The Volokh Conspiracy

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The Volokh Conspiracy

Police Abuse

How Injustice at Home Damages the US Position in the World

The upheaval over police abuses has damaged America's image in the world, especially coming on the heels of other blows to American "soft power." We can and should do better.


Over the last few days, several different friends, relatives, and members of the media from foreign countries have reached out at least in part to ask whether I am safe and well. One was even a high-ranking public official in his own country.

For the record, I'm happy to assure everyone that my family and I are safe and well, and that life in northern Virginia has been essentially normal these last few days (or at least as normal as it gets during the pandemic).

However, the fact these people thought they needed to inquire about my safety is just one of many indications of the severe damage the crisis caused by police abuses such as the death of George Floyd and resulting protests and riots have done to the image of the US across the world. Such queries are usually directed at people in the midst of natural disasters, or those visiting a dangerously unstable authoritarian state.

The harm to the standing of the US is even greater because these events come on the heels of several other blows to America's image, such as Trump's brutal family separation policy, multiple trade wars with allies, the badly flawed handling of the coronavirus pandemic, and so on.

Russian, Chinese, North Korean, and Iranian propagandists are having a field day:

Officials in Iran, mainland China, Russia, Venezuela, North Korean and the pro-Chinese government in Hong Kong have all called out U.S. President Donald Trump after he told state governors to "dominate" those protesting the death of George Floyd — something that he has criticized other nations for doing in the past. Trump has also claimed without evidence that the protests are illegitimate, and described the protesters as "terrorists," "thugs" and "lowlifes…"

Zhao Lijian, the spokesperson for China's Foreign Ministry, also called out the U.S. at a news conference in Beijing. He said the protests "once again reflect the racial discrimination in the U.S., the serious problems of police violent enforcement and the urgency of solving these problems."

Zhao, whose government has put more than 1 million Muslim-minority Uighur people in detention camps, urged the U.S. to "safeguard and guarantee the legal rights of ethnic minorities…"

Russia, which meddled in the 2016 U.S. election in part by exploiting movements like Black Lives Matter, also condemned the latest violence.

"The United States has certainly accumulated systemic human rights problems: race, ethnic and religious discrimination, police brutality, bias of justice, crowded prisons … to name a few," Russia's Ministry of Foreign Affairs said in a statement.

Even before the events of the last few months, surveys show that the US image in the world has declined since 2016, driven in large part by widespread revulsion at the Trump administration's policies on trade, immigration, and other issues. In most countries, Trump was viewed much less favorably than such brutal despots as the rulers of Russia China. During the 2016 campaign, Trump famously claimed that other nations were "laughing" at the US and that he would take steps to strengthen our position. Today, more and more of the world views us with derision, contempt, and revulsion—and foreign leaders are laughing at Trump more openly than with any of his recent predecessors.

In response, we can (correctly) point out that US police abuses are nowhere near as bad as the massive human rights violations practiced by Valdimir Putin's and Xi Jinping's regimes, that several European countries have higher pandemic death rates than we do, and that the US is a victim of double standards.

But at the end of the day, it is unavoidable  that the nation that seeks to lead the free world is going to be held to a higher standard than the Putins and Xis of the world. And we should work to meet those standards, rather than evade them. We can and should aspire to more than being not as bad as the likes of Russia and China.

America's position in the world does not depend only on "hard power," such as having a powerful military and a large and productive economy. It also critically depends  on "soft power"—the appeal of our ideas and our political and economic systems to the people of the world. Foreign governments—especially democracies—are more likely to cooperate with us if we have a favorable public image with their people.

As during the Cold War the US is engaged in a a war of ideas with authoritarian states, most notably China and Russia. Unlike during the Cold War, our current adversaries lack an ideology with broad, international appeal. Few people outside of these two countries are enthusiastic about Chinese or Russian nationalism, or about these two powers' authoritarian systems of government. Nonetheless, we are doing poorly in the war of ideas, largely through our own errors, rather than because of any great skill on the part of our  opponents.

During the Cold War, US leaders—including political conservatives—well understood the the importance of the war of ideas, and that winning it depended in significant part on the image America's domestic policies projected abroad. As legal historian Mary Dudziak recounts in her important book Cold War Civil Rights: Race and the Image of American Democracy, one of the reasons why the federal government began to support the Civil Rights Movement in the 1950s and 60s was the growing recognition that ending racial discrimination would boost the US image in the world and counter communist propaganda.

Even at its awful worst, American racial oppression in the twentieth century was not as bad as the horrific mass murders of communist states, or their repression and deportation of entire ethnic groups. But US leaders of the Cold War era knew that we could not prevail in the war of ideas merely by being less awful than the communists. We had to do a lot better than that.

As was the case during the Cold War, cleaning up our own house is a key element of winning the war of ideas internationally. There is much we can do to curb police abuses, reform cruel immigration policies, stop self-destructive trade wars, and address other issues that have damaged the US image in the world in recent years.

We should not necessarily reverse any and all policies that are unpopular abroad. But, as with desegregation during the Cold War, there are many ways for us to improve our image abroad by doing things that are also right in themselves and beneficial to US domestic policy. Such measures as curbing police misconduct and racial profiling, letting in refugees fleeing the oppression of our adversaries, and ending trade restrictions that damage our economy can benefit Americans at home at the same time as they strengthen our position in the world.

If we want to win the international war of ideas and thereby make our America's position in the world great again, we have to pay more attention to the ways in which what we do at home affects our position abroad. Right now, we're a long way from being able to say we're winning so much we can be sick and tired of all the winning.

UPDATE: I have made minor additions to this post.


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  1. Countries that don’t like the US fall into two groups: 1) those that rely on our direct aid or on our lion’s share of contributions to multinational organizations (UN, NATO, WHO, etc.) and 2) countries that don’t rely on either. I’m more inclined to worry about what the latter think than the former.

  2. I am reminded of what Pope Benedict XVI said about clerical pedophilia in the US “It must be something in the water.” Just because we have a free press and one that particularly wants to exploit anything that might embarrass those their journalism professors hated does not necessarily mean things are much worse here. What is ignored elsewhere is exposed and fought over here.
    I knew a Dane who in 1966 said proudly that Denmark did not have racial problems. He did admit his town had no blacks, Arabs, Latinos, or Asians. So, no problems.
    The issues of police brutality almost always arise from individuals already identified and who would have been fired from any private employer. Not all unions deserve Woke support.

    1. The problem of clerical Pedophilia in the Catholic church was NOT confined to the US.

      1. Indded. It seems a measure of the Church’s still-extensive influence that many of its top leaders did not end their lives disgraced or in prison.

    2. So we should be ruled by private employers? Is that what you’re saying? What is your violent mind trying to say?

  3. And somehow the fake outrage that is the pretext for the preplanned rioting looks bad to the rest of the world. I would think that if the goal is to make the rest of the world love us, as Ilya seems to suggest, that these riots pretending to be protests would be considered by him to be unAmerican, and not in this country’s interest.

    1. Let’s go back to the “arrogant American” of the 1950’s when we didn’t care what the rest of the world thought….

  4. We have the dollars and we have the nukes.

    So if the rest of the world doesn’t like us, it can go firetruck itself.

    We should have nuked Iran in 1979, we should nuke North Korea today. China and Russia we can deal with economically, a total trade ban with it understood that any country that trades with them no longer has diplomatic relations with us. No more US $$$, no more sending your students here to steal our technology.

    It’s time for America to start giving other countries the middle finger, and for people like Ilya Somin to decide which country he is loyal to. Seriously, George Mason wouldn’t (couldn’t) exist without a massive handout from the US Government, and if he isn’t loyal to it, he shouldn’t be teaching there.

    1. Yes, good plan, nuke everybody who doesn’t like us, and somehow — will Donald Trump build a wall? — keep the radiation from escaping their borders.

      A better plan is to stop having a foreign policy. Get rid of embassies, ambassadors, treaties, military bases outside the country, tariffs, and probably a lot more. Let Americans decide who to pay attention to, who to do business with, who to visit. Let foreign politicians learn that the US is no military threat, let them come begging to Americans as individuals for foreign aid, let them understand that it is a matter of public relations, not corruption behind closed doors, that will get their people the aid their leaders crave.

      1. The problem is that we tried that in the 1930’s and it didn’t work.
        And that was when having two oceans was a defense.

        1. Really? We did away with embassies, ambassadors, everything, in the 1930s?

          Hint: eliminating government foreign aid, embassies, ambassadors, etc is not isolationism. You probably equate chaos and anarchy too.

    2. As insane and revolting as this comment is, it represents the general outlook of a pretty broad swath of Americans. Perhaps this indicates we shouldn’t hold ourselves out as a world leader. Maybe America getting knocked down a peg or two on the world stage isn’t so bad – just dresserts and all.

      1. We spent 50 years — 1939-1989 — saving Europe from its own stupidity. We are the only country that didn’t demand tribute in response.

        I say firetruck all the undeserving bastards.

      2. As opposed to saintly China and Russia and pretty much any other country who’s every held the dominant position in history.

  5. All they have to do is listen to the US media. Media is in high heaven praising the social purity of protesting despite being in the middle of a pandemic. People are being shot and killed in the middle of this ruckus. NY police police woman the latest Floyd casualty

  6. “In most countries, Trump was viewed much less favorably than such brutal despots as the rulers of Russia China.”

    And that says everything that needs to be said about how much such opinions should be respected. A triumph of taste over morality.

  7. This is a post in a law blog????

    Seems more like agitptop.
    Shameful stuff. The Resistance continues and America suffers.

    Where is the outrage over what the FBI did to abolish the peaceful transition of power?

  8. Who cares….really does anyone care what some European peasant thinks about us?

  9. Ilya, let’s start by recognizing that you dislike Trump and move on from there. Can we filter this article through the anti-Trump matrix?

    I mean after all we’re here on Reason. If a President decides that the country is being screwed by the trade disaster he’s inherited from his inept predecessors, isn’t he free to adjust the relationship to benefit his own population rather than continue to subsidize the entire world off the backs of Americans? Is that reasonable? the President not also free to close the border to those parents who risk the lives of their children by dragging them 1000’s of miles without adequate food, water, provisions because they seek American paychecks without coming through the front door. Does the child abuse start then, or does it begin when a parent rents their kids to someone trying to look like a refuge family? Is it reasonable to place the abusive parent in a jail cell and hold the child separately so they might stick around while waiting for their case to come up? You know how felons flee sometimes? Reasonable again.

    Is it reasonable to place responsibility for Covid 19 programs on the governors who are normally underworked? After all, they are the CEO statewide, not Donald Trump. It’s their job to handle it. Is it reasonable for you to question the governors’ abilities?

    Ah ..the rioting. Didn’t it begin in a city which has obviously been ignoring the fact that it had bad cops on the payroll? A warm fuzzy socialist state, city, should have weeded out its abusive cops long ago if the socialist management at all levels truly cared about Black Live Mattering. Isn’t this a reasonable assumption? Why is it that so many leftist-run states and cities have such horrendous crime profiles, bad cop episodes, yada yada yada?

    Donald Trump is doing just fine for those who still care about our country without being fascists.. we’re just normal Americans who want our country back, and we are taking it back.
    The rest of the world needs to clean up its own act. Some world leaders are actually brave enough to follow our lead, most are not.

    1. And another thing.. universities need to be dropped from the entitlement program and fend for themselves.

    2. Keith Ellison is the Minnesota Attorney General — he could/should have done something about that corrupt police departments use of a neck hold that the rest of the state had banned. And he is a Black activist — so why isn’t he held accountable?

  10. Why does America have to worry about its international image? The problem doesn’t seem to bother the PRC, or Russia, or Iran, or the EU…

  11. The nation whose leaders displayed in the very act of its birth “a decent respect to the opinions of mankind” has not, in this respect at least, become wiser with age.

  12. The ‘injustice’ everybody is losing their mind and is the one reason that justifies spreading a killer plague over kills ~250 black people a year assuming every single police interaction is completely unjust.

Please to post comments

How Adversarial is the Relationship Between African Americans and the Police?

Not as adversarial as you might think based on some radical/extremist activists' rhetoric.


According to the federal Bureau of Justice Statistics, 8.7% of African Americans initiate contacts with the police annually, vs. 11.9% of whites. By contrast, the police initiate contact with whites and blacks at the same rate of 11%. The gap in the first statistic, one presumes, represents a trust gap between African Americans and whites in the police, and there is plenty of anecdotal evidence that this trust gap exists. Indeed, those figures likely underestimate the trust gap; African Americans are more likely to live in high-crime neighborhoods, which would imply a higher likelihood of calling police to report criminal activity. [FWIW, according to the most recent data I could find, 15% of victims of violent crimes are African American, while they are 13% of the population.]

On the other hand, some of the rhetoric from Black Lives Matters and other radical activists would suggest that the relationship between African-Americans and the police is almost entirely adversarial. The fact that one out of every twelve African Americans voluntary initiates contact with the police annually strongly suggests otherwise.

UPDATE: Another interesting data point. According to a 2016 survey, 40% of African Americans, compared to 68% of whites, have a favorable view of local police. 54% of African Americans, compared to 78% of whites, said they would definitely report a crime. Which again shows a significant gap, but not an entirely adversarial relationship. (It also shows a perhaps surprisingly high level of distrust among whites in their local police.)

Over on Twitter, I've been puzzled to see that some interpret reporting such statistics as denying a problem between police and the black community exists, or as undermining attempts at police reform. Perhaps I need to spell it out: The trust gap in how whites and blacks feel about the police is real, an it reflects the real lived experiences of African-American interactions with the police as opposed to whites'. In a post yesterday, I suggested a dozen or so reforms, some fairly radical, that I support. [On reflection, I think part of the problem was my subheading about "activists," which could be read to mean "the average person protesting police violence." I've updated the subheading to "some radical/extremist activists" to make myself clearer.]

