Thursday, August 17, 2017

Something like this, actually

I want to pick up this whole set of comments and bring it up to a new post so I can better explain what I was trying to say; not argue over it, just explain my reasoning.  You can start with the original post, if you want to.

rustypickup said...
This is a case where I language fails us. The media use peace and non-violent interchangeably, whereas they are not the same. Even our use of non-violence lacks a full meaning of the actual circumstances. Intimidation and coercion as you have noted are important to the context of the situation. A lack of violence that is predicated on high levels of intimidation and coercion is not peace, it is merely a lack of violence on one side that arises from a threat of violence on the other. Actual peace would require a lack of violence by all parties, and also a lack of threats, intimidation or coercion by all parties. (Let alone a peace that surpasses all understanding...)

There can be no peaceful protest when the protesters are armed. There is implicitly a threat of violence against counter-protesters or the police. I don't think we should even call these non-violent protests. We lack the language to adequately describe the situation and the media doesn't communicate the true nature of the situation.

We are constitutionally protected from intimidation of our speech rights by the state, but the state has no positive obligation to protect our free speech rights from intimidation by private actors. Oppression via Jim Crow and other avenues was a state sponsored oppression implemented by state actors. From Brown v. Board of Education (and yes, based on even earlier SCOTUS decisions) to the various civil rights and voting rights acts, overt state oppression was eliminated. The backlash as it has formed is to move that oppression to private actors. This is the intent of open carry and unrestricted hidden carry laws. It is the reasoning for now allowing with recent jurisprudence, private actors to discriminate in the work place, impose religion in ways the state could never impose. I don't think we are even at the middle of the wave of this empowerment of the private actor to take on the oppression and intimidation that used to be practiced by the state. For example, stand your ground laws allocate the power to judge and inflict punishment to the private actor. Previously the state retained this power, and only under the most exceptional cases of self defense. Now in some states we allow for the imposition of the death penalty by a private actor in the mere defense of private property.

Our constitutional system is inadequate to respond to the current situation. To go further then immediate situation in Charlottesville, when the constitution was created, there was the individual and the state. Other private actors, by which I mean corporate entities, were not seen as powerful actors and certainly weren't considered to have rights in the way they were intended for the individual. The rise of the limited liability corporation, and the power it can exert and its ability by design to avoid responsibility and accountability has altered the landscape of the allocation of power.

I have rambled, but as I am typing more has been bubbling up. I need to go think about this more. Thank you for the place to think out loud.

The Peace that surpasses all understanding...
Peace be with you.
3:32 PM

Rmj said...

And also with you.

We are constitutionally protected from intimidation of our speech rights by the state, but the state has no positive obligation to protect our free speech rights from intimidation by private actors.

Actually it does, else public schools would not be concerned with school bullies (always have been, so far as I know), and peaceful protestors would not be protected by police from violent counter-protestors (if it was simply a matter of keeping the peace, protests would not be allowed in the first place).

What we have lost is the idea that speech itself is a communal, not just an individual (i.e., personal) right. If I am intimidated by someone staring at me as I speak, that's my problem. If I am intimidated by someone carrying a gun and staring at me, that's the state's problem, and an abrogation of it's obligation by passing laws allowing such open carrying of firearms. (And imagine if black protestors had shown up armed. Huey Newton could tell you about that.).

As a group and as a person, I have the freedom to speak, and the state not only has to allow that, but protect it. If it only does the former, but not the latter, what right do I have?
4:07 PM
rustypickup said...

Thank you for your reply. I think where we differ is our confidence that the state has any positive obligation to protect my right to speak (other than some general preference for public order). A appreciate your mentioning schools having a positive obligation to protect the students from other students, I hadn't thought of that circumstance. The only one I could think of where the state has to positively protect rights was the state needing to provide counsel to the accused in a criminal proceeding. Of course the counter party in that circumstance is again the state.

But I think my point of the state having no positive obligation to protect rights still holds. Here is what occurred at a synagogue in Charlottesville this weekend. Synagogue Where is the freedom to practice religion if the city doesn't provide police? The congregation can't go to court to demand the city act. If the city was preventing their worship, they could bring an action. But since it's private actors, they have no recourse other than to appeal to the political process. (Now I do suspect there is in federal civil rights law an ability to seek recourse).
The law is, indeed, a blunt instrument; no blunter than when private parties have to seek redress in civil court for wrongs done in public, during actions over which the state can exercise authority.  Whether the state does exercise its authority is the question, and it's not a legal question.  Legal questions deal with what the state can, and cannot, do.  The Constitution lays down some limits on state action; laws lay down others.  But laws and even the Constitution can also create obligations on the state (federal or state governments, or even local (city, county) governments).  Whether those obligations are observed is, by and large, a political question.

