NPR

More Perfect Season 2: Advocacy Masquerading as Explanation

Libertarians should listen to the second season of NPR's legal podcast. But maybe get a pillow to scream into first.

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WNYC/iTunes

The second season of More Perfect, NPR's hit podcast about the Supreme Court, covered a lot of topics of interest to libertarians: gun control, campaign finance regulation, federal regulatory power, police brutality, and more. But the show's political slant has only intensified in the new season, leaving a bitter taste in the liberty-minded listener's mouth.

More Perfect's appeal has always come from the producers' ability to break the dry contents of a ConLaw casebook into approachable, This American Life–style documentary narratives. Even among those familiar with the cases the show covers, our knowledge of the human stories behind the litigation generally doesn't extend beyond what ended up in the Court's opinion, so the show has value even to legally savvy listeners.

But the second season runs headlong into a trap that the first mostly avoided. Time and again, its analysis is colored by the producers' quiet-but-obvious progressive political agenda. It would be difficult to make a show like this without some guiding perspective, but in passing editorial judgment on the Supreme Court's creation of new legal rules and standards, the show ultimately lacks a legal philosophy beyond whether the decisions it describes advance the policies its hosts prefer. That spoils many an otherwise enjoyable episode.

This underlying flaw was most clearly displayed when the show departed from its regular narrative format. The season's eighth episode, "The Hate Debate," featured a campaign-style debate between Elie Mystal, the show's legal editor, and Ken White, the lawyer behind the popular blog Popehat, over legal prohibitions on so-called "hate speech." Mystal readily admits that he, unlike White, is not an expert in First Amendment law, and in the debate he's obviously outgunned in terms of detailed knowledge of precedent and principle. But there's a greater disconnect at work too, one that reflects the big flaw in More Perfect's second-season approach.

Throughout the debate, White argues for permissive free speech jurisprudence on the grounds that conscientious lawyers tend to favor: that it protects citizens from arbitrary coercion, that it lends itself to neutral application by judges, that it disentangles constitutional rights from politics. Mystal, meanwhile, shows little concern for what kinds of rules make for good law. "Can you just explain to me a standard that allows me to stop Klansmen?" he asks exasperatedly. "Because that's the one that I want."

When More Perfect doesn't outright invite the audience to support the standards that achieve their political desires, the producers use a sort of intellectual asymmetric warfare to push the right opinion. An episode called "The Gun Show" covers the history of gun control and the case of District of Columbia v. Heller, which established a Second Amendment right to individual ownership of firearms. That episode does feature Robert Levy, Alan Gura, and Clark Neily, the three libertarian attorneys who argued the case. But inexplicably, they're never given the opportunity to offer a substantive defense of their victorious legal theory. Instead, that task is left to their oddball client, former security guard Dick Heller. It's a clever bit of deck-stacking that does a pretty good job of making the constitutional debate over the Second Amendment look like one between reasonable adults and a lunatic fringe.

Both Mystal's "just give me the standard which will do what I want" attitude and the producers' proclivity to stack the intellectual deck are on display in the season finale, "One Nation, Under Money." The episode tracks the Supreme Court's dramatic expansion of Congress' power "to regulate commerce with foreign nations and among the several states" to encompass virtually all economic activity, and it comes down squarely in favor of the change. In the first half , host Jad Abumrad discusses 1941's Wickard v. Filburn, in which the Court upheld a federal fine imposed on a farmer who exceeded his Depression-era wheat quota but did not sell the excess. In a decision that opened the door to the modern federal regulatory state, the Supreme Court held that the Commerce Clause extended Congress' power to almost any private activity that affects an interstate market in the aggregate. The power to regulate "interstate commerce" now included the power to fine someone for an activity that involved no commerce at all.

Abumrad admits that the logic here strains even his own credulity about the proper scope of federal power. The decision "still drives conservatives and libertarians bonkers," Abumrad says, "and I am neither one of those things, but I get it." For a moment, it looks like the regulation-skeptical position might get a moment in the limelight.

But then the episode turns to the use of the commerce power to outlaw racial discrimination in private businesses that cater to the public, and any hint of skepticism goes out the window.

There are a number of libertarian lawyers, professors, or historians who could have ably challenged the prevailing interpretation of the clause's scope in a manner totally untainted by racial animosity. Indeed, Neily and Levy, two of the attorneys featured in "The Gun Show," have written books arguing for a more limited interpretation of the Commerce Clause.