Nevertheless, the data suggest that the relationship isn't wholly adversarial, which is in stark contrast to rhetoric that, e.g., black people don't want the police to exist at all. An interlocutor suggested that's a strawman. It's not, as this widely circulated anti-police manifesto (written by a white guy, btw) shows. The difference is between "there's a big trust gap between whites and blacks in the police, and that sorely needs to be addressed by sensible, albeit radical reforms," and "the relationship between black people and their local police is so adversarial that we should abolish policing entirely."

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. What is it like to be this completely out of touch with reality?

    1. Who are you going to believe? Me, or your lying statistics collected by a respected federal agency?

      1. Lies, damned lies, and statistics…

        But seriously, if you’re not going to control for decades of African Americans being shunted into segregated neighbourhoods with high crime, you might as well post numbers that are completely made up.

        1. I did allude to that issue, but other than homicide, crime victimization rate differentials are not nearly as high as your comment suggests, except for homicide.

          1. To wit, “Blacks were victims of an estimated 805,000 nonfatal
            violent crimes and of about 8,000 homicides in 2005. While
            blacks accounted for 13% of the U.S. population in 2005,
            they were victims in 15% of all nonfatal violent crimes and
            nearly half of all homicides.”

            1. Sorry to say, your facts mean nothing.

              Next up: court of law are vessels of white privilege. The “people” will decide guilt. French Revolution style.

              1. If you read the comment sections of liberal websites and take a cruise around Twitter (apparently their “inciting violence” TOS doesn’t apply to some accounts) passing out French Revolution style justice is EXACTLY what the plan.

                1. If you read the comment sections of liberal websites

                  I’ve seen the guillotine memes as well. Not really feeling your cry of a threat to our republic, though.
                  Those guys are no more involved in planning anything than you are.

                  1. I forgot that when a Bernie Bros makes overt threats its hilariously funny…of course it isn’t a SERIOUS threat of violence….there is nothing serious about a Bernie Bros…

              2. They’re not Bernstein’s, or the BoJ’s facts. They’re simply facts that don’t fit your worldview.

                As for your new French Revolution, oh, yes please. And, do try to look presentable, not just another head in the basket. Why you dimwits think you will be running the guillotines beggars belief. Once the looting is over, and the reality of actual pain & death for themselves arises, your mob & revolutionary movement will fade again to hide behind faux surgical masks and scold people.

                1. He was being sarcastic.

        2. As opposed to segregated college dorms?

        3. Shunted into neighborhoods with high crime? Do you think Crime is just something that rains down from the skies in certain areas but not others?

      2. I don’t think this data point you’re citing can bear the weight you’re putting on it. As I read the underlying questionnaire, it’s not how often you ask the police for help personally; it’s simply how often you contacted them. That would include calling 911 on strangers.

        For example, you’re in your apartment and you hear yelling and violence from the apartment down the hall. Or out your window on the street below. You call 911 to report it. It’s not necessarily because your relationship with the police isn’t adversarial; it’s that you trust the police will come and deal harshly with some other people that are causing trouble. You may have no other contact with the cops at all besides that phone call.

        I don’t know how often that scenario occurs; I’m just saying that “voluntarily initiating contact with police” does not inherently show a good relationship with police.

        1. It’s also WHAT you call them for.

          I don’t call to report illegal fireworks because I think fireworks should be legal and hence don’t care.

        2. I think you are underestimating just how adversarial some activists claim the relationship is. For example, the link in my update states, “When the police get involved, black people, Latinx people, Native Americans, people of color, LGBTQ people, sex workers, women, undocumented immigrants, and people living with disabilities and mental health diagnoses are usually in more danger, even if they are the victims of the crime being reported.”

          If people thought that was true, they would almost never call the police.

          1. I don’t think that quote quite possibly proves your point. The activists are saying that they are in fact in more danger, they’re not opining on whether people feel that they are. People can feel like they aren’t in any danger and in fact be in great danger. They may also feel that there is a risk of more danger by calling the police but feel that taking that risk might be worth it.

          2. An interesting comparison would be the contrast between what the activists consider the campus rape statistics to be and what they actually are. Several objective studies have found that the women counted by the activists as rape victims did not personally believe that they had been raped.

            1. Probably true. I was a peer counselor in the dorms, in San Diego. Women would tell me about their experiences where they went on a date, fended off the guy’s advances at the end, kept fending them off, and he finally forced their legs apart (often ripping underwear). They did not think they had been raped, because they had agreed to go on the date. I, on the other hand, did think there was, at least, some sort of sexual assault. (I would hardly consider myself to be remotely close to an activist on this issue.)

              Your point is well-taken.

          3. Wow, you should be embarrassed. How much more blood do you want? Maybe you should think what you would have been like in the past. Take your talking points there, and relate them.

        3. Table 4 in the first referenced BJS report sheds a bit more light. Based on the 2015 survey, 0.7% of blacks (vs 1.2% of whites) initiated a contact for “sought help/other” reasons, which is a lower black/white ratio than for resident-initiated contacts overall.

          Interestingly, 1.1% of blacks (vs 1.0% of whites) initiated police contact for “block watch” reasons, the only category/race combo in which whites were not statistically-significantly the highest.

    2. Why don’t you tell us from first hand experience?

    3. What’s it like to be a know-nothing?

    4. Reality is that a Rasmussen poll shows that 40% of likely Black voters admit they intend to vote for Trump, and I suspect that there are a lot that intend to without telling anyone.

      Total copy of the tweet pasted below:

      Rasmussen Reports
      Reader Tip: Coming Later

      Our Daily Presidential Tracking poll today shows Black Likely Voter approval of the job @realDonaldTrump
      is now over 40%.
      10:54 AM · Jun 5, 2020·Twitter Web App

      1. Yeah….that’s not going to pan out for you lol.

      2. So Trump, who got 8% of the black vote in 2016, is going to get 40% this year?

        The only appropriate response is, “How much money do you have?”

        1. 8% is a lot more than 1% — Rasmussen’s poll results are exactly that and if you don’t want to believe them, I could care less….

        2. Right, because Bloomberg’s money bought him so much support it will make your head spin.

          Why would blacks vote for Biden, when he shares a lot of the blame for throwing so many blacks in prison? It was easier to deflect that blame from Hillary and vote against Trump. Not so easy this time.

          1. Do you really think Trump is going to get anything like 40% of the black vote?

            Ed, he’s a lost cause. But you; what do you think?

            1. Perhaps you didn’t read what bernard11 wrote:

              The only appropriate response is, “How much money do you have?”

              I can’t think of anything it applies to other than buying election.

              1. “I can’t think of anything it applies to other than buying election.”

                He’s offering to make a bet.

      3. The poll is job approval, not who they’ll vote for in November. Though the percentage is likely to be higher than activists expect if things don’t change in the meantime.

  2. Dear law school deans:

    I submit this blog as evidence for the proposition that no strong law school should hire another movement conservative for a faculty position.

    P.S. If you’re wavering, don’t miss the comments.

    1. Evidence is more than your ignorant bias.

    2. And it’s people like the Reverend who make me |/dev/null the entire BLM movement and all it says.

      1. You, being a bigoted asshole who makes up anecdotes to support your lies don’t support the equal treatment of black Americans?

        Wow. I’m fucking shocked.

      2. If you’re going to borrow unix terminology, at least get the syntax right. /dev/null is not a program, so the pipe is inappropriate. As it’s a character device, you should use the file redirection operator: ‘>’.

  3. How can you possibly imply, let alone state, that progressive/socialist/totalitarians would lie?
    Have you been thinking again? Stop it! Just accept the narrative and all will be well.

    1. Neat trick where you conflate three different political philosophies into one thing.

      1. They are the same thing. They all want the police to kill you if you don’t do what they think is best for you.

        1. Well. That could be said about any government system. Plenty of right wing governments who do the same thing (and for what it’s worth, totalitarianism is a style of rule more than an ideology per se)

          1. Good. You’re beginning to catch on.

  4. I think it’s interesting that instead of consulting the dozens of surveys where Black folks share their beliefs about police, DB choose to consult a statistic that, by his own admission doesn’t give us a good measure of those beliefs. Is he like allergic to actually asking Black people what they think?

    1. Maybe because “what do black people say they think about police when surveyed?” is an entirely different question than “how adversarial is the relationship in practical terms?”

      In any event, 40% of African Americans, compared to 68% of whites, have a favorable view of local police. 54% of African Americans, compared to 78% of whites, said they would definitely report a crime. Which again shows a significant gap, but not an entirely adversarial relationship.

      1. This is only true if “adverserial” only means “never coordinates with under any circumstances”

        1. I out of every 12 people in a category, every single year, is a lot more “coordination” than that. If it were 1% or something, you’re point would be well-taken.

    2. Are you saying opinions are always right? Trump supporters agree.

    3. Statistics 101 — population sample variance affects survey outcome.

      Black business owners will give different answers than those who would burn down said businesses.

  5. Stats don’t change their minds…

    What they seem to enjoy is a lot of white liberal protesters burning down minority neighborhoods for some reason.

    When the Babylon Bee looks like reality, well..

    1. Well, Charles Manson wanted to start the race war that these schmucks are fueling.

      1. The Left has had a race war fantasy ever since the 1960’s. They tried so hard in 2018 and 2019 to make connections between those years and the “anniversaries” of 1968 and 1969. The Boomers are trying hard to think that they didn’t waste their younger years on drugs and alcohol and want to see their “revolution” happen before they meet the great happening in the sky.

  6. This statistic doesn’t tell us much beyond the fact that rhetoric that is general may have exceptions. It also doesn’t necessarily address the question head on about the relationship anyway.

    How many of those who called the police did so despite having adversarial feelings because they felt that was a less bad option than not calling the police in a particular situation?

    How many of those calls generated negative Or adversarial feelings? Either because the police were unhelpful or dismissive, or they in fact made a situation far worse.

    1. “This statistic doesn’t tell us much beyond the fact”

      Which is why progressives always are ready to give us “context.”

      1. I have no idea why you’re putting context in scare quotes.

    2. Regardless of your second paragraph, the end result is the same — blacks do not hate the police nearly as universally as the talking points would have us all believe. No matter how much anyone distrusts the police, the very fact of calling them means that they expect a better outcome than not calling them.

      1. Expect? Or think it’s worth the risk? Those were are too different things. Also you don’t need “hate” to have an adversarial relationship…

        1. You continue to quibble, and it continues to show.

  7. Blacks use the “N” word — they despise gangbangers worse than anyone else.

    40% support for a Republican is unheard of — that’s why all of this is happening. We can’t have Blacks voting for Trump.

    1. How about a bet? If Trump gets 40% (or more) of the black vote, I’ll sign off this site, never to be heard from again. If he gets 30% (or less), you likewise sign off forever. Deal?

  8. Also a lot of police departments are now majority minority.
    The NYPD is, the Boston PD is close, etc.

  9. I’m a white guy in a very far left city

    I’ve initiated contact with the police twice in the last 5 weeks: once to report a vehicle break in/burglary/theft attempt, one to report someone yelling “help” repeatedly, probably a couple blocks away.

    One prior time this year I contacted them, to report that the property manager of the apartment complex next door threatened me (while claiming I was in his face, while he was advancing on me).

    Prior to this year, it had been a few years since I’d had any contact with on-duty police, I think the previous time was 4+ years ago when I was the victim of a hit and run, but I’d lived in a less far left, lower crime, community.

    1. Which “very far left” city?

  10. It varies by geographic location and also local culture.

    In some minority communities breaking certain laws is just what is done in the course of a normal day. Some people in these communities will even justify it by explaining it away as “white people laws.” Naturally, if the police are enforcing laws that the local community does not view as legitimate and breaking those laws does not violate the norms of the community well then you are going to have some mistrust and disconnect.

    There are other minority communities that fully support the police. These tend to be urban areas that were plagued with crime for years and have been cleaned up largely due to police reforms and enforcement. The long term residents there recall the days when street gangs ruled the neighborhoods.

    Don’t expect reality though to get it the way of the media narrative. Once the riots and looting end those small businesses that were trashed won’t ever open back up again and all the gains the urban neighborhoods made in the last 20 years will disappear by this time next year when the middle class residents sell at a loss and move to the suburbs. This will leave those areas largely looking like South Central LA does today which is eerily similar to what it looked like after the King riots in 1992.

    1. In some minority communities breaking certain laws is just what is done in the course of a normal day. Some people in these communities will even justify it by explaining it away as “white people laws.”

      Jesus, Jimmy. Be less of a stereotype, please.

      1. I borrowed the phrase from a professor of African American history who recently published an article about how general laws are really just part of our institutional racism. So yes some people in minority communities are of the opinion that generally applicable laws are “white people laws”. Does that really surprise you?

        1. Well, it proves some academics of color believe that. I’d give even odds or better (depending where he’s a professor, and if he’s a full professor or not) that he doesn’t actually live in a minority community though. He’s projecting attitudes on minority urban communities just as much as everyone else who doesn’t live there.

          1. I’ve heard many people of color tell me that “neighborhood code” trumps “the laws” and that “laws were written by white people for white people…” It is not some far out thought that minority communities view our system of laws differently then other communities. I’m not saying that is the right belief, but it is the belief many have in those communities.

  11. This can probably be explained by the left’s insistence that every group of people have hive mind.
    It’s important to remember that just because some fits in the category of ‘black’ doesn’t mean they are all the same. I work with lots of black people who are medical professionals and have black friends who are DAs, policeman and lawyers. If you surveyed them they would definitely call the police and have trust in them.
    Individualism is greater than collectivism.

  12. Five Dallas Officers Were Killed as Payback (July 8, 2016)

    DALLAS — The heavily armed sniper who gunned down police officers in downtown Dallas, leaving five of them dead, specifically set out to kill as many white officers as he could, officials said Friday.

