The right eloquence needs no bell to call the people together and no constable to keep them. ~ Emerson

Monday, April 28, 2014

Ministry of Truthiness

The Supreme Court (Likely) Announces Diversity is Bad, Lying is Good 

Two Supreme Court cases were in the news last week that interested me.  One was about Affirmative Action in Michigan.  Back in 2003, the Court ruled 6-3 in Gratz v. Bollinger that the University of Michigan’s undergraduate policy, in which a point system gave specific "weight" to minority applicants, was reverse discrimination and shot it down.  However, it simultaneously ruled 5-4 in Grutter v. Bollinger that the university’s Law School policy was acceptable because it simply set a goal of diversity as a means to “enrich every [student’s] education.”  At the time, I applauded diversity as a more reasonable and sustainable civil rights strategy than reparations-based approaches.

Alas, critics of the decision got an initiative on the ballot in 2006 amending the state constitution, such that any Michigan university was prohibited to “discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin.”  The measure was approved and became state law.  This brought a set of challenges, which the Supreme Court heard in codified form and ruled on last Tuesday.  The legal technicalities of the suit rested on whether the defendants had a right to bring suit.  However, no court seemed to be able to get past the question of whether Affirmative Action is Constitutional.  Neither it seemed could the plaintiffs, since the case was Schuette v. Coalition To Defend Affirmative Action.

   Is this the new emblem of the
   Ministry of Truth?

A federal district judge ruled “there are no material fact issues” that justified a suit.  He also stated the state law was Constitutional.   The Sixth Circuit Court of Appeals, based in my hometown of Cincinnati Ohio, reversed that decision.  It argued that while students wishing other types of changes to university admission policies had many options to pursue remedy, students seeking racial preferences could only do so by amending the state constitution.  The Sixth Circuit concluded, “The existence of such a comparative structural burden undermines the Equal Protection Clause.”  It found the suit meritorious and the state law Unconstitutional.

The Supreme Court reversed the Sixth Circuit by a vote of 6-2 (Justice Kagan recused herself).  In his majority opinion, Justice Kennedy explained that the Court was not addressing the Constitutionality of Affirmative Action.  Rather it endorsed the ability of individual states to decide the matter for themselves.  This was enough to bring along normally liberal Justice Breyer into the conservative fold, although Justice Sotomayor wrote a long and impassioned dissent.  For their part, Justices Scalia and Thomas wrote concurring opinions that they believed the Court should have struck down all Affirmative Action solutions as inherently Unconstitutional.  The goal of diversity was not addressed by the majority.

The second case in the news this week was Susan B. Anthony List v. Driehaus, regarding political free speech in Ohio.  The state of Ohio passed a law making it a crime to utter “a knowingly or recklessly false” statement in political speech.  The Ohio Election Commission was established as the adjudicator of all claims and the burden of proof was set lower than that for slander or libel.  The purpose of the law was to take some of the invective out of political campaigns.  Ohio is one of fifteen states with such laws on the books.

Steve Driehaus was elected as a U.S. Representative for Ohio District 1 in 2008.  During his 2010 campaign for re-election, Susan B. Anthony list – a staunch anti-abortion group – decided to place billboards that accused, “Shame on Steve Driehaus!  Driehaus voted for taxpayer-funded abortion.”  The group based this claim on Driehaus’s vote for the Affordable Care Act.  Driehaus countered this was untrue as President Obama had an executive order in place prohibiting the law’s funds being used in this manner.  His lawyers convinced the billboard owners not to display the ad.  Then Driehaus filed a complaint with the Ohio Election Commission.  A hearing was held in which the commission found 2-1 that a falsehood had likely been committed.

By this time, the election was over and Driehaus lost.  He dropped his complaint with the commission.  Not satisfied, SBA List brought suit, saying their First Amendment rights had been intimidated.  Driehaus quickly countersued for defamation.  A federal district judge ruled against SBA List, saying no harm had come to them.  But he also ruled against Driehaus, citing the First Amendment.  “As a matter of law, associating a political candidate with a mainstream political position, even if false, cannot constitute defamation.”   The Sixth Circuit Court of Appeals upheld his ruling.  “On these facts, there is no hardship where the evidence suggests SBA List is not deterred from engaging in the very conduct that it claims is encumbered."

The Supreme Court heard oral arguments in the case last week.  As with Schuette, the narrow legal technicality at issue is whether the plaintiff is allowed to bring suit.  Also, as with Schuette, the Justices cannot seem to get past the larger issue involved – in this case, Free Speech.  

