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 “free speech” 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 “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

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.

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 I’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.

A third-party vote is not a vote for Clinton or Trump

I’m no libertarian by any stretch of the imagination, but there’s zero chance I’m going to vote for either Clinton or Trump. A vote for either of them is a vote for the NSA, and (aside from global warming) there is no current bigger threat to democracy itself than the utter destruction of privacy. (And to think, people used to be upset about the idea of the government looking at their library history.)

On the other hand, a vote for Gary Johnson is simply a vote for Gary Johnson. I may not like all his stands, but there isn’t a single viable candidate who will protect basic liberty like he will.

gj

Gary Johnson is on all 50 ballots

You don’t have to vote for Clinton or Trump. The former is a criminal who risks national security and is likely in ill-health. The latter is a tax-dodging scammer. Both of them will promote what is literally the greatest government-created threat to democracy – the NSA – since Adolf Hitler. You will never have any privacy ever again if either of them wins.

Fortunately, there is a viable third choice: Gary Johnson. I don’t agree with him on everything, but he is by far the most sane, most reasonable, and most honest candidate we have. (And, yes, he did know what Aleppo was. Once he realized what they were talking about, he gave a nuanced answer where he suggested that the US and Russia broker a cease-fire. That’s exactly what happened within weeks.)

Don’t let the libertarian title scare you from voting for Gary Johnson. The overwhelming majority of what people will tell you he believes is flat out lies based on nothing more than his political affiliation. In the past 24 hours, I’ve had people either wonder if or outright say that he’s a creationist (no), he rejects global warming (no), and he’s against environmental regulation (no).

Thought of the day

Whenever I see an article telling me I need to vote for Clinton in order to prevent a Trump presidency, all I read is, “If you don’t vote for someone who will continue to strengthen the greatest threat to democracy since Adolf Hitler – that is, the NSA – then someone else who will continue to strengthen the greatest threat to democracy since Adolf Hitler might win.”

A bad rebuttal

If there’s anything that annoys me more than bad arguments, it’s people circlejerking in support of bad arguments. I was just reading up on a recent (though, as yet, undecided) Supreme Court case where the analysis did just that. (Update: The case has been ruled on. It was 6-2 in favor of the government.) The case itself isn’t overly interesting, but it gained some attention this past winter because Justice Thomas broke his rather lengthy silence to ask a few questions. To give a brief summary of the case itself: Two men were convicted of domestic assault misdemeanors that, by state law, would not preclude them from owning firearms. However, federal law says if those misdemeanors are domestic assault crimes which meet particular, limited criteria, then they can’t own guns. The men are arguing that the state law allows for broad criteria in obtaining a conviction. Essentially, federal law requires the use or attempted use of force. State law allows for recklessly injuring or physically contacting a person. It seems open and shut to me: federal law requires a particular fact, but state law allows for different facts. This means that it is possible that the federally required facts were never established, so the government ought to lose this one. It looks like things aren’t going to go that way, but then I’ve yet to get Obama’s nomination to fill Scalia’s seat.

In reading about the case, I came across this little tidbit about Justice Ginsburg:

One last notable point: anyone who suggests that Justice Ginsburg may be slowing down, should read the last two pages of Villa’s argument. Villa suggested what seemed like a difficult hypothetical: what if she “came up to somebody who I thought was my husband and I patted him on the back and said ‘hi, honey,’” but it wasn’t him? Could that be a reckless offensive touching? But when Justice Sotomayor appeared momentarily slowed by this example, Justice Ginsburg incisively noted that “there isn’t a [domestic] relationship [as] the statute requires.” “That is true,” conceded Villa, and she quickly reserved the remainder of her time.

What a hugely irrelevant rebuttal. It doesn’t matter if the statute requires pigs to fly out of someone’s butt. The issue at hand is what defines “reckless offensive touching”. In this case, it was asked if a mistaken pat on the back would meet the definition. That question went unanswered due to a red herring: Ginsburg insisted on defining “reckless offensive touching” within a particular context despite the phrasing existing independent of said context. Moreover, the question can easily be changed to fit Ginsburg’s illegitimate objection: What if someone accidentally pats their son on the back because he looks so much like her husband? That would satisfy the domestic relationship required of the statute. (I emphasize statute here because no relationship is required of the argument.) Could we answer the question then? According to Ginsburg, the answer is yes, though, how the domestic relationship would play any role in such an answer is unclear.