    Micah Johnson, the gunman who carried out Thursday night’s attack in Dallas, leaving five police officers dead and seven wounded, was a military veteran who appears to have identified with black power groups.

  13. Perhaps if essayists ponder the expression “Snitches get stitches,” they will understand why people in high-crime areas are less likely to call the police on crime.

    Or perhaps it’s because there is no need to, since the cops are already there checking out some other crime scene.

  14. Those statistics don’t say what you think they do.

    If you’re devote to the idea that Black Lives Matter activists are radicals/extremists, then there’s obviously no set of facts that will dissuade you from that position. However, if you’re genuinely interested in understanding the moment, then I would take a look at tables 9 and 18 which use the most recent contact data. That’s going to be a better measure of both incidence and the types of police contact that are relevant to the current protests.

    The central complaint is that police are more likely to mistreat blacks. You can see that the rates of things like street stops, arrests, and use of force are all 1.5 – 2.2 fold higher for blacks than they are for whites.

  15. Here’s a simple thought. Obey the law and you’ll have few interactions with the police. You won’t hear the community leaders say that.

    High crime rate? Apparently that’s just a given. Little can be done.
    Police need to change to accomodate the phenomena.

  16. I’ve been in Italy since before the world went into lockdown. It’s moved from me giving everyone here sympathy to now everyone giving me a little. I’m also running into a little more anti-Americanism, but like black people thinking any hostility is because of their skin color I don’t want to make assumptions I’m targeted for being Ametican. It could be from anything. I’m living in the most mixed neighborhood of Rome. It feels like inner city US, complete with spoiled upper class white kids who move from the suburbs to hang out in hip cafes. The black migrants are the ones who defend me. Anyone with sense knows you can’t get smug over race relations in the US. Italy in particular. They don’t even have openly gay stars here much less black or Asian. An Italian Ellen DeGeneres or Oprah may never happen, and if it does, ironically it’ll be due to American influences, not despite them. The only people not understanding that here is the far left. No different than in the US. The media here is far less anti-American than our own but its images cone from US sources.

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Today in Supreme Court History

Today in Supreme Court History: June 6, 2005


6/6/2005: Gonzales v. Raich is decided.


Zip-Lining: Not an "Essential Service"


An interesting little decision on whether contractual waivers of negligence liability are enforceable in recreational contexts: Yes as to zip-lining, under Colorado law, says Judge William J. Martinez in today's Cowles v. Bonsai Design, LLC (D. Colo.):

Colorado law "distinguishe[s] businesses engaged in recreational activities, which are not practically necessary and with regard to which the provider owes no special duty to the public." Chadwick v. Colt Ross Outfitters, Inc. (Colo. 2004). Numerous prior cases have confirmed that exculpatory waivers may be enforced in the context of recreational services and activities because such activities do not involve a duty to the public of a kind that would make enforcement of such contractual waivers against public policy. Zip-lining, which involves no matter of great public importance, is clearly recreational in nature. Thus, there is no duty to the public preventing enforcement of the Waiver.

Note that such waivers may be unenforceable in some other states—and may be unenforceable even in Colorado to the extent the plaintiff can show gross negligence, as the court suggests in allowing plaintiff to amend the complaint to add a gross negligence claim.

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  1. It seems that as a policy matter, it should be just the opposite. Zip-lining businesses lure individuals to participate in an activity that is non-essential and which many would not otherwise engage in but for the marketing efforts and convenience of zip-lining businesses. So, a fortiori, we should not allow such businesses to waive their duty to provide the care that a decent and reasonable person would in operating such a business.

    If not allowing such a waiver causes prices to rise and fewer people to participate in zip-lining by businesses that refuse to abide by the duty to take the care that a decent and reasonable person would, that sounds like a feature, not a bug. Businesses that exercise more care and more efficiently would have fewer accidents, and this would tend to be reflected in lower prices relative to their more dangerous and reckless competitors. With limits on liability, in sharp contrast, the true cost of zip-lining is concealed from the unsuspecting customer. Market signals are muffled. Worse, the price of using responsible zip-lining businesses would tend to be higher, since taking precautions may involve the expenditure of money, but the benefits of such precautions cannot be captured by the business in the form of reduced liability.

    Also lost on the court. People tend not to read or think about the implications of waivers when they are just looking to engage in a simple transaction before a horrible accident and do something fun. As such, what is really happening here isn’t two parties seeking to order their affairs in a thoughtful manner that maximized their liberty so much as a business seeking to minimize personal responsibility as much as possible and distorting market signals in the process. All at the expense of the public and zip-lining businesses that would prefer to operate in a more decent and responsible manner.

    1. I agree — but isn’t there some way that the lawyers on both sides can lose?

    2. It seems that as a policy matter, it should be just the opposite.

      No, it doesn’t. We don’t want a person being told, “You can’t buy groceries unless you agree not to sue us,” because someone might feel coerced to agree to that solely so they can get essential groceries. But nobody is coerced to recreationally zipline, so people can weigh the risks against the rewards.

      So, a fortiori, we should not allow such businesses to waive their duty to provide the care that a decent and reasonable person would in operating such a business.

      Setting aside the tendentious language, this is backwards. We’re allowing the customers to waive this.

      1. You may be required to eat, but you aren’t required to go to a particular grocery store. And outside of Costco or Sams Club, I have never really heard of someone entering into an agreement before shopping for groceries.

        The waiver of right does not customers who give close to zero thought to what they are signing. As argued in the rest of the post, any price savings passed on to customers due to the waiver conceal the true cost of the activity.

        1. “The waiver of right does not customers who give close to zero thought to what they are signing.”

          I think there’s a word missing in there.

          The fundamental thing here is that people want to be able to do dangerous things occasionally, and given our tort system, the only way they can have that *choice* is if waivers are enforceable. Refuse to enforce waivers, and you deprive people of choices.

          And I don’t give a damn if they’re being deprived of choices you don’t think they should make, so long as those choices don’t violate somebody else’s rights. People are entitled to do stupid stuff and accept the consequences.

          1. You don’t deprive people of choice. Instead, the price of activities more accurately reflects the risk. Also, businesses that enable the activity while minimizing the risk earn more profits and are able to charge lower prices to customers. In contrast, safer businesses enjoy no cost advantage over unsafe businesses, and even worse, are at a cost disadvantage.

            Waivers distort price signals that would otherwise guide consumers to make better decisions. They also prevent businesses from competing on safety to the extent that consumers do not actually read the contracts and prefer vendors who do not require waivers. (In other words, in the real world.)

            1. You’re exactly depriving them of a choice: The choice between normal ziplining at normal prices, and hypothetical ultra-safe ziplining at a price nobody can afford, but wouldn’t be offered anyway.

              With our tort system, you just can’t do inherently risky activities without waivers. No sane person would open a zipline park without them, because no matter how safe they operated it, some idiot might undo their straps halfway through a run.

              1. I do not believe your assumption that the risk from zip-lining is so high no one could afford it if liability attached is true.

                But even if it was true, you certainly would not want to suppress the price signal that would cause fewer people to engage in this hypothetically ultra hazardous activity in that case. And which also would create an incentive for companies to make it much safer.

                Besides, you don’t see private companies creating baseball-type activities, only with grenades instead of baseballs either. This is because ultra hazardous recreational activities are not attractive to most people.

                Most people zip-line because they generally believe it is both a fun and a low-risk activity. Of course, low-risk isn’t no risk, and that is fine. The question is, do you want to create a financial incentive for those in the best position to lower risk or not? If you want to create that incentive, you can’t allow waivers.

                1. “I do not believe your assumption that the risk from zip-lining is so high no one could afford it if liability attached is true.”

                  That’s not my assumption. My assumption is that the tort risk from selling zip-lining without liability waivers is hugely greater than the risk from zip-lining, due to a whacked out tort system that makes lawsuits into lottery tickets.

                  “Besides, you don’t see private companies creating baseball-type activities, only with grenades instead of baseballs either. This is because ultra hazardous recreational activities are not attractive to most people.”

                  Right, that’s why nobody does base jumping, right?

                  No, the reason you don’t see that, aside from it just not being an entertaining hazardous recreational activity, is that the legal system would almost certainly not respect liability waivers in the case of activities which actually were hyper-hazardous.

                  Zip-lining isn’t actually all that hazardous. The only reason that waivers of liability are required is that the legal system in the US doesn’t accept that every activity involves some degree of risk, in the case of activities that people don’t do every day.

                  1. I think your belief that the tort system consisting of lottery tickets is misinformed.

                    But if that was right, the answer would be to fix the tort system, not eliminate access to it.

  2. IANAL. With regard to my then minor children, over the past 20 years I have signed what must have been a hundred or more documents like this, with lots of all-caps language about waiving, indemnifying and the like. I did so with the thought that it seemed largely against public policy that a minor could have their individual rights extinguished by a third party (me, their parent), and that such a waiver would not have been any material barrier should a lawyer be required after some unfortunate event.

    What do the lawyers amongst the conspiracy opine as to whether such waivers would ever be applied with regards to minors? What is a parent to do when faced with such documents that purport to their minors.

    1. “I did so with the thought that it seemed largely against public policy that a minor could have their individual rights extinguished by a third party (me, their parent)”

      The problem here is that your idea of public policy, and actual public policy, are rather different. Parents don’t *extinguish* the rights of children, they exercise them in the children’s place until the children are of age to be considered competent adults. A principle that rather significantly predates all modern governments applying it.

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Pro-Riot & Pro-Police-Abuse

A common thread among two kinds of arguments.


Here's the structure:

Look, normal legal behavior sometimes just doesn't work to achieve Justice.

We've tried and it hasn't done the job.

[Pick your preference:]

  1. The public / government / power elites / etc. won't listen to us until we riot.
  2. The criminals won't be deterred unless they know they're facing some street justice from the police (a beating, an arrest even if it's not legally justified, etc.).

We're just doing what needs to be done.

If you're too squeamish, don't interfere with the people who have the guts to do it.

I'm not advocating either, of course; they are bad means that on balance generally lead to bad ends. And each understandably generates serious blowback: The rioters make lots of people appreciate more the need for police presence; the police abuse makes lots of people appreciate more the need for constraining the police. But I thought I'd note the structural similarity.

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  1. This argument assumes that police violence is directed towards justice, as opposed to consolidating power. This assumption is presented without evidence, and contrary to observation.

    1. Exactly this.

      Eugene, you must be tired. Your “logic” posts lately leave a lot to be desired.

      1. He hasn’t changed.

    2. Yes. Stealing 2.5 million in Rolexes is directed towards justice. You got him good. Setting churches on fire… definitely done to right justice.

      It is amazing how dumb some of you are.

      1. JesseAz,

        Travis said nothing about looting (or even this year’s events generally). Eugene’s two statements posited one group seeking justice because the government would not listen to their complaints and the other were police inflicting their own “justice” which is directly contrary to the rule of law and can never be appropriate.

        Stop anticipating that somebody is defending looting. Nobody here is. Your reading comprehension will improve dramatically.

        1. Rioting, which is the term Eugene uses, isn’t protesting. It is violence, looting, and destruction of property.

          1. You seem to be under the impression that rioting cannot be a form of protest, because violence inherent in rioting. Presumably, then, you consider the term “non-violent protest” to be redundant or a tautology. “Of course protests are non-violent!” Don’t be dense.

            A major reason Jesus, Ghandi, and MLK are revered is because they preached non-violent protest despite their contemporaries urging violent protest. Get a clue.

            (To repeat, because people on here are really bad at reading: I do not support looting or rioting in response to the George Floyd murder or as retaliation against the serious problem we currently have of police brutality and unaccountability. My point is merely that those arguing rioting is never justified, is never about protest are, simply, wrong. War is violence too. It is awful. It should be avoided at nearly all cost, yet war is sometimes justified as well. Surely commenters here are able to understand that distinction without immediately assuming I support all wars ever or even any particular war currently ongoing, or even war generally. Generally, I am opposed to rioting and wars. It’s really not complicated.

            On the other hand, extrajudicial punishment by the police (police brutality) is never justified, to teach a particular suspect “a lesson” or to make a bigger point. They have a moral, ethical, professional, legal, and constitutional obligation to remain within the law. That’s what the rule of law means.)

      2. Yeah, that story about the Rolexes didn’t happen.

    3. “This argument assumes that riot violence is directed towards justice, as opposed to anarchy and looting. This assumption is presented without evidence, and contrary to observation.”

      Don’t be inane. This is a presentation of the two arguments *as presented by their advocates.* Of course the other side would characterize them both as anti-justice! It’s completely beside the point and frankly embarrassing that you could misread the obvious so baldly.

  2. Why did the Federalist Society use military equipment, gas, and projectives to clear peaceful, anti-bigotry protesters from Lafayette Park?

    So its chicken could cross the road.

    “Often libertarian,” indeed.

    1. The US Secret Service wished to expand their defensive perimeter and I can’t say that I blame them.

      Remember that these are the same folks who were defending Obama and having enough problems with one nut at a time coming over the top of the fence. What are they going to do if 50 do?

      And even if they shoot them — which would be legitimate — at least half the fired rounds will miss, and those rounds will hit people downrange. But if the park is empty, they won’t.

      1. Indeed. I can’t believe that the Secret Service hasn’t expanded their perimeter all the way to Dupont Circle yet, just to be on the safe side.

        1. If it is necessary, it is necessary.

          1. Necessary has a trend to drift into unnecessary fairly quickly when it comes to violence.

            1. And that’s why violence should be discouraged.

      2. These are the same lawless rioters that tried to rush into the secure White House grounds. Can’t blame the Secret Service for wanting to be able to effectively do their jobs.

        1. Constitution be damned.

          1. Yes, this was entirely about routine White House security and the timing was entirely based on security concerns. Remember, they cleared the park prior to the curfew. If they had wanted to present even a modicum of justification, they would have waited. But they wanted the confrontation, Trump wanted to “look tough” (who other than a moron thinks such things make a person look tough rather than weak?), so they went into the park during a peaceful protest shooting pepper balls, violently shoving foreign journalists, and all the rest.