So does the state have "any positive obligation to protect my right to speak," apart from some general preference for public order?  Yes, clearly.  Texas A&M University has just cancelled an appearance by a white nationalist associated with Charlottesville (one of the organizers of that melee, IIRC), on the grounds he directly connected his appearance at the college to the riot in Virginia (what else can it be called?).  Now, there's a lot of local speculation among law professors on local radio about how strong a legal case the university (a public university) has against this appearance.  That is a Constitutional question, but the state clearly is trying to exercise an obligation to protect the speech of opponents of this racist, because the state fears violence if he is allowed access to their property for a speech about his ideas.

The state fears violence because the state has a positive obligation to protect the right of others to oppose this speaker.   The state is concerned about public order, but also disgusted by what this man wants to say (efforts to get the speech cancelled came from members of the Texas Legislature, among others.  They acted as private citizens, but they didn't want this man to have a platform on state property for his hate.)

If the speech occurs, the University will establish areas where opponents and supporters can gather to speak, but where they will stay separated from each other.  The state has a positive obligation to protect the right to speech, and not to stand by and let the two sides have at each other, even if all that happens is screaming and yelling.

This gets to be a finer point because Texas has open carry laws, and allows guns to be carried on campus (but they can't be carried openly on campus).  But the question is not:  can the state do anything?  The question is:  will the state do anything?

The synagogue in Charlottesville that went unprotected by the local police is a disturbing example.  Was the police force overwhelmed and reallocated away from that building?  Did the police simply not care?  That they had an obligation to protect that building in particular, under the circumstances, especially for worshippers there on their Sabbath, is clear.  Did they undertake that obligation?

Ay, there's the rub.

The legal question is:  can the state act, given the circumstances?  The political question is:  should the state act?

There is no legal or constitutional impediment to the state protecting the rights of speech, or peaceful assembly.  The issue is not:  why can't the law do it?  The issue is:  can we use the law to do it?  Yes, we can.

A member of the Houston City Council was quoted on local radio this morning about the violence in Charlottesville and planned similar marches here in Houston.  He said we (meaning the city government) had an obligation to protect the citizens of the city from violence and efforts to incite violence.  He was right.  The mayor of Houston and the police chief have both said violence will not be tolerated.  They are right.

If we don't use the law to protect the public, it is entirely on us.  What happened in Charlottesville does not have to be repeated.  But the system won't save us; the system won't ever save us.  We have to use the system for us.  For all of us.


  1. Thank for the explanation, it was very helpful. Also please accept my apologies if I had come across as argumentative. I appreciate you blog for its conversation and discussion, it's good to have a place that avoids argument. Too often argument is talking past each other, and I hope I haven't crossed that line. I very much agree that no constitution or government system can function if the actors are not generally acting in good faith. The oath of office acts as a promise and reminder of that commitment to good faith. I think that is in part why norms matter, they are markers of good faith behavior. That is why the breath of so many norms in the last several years of governance are so disturbing.

    Failure to act in good faith can come in many forms. Some is to just ignore the rules and norms and dare the opposition to do something about it, which often they can't. Think McConnel not allowing any hearings on President Obama's supreme court selection. It can be out right bad faith sabotage, such as Trump's threats to not pay subsidies under the ACA, or when the Bush administration would deliberately enter into consent agreements with tax cheats and polluters to create bad precedential law (only sometimes saved by judges acting in good faith refused to allow such outcomes). The opposite can also be bad faith, a form of union protest is to demand strict adherence to all the rules, resulting in production slowing to a crawl. The same is to read law's so strictly and literally, ignoring legislative intent. Almost no complex regulatory system can stand up to such an attack. Gorsuch is know for exactly such literal narrow readings to render law's meaningless.

    Let me end with a thank you for the opportunity for conversation, and you patience with my often thinking out loud.

  2. I'm the one who argues too much and too easily. But the internet runs on outrage and perceived helplessness. Sometimes I try to do something different.

    And I try to treat argument as I teach it: a reasoned defense of a position. Not that I always practice what I preach....

  3. Adding: thinking out loud is what this is supposed to be for. Glad it works when it does.

  4. Last, and most important: you raise good points. I need to think about them.