But neither Levy nor Neily appears in the episode. Instead, More Perfect turns to Ollie McClung, Jr., a septuagenarian Alabama restaurateur whose father owned the segregated barbeque joint that lost a Supreme Court challenge to Congress' power to outlaw segregation using the Commerce Clause. McClung's comments suggest that his rather unsophisticated views on constitutional law are, to put it mildly, not absolutely untainted by retrograde racial attitudes. The episode ends with Commerce Clause skepticism all but dismissed as a fig leaf for segregationism. Once expansive Commerce Clause jurisprudence has been tied to preventing racial discrimination, there is no mention of its pernicious effects—not even federal marijuana prohibition, which progressives themselves often decry.

Constitutional law is a game of standards, and good constitutional law is about neutral standards. In telling the stories of landmark cases, the show necessarily ends up covering the times when standards change. When constitutional lawyers judge what makes a good decision, they look to theories of interpretation and judicial philosophies. But editorially, More Perfect ends up inviting its listeners to judge new legal standards only by the political outcomes they achieve. When a new rule expands protection for minorities or creates greater authority to regulate business, the producers fawn over it as a stroke of legal genius and they bring on intellectual firepower to endorse it. When a ruling expands gun rights, restricts affirmative action, or deregulates campaign finance, the show portrays it with skepticism or outright hostility, leaving its defense largely to underinformed and underqualified guests while musing about the dangers of using courts to hijack the democratic process.

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  1. NPR’s ‘neutral’ viewpoint is actually heavily biased? SHOCKED!

    1. Indeed, why the very idea that progs would have a wide variety of political positions that are the complete opposite of those of libertarians is another abject stunner.

      1. a wide variety of political positions

        Both kinds, leftist *and* progressive.

    2. Heavily biased in favor of the government position from a radio program subsidized in part by the Government? Say it isn’t so!

      They do love to point out that the majority of their money comes from donations, which is admirable I suppose, but it’s amazing how often their slant is ‘whatever the government is doing is pretty great!’ which seems like it can’t be a coincidence.

      NPR Finances are indeed mostly private.

  2. “Can you just explain to me a standard that allows me to stop Klansmen?” he asks exasperatedly. “Because that’s the one that I want.”

    It’s like debating Tony. Poor Ken.

    1. No, you mean “poor Dopehat”.*

      *I miss John

      1. Yeah, I hope he’s okay. Last time he popped up he was saying he was having family problems. So I’m praying for him and his family.

    2. Boiled down to “just give me the standard which will do what I want”, it sounds like Trump 🙁

      I really, really like it when people steelman* their opposition’s arguments instead of strawman. It’s funny that I only really find that in literary/film criticism.

      *My prime minister will be round to correct me in a moment. It’s steelpeople.

  3. “Can you just explain to me a standard that allows me to stop Klansmen?” he asks exasperatedly. “Because that’s the one that I want.”

    We really should just give up on the notion that media, no matter the window dressing, is not here to report. Their mission is to influence us toward a safer, cleaner, and better world.

    1. Their mission is to influence us toward a safer, cleaner, and better world.

      The world gets safer, cleaner, and better every day without them.

      1. How can that be? If they are not the ones making the world safer, cleaner and better how are they so wonderful and special (which is what their entire self image is based on)?

        1. Narcissism is (mostly) its own reward.

      2. The world gets safer, cleaner, and better every day without them.

        It’s a Tide Ad.

        1. So if I eat the pods I’ll become safer, cleaner, and better?

          Well shit, if it was that easy…

  4. That episode does feature Robert Levy, Alan Gura, and Clark Neily

    NPR must not have realized Levy is a gun-grabber.

  5. the producers’ quiet-but-obvious progressive political agenda

    Quiet as in softly spoken?

    “Can you just explain to me a standard that allows me to stop Klansmen?” he asks exasperatedly. “Because that’s the one that I want.”

    Christ, what an asshole.

    1. That standard is called the 2nd Amendment, combined with the right to self-defense.

      1. Whoa now…the Klan (and their racist Democrat/Progressive Allies) supported the first gun control laws to stop that sort of thing. They certainly aren’t going to back track now.

        1. Indeed. Democrats moved from trying to take away guns just from undesirable minorities and when they mostly failed they decided to just take away all of them in order to get them away from those niche undesirable groups in the name of ‘equality’.

          It’s amazing how the things that haven’t changed in the Democrat party seem to be those things that were explicitly racist at one point but are now considered racial justice somehow.