            1. “A senior official in the direct chain of command for defending Washington D.C. told Fox News of the injuries to Secret Service agents, some of whom were hurt by rioters throwing bottles and Molotov cocktails in Lafayette Park, just across from the presidential residence. The official initially put the number of agents injured at over 50, but that may have referred to the weekend toll; the Secret Service has since said the number injured on Sunday was 14.”

              These are the people they wanted to push back. If you’re an innocent peaceful protester and you find yourself in the midst of a violent riot outside the White House and you don’t go away, you are part of the problem.

              1. There is video. The protestors were peaceful until the feds initiated a confrontation. Other incidents can provide a justification for increasing the distance, but the don’t justify the timing of this action. The photo-op does. And Barr admitted it was for that purpose, because the President should be able to walk across Lafayette Park…and ordinary citizens shouldn’t be able to?

                Also, you quote this administration about the Lafayette incident, but this administration lied about the means they used. They have dishonestly denied using “tear gas” in a silly semantic word game when it has been acknowledged by the Park Police that they used pepper pellets which contain the chemical that causes tearing eyes, burning sensation, etc. Now you want me to trust their report of “injuries” which might well include sprained wrists from punching Australian journalists? Be serious.

                Trump/Barr initiated a confrontation with a peaceful demonstration because Trump was embarrassed that he hid in the basement and turned out the lights the night before (or a couple nights before) and didn’t like the mockery. So, he abused some protestors to try to show he is “tough.” Bullies do what bullies do.

                Don’t defend this sort of autocratic behavior. It makes you look really bad.

                1. Less an attorney, than activist. Pepperballs, a quick search & look at the manufacturer website shows, contain hot pepper. So, your poor explanation of the ‘dishonesty,’ didn’t really take into account similar effects, but shorter overall.
                  As for EV’s article, you, Arty, and Travis have, in your bias, all decided to miss or discount his point. And then launch into social ‘justice’ apologia for rioting & looting under the pretense of pointing out police malfeasance & smearing Trump.

                  1. Hank,

                    How are the effects of “tear gas” different from “Pepperballs”. As described by the Park Police:

                    “A spokesman for the Park Police said in an interview with Vox that his agency regretted using the term ‘tear gas,’ noting that officers threw pepper balls containing an irritant powder and chemical agents that are designed to produce tears. Their use causes people to experience difficulty breathing and burning sensations on the skin.”

                    While the precise chemical agent may be different (one derived from peppers, the other not) the practical effect on the people targeted is substantially the same. Or are you trying to argue that point? If so, then argue it. But getting into an ingredients list of “tear gas” versus “pepper balls” is, frankly, dishonest. People weren’t upset at the use of “tear gas” because of the precise ingredients. They are upset because of the effects it has on the human body. They used an agent with the deleterious effects. Quibbling over “tear gas” is intentionally evading the point. It is dishonest.

                    I have repeatedly denounced rioting and looting. So, just more dishonesty by you.

          2. Bernard11, did you miss the “peaceably” adjective?

            1. Words are violence when discussing the other side, but throwing rocks and bottle of ice is peaceful protesting for his side.

              Consistency is for people that don’t have bernard11-level Big Brains.

            2. Dr. Ed,

              By all accounts the protestors were peaceful.

              I’m sure you have some bullshit you’re going to claim you’ve heard otherwise. Spare us. I’m not interested in listening to cultists.

              Trump not only uses tear gas – yes, tear gas – to disperse a peaceful assembly so he can scurry across the street to hold up a Bible, he also uses forces in unmarked uniforms. Nothing fascist about that, right, Ed?

              1. “Trump not only uses tear gas – yes, tear gas – to disperse a peaceful assembly….”
                That’s a lie and you know it. No tear gas was used.

                1. ThePublius,

                  They use pepper pellets which contain the same “tear gas” agent. You are playing word games to perpetuate a lie. The end result on the protestors was the same whether you call it tear gas or pepper pellets.

                  The fact that you so vehemently deny the use of tear gas appears to me a tacit admission that the tactic (pepper pellets containing the same chemical as “tear gas”) was unnecessarily brutal.

                  But stop spreading the “no tear gas” lie. Because that’s what it is. It is using somewhat arbitrary labels to hide the facts. it’s dishonest.

                  1. See above. Pepperballs do not contain the same chemical agent. Full stop. If you are going to lie, expect to be called a liar.

                    As for the rest of the situation, I cannot address it w/o more detail. Admin & LEA say expansion of security boundary was planned. Any footage provided by protesters/rioters is suspect, as at least some of them apparently had bricks, frozen water bottles. And, so, they were asked to move? They weren’t told to not protest, simply shift location. I seem to recall the ‘not censorship’ deplatforming argument is that being free to go elsewhere is good. These folks didn’t have to go elsewhere, just allow for new security perimeter. But, I know better than to expect intellectual maturity or rational thinking, on the ground or here.

                    1. Pepperballs are designed to produce essentially the same effects as tear gas. The contain a chemical agent to produce that effect. Full stop. No one was protesting a particular ingredient list.

                      If your quibble is that it is not precisely the same chemical agent, then fine. I should not have written “the same chemical” in this particular comment (my other was precisely accurate).

                      “I seem to recall the ‘not censorship’ deplatforming argument…”

                      If you are referring to private companies moderating comments on their platform, that is wholly different from pushing protestors off of a public space traditionally used for protesting. And neither Twitter nor Facebook have fired pellets containing tear and pain producing ingredients at any of their users in order to achieve their “censorship.”

                      “These folks didn’t have to go elsewhere.”

                      They clearly were forced to go elsewhere. First you quibble about precise ingredients of the tear/pain-producing agent and then you make this nonsensical statement. The whole purpose of the action was to make them go elsewhere. They didn’t just pepper ball them, hit them, and let them stay where they were. Be honest, for Pete’s sake.

        2. These are the same lawless rioters that tried to rush into the secure White House grounds

          No, they’re not. You made that up.

          1. David,

            But it is so much easier for them if they just assume anything bad that happens is a “leftist.” You want them to engage in critical thinking? Trump voters?

            1. SOMEONE tried to rush the grounds — 20+ USSS got hurt.

              1. You are proving my point. “Someone did, so peaceful protestors may be hit with tear gas….wait, pardon me….pepper pellets!”

  3. I think it depends on if “street justice” means lawful self defense against those that threaten us. Then there is nothing wrong with the second one.

    I would also note that the first one isn’t necessarily wrong either if the formal legal system is corrupt, illegitimate, and/or harmful to the rights of the people. As the Declaration says “whenever any form of government becomes destructive to [the inalienable rights of life, liberty, and the pursuit of happiness] it is the right of the people to alter or abolish it.” Is not what these people are trying to do? Alter their form of government because government officers have become destructive of the young black men’s natural right to life?

    1. Devin Watkins: Lawful self-defense is definitely not what I had in mind (it’s certainly not “police abuse”); I’ve clarified the post slightly.

  4. My take on this is a bit different — there are a lot of WHITE men (and women) shot by the police, and what the current rioting is telling a lot of impressionable young people is that VIOLENCE WORKS.

    Don’t be surprised to see folks like the Klan start advocating for their victims of police violence. After all, VIOLENCE WORKS — and why not use what works, regardless of the means or methods?

    1. You and prof. Volokh are absolutely right! The KKK and BLM are all very fine people who have a reasonable point of view!

      1. The thug who took the rifles into Cornell wound up as the head of TIAA/CREF.

        Violence works — and it ought not to. Not in a civilized society.

        1. Are you familiar with American history? At all? America wouldn’t exist without rioting against an unjust government. Brutal police are the method of choice for autocrats, dictators, authoritarians.

          In other words, “structural similarities” aside, it is possible for rioting to be on the moral side. (I am certainly not saying the looting in this case or the rioting in this case was right. I don’t believe it is advancing the cause. It is a “bad means” that is obstructing us from achieving the just ends.) But in principle, rioting can be necessary and effective. (e.g., Boston Tea Party).

          Extrajudicial police punishment is always wrong if you care about a society based on the rule of law.

          Failure to comprehend this is a colossal moral and political failure. And inviting people to view this as moral equivalence is, frankly, monstrous.

          Eugene, you are smarter than this post. The “structural” similarities you are so impressed by could be equally applied to:

          Look, normal legal behavior sometimes just doesn’t work to achieve Justice.

          We’ve tried and it hasn’t done the job.

          [Pick your preference:]

          The public / government / power elites / etc. won’t listen to us until we ignore the rules on where we are supposed to sit on the bus.

          We can’t get the political power we need to do [good thing] without steering contracts to our political donors’ companies in violation of law.

          We’re just doing what needs to be done.

          If you’re too squeamish, don’t interfere with the people who have the guts to do it.

          Very impressive structural similarities. (/sarc).

          In other words, the structural similarities are banal and can be applied to virtually any arguments. Because the “structural similarities” are so common and are you so uncommonly intelligent, one then wonders why you make this observation unless you intend to make a moral equivalence.

          1. I’ve heard the exact same thing from Klansmen trying to recruit me.

            I told them to go firetruck themselves.

            With five fewer letters….

            1. Good for you for telling Klansmen to firetruck themselves.

              But are you arguing that armed revolution is always wrong?

              I myself lean pacifist and do not believe violent protest is either justified or productive here. But I made that clear.

              (Similarly, I think war is an absolute last resort. But I think the Allies were justified in WWII, the Union in the Civil War, etc.. By your argument, the Union was wrong to fight the Civil, which perhaps you agree with. But then you ignore the immoral violence used to perpetuate slavery. Or you agree that the Union was justified (or the Allies to defeat the Nazis or the American Revolution) and violence is sometimes appropriate.)

              1. As a side note, since you seem to think it’s relevant, neither Klansmen nor any other violent group have ever tried to recruit me… wondering who you hang out with and the vibes you give off……

                1. Because you come off quite literally as soft. You didn’t have to tell anyone you were a pacifist. It oozes out of you that you fear basically everything.

                  1. So you get recruited by white supremacist groups frequently, eh? How am I not surprised?

                  2. Lol. Imagine thinking pacifism is a bad thing. Imagine thinking that not wanting to hurt people stems from fear.

                  3. Are you a tough guy, Jesse?

                    You strike me as a guy who has spent his entire life having progress shoved down his bigoted throat by his betters, and took it obsequiously. Except when blustering on the internet to cover your shame about all that swallowing.

                    These are your followers, Conspirators. They’re a big part of the reason you are relegated to being misfits and losers as America progresses.

          2. The Boston Tea Party was not a riot.
            Criminal, certainly. But not a riot.

            The people comparing the two are either very ignorant, or very deceptive.

            1. Certainly it was looting, by armed men, in a show of opposition to the government.

              What makes it not a riot? Or do you agree that destruction of property is not violence as so many Trump supporters on here argue?

              But feel free to substitute the incident at the North Bridge in Concord, Massachusetts. Or are you going to define that as not a riot either? Armed opposition to federal soldiers?

              1. It’s not the Trump supporters who are advocating the destruction of private property — Maura “Arson” Healey sues Trump every chance she gets….

              2. The Boston Tea Party was not looting, either.
                A group of people, with pre-made disguises, took boats out to several ships. They then took the tea – and only the tea – and threw it in the harbor. They hurt no one, and destroyed nothing else. In fact, according to legend, they cleaned up the mud and debris they’d tracked across the decks while ditching the tea!
                And when they discovered that some of the tea had already been unloaded? Well, they broke into a warehouse and a tea shop, and destroyed only the tea that was from those shipments. Again, no one was hurt, and nothing else was damaged.
                No even halfway rational person would refer to that as “a riot”.

                And the Battle of Concord was also not a riot – it was rebellion, and organized military action against the ruling government. Criminal, to be sure. But if you call that a riot, you’ve expanded the term beyond any rational use.

                1. Toranth,

                  So you disagree with others on this site who claim that theft or destruction of property is violence that justifies taking life? Good for you!

                  You seriously cannot be relying on the distinction between riot and rebellion? Rioters generally, and in particular many of these rioters, do believe they are part of a rebellion. If the colonists had lost early and decisively, we would call it a riot. Instead, they became part of a large, sustained effort that grew into a rebellion. The initial actions was armed resistance to agents of the government at the time.

                  Alternatively, if you insist that riots and rebellions are categorically different, if you believe armed rebellion can be justified, but armed resistance in pursuit of goals short of overthrowing the government can never be justified, then I eagerly await that argument. I’ll make the popcorn.

                  With your semantic games, you are probably one of the ones claiming “no tear gas” when you know that pepper pellets using the same chemical were used at Lafayette Park. Such sophistry is unbecoming.

                  1. Edit: not “the same chemical” but a chemical agent with the same effects.

          3. Uh oh. Someone got the Howard Zinn history series for christmas. You lucky little boy.

            1. An excellent and precisely delivered argument!

              It is lacking a little – like, say, any argument, substance, or anything resembling even a partially formed thought – but it certainly rates as one of your best posts.

              1. It is one of his best. I have to give him that.

          4. There is a world of difference between rioting and revolution, and finding some equivalency with street riots (and looting) and the American revolution is lunacy.

            May I point out that a fractured coalition of anti-racist protesters and rioters who hold up the George Floyd case and the Michael Brown case as the same thing are not to be taken seriously.

    2. > Don’t be surprised to see folks like the Klan

      You’re either 75 or 155 years late, depending on how you want to count. Read some history; the klan has these games down.

  5. The structural similarity between two bad arguments? Not interesting.

    The demands are two-fold, not exclusive. On one hand, peaceable assembly, free speech, and the right of petition must be protected. On the other hand, rioting and looting must be stopped and prosecuted. Both objective must be accomplished according to law.

