, more comprehensive chart (both from the Southern Poverty Law Center):

Confederate monument chart

Confederate monuments.jpg

Look at two of the more notable spikes on the chart: around 1911 and around 1961. What could possibly make those dates special? They’re the 50th and 100th anniversaries for the Civil War. It should surprise absolutely no one that we would also see a spike in memorial dedications around those times. Furthermore, consider the common timings of when war memorials are built in general. It can happen any time, but it certainly would seem to accelerate as veterans get into their old age. This could be due to a combination of factors, such as a younger generation being prepared to romanticize their elders, and older people generally having a disproportionate amount of political power (not to mention the personal time and means to take on memorial efforts). Just think to the period of time you recall hearing about ‘The Greatest Generation’ the most. It wasn’t in the 1950s, was it? No. It was into the 90s and early 2000s.

Let’s also look at the rise of the KKK. As the second chart notes, the organization was founded in 1866. What the chart doesn’t note, however, is that the KKK was at its most powerful around 1924. The economy was roaring, as they say, racists were more than plentiful, and the desire to instill fear in minorities was higher than ever. Yet memorials fell. This could be due to a host of reasons. Most Civil War veterans would have been dead (if the mean age of a soldier was 26 in 1865, then the mean age of veterans (dead and alive) would be 85 in 1924), so the push for memorials would be pushed into the backs of people’s mind. We also just finished an even larger war (albeit with fewer deaths), so our most pressing veteran’s issues were much more current. And, of course, we just had a period of time where we built and dedicated quite a few memorials. Whatever the reasons, the evidence points to the timing of these memorials having little to do with racist flare-ups.

Now, looking at the first chart, we see an attempt to correlate monument building with the lynching era. Except the greatest number of lynchings actually occurred in the decade prior. Forget about arguing causation. The chart hasn’t even successfully argued for correlation on this point.

I’ve been making these basic points across various social media platforms for the past day or two because I find this abuse of statistics 101 to be offensive. As a result, I’ve been called a Nazi sympathizer and/or had my motivations questioned. It doesn’t matter if I give a plain objection using the dry facts or if I preface my position by pointing out that, yes, of course these statues and memorials are racist monuments* to the losing side of a racist war. We now live in a culture where even the slightest bit of nuance that disagrees with side A means you must fully agree with side B. It’s utter horseshit. We have good reason to believe Civil War memorials and dedications spiked due to mundane factors such as veterans aging and anniversary dates. That does abso-fucking-lultey nothing to take away from the narrative that the Confederacy and memorials to it were and are racist. It does nothing to disparage efforts to remove statues. It simply demands that we rely on basic facts to make our points and arguments.

*There are a narrow band of monuments and memorials that should not be controversial because they honor and remember conscripted soldiers who often fought for reasons very different from the wealthy slave owners (who, of course, hired poor people to take their place on the battlefield). The band is very narrow, but it exists.