    2. The way to stop Klansmen is more open discussion, debate, and camaraderie among people. That one guy who personally meets Klansmen and befriends them, and convinces them to give up the hood does more for progress, true progress, then any boot on neck techniques the producer probably has in mind.

      1. Yeah, but that’s so much harder than talking about how there should be more laws.

      2. We also had a president for whom my lifelong-Dixiecrat relatives refused to vote because of his skin color. With no small chunk of the real racist Democrats behind the other guy, Obama won twice, and yet we’re still blaming everything on institutionalized racism.

        There’s nothing that needs to be done about Klansmen as long as they’re not hurting anybody. If they want to sit around in a church on Tuesday nights and spew a bunch of nonsense, that’s fine. In fact, thanks for letting me know that you’re an asshole so that I don’t have to talk to you or patronize your employers.

        First Amendment. Super simple stuff.

      3. The way to stop Klansmen is…

        Red lights and stop signs?
        Take away his credit card?
        Shoot him in the face?

        Unless by ‘klansman’ you really mean ‘murderer’ then there isn’t really a way or a need to stop him. Race/tribe favoritism is built into the brain at exceedingly low levels. Well before/below the 3 Rs. Even if you succeed, there’s no reason not to assume you aren’t just creating a prejudice vacuum and the klansman just winds up bigoted against whatever next social group/structure earns his ire.

  6. I stopped watching the teevee when Lenny Briscoe got kicked off Law and Order. I have taken a piss on Dick Wolf’s Santa Barbara ranch a few time since though. Did Wolf buy NPR in the meantime?

    1. Did Dick Wolfie actually kick Lenny off of L&O? His last season on the show was 2003-2004. Jerry Orbach died on Dec. 28, 2004.

      Nevertheless, I share your views of Dick Wolf.

      1. No, Jerry Orbach went to a new show where he was going to be the star. Law and Order: Trial By Jury. So, he was basically upgraded to his own spin-off. Then he died. So they cancelled Trial By Jury. I don’t believe there was any particular beef with him and Wolf.

  7. There’s plenty of opportunity to use broadcasts to tell the story from a more constitutionalist perspective.

    Or even to turn the tables on NPR, not that I’d endorse such a thing.

    Imagine a show which starts off with a tearjerking story of one of that family that got screwed by the EPA and had to go to the Supreme Court to get the right to a hearing. Then have a top-flight law professor explain why it’s wrong to take people’s land that way. Then have a hippie in a tie-died shirt babbling incoherently about the environment and corporations. Balance!

    1. “To defend the gun-rights position, here’s an elderly black woman who wants to keep a gun to scare off the burglars who keep invading her apartment.

      “And on the gun-control side, here is Marx McEngels of the Communist Workers Party to explain how private possession of firearms endangers the proletarian revolution.”

      1. “To defend so-called campaign-finance reform, here is some grainy footage of some random politician.

        “Now here’s a guy who was threatened with fines for circulating a petition in his neighborhood complaining about zoning abuses.”

        1. Follow these rules:

          After selecting the dumbest, least sympathetic spokesperson for the other side, quote them speaking in abstractions or focus in on awkward phrases, etc. Interview them against a dark background, if possible, as if they’re speaking from an abandoned factory-slash villain lair.

          When interviewing the good guys, show them in a domestic setting, starting off with them playing with their kids and dog, then talking in their kitchen or living room to show how they share the position of many ordinary Americans.

          Play clips of the good guys discussing concrete issues about the impact of the controversy on their lives. If they’ve received death threats in their email, print the death threats on the screen.

          1. Though if you’re trying to sell a pro-NAMBLA or bestiality stance, maybe skip the playing with kids and pets part. The exception that proves the rule, I suppose.

          2. When interviewing the good guys, show them in a domestic setting, starting off with them playing with their kids and dog, then talking in their kitchen or living room to show how they share the position of many ordinary Americans.

            Play clips of the good guys discussing concrete issues about the impact of the controversy on their lives. If they’ve received death threats in their email, print the death threats on the screen.

            You’re aware that the ‘R’ in NPR stands for ‘Radio’, right? Or did you mean ‘dark background’ more metaphorically?

            1. I think he means background noise of wailing and gnashing of teeth? That would be pretty dark, I suppose. Maybe add a little distortion to the speakers voice to make them sound like they’re calling in random demands?

              1. *ransom demands, but I suppose it works either way.

  8. “Can you just explain to me a standard that allows me to stop Klansmen?” he asks exasperatedly. “Because that’s the one that I want.”

    one of the strangest thing about leftist “anti racism” is that emerges with fervor at exactly the moment in history that racism itself is nearly dead of its own accord.