    The problem is leadership, in both cases. Means are available, at least for now, to keep protests orderly, to protect rights, and to guard property.

    If leaders, and particularly President Trump, continue to create gratuitous provocations, the protests might grow to overwhelm the means of control. It would be a great thing for the nation if other elected Republicans came to their senses, saw the peril, and reined Trump in.

    1. Yes, because appeasement works so well.
      Ever hear of a man named Neville Chamberlain?

      These are Obama’s Children, and we are going to have to start shooting them to put an end to this. It gives me no joy to say that, but they have been allowed to do anything for so long that it’s kill them or surrender and that’s not acceptable.

      TRUMP 2020, Pence 2024!

      1. It gives you great joy.

        You would love to see some protestors shot.

        1. Typical liberal, conflate protester with rioter and looter to bludgeon a conservative.

          No one is calling for shooting of protesters! But violent rioters, arsonists, and looters need to be stopped. How else but force?

          1. ThePublius,

            Stephen talked about “the protests” growing and noted there were effective ways to stop the rioting and looting. Dr. Ed didn’t explicitly change the subject from protestors to either rioters or looters (two different categories), but instead gleefully exclaimed: “we are going to have to start shooting them to put an end to this.”

            As Stephen was talking about protestors and protests, “them” and “this” most obviously refer to protestors and protests. bernard11 called him on it. If there was ambiguity, Dr. Ed created it.

            Now you, after Dr. Ed was conflating all categories, complain that “liberals” are blurring the distinctions? LOL.

            Be less partisan.

      2. Remember a guy named Hitler and all of Nazi Germany? They were people too. They could have easily not used violence at anytime. And if I recall correctly, they weren’t using it for a justifiable reason at all.

      3. Prof. Volokh banned a commenter for making fun of conservatives, then claimed other censorship was provoked by violation of ostensible civility standards.

        Let’s see how quickly the Volokh Conspiracy Board of Censors acts with respect to a ‘we have to start shooting Obama’s Children’ comment.

        Or maybe it’s time for another installment of ‘ankle-nipping at strong liberal-libertarian institutions.’

        1. Yeah, if there are civility standards, advocating murder in those overtly political tones surely crosses the line.

          1. The Volokh Conspiracy’s practices with respect to censorship have become predictable.

            Censorship is reserved mostly for comments aimed at conservatives. A liberal can be banned for making fun of conservatives. A conservative, however, can post about gassing liberal judges, or putting liberals face-down in landfills, or gunning down ‘Obama Children’ without much worry.

            Oh, and the proprietor gets to use racial slurs every chance he (thinks he) can get (away with).

            (My offer to reduce mentions of censorship in exchange for an apology stands.)

    2. “ If leaders, and particularly President Trump, continue to create gratuitous provocations”

      How did Trump provoke the riots? He doesn’t run the police departments. The big city police departments are run almost exclusively by democratic politicians with no input from Trump. The chief law enforcement officer in Minnesota is Keith Ellison.

  6. … And the winning streak continues! I’ll take bothsideism for $400, Alex!

  7. Wow, what a chicken and egg problem.

      1. Genesis 1:20 And God said, “Let the water teem with living creatures, and let birds fly above the earth across the vault of the sky.
        (He did not say let there be eggs to produce birds – – – – – – – )
        Ergo, ipso facto, henceforth thereunto – Chicken first.

        1. But do *chickens* fly? Did chickens fly? (Hell, it’s the Bible. I am sure Biblical chickens could fly, if such were God’s will.)

          1. WILD turkeys can. They prefer not to, but they can — they can make it up 5 stories to roost at night.

            How many centuries have chickens been bred? In Biblical times they well might have been able to.

          2. Chickens can fly, and certainly better in antiquity than today’s domesticated breeds.


        2. I think you’re right.

      2. Good point. I wonder if there’s an equivalent metaphor that is less susceptible to biological/physical explanation (or theological/philosophical for a young-earth creationist)?

        1. What came first, the bullet or the gun?

          1. The bullet.
            Guns were only better ways to throw rocks.

      3. “The egg came first.”


  8. Ah. Equivalence. any thing but criticize Trump.


    The police have the means to control their bad actors. Too often they don’t.

    Peaceful protestors can’t control looters and rioters, especially when the protestors have gone home.

    1. As applied to current events, exactly this.

      1. He is your professor in sophistry?

        1. And you my fanboy. It’s a lovely life.

  9. Those arguments run the opposite way, too. That is, in states such as New York which have already adopted the “anti-cop agenda” to the extent that arrested rioters are being immediately set free on their own recognizance, a good case can be made that rioting won’t be deterred unless and until members of the public start going out and killing looters and arsonists themselves.

    Avoiding this necessity is why I urge President Trump to send the army to those states and do the job that their police won’t do.

    1. It’s incredible insights like these which makes one sure George Floyd is smiling down from Heaven.

    2. Lol. You like violence, you just want to be the one doing it/making sure it’s done for your benefit.

      1. Protecting life, property, and civilization is its only legitimate use.

        1. Those last categories are extremely broad you know and can justify pretty much anything. I’m not sure that there is a genocide in history that isn’t done for the purposes of defending civilizations.

    3. The DA won’t even prosecute.

      1. They rarely prosecute police violence….

  10. To summarize both sides – ‘might makes right’ (?)

  11. I’ll say this for Americans, we really like violence. And there are plenty of legal opportunities for violent people to do violence and get paid, even for it. Our second (or first?) most cherished right is the right to own tools that make violence both easy and more violent. And of course, our entire history has shown that we reward the violent people. So long as the violence is pointed in the right direction. We have legal immunity for extremely violent acts. Indeed we even try to demonize people who use no violence to stop great violence. See Hugh Thompson and William Calley.

    Of course, it doesn’t have to be this way. Maybe we can just try and be calm? And like don’t fantasize about ourselves in violent situations? There is always a choice to be better. If you claim to be against violence, don’t get caught in the trap of defending your violence just because you’re the one doing it or supporting it. If you feel a violent urge, maybe just eat a snack instead.

    1. It’s not an American thing, at all. Look at what’s going on in France, Sweden, etc. And don’t forget Africa.

    2. If you feel a violent urge, maybe just eat a snack instead.

      Given the levels of obesity in the US, I guess people are successfully suppressing their violent urges.

  12. The riots and violence are justified in the minds of the left because those are agents of social change. Remember the ends ALWAYS justify the means to the Left.

    There is no other absolute in our country other than power. That is it. Morals and ethics are gone. Non-existent. As long as the power and authority is on the side of the Left it will get cheered and applauded.

    If (or when) the Right figures this out and deposes of some the fascist governors you won’t hear the end of it. But until that happens riots get the thumbs up.

    So Lefties if it is a Revolution you want, it is going to be one you get. Just be careful what you wish for sometimes you might just get it all and some you don’t want.

    1. Dude. You are justifying your violent fantasies so hard right now.

      Also, you don’t know what fascism is, and don’t realize you’re the target for their appeals.

      1. You are right. Boy do I have a raging hard on.

        1. You’re being sarcastic, but you clearly do imagine yourself heroically shooting people.

          1. No I really do have a raging boner right now.

      2. I think you’re the guy who doesn’t know what fascism is. It is the most abused and misappropriated term in current fashion, by the way. (Hint: it really is a leftist phenomenon.)

        1. You’re literally abusing it right now by saying it’s a “leftist phenomenon” despite overwhelming historical evidence to the contrary. It’s also the overwhelming view of historians, political scientists, philosophers, and theorists. Fascist ideology is not always consistent and fascists have generally sought to distance itself from all prior ideologies. But it’s appeals to ultranationalism, traditionalism, reclaiming a supposedly heroic past, traditional masculinity, hierarchy, and the rejection of forms of equality or egalitarianism are all appeals to the right. Fascist governments, or fascist influenced/aligned governments and parties, have historically sought support from conservatives to get into power, even though they reject aspects of conservative thought.

          Hitler and the Nazis relied on conservative support to gain power in Germany. Same with Mussolini in Italy. The Ustaše in Croatia aligned themselves with the Catholic Church, which is not a left wing organization. Josef Tiso was a Catholic priest who led a right wing Fascist party in Slovakia the collaborated with the Nazis.

          Although influenced by fascism, Vichy France was not a fascist state. But, it was an extremely right wing one that collaborated with the Nazis and tried to turn to the clock back on the French Revolution. That’s not a very left-wing thing to do.

          1. Fascism is an economic system wherein government controls production and prices but without ownership of the means of production, I.e. socialism light.

            All that other crap is the result of adopting fascism.

            1. Dude. Go to your local college and audit a class on the Holocaust, the twentieth century, or a history of political and social thought. No one has ever thought of fascism primarily as an economic system. Other than the concept of autarky, fascist economics were pretty flexible.

  13. I’m disappointed that, over the past several days, this entire issue has seemed to veer away from blaming George Soros for bad things that happened at the protests and riots. Can we please get back to anti-Semitic loony conspiracy theories?

    1. Not loony at all, and at least partly proven. The leader in Minneapolis was caught, and it’s the same Sanders campaign staffer who said Mpls would burn if his man didn’t win.

      1. Can you link that please? Can’t find it

  14. I’m think police violence is terribly corrupting people’s confidence in our public institutions, and I wonder why in a state like Minnesota that can elect public officials with real power like AG Keith Ellison, who is a black Muslim (but not a current member of the Nation of Islam) and Ilhan Omar can’t elect officials that can run a competent not overly violent police force.

    But I will point out riots and looting affect people’s lives much more negatively than police violence does. The impact of not having functioning supermarkets over square miles in Chicago and some other cities due to looting and burning takes a terrible toll that hits the elderly and poor single mothers harder than the mostly young that are causing the violence.

    1. “But I will point out riots and looting affect people’s lives much more negatively than police violence does.”

      No it doesn’t. For one, George Floyd is dead. So is Breonna Taylor. And people languishing in jail for “assaulting a police officer”….their lives are more ruined than someone whose business was burned down.

      Looting is not justified. Riots are not justified here as peaceful protest is more effective and certainly morally superior. But please stop with the: police brutality isn’t really that big a deal.

      1. What about the people killed whilst defending their property?

        1. No one claimed that isn’t a tragedy or wrong. Reading is fundamental. I just pointed out that “rioting and looting” do not affect people’s lives “much more negatively.” The fact that people also die as a result of rioting only establishes a point no one made, that police brutality does not necessary affect people’s live “much more negatively” than rioting. Both cause death.

          Attacking straw men isn’t impressive to anyone….except Kazinski and JesseAz.

      2. There have been 12 deaths related to the rioting, everyone of those deaths are just as tragic as Floyd’s.

      3. So is Tony Timpa. You didnt give 2 fucks about him for some reason.

  15. Maybe I’m just not paying attention, but I’ve heard no one trying to justify rioting. On the other hand some police are trying to justify excessive force.

    1. People tend to see criticism of police violence as pro-rioting.

    2. That’s what I see too.

      1. Yeah, but you’ve proven your a biased idiot.

        1. In your own fantasy world. I wonder where I embarrassed you so much you follow me around adding nothing but insults to the conversation? It’s kind of cute.

          1. Oh, I see it. You lambasted someone for defending looters, and went all high dudgeon about Rolexes, then I pointed out they had not, in any way, shape or form, defended looting. So now you follow me around accusing me of what you are. You ARE adorable.

    3. James Morrow says people being told that words are violence, and police brutality is violence, but “trashing a shop in a minority neighbourhood … and beating up the owner” is not, is a “real disgrace”. Mr Morrow pointed to the head of the 1619 project, Nikole Hannah-Jones, who said she would not describe “looting as violence; looting is property damage, but it is not violence”. Ms Hannah-Jones justified the actions of many across the country by saying it allows African-Americas to “take a hold of consumer goods with the ease that a white man does by using his purse”. Mr Morrow told Sky News host Paul Murray there is nothing “more racist than saying the only way a black person can get consumer goods is to go and loot and steal them”. “That’s about the most offensive thing I have ever heard”. Mr Morrow said this type of “bigotry” creates “low low expectations” for African American.

    4. Maybe I’m just not paying attention, but I’ve heard no one trying to justify rioting.

      Part of the problem is that different people use the word “rioting” to refer to different things, and talk past each other.

      Just sort of general chaos
      Violence against the police or the state
      Violence against private persons or their property

    5. You obviously are not paying attention. 1619 author said using the word violence against property was wrong. MSNBC has claimed fires on the background of their shots as peaceful. CNN had a commentator stating as a matter of fact violence is needed for change. Multiple people misquoting MLK on violence on protests.

      So yes, you’re not paying attention. Or you’re just plain dishonest.

      1. Somehow I don’t think you’re reading those sources, so I presume you found some source that aggregated as much confirming anecdotes as he could.

        That’s not reality, Jesse – it’s a curated narrative. Keeps YOU from paying attention to the real world.

  16. Eugene Volokh is absolutely right about the similarity of the two kinds of reasoning.

    It should be further noted that both approaches are also contrary to the interests of their respective advocates, and not just because of blowback, but because the message is muffled.

    Massive peaceful protests are effective and cannot be easily ignored. But when you have looters and rioters, the message becomes muffled and the morality of the message confused. Likewise with the police, whose very profession is supposed to uphold the ideal of upholding and enforcing the law, and not breaking it. But excessive force is illegal, so rather than sending a message that the law must be upheld, instead the message is the law is only meant to be enforced upon an inferior class of beings, also known as the general public. The message sent then isn’t that the law must be upheld; instead the message sent is that might makes right and the only ones who follow the law are those two weak or two poorly positioned in society to have the privilege to ignore it.

    1. Like Biden says, 10-15% are just bad people.

      1. Biden is a sunny optimist.

  17. I’ve said it before, but the commonality is dismissing the other side because those people are not like me. So it ends up taking efforts beyond polite discussion to get anything to change.