Virtually every amicus brief filed with the Court favors SBA List.  Mike DeWine, Ohio’s Republican Attorney General, filed two competing briefs – one in which he argues against SBA List in his official capacity and another personal one in which he questions the Constitutionality of the Ohio law.  However, the most notable brief is filed by the Cato Institute, which chose not a legal scholar but humorist P.J. O’Rourke as its author.  “The campaign promise (and its subsequent violation), as well as disparaging statements about one’s opponent (whether true, mostly true, mostly not true, or entirely fantastic), are cornerstones of American democracy.”  O’Rourke also brings up the concept of “truthiness” – the gut feeling something is true without any actual facts to back it up.

This is all great as satire but what nags at me is the way SBA List and its defenders seem to be making this satirical argument with utter sincerity.  The opening sentence of their petition to the Court is literally dripping with incredulity as they wail, “Believe it or not, it is a criminal offense in Ohio to make a knowingly or recklessly ‘false’ statement about a political candidate or ballot initiative.”  I mean, is prohibiting lying really such a bad thing?

The Supreme Court seem to think so.  Justice Scalia is soon parroting the plaintiff’s lawyers by referring to the Ohio Elections Commission as the “Ministry of Truth” from George Orwell’s dystopian novel 1984.  “If I say [political things], and there’s a serious risk that I will be had up before a commission and could be fined . . .  what’s the harm?” asked Justice Breyer.  “I can’t speak; that’s the harm,” he immediately answers himself.

The lawyers for SBA List, Michael Carvin and Yaakov Roth, wrote an article for the Wall Street Journal in which they explain their client’s position.  I fully appreciate their point that this is not about a Constitutional “right to lie” but “Whether the state may force citizens to defend the ‘truth’ of their political critiques before bureaucrats who may well have been appointed by the politicians being criticized.”  This tautological approach to government is clearly undesirable.

I also appreciate their point that “People often disagree about what is the ‘truth,’ particularly in the political context.”  However, as a practical matter, this objection would make all law impossible to define and practice.  There is also considerable disagreement about what constitutes “insanity,” or when causing another’s death is “self-defense,” or where to draw the line between “premeditated” and “act of passion.”  Society needs to establish standards for such things and government is a logical and probably preferable agent to set and administer them.

Even so, I remain troubled by this case.  Most court watchers are predicting it will be a slam dunk for SBA List, with the real possibility of an oh-so-rare unanimous decision.

In 1984, the Ministry of Truth was famous for such paradoxical gems as “War is Peace,” “Freedom is Slavery,” and “Ignorance is Strength.”  The Supreme Court just endorsed the government of Michigan criminalizing what constitutes acceptable university admission policies as an example of grass roots democracy in action.  In the same week, they heard a case in which they strongly appear to feel the government of Ohio criminalizing what constitutes acceptable political speech is an example of big government run amuck.  And based on these seemingly contradictory reactions, they are likely to be announcing, “Diversity is Bad, Lying is Good.”  Maybe they are the real Ministry of Truth . . . or perhaps Ministry of Truthiness would be better.

Ironically, the expected decision in Driehaus may provide the loophole for Affirmative Action the majority thought they had sewn up in Schuette.   While it will still be Unconstitutional to allow racial preferences in university admissions in Michigan, it will not be Unconstitutional to lie about doing so.  All a Michigan school would have to do is claim the reason it turned away any applicant is because they believed that individual secretly rooted for the Ohio State Buckeyes football team.  There is not a court in the Upper and Lower Peninsulas that would convict.

Thursday, April 24, 2014

Science and the Tinkerbell Effect

Americans Doubting the Big Bang Is a Healthy Thing

A new Associated Press-GfK poll asked approximately one thousand U.S. adults to rate their confidence in science and medicine.  The results showed surprising skepticism in various scientific concepts that many/most scientists consider established fact.  People were most likely to accept practical matters, such as smoking causing cancer or antibiotics causing more resistant bacteria.  More theoretical concepts, such as global warming, dating the age of the Earth, or the Big Bang creation of the universe met with greater suspicion.

Some scientists greeted the survey’s findings with dismay.  “It is enormously distressing that science, which is our most powerful means for gaining insight into the world, insight into truth, is so mistrusted by so many people,” Brian Greene, Professor of Physics and Mathematics at Columbia University, told CBS News.
Some good advice from Tink.