    (it is like ‘Rape’ in this regard – the #metoo movement explodes in the wake of the ‘campus rape crisis’… among a population that is less-victimized by sexual assault than any group of people on earth. rape has declined as a violent crime even more than regular violent crime, which has itself declined by half in the past 30+ years)

    the impression you get is of a people who want to pretend to be slaying dragons at exactly the moment the dragons are about to keel over from a heart attack. “BUT I WANT TO TAKE CREDIT”. But why is that your concern? Oh, because its your substitute for any political logic. right, i forgot.

    1. Probably most people on this site don’t play online videogames, and because I’m terrible at them and get reported for being bad, I’ve quit playing.

      In the world of CG, this phenomenon is called “last-hitting.” The whole team can wear down a monster, but the person who steps in at the last second and kills it reaps the greatest rewards.

      1. Now you know why Heroes of the Storm was invented. It specifically does away with last hitting.

        1. I got into the HOTS beta about the time all my friends stopped playing it. Now my roommates are watching Overwatch tournament streams on our TV…

    2. IDK if racism is dead, there’s still plenty of actual racism, sexism, etc. around. The issue, IMO, is more akin to aligning moral compasses in the absence of more general cultural magnetic fields or as the field routinely shifts and inverts. We need to be progressing. Sure, the needle is spinning and we’re walking in circles but… progress!

      1. IDK if racism is dead, there’s still plenty of actual racism, sexism, etc. around.

        sometimes i read replies, then go back to my original comment to re-read what i actually said. more often than not, what i said was entirely different than what people seem to be reacting to.

        e.g.

        “”racism itself is nearly dead of its own accord.””

        Nearly.

        the person who made this argument in more, and better, detail

        he uses some proxy data, like “klan membership” and polling on attitudes about race-mingling. it is convincing because it all tends to signal the same thing: that actual racist views have gone from “common” to “so marginal as to be not worth mentioning”. You have near identical responses from blacks and whites on questions like “the value of the civil rights act” (which isn’t asking a legal question, but a moral one)

        “oh, but there’s still racism”

        because you will never completely eliminate bad ideas. but bad ideas cease to be socially significant. my use of the term ‘dead’ was mainly in noting that racism isn’t something anyone actively promotes anymore.

        the left’s “anti racism” is simply pretending to fight something already declining sans any effort on their part. If anything, its a posture which papers over their own racist past.

    3. Spot on Gilmore, as usual.

  9. “Can you just explain to me a standard that allows me to stop Klansmen?” he asks exasperatedly. “Because that’s the one that I want.”

    and also to group anyone I want into the category of Klansmen, of course

    1. Yeah, because there are hardly any real ones left. Gotta beef up the numbers. The KKK has been their go-to concept for “evil” for most of the last century and they don’t want to have retool at this point.

      1. That’s not even an exaggeration. There’s no shortage of publicly educated geniuses who equate support for capitalism as coded racism, because there are disparate outcomes.

        They won’t just be stopping Klansmen. They’ll also be stopping anyone who gets in the way of their socialist utopia. This has happened a couple times in the 20th century. You may have read about it.

  10. Alec is suggesting that we listen to it, but I’d need a lot more than a shout into a pillow to tolerate this kind of biased nonsense. This is propaganda 101. We learned when we were children not to lie by exclusion. Particularly infuriating is the tricky way they present the broadening of the commerce clause, if one can even call the absurd arguments as broadening and not outright bullshit. The last field I want progressive pundits parading through is Constitutional Law, not that I’m at all qualified to talk about it, but I at least realize that.

    Sorry, I’m salty. I know it’s inappropriate to smash a podcast that attempts to translate the dry logic of legalese into something resembling conversational English.

    1. From the article, it doesn’t look like it’s inappropriate to smash this particular podcast, though.

    2. This is propaganda 101.

      I wouldn’t expect any different from NPR.

  11. Mystal, meanwhile, shows little concern for what kinds of rules make for good law. “Can you just explain to me a standard that allows me to stop Klansmen?” he asks exasperatedly. “Because that’s the one that I want.”

    A better summing up of statists is harder to imagine. Ends, not means. Feelz, not logic. Rule of What-I-Want not law. Consequences be damned.

  12. I listened to a couple of those podcasts (guns and hate-speech) and was reminded why I stopped listening to NPR many years back.

    Mystal sounds genuinely unstable.

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