  18. This logic is only parallel if the police believe they are administering street justice to criminals. The outrage over police conduct has erupted because many of the videos show the police “deterring” elderly men, reporters, and peaceful protesters.

    Such conduct is antithetical to the rule of law and should be condemned without reservation.

  19. War is terrible; there are things that are worse.

    Revolution is like hatching a chick with a hammer. You *might* get a healthy chick, but you’re far more likely to just have a mangled mass of bone, flesh and scrambled egg at the end of it. And eggs are notoriously difficult to unscramble.

    Also, just because you’re breaking all the eggs, doesn’t mean you getting an omelette at the end of it.

    1. We are nowhere near a revolution.

  20. I have never heard the argument that police violence visited upon criminals was or is a deterrent.

    And I am not sure about the ‘common thread’ that Volokh perceives. What I fear, more from the mob than from the police called upon to constrain them if necessary, is the sense that “because we are right, we can do as we please.”

    This leads to novel reasoning. For example, I have heard it said recently that it is the police who are rioting and that, accordingly, means of so doing must be removed from them. “Defunding” is the polite word echoing throughout the media.

    Additional novel reasoning has been attributed to groups such as antifa, who take the position that violent aggression is self defense.

    “O brave new world, that has such people in it!” Shakespeare, The Tempest, Act 5, Scene 1, ll. 203-206.

  21. Eugene, arguments with this structure have been offered in justification of many kinds of behavior, both good and bad, in many circumstances.

    So what’s your point?

Please to post comments

Free Speech

47 U.S.C. § 230 Preempts State Right of Publicity Claims

and other state (but not federal) intellectual property claims brought over platforms' hosting of third-party content.


From today's decision by Judge John M. Younge in Hepp v. Facebook, Inc. (E.D. Pa.), which I think is likely correct (and which follows Ninth Circuit law but rejects the contrary view from two federal district courts in New Hampshire and New York):

Plaintiff is a newscaster [and co-anchor] who has worked for the Philadelphia-based Fox 29 news team since November 2010…. Plaintiff alleges that "[a]pproximately two years ago, [she] discovered through her co- workers and managers, that, without her consent, a photograph of her taken by a security camera in a convenience store in New York City was being used in online advertisements for erectile dysfunction and dating websites." …:

  • "[Her] photo was featured in a Facebook advertisement soliciting users to 'meet and chat with single women.'"
  • "[Her] photo was featured on Imgur under the heading 'milf,' which is a derogatory and degrading slang acronym that refers to a sexually attractive woman with young children."
  • "[Her] photo was featured on Reddit titled 'Amazing' in the subgroup r/obsf ('older but still $#^@able') and posted by a user known as 'pepsi_next.' There is a hyperlink for the photograph which links to the Imgur site." …

[Title 47 U.S.C. § 230] states that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider," and expressly preempts any state law to the contrary. In other words, internet service providers are not liable for third-party content. Section 230 "creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service." Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997); see also Green v. Am. Online, 318 F.3d 465, 470-71 (3d Cir. 2003). Under the statute there are, however, certain causes of action that are specifically not barred by § 230(c), including "any law pertaining to intellectual property." 47 U.S.C. § 230(e)(2).

"Section 230 was enacted, in part, to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum." Zeran, 129 F. 3d at 330. In fact, many courts have observed that § 230 immunity should be broadly construed so as to implement Congress's policy choice….

[1.] Plaintiff seeks to hold Defendants liable for information provided by another information content provider…. Plaintiff does not explicitly allege that Facebook, Imgur, or Reddit created or developed the offending content (i.e., postings, advertisements, and short-looping videos that utilized Plaintiff's image). Rather, it is reasonable to infer from the allegations in the Amended Complaint, and the exhibits attached thereto, that Defendants merely allowed the offending content to be posted on their respective platforms via third-party users.

[2.] Plaintiff's claims seek to treat each Defendant as a "publisher or speaker" of the content posted by third parties. "The Third Circuit has held the CDA immunizes traditional publisher conduct, such as 'deciding whether to publish, withdraw, or alter content.'" For the Defendants here, such decisions "involve deciding whether to provide access to third-party content or whether to delete the content from [their] archiv[e] or cache."

[3.] With respect to the CDA's exclusion for "any law pertaining to intellectual property[,]" the Court recognizes there that there is a split of authority over the scope of this exclusion. Specifically, there is disagreement between the Ninth Circuit and some district courts over whether the CDA preempts state law intellectual property claims. Compare, e.g., Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1118-19 (9th Cir. 2007) (holding that the CDA preempted a state right of publicity claim); Enigma Software Grp. USA, LLC v. Malwarebytes, Inc., 946 F.3d 1040, 1053 (9th Cir. 2019) ("We have observed before that because Congress did not define the term 'intellectual property law,' it should be construed narrowly to advance the CDA's express policy of providing broad immunity."); with Doe v. Friendfinder Network, Inc., 540 F. Supp. 2d 288, 302 (D.N.H. 2008) (holding that the CDA did not preempt plaintiff's right of publicity claim); Atlantic Recording Corp. v. Project Playlist, Inc., 603 F. Supp. 2d 690, 704 (S.D.N.Y. 2009) ("Section 230(c)(1) does not provide immunity for either federal or state intellectual property claims."). {Moreover, the Court's research has yielded no case law from any other appellate courts that has clearly resolved whether the CDA preempts right of publicity claims.} …

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  1. So much for defamation law. So much for intellectual property law. So much for federalism. So much for America’s legacy publishing industry. So much for abundance and diversity among publishers.

    All hail publishing monopoly. And let’s get going to figure out how to fine tune monopoly publishing with government censorship!

    Great law that Section 230! I’m sure Congress thought all that through before they passed it.

    1. So much for actually understanding the law or its consequences, evidently.

    2. Defamation law and IP law still apply. They just have to sue the people who created the ad. Not Facebook.

      1. Aktenberg78, no. Previous state defamation law no longer applies. It says so explicitly in Section 230. Look it up.

        Your argument is specious: “They just have to sue the people who created the ad. Not Facebook.”

        For one thing, it isn’t an ad until it is published. So really, as always, it is the publisher who creates the ad, by publishing it.

        More to the point, before Section 230, the customary standard was to hold publishers liable along with contributors. That was not incidental to defamation law. It was the entire practical basis for defamation law. Everyone who understood publishing (never a large group) understood that without that, the law would be useless. Take that part out and you gut the law. Too bad nobody in Congress knew that, or at least gave it any thought.

        You may not be familiar with publishing, but you can judge for yourself anyway. Look around. It really is not possible to observe today’s internet and argue the contrary. Defamation law has been gutted.

        The problem the creators of Section 230 thought they were solving is also the reason so few people understand now what happened: most folks have no notion what defamation is. No one thought you could make Joe Keyboard understand it, but almost everyone wanted to make Joe Keyboard an author anyway. He who would be an author of a kind never before seen—one who could achieve publication world-wide, on demand, at no cost—and still just be Joe Keyboard, as innocent as ever of anything that newly exalted status might require for responsible exercise. What a democratizing dream that was!

        So Congress tried to work around Joe Keyboard’s ignorance, and inadvertent irresponsibility, without ever considering all the things that might happen as a result. As it turned out, those unanticipated results included: a bizarre flood of published private spite; scams everywhere; weaponized-speech attacks on children (and lots of adults too); election frauds; full-time defamation of public figures*; the collapse of localized and diverse news publishing; the rise of monopoly publishing; dependence of would-be authors on an ever-diminishing set of private publishers; and lately, a flood of public agitation for government censorship of private publishers, to offset fears they have grown too powerful, which in the absence of the formerly profuse competition they killed off, they have.

        That was a consequential legal change. It is time to reconsider it.

        *Instead of just in the months preceding elections, as previously. That difference is not trivial, it is the basis for the oft-lamented increase in full-time extreme partisanship and “divided America.”

        1. Everyone who understood publishing (never a large group)

          You’re damning yourself with faint praise. The fact that you lament publishing was previously restricted to a small group of insiders and is now accessible to the masses is just bait.

          Or more to the point, who do you hope to convince with this line of argument? That small group of folks who previously had agreed amongst themselves to enforce this elusive “understanding” that excluded most of everyone else? We know what they think. Why should anyone else by moved by an argument about returning to that exclusionary ‘understanding’?

          Literally, what is in it for your argument for anyone that’s not in traditional publishing? What do they stand to gain?

          1. nonzense, no one was enforcing any understanding to exclude anyone. There just weren’t that many people with first-hand experience of how publishing works—and now there are less.

            A lot of businesses, in retail or service industries, for instance, work in ways similar to other businesses. A steak house, and a fast food joint, and a donut shop are not the same, but someone with experience managing one would not be starting from scratch if moved to another. Take that same person and put him in charge of a newspaper, and there just isn’t any foundation or point of connection.

            Publishing is more sui generis. So it’s just a fact that relatively few people understand publishing; it’s not a cult of insiders, let alone a conspiracy.

            Unfortunately, publishing will be even less understood presently, after even more erstwhile publishing businesses have been driven out by internet monopolists. Which points to some things, “anyone,” would stand to gain if that trend were reversed. Readers would once again enjoy a diversity of news sources to choose from, with far more local news gathered and published. Writers could access publications with differing editorial points of view, to accept and publish their work, and even pay them for it. The public at large would not be frightened that publishing monopolists might clamp down to exclude specific privately disfavored points of view. Calls for government censorship of the private press would go away.

            Also, “anyone,” doesn’t have to be, “in,” traditional publishing to benefit from some of its unique capacities. Investigative journalism, for instance, is, and is destined to remain, an almost exclusive province of the institutional press. No matter how good a reporter, writer, or investigator he may be, lone-wolf Joe Keyboard will not likely succeed doing stories based on publishing insider information. That is true even if Joe was previously a renowned investigative journalist, with a long history of success at a prestigious publication.

            The problem for freelancers is that inside sources, and especially highly-placed government sources, take chances when they disclose to journalists. In return, they want assurance that any information they disclose will be published to an extensive, preexisting audience, under the auspices of a publication with a long-standing reputation for accuracy, independence, and political clout. Sources also want the de facto legal protection which the best-established publishing institutions can deliver, and which freelance publishing cannot.

            All of that comes from the part of the reckoning which most people think of when they think about publishing—the content part. Relatively few people outside professional publishing even notice that published content is not the product. Content may be the point of the enterprise, but it is not what the publisher sells to sustain the business and make a profit. Instead, content is the means which the publisher uses to assemble an audience. Access to that audience is the product the publisher sells. That is what brings in the bucks, sustains the enterprise, and delivers the profit. That access is sold to advertisers. Advertisers, not news and information consumers, are the typical publishers’ customers.

            That fact, which content-focused internet commentary tends to ignore, is critically important for understanding what is happening now in America’s publishing business—and especially for understanding the role Section 230 has played in the near demolition of the publishing industry. Long story short, Section 230 enabled a new publishing business model—publishing everything without reading anything—which for the first time enabled the sale of unlimited advertising, and doing it without commensurate increases in content costs.

            Section 230 thus began a trend toward monopolization of advertising sales by a tiny number of internet businesses, while depriving traditional publishers of their customers. Remember, “customers,” does not mean content users. This has not been a battle between rival means of content delivery, in which new technology has proved superior, delivered better content, and justly triumphed. All of that is sideshow.

            Plus which, the content actually generated by online enterprises has mostly been worse, not better. If internet news consumers had to depend for their knowledge only on content actually generated by internet publishers—instead of pirated from the remnants of the institutional press—then internet news consumers would know little indeed. And that is where they and the nation are now headed.

            The entire online triumph has instead been on the side of advertising sales monopolists, who got to exploit a law tailored to their advantage. The loss of a previously-thriving commercial ecology of thousands of news gathering and advertising selling businesses is a price that your, “anyone,” now pays for that. The nation’s frighteningly virulent partisan divide is another price. Demands from the President to censor the private press—and from thousands of citizens as well—are another price. Not paying prices like those is what, “anyone,” stands to gain.

            1. I replied with snark to your initial comment, which I perceived as unreasoned assertions without any supporting argument. Having read these more substantive responses, I’d like to thank you for them. I don’t think I agree with you, but it’s a thought provoking analysis, and was a pleasurable read. Thanks.

              1. borky, without people like you I could probably get off this blog, and find a more constructive use for my time. But every so often, at long intervals, to get a handsome reply like yours keeps me coming back. Thank you for that.

        2. Are there any fixes that you have in mind aside from just going back to the old way?

          I agree that defamation is out of control. The usual remedy for false speech (more speech) doesn’t work in cases of defamation. Imagine the absurdity of a supposedly civilized society telling the defamed TV newscaster that she and her supporters are free to post as often as they like that she is not a MILF (MYLF?) and does not approve the use of her image, but have no other legal recourse.

        3. Too bad nobody in Congress knew that, or at least gave it any thought.

          Congress understood that § 230 was altering the traditional rule. That is precisely why they enacted it. And that enactment, in turn, allowed the creation of the modern internet. That development hasn’t been entirely without negative externalities (your stupid posts, Dr. Ed, and so on), but on the whole it’s one to be celebrated.

  2. This article is worthless without the pics.

    1. Just look for Philadelphia Fox-29 anchors. She’s there and a beautiful face.

      She is married and has children. I don’t blame her for suing.

      230 needs amending. Especially once a publisher is put on notice, the offending libel ought to be removed immediately.

      Remember Chris Tolles? Whenever Topix received a request to take down libelous or abusive material, he’d make you send him some folding money first. Chris the grifter. Chris the scoundrel. Chris the psychopath.

  3. I think it says something about me that, when I read this, my first reaction was to look at Trump’s Ex. Order, and wonder, “…hand pick…”??? Not handpick or hand-pick???

    Off to Google ngrams, which does show that all three are perfectly acceptable.