Others looked for explanations.  People find it easier to believe what they have personally experienced.  Many of us have known a heavy smoker who died of cancer but no one can look into the night sky and see visible evidence of the Big Bang.  Most of the readily accepted concepts have little to do with religion but carbon dating and the Big Bang appear to contradict/invalidate the Bible and other religious teachings.

Distrust of science does not equate to an embrace of traditional faith by Americans; quite the opposite.  A Harris poll taken in November 2013 found an eight percent decline since 2009 in the number of Americans who believe in God.  The same poll found those describing themselves as “not at all” religious has nearly doubled since 2007.  A May 2013 Gallup poll found seventy-seven percent of American say religion is losing its influence on American life.  Twenty-one percent of respondents in a March 2014 NBC News/Wall Street Journal poll said that religion is “not that important” to their lives.

More to the point, the fact that people are as skeptical toward science as they are religion is no sign that science is overstepping its limits or doing something wrong.

There is a documented phenomenon in science that is known as the Tinkerbell Effect.  Simply stated, it says that our beliefs, biases, and assumptions can literally impact our physical observation and analysis of factual data.  The name derives from the fairy character Tinkerbell in the J.M. Barrie novel Peter Pan.  Barrie asserted that fairies require human belief in order to exist.  In the play adapted from the novel, Peter urges the audience to applaud for Tinkerbell after Captain Hook poisons and imprisons her, in order to save her life.

Religious adherents voice a faith in God that often borders on certainty.  However, none of them would argue that God requires their faith in order to exist – to do so would be to reduce the Lord of all Creation to a children’s fairy.  The same is true for global warming or the Big Bang – even a majority of disbelief by Americans does not mean they are bad science.

Scientific theories are formed as attempts to explain why/how things happen that align with empirical data.  It is impossible to know anything with absolute certainty.  Sometimes new evidence emerges that requires theories to be adjusted.  However, science remains a rational and honest attempt to make sense of our existence.

Even the most brilliant and dedicated scientists are subject to the Tinkerbell Effect and sometimes will engage in bad science.  Religious leaders and philosophers are also vulnerable in their respective fields.  So are all of us.  We will be more inclined to question scientific findings we find threatening or difficult to grasp as bad science.  Yet just because something is distantly divorced from our everyday experience does not mean it is not true or as real as us.

I sympathize with scientists.  They face public skepticism over string theory, even among their own ranks, because (current) tools exclude factual observation of the possible tiny one-dimensional objects and because eleven dimensions are really, really hard to imagine.  Yet forty-two percent of that same public readily accepts the existence of ghosts and fifty-eight percent believes in Satan and hell.

Still, even if some of their preferences side toward metaphysics, their methods are purely scientific.  Skepticism is at the heart of scientific pursuit, whereas many modern religions are bogged down in dogmatic absolutism.  For thousands of years, human society dutifully accepted whatever the institutions of power (i.e. church and state) told them was true.  Only a few iconoclast thinkers challenged the norm.  Today, we live in a society where everyone maintains a healthy doubt.  Science has done more to change us for the better than even it may realize.

Monday, April 21, 2014

A Little List

What’s the Difference between the Mentally Ill and Veterans in Hate Groups? 

As some day it may happen that a victim must be found
I’ve got a little list, I’ve got a little list.
Of social offenders who might well be under ground
And who never would be missed, who never would be missed.

W.S. Gilbert, The Mikado

The comic aria above from 1885 is sung by Ko-Ko, The Lord High Executioner of the town of Titipu.  Under danger of execution himself, Ko-Ko produces a list of people who could serve as ready scapegoats, due to their annoying personalities.  It all sounds silly and satirical but some of the misbegotten are on the list simply for being children, blacks, transvestites, and women intellectuals.   Oh, how art sometimes forecasts, rather than reflects, life.

Frazier Glenn Miller (a.k.a. Frazier Glenn Cross ) shot and killed three people in Overland Park, Kansas.  Although none of his victims turned out to be Jewish, Miller apparently targeted them because they were in the parking lots of two different Jewish buildings.  It was enough for federal authorities to charge him with hate crimes.

Frazier Glenn Miller was
known to engage in hate
speech and own guns for
many years

Miller is no stranger to hate groups.  He founded a Klan-affiliated organization in North Carolina in 1980 that eventually became the White Patriot Party.  He had multiple run-ins with the law for operating a paramilitary organization.  He was ultimately arrested with a “small arsenal” of stolen military weapons.  Once in prison, he began cooperating with prosecutors, testifying against other white supremacists in exchange for a reduced sentence.