  4. A narrower approach would have been to decide that the meaning of the term “law pertaining to intellectual property” is defined by federal law and not state law, and whether or not a state decides that the right of publicity is an intellectual property right, the right is not intellectual property but rather a species of tort law.

    1. Paul: Interesting point — I wonder whether this might indeed be the approach that the judge took. He interpreted the term “intellectual property law” in the statute as a matter of federal law, and concluded that it didn’t include right of publicity law. Or am I misunderstanding your analysis?

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Short Circuit: A Roundup of Recent Federal Court Decisions

Common sense, various poems, and rogue, mooning journalists.


Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

Ever wondered what it's like to argue before the Supreme Court? Four IJers who have been in the hot seat talk shop on the latest episode of the Short Circuit podcast. And over at NPR, IJ Senior Attorney Robert McNamara (who we really, really hope will be on the hot seat next term) tells it like it is on qualified immunity. Click here to listen. 

  • After White House correspondent for Playboy gets into a shouting match with a former aide to President Trump at a press event, the correspondent's hard-pass credentials (which allow ondemand access to the White House) are suspended for 30 days—the first time in over 50 years of issuing such credentials that anyone's have ever been suspended or terminated. D.C. Circuit: The White House can certainly punish "rogue, mooning journalists," but first it must give them some notion of the rules they must abide by, which it hasn't. So the correspondent's suspension likely violated due process.
  • Sexagenarian accidentally activates his medical-alert system early one morning, and White Plains, N.Y. police are dispatched. Upon arrival, police demand to be let in, but the man repeatedly and emphatically says he's not in need of assistance. Instead of leaving, they call in a dozen "tactical reinforcements," triggering the man to (allegedly) have hallucinations and flashbacks to his military service. An hour-long standoff ensues, at the end of which police shoot, kill him. Second Circuit: Sure sounds like unlawful entry—that claim should not have been dismissed. (Police did not face criminal charges.)
  • To guard against corruption or the appearance of it, Pennsylvania bans casino and racetrack owners from making contributions to political candidates. A First Amendment violation? State officials: We don't want well-documented corruption in those industries taking root here. The ban is just common sense. Third Circuit: That won't do. Nineteen other states that allow commercial, nontribal gambling do not impose such a ban. You needed to actually present some evidence from those states.
  • "Quoting the Declaration of Independence, the Gettysburg Address, the Bible, and various poems," last month a district court ordered that any Texas voter wishing to vote by mail to avoid COVID-19 may do so. Fifth Circuit: "The Virus's emergence has not suddenly obligated Texas to do what the Constitution has never been interpreted to command, which is to give everyone the right to vote by mail." Texas law that allows seniors to vote by mail—but not those under 65—probably survives rational basis. The district court's order is stayed.
  • In which Judge Jones of the Fifth Circuit, in a decision reviving a takings claim about groundwater, issues a rarely seen partial dissent from her own majority opinion.
  • Special deputy sheriff for Henry County, Ohio participates in a shooting class at a public range, accidentally fires his handgun and grievously injures another participant. And while that incident may well give rise to a state-law tort claim, holds the Sixth Circuit, federal constitutional claims are off the table. Nothing about the accident turned on the shooter's status as a gov't official.
  • Confronting a tangle of discovery disputes arising out of the Flint Water Crisis, the Sixth Circuit concludes that the district court did everything right. Former Michigan Gov. Rick Snyder (and former State Treasurer Andy Dillon) are off the hook for discovery as parties while their qualified immunity defenses wind through the courts. But the rest of the litigation is still moving forward. And as to that other litigation, Snyder and Dillon can be treated as non-party witnesses and made to sit for depositions.
  • Kentucky outlaws "bodily dismemberment, crushing, or human vivisection of the unborn child" unless the mother first undergoes a procedure to induce fetal demise. Sixth Circuit: The latter procedures are not feasible options, ​which means the law effectively bans second-trimester abortions​. And that is unconstitutional. Dissent: We should hold this case until the Supreme Court decides whether abortion providers have standing to invoke the constitutional rights of their patients, given that the only plaintiffs here are abortion providers.
  • Indiana man believes that his father was a victim of murder and that local law enforcement destroyed the evidence that would have proved it, depriving him of access to the courts. Seventh Circuit: It was error to say he lacked standing to bring this extremely legally bogus claim.
  • St. Louis woman is robbed at gunpoint of phone, cash. One week later, another woman is killed in an armed robbery three blocks away. Police discover a man matching the first woman's description of her robber, and he's convicted. But wait! Detectives also interviewed a third woman who said her boyfriend stole the ​first woman's phone, a charge he denied while admitting to the murder ​of the second woman—information the jury should've heard, so conviction reversed. Prosecutors decline to pursue a second trial and dismiss charges. The man sues police for suppressing, destroying, and fabricating evidence and otherwise violating his rights. Eighth Circuit: Nope.
  • Georgia's ballot-access rules for third-party candidates are much more onerous for non-statewide candidates than for statewide candidates. Simplifying, a third-party candidate for governor can get on the ballot upon collecting signatures from 1% of registered voters; a third-party candidate for the U.S. House of Representatives needs 5%. Eleventh Circuit: The district court incorrectly short-circuited the Libertarian Party's First Amendment challenge by declining to apply the Anderson v. Celebreeze test. (No comment from the ghost of Anthony J. Celebrezze Jr., whose surname had noticeably more zs and fewer es than the Eleventh Circuit gave him credit for. UPDATE: They done fixed it.)

Joshua and Emily Killeen will soon operate a desert retreat and wedding event space on their 10-acre property in rural Yavapai County, Arizona. They initially opened the business without going through the county's extensive permitting process and have now shut down until their paperwork is in order. But in the meantime, county officials are punishing the couple by banning them from advertising online that their business is "coming soon" and forcing them to cease hosting free weekly events where friends and neighbors were invited to attend free yoga and vegetarian dinners. Which is unconstitutional, and last month the Killeens joined with IJ to file a lawsuit in federal court. Click here to learn more. 

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. “The White House can certainly punish “rogue, mooning journalists,” but first it must give them some notion of the rules they must abide by, which it hasn’t.”

    It’s logically impossible to issue a complete set of rules, but I should think it isn’t actually required to enumerate every offense that can lose you a press pass.

    1. “rogue, mooning journalists,”

      I did not get the court’s reference to this. When I think of “mooning,” I think of either (a) pulling down one’s pants and bending over, or (b) moving about in a listless manner.
      Neither seems to apply to the journalist’s behavior on that day. And, in regards to Definition B, mooning behavior seems absolutely innocuous…it’s a person’s purposeful and deliberate actions that might be potentially dangerous or unprofessional.

      Is there a 3rd “mooning” meaning that I’m unaware of and applies to the behavior in question here?

      1. Could it perhaps be “rogue, moonlighting journalists”?

        Back when I was 16 years old, Playboy magazine wasn’t my go-to source for White House news…..

      2. It’s definition A.

        “Finally, raising the specter of the absurd, the White House argues that it cannot be the case that “the Press Secretary would be powerless to take action even were a reporter to ‘moon’ the President…”

        Sounds like protected speech to me.

        1. Nice catch. I used Search to hunt for “mooning” and therefore missed the line you saw. Thanks.

    2. What does the DC criminal code say about criminal threatening?

      Assuming this met that standard, wouldn’t that alone constitute grounds?

      1. This is ridiculous.

        Karem threatened no one. That asshole Gorka blew nothing up into something and then went and got the press pass revoked.

        The fierce 1A defenders are of course making excuses for WH behavior.

    3. How did you jump from “some notion” to “complete set” there?

  2. “Texas law that allows seniors to vote by mail—but not those under 65—probably survives rational basis.”

    OK, I glanced at the rationale for why this was compatible with the twenty-sixth amendment. Not persuaded – it seems like clear-cut age discrimination to me.

    Texas could simply allow absentee balloting for someone with a medical excuse. This might have a “disparate impact” but would avoid explicit age discrimination.

    1. It is age discrimination, as the opinion recognizes. It’s just not unconstitutional age discrimination.

      1. Amendment XXVI
        Section 1.
        The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any state on account of age.

        Section 2.
        The Congress shall have the power to enforce this article by appropriate legislation.

        1. Imagine a law giving special assistance to one race of voters but not to another. How can that be distinguished from giving aid to one age of voters but not another?

          1. Giving aid to one race of voters (it seems to me) would violate the equal protection clause, but not the 15th amendment.

            1. That’s certainly intriguing – what is the basis for your view?

              1. The text of the relevant constitutional provisions.

                The Fifteenth and Twenty-Sixth Amendments say that the right “to vote “shall not be denied or abridged” on the basis of race or age (among people over 18), respectively. And the right to vote (in Texas and in your hypothetical) hasn’t been abridged: every otherwise qualified voter can vote. Granting an extra benefit to make it even easier for one subset of people to vote doesn’t deny or abridge the right of the people who don’t get that benefit.

                1. So if whites were allowed to vote by mail but not blacks, that wouldn’t “abridge[]” the right to vote based on race?

                  Or if early voting was limited to whites only, requiring blacks to vote on election day? They still have the right to cast ballots!

    2. Would it be your position that if a state gives special accommodations to one group of people that it does not give to others – special procedures for the blind, or for people in hospitals, etc. – it violates Equal Protection or constitutes a denial of access?

      If so, why didn’t the previous law, that permitted voting by mail to people in various categories, just narrower ones, also constitute denials of access to or discrimination against people Not in those categories?

      1. Because there’s a constitutional amendment against age discrimination, but not an amendment protecting sighted people or people outside of hospitals.

  3. Glad to see the 1972 Libertarian plank is still protecting women’s individual rights from mystical bigots, race suicide eugenicists and Dixiecrats after all these years. Irish voters’ repeal of Amendment 8 had made it clear that even the brainwashees of Romish or Ceausescu’s Romanian doctrine no longer can be depended on to frivolously point service pistols at American physicians and frightened women. –libertariantranslator

  4. Third Circuit definitely got that one right, although I am curious as to how the equal protection challenge would shake out. I assume that would have used strict scrutiny because it was a classification regarding a fundamental right. Or would it still be intermediate scrutiny? I’m not even sure how this law would pass rational basis review. Surely there are other industries with a history of political corruption that don’t have their contributions restricted. If so those means aren’t rationally related to stopping political corruption. Unless they could have shown it is uniquely corrupt somehow?

  5. Let me see if I get this straight.

    Cops shoot a man in his home for the offense of accidentally triggering his med alert and that’s OK.

    Cop accidentally kills a man who is resisting a legitimate arrest and even though every officer at the scene is immediately fired and has now been arrested, we have worldwide protests.

    Am I missing something here?

    1. Mostly, you’re missing the “caught on videotape” though there are also strong components of “it lasted nine minutes” and “lots of bystanders tried to inject some sanity into the situation and were rebuffed”. The med alert killing is still wrong but, based on what we know, not as egregious.

      You’re also doing a lot of work with “accidentally kills a man” – deference that the cops would certainly not show you if you held someone down for 9 minutes and interfered with first responders.

      1. Accident implies negligence of some sort. When at best the officer was reckless, which definitely isn’t the same as an accident. And based on the cries from Floyd and the witnesses about his state, there is a very strong case for the officer acting knowingly. Did he ever cross the line into a purposeful killing? It would be very hard to prove that, but nine minutes is certainly enough time to form that intent.

        1. Don’t trouble Dr. Ed with facts. He doesn’t believe in them.

          1. That’s not at all true. Dr. Ed loves facts. He loves them so much, he makes up a whole lot of extra ones of his own, just to keep himself company.

            1. Like how the guy who was shot was ALSO Black?

      2. If you think “accidentally” is doing a lot of heavy lifting in Ed’s comment, you should instead focus on his tortured (pun intended) definition of “*resisting* a lawful arrest.” If you think that laying perfectly still on the ground, gasping and crying for help, with 4 cops on you, with no weapon on you or around you actually equals “resisting” . . . well, you have a view of ‘resisting’ that–thank God!–99.9% of humans don’t share with you. (But I do admit that other Russian trolls/bots would probably use the word in the same way you are doing.)

      3. A gun is defined as deadly force. A knee is not.

        1. It is if you’re crushing someone’s windpipes. The human body is capable of using deadly force without tools. If it’s being used in a way that tends to kill people, it’s deadly force.

  6. My fellow Texas lawyers, especially those of us admitted to practice in the Western District of Texas, may wish to know which federal district judge there undertook, in the words of the Fifth Circuit panel in the mail-in voting case, took the Covid-19 crisis to be “a roving commission to rewrite state election codes.”

    PACER confirms that it was the Hon. Fred Biery, a Clinton appointee confirmed in 1994.

    1. Oh my gosh, they just ripped that dude. It was awesome! Fred Biery, hang your head in shame.

      My favorite: “There is not a single principle of rational-basis review that the district court got right.”

      Plenty of other gems

      “the court jerry-rigged some straw men and proceeded to burn them”

      “an order that will be remembered more for audacity than legal reasoning”

      “and various poems”

      “not whether they offend the policy preferences of a federal district judge”

      “hurling invectives at what it apparently saw”

      “No stranger to rank speculation, the judge then accused Texas…”

      “Shooting in the dark, the court guessed that Texas…”

      1. I wish more conservative judges would tell liberals like it is when liberals make ridiculous APA “arbitrary and capricious” determinations or somehow find Constitutional rights to kill babies or ejaculate in other men.

  7. You know, I am wondering about that Sixth Circuit case re: Flint Water Crisis. The former governor is being sued. Let’s fast forward to today.

    Some governors made extremely bad decisions wrt requiring nursing homes to house Covid-19 patients. This resulted in many deaths in nursing homes among elderly residents.

    Might these governors also be sued for their policy decisions that mandated certain actions by state agencies and regulated entities?

  8. Two things astonishing about the Westchester police shooting case of the veteran in his apartment:

    1. Police argued that since they stood just outside the door when they shot the man, and crossed the threshold only to retrieve the body, there was no unlawful entry. Shooting him wasn’t an entry, and entry to retrieve a body was a lawful entry. And the District Court judge bought it.

    2. The District Court allowed some claims, which went to a jury. And the jury found for the police.

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Why Trump Might Still Get Re-elected

A brief headline and photo essay.


Almost every day, Donald Trump shows that he lacks the temperament and judgment to be president. Why might swing voters vote for him? Because they think that putting his opponents in power might be even worse. Trump's re-election likely depends on whether Trump's actions or "the resistance's" are foremost in persuadable voters' minds.






Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. A photo essay of three stories that were lies. Not mistakes, not misinterpretation. Lies .

    But you go right ahead and believe the dnc scribes at NYT “report” on what President Trump is doing.

    1. Americans need to stand united against the Christian fascism of the Trump presidency and the GOP. Together, by voting for Joe Biden this November, we can promote a more democratic and socially just American Dream!

      1. HA! I saw a Reddit entry that said the same people who thought Obama was a Muslim think that Trump is a Christian.

        1. Reddit is cancer but the fact that it is an echo chamber means that everyone is going to be super salty when Trump gets re-elected.

        2. I won’t pretend to look into his heart, but my opinion is that he’s a “cultural Christian” if you know what that mean.

          The realpolitik truth of the matter, is that, no matter what’s in his heart, he’s done more to defend religious liberty than any GOP president in recent memory, and Hillary, well, she wouldn’t have. That has earned him a lot of support from religious types, no matter his lack of adherence to doctrine.

          Biden, as a supposed Catholic, who counseled Obama against the birth control mandate, wouldn’t be so bad to religion on a personal level, but the rest of the party would be.

          1. If you’re a Christian, Republican, and oppose the welfare state, Democrats call you a hypocrite. If you’re a Christian, Democrat, and support “gay marriage”, abortion, and insurance covered contraception, Democrats call you a progressive who supports religious pluralism in America.

          2. Let me guess: a “cultural Christian” is someone who doesn’t go to church but who does vote to lower taxes?

            1. As a Reformed Jew, my values come from the New York Times.

              1. LOL. Reform “Judaism” is about liberal politics and eating bagels.

            2. Cultural Christian (a paraphrase): Poorly catechized. Their beliefs about Jesus Christ are fuzzy and out of focus. They hold their beliefs in a sentimental haze in which they vaguely feel that what they believe is “Christian” but would not want to pin it down. They think we have matured and moved on from such nit picky sort of questions.

              1. Despite you telling us you won’t look into the President’s heart, you’ve determined that he has “fuzzy and out of focus” beliefs about Jesus Christ (based on what?), held “in a sentimental haze” and you know how he “vaguely feel[s]” as to what is “Christian but” that he doesn’t “want to pin it down”.

                It’s not nit picky in so far as you say on the one hand that you won’t assume to know what another person believes, while on the other saying you know exactly what he believes.

                1. There was a question upthread by Martined wonder what a “cultural Christian” was. I was trying to be helpful in providing a definition. As he is quite hostile towards religion, I presume he didn’t know.

                  So, it’s not nit picky to define what I think Trump is while also admitting that I don’t know for sure. It’s like saying I think your being pedantic, then defining pedantry when someone asks what a pedant was, but admitting that I don’t know for sure, meaning you could also be obtuse.

                  1. Well you don’t want to look into the guy’s heart, so there’s really no reason to speculate.

                    1. The biographers, historians, and writers of the world, who can’t even presume to know what goes on in a person’s mind, but still presume to explain anyway based on evidence, would like a word with you about why they are wasting their time.

                    2. NToJ owned, but wants to sputter like he wasn’t. It’s really less embarrassing for you if you admit mad_kalak more than adequately explained his two statements.

                      But never admit error!

              2. Cultural Christian (a paraphrase): Poorly catechized. Their beliefs about Jesus Christ are fuzzy and out of focus. They hold their beliefs in a sentimental haze in which they vaguely feel that what they believe is “Christian” but would not want to pin it down. They think we have matured and moved on from such nit picky sort of questions.

                That was basically my assumption of what you meant by that term. And I don’t think it describes Trump at all. He is an atheist; he has to be, because he worships only himself, and can’t admit the existence of someone better than him. He might know enough about society to use the label “Christian” to describe himself, but he holds no Christian beliefs of any sort. His favorite saying of Jesus’s is “An eye for an eye.”

          3. “I won’t pretend to look into his heart…”

            First, you don’t need to “look into” the President’s heart to know what he’s about. He is one of the most outspoken humans in history, due to the bully pulpit and twitter. Second, you look into people’s hearts all the time, ascribing motives to people you disagree with politically that are not apparent. Why are the President’s motives the only safe ones, to you?

            I don’t know what “cultural Christian” means if, in your opinion, the President is a cultural Christian. Does that mean you think he attends churches? Prays? Says “Merry Christmas”? All of the above? Something else?

            1. NToJ,

              I absolutely agree that there really is little reason to suspect Trump has a religious bone in his body. Everything he says, almost particularly when it comes to Christianity, screams amoral, irreligious. But cultural Christians are a thing and he probably fits in there. I think the whole point of “cultural” Christian is that they don’t really have any religious or metaphysical commitments consistent with Christianity, they just want to ingratiate themselves with people who do, in fact, hold those religious or metaphysical beliefs.

              I think saying Merry Christmas and eschewing Happy Holidays gets you in the door.

              1. President Trump is close to divinity, as compared to Pelosi.
                So defining Pelosi Religiosity, gives a value to measure against, to define President Trumps faith.

                1. Please. Pelosi has asked for forgiveness in her life. Trump brags he hasn’t. Pelosi has, to my knowledge, not violated her marriage vows to three different women. Pelosi has not been credibly accused of sexually assaulting over 10 people. Pelosi has not bragged about sexually assaulting women. Pelosi actually attends religious services, actually reads the bible, and can undoubtedly name, not just one favorite verse, but multiple verses. Yes, you can use Pelosi as a measuring stick for Trump’s religiosity. He still doesn’t measure up. Consider that.

          4. Trump also has done more to defend Israel as well.

            What I don’t understand about American Jews is exactly what part of “Kill the Jews” they can’t understand.

            1. Which part of “most American shouting ‘kill the Jews’ support Trump” don’t you understand?

            2. “What I don’t understand about American Jews is exactly what part of “Kill the Jews” they can’t understand.”

              Wow. If I didn’t know any better, I’d think you were upset that the Jewish people do not recognize you and Trump’s gracious magnanimousness for protecting them. But that can’t possibly right?

  2. Presumably Trump will get elected. After all, he already has George Floyd’s endorsement:

    “”Hopefully George is looking down right now and saying, ‘this is a great thing that’s happening for our country.’ This is a great day for him.””

    1. Real hot take here by David – Sitting President of the United States might get reelected.

      1. I should note the even hotter part of the take – whether President gets reelected will depend on, in the next five months before election, who voters prefer more: President or his opponent. How are Bernstein’s opinions free?

      2. That’s the nice thing about secret ballots — the mob can’t attack you for voting as you please. And I’m thinking a Trump landslide…

        1. Really? Come on dude.

        2. If Trump instead loses in a landslide, will you admit that you don’t really understand much of anything about this country? Or will you start making stuff up about voter fraud?

    2. Actual transcript, not misleading left wing journalist:

      “Equal justice under the law must mean that every American receives equal treatment in every encounter with law enforcement, regardless of race, color, gender or creed, they have to receive fair treatment from law enforcement. They have to receive it. We all saw what happened last week. We can’t let that happen. Hopefully George is looking down right now and saying, “This is a great thing that’s happening for our country.” This is a great day for him. It’s a great day for everybody. This is a great day for everybody. This is a great, great day in terms of equality. It’s really what our constitution requires and it’s what our country is all about.”

      What exactly is wrong with that?

      1. Yup. Much like MLK, if George Floyd were alive today, he’d be a Republican …

      2. For the record, I linked to the video, so I certainly didn’t mislead anyone.

        As for your final question, if that’s your response to that video, I really don’t know how to help you.

      3. What’s wrong with that? Let me give you an analogy: a Philosopher or Scientist professing a brilliant idea. Except that he is Jewish. In Weimar Germany.

        1. I don’t know what you’re trying to say, but I really hope you’re not comparing Trump to Jews in Weimar Germany.

          1. “The white man is the jew of liberal fascism” – actual quote from Jonah Goldberg in his best-selling book, lauded by the conservative intelligentsia (seriously), “Liberal Fascism.”

            Notably, Goldberg has now been alienated from the movement because he is no longer crazy enough …

            1. Yeah…conservative denial that they’re primary targets for fascist appeals is going to get them and us into trouble someday. Or maybe it already has.

  3. But seriously. America’s gotten to a place where even John Kelley thinks that electing an amoral ethical void of a man might not have been such a good idea:

    “I think we need to look harder at who we elect. I think we should look at people that are running for office and put them through the filter: What is their character like? What are their ethics?”

    And yet he might still get re-elected because white people like David Bernstein can’t imagine why African-American’s might want to set the world on fire.

    1. Ever since Biden defeated Corn Pop at the local community pool, Joe has been considered the Emperor of Black People.

    2. I agree. We need to replace this old, white, loud, rude, incoherent, self-righteous man with Joe Biden!

      1. At least Biden has empathy. Or the ability to feign it. You won’t see him smiling after mass shootings or saying how recent murder victims would really be happy due to the fall in the unemployment rate.

        1. You misspelled “entropy”. Dementia is a terrible thing to witness in a loved one.

        2. I agree. Joe empathizes with the people, which is why he wants to disarm them and leave guns only for the valiant agents of the state!

          1. Who themselves are racist thugs and must be defunded.

      2. You forgot “handsy”

    3. “What is their character like? What are their ethics?”

      Joe Biden got punished in college for cheating and he crushed his 1988 campaign by plagerising a speech from a foreign politician. He routinely kisses, hugs and smells the hair of women in public settings. He was a star athlete in high school who suddenly developed “asthma” to dodge the draft. He let his son shamelessly trade on his being VP to get lucrative foreign contracts. He was the “Senator from MBNA” [a major credit card company] who led the effort to deny borrowers the ability to discharge such debts yet. He voted to make Robert E Lee a citizen again and openly brags about his friendship with racist senators.

      He is just a stupider version of Trump.

      1. One key difference is that Trump is a sadist, whereas Biden does not appear to be one. Trump openly revels in causing pain. Biden does not. I would rather have a stupid person with questionable morals who at least understands the need for morals and empathy than an outright immoral and sadistic man who is also extremely stupid.

        1. A sadist and a masochist are sitting at a bar.
          The masochist says “Hit me!” and the sadist calmly replies “No.”

        2. So you prefer a hypocrite.

          Trump is a lot smarter than Biden. Its ursine cunning, not book smart, but its real. Joey is just dumb.

          1. Frankly, yes. At least the hypocrite doesn’t encourage other people to behave immorally. And Republicans have supported them for years, and continue to do so. For instance they don’t seem to care that pro-life representative Scott DesJarlais pressured the patients he slept with into abortions. Biden’s hypocrisy is pretty mild compared to that.

            A hypocrite is less bad than someone who is an open and proud sadist. He enjoys inflicting pain. The fact that someone is proud of being an asshole actually does not make them less of an asshole and does not give them license to continue being an asshole. So yeah, I’d much rather have the hypocrite who shows the ability to be contrite than the proud asshole any day of the week.

        3. Do you evidence of this, or is this possibly projection.

          1. Biden finished 76th in a [third rate] law school class of 85.

            He used to claim he was in the top half though.


            1. No. He’s asking me if I have evidence Trump is a sadist.

              1. So he’s never seen Trump speak?

            2. Bob,

              You aren’t claiming Trump has been more honest about his academic record?


          2. It is not projection. I am incredibly anti-violence. I do not like seeing people in pain. Having experienced pain first hand, I do not enjoy anyone hurting. Trump on the other hand:

            Dec. 3, 2015 “The other thing with the terrorists is you have to take out their families, when you get these terrorists, you have to take out their families.” Trump has on numerous occasions stated his belief in torture.

            Trump has on numerous occasions praised police brutality.

            He has pardoned war criminals.

            He praised a Congressman for committing an assault.

            He praised the Chinese response to Tienanmen Square

            He revels in threats of force. He uses words like rough, tough, dominate, etc. He enjoys instilling fear and pain.

            He revels in the failures of others. He loves mocking the deceased.

            He routinely disregards others feelings by lobbing personal insult after insult. He goes after people’s looks and families. He called Ted Cruz’s wife ugly. He said Ted Cruz’s dad killed JFK.

            He deliberately used an unfortunate death to attack media figures against the wishes of the family. Indeed, he routinely disregards the feelings of others who have had loved ones who have died, whether it is a a respected politician, a gold star family, a solider in Nigeria, a mass shooting victim, a person murdered by an immigrant, or most recently a police brutality victim.

            Then there are the people he admires: Kim Jong Un, a brutal dictator, the Saudi Royal Family, al Sisi, Bolsonaro, etc.

            At home he appoints openly cruel people like Stephen Miller.

            He gave the Medal of Freedom to a man who once compared a 12 year old girl to a dog on national TV. He retweets and supports racists like Katie Hopkins.

            Then there are all the accusations of sexual assault he has.

            Only someone who enjoys hurting people would say the things he says, advocate the positions he does, and do the things that he does. He is obsessed and fascinated with force, violence, insults, and demeaning people. When a person tells you who they are, believe them.

      2. So a second election with two miserable choices. The most solid argument for the article’s thesis.

        1. Why on earth do you link Biden would be so miserable? I think he’ll surround himself with perfectly adequate people.
          (If Trump had surrounded himself with reasonable and honorable people, he