Before any of that, Miller served in the U.S. army for twenty years, including two tours in Vietnam and service as a Green Beret, before he was discharged for distributing racist literature.

Last week, Kathleen Belew, a postdoctoral fellow in history at Northwestern University, wrote an op/ed piece in the New York Times that stated Miller was not a unique case.  She pointed to research showing a high correlation for violence by former veterans that are members of far-right extremist hate groups.  She noted this correlation receives little attention from authorities.  “Would he have received greater scrutiny had he been a Muslim, a foreigner, not white, not a veteran?” she wondered.

The response from veterans groups was swift and condemning.

Yet the Department of Homeland Security issued a nine-page report in 2009 detailing the same potential threat.  “Military veterans facing significant challenges reintegrating into their communities could lead to the potential emergence of terrorist groups or lone wolf extremists carrying out violent attacks.”  A 2008 F.B.I. report reached similar conclusions.  “Military experience is found throughout the white supremacist extremist movement . . . [These groups] have attempted to increase their recruitment of current and former U.S. military personnel.”

The threat of violence from such groups is significant.  According to the New America Foundation, a non-partisan public policy institute, thirty-four people have been killed by right-wing extremists in the United States since the September 11, 2001 Islamic terror attacks.  Islamic jihadists killed twenty-three people over the same period.

In spite of this, some veterans, like many Americans, have been quick to call for solutions including national/state lists and closer tracking when gunmen have turned out to be mentally ill.  Consider this article from the May 2013 issue of The Economist.  “We don’t go around shooting people, the sick people do. They need to be fixed."  So said the gun-owning pensioner in the Korean War veteran's hat, demonstrating outside Connecticut's state capitol on March 11th.  He was holding a sign reading, 'Stop the Crazies—Step Up Enforcement of Current Laws'.”

Before denouncing all such lists as government conspiracy to take away Second Amendment rights, the NRA briefly supported this idea with mentally ill shooters.  “We have a mental health system in this country that has completely and totally collapsed,” spokesman Wayne LaPierre told NBC’s Meet the Press in December 2012.  “We have no national database of these lunatics . . . We have a completely cracked mentally ill system that's got these monsters walking the streets.”

Speaker of the House John Boehner is on record in favor of confiscating guns owned by the mentally ill.  “There’s no question that those with mental health issues should be prevented from owning weapons or being able to purchase weapons . . . [we need to] find a way to keep guns out of the hands of people who shouldn’t have them.”    Republican Senator Lindsey Graham of South Carolina has introduced bipartisan legislation in the Senate to get the mentally ill on a list.  “There are over fourteen thousand people in South Carolina who've been adjudicated a danger to themselves and others by a court, not in the system. That's what [we need] to fix.”

The problem is the lists and databases that exist today are notoriously difficult to update and maintain.  The F.B.I.’s National Instant Criminal Background Check System (NICS) has proven an arbitrary way of identifying who might be too dangerous to own a gun.  State databases, such as California’s Armed and Prohibited Persons System (APPS) suffer the same shortcomings.

Earlier this month, Doctor Elspeth Cameron Ritchie, retired Army colonel and psychiatrist who served in the Office of the Army Surgeon General, penned an op/ed piece on the CNN website, in which she advised caution and nuance before taking away the right to carry a weapon from soldiers suffering from “more common, milder form of mental illness.”  However, she adds this important caveat – “If [a soldier] had been determined to have been suffering from a severe enough form of mental illness to have posed a threat to himself or others – or had a history of violence – he should never have been allowed to remain in the Army in the first place, much less allowed to own a gun.”  [my emphasis]

“The fact of the matter is that little attention is paid by federal law enforcement to white supremacism as a trigger for domestic terrorism,” Heidi Beirich, director of the Intelligence Project for the Southern Poverty Law Center, told Slate magazine.

I am against profiling veterans as potential right-wing hate crime perpetrators (I do not agree the op/ed piece by Bellew did so).   I am also against such profiling of the mentally ill.  This most recent shooting by Miller, and the outrage it has generated against maintaining lists of veterans for tracking purposes, provides a caution in our zeal to do so for other groups.  All of them contain human beings, some of whom will be undeserving of their placement, will be missed, and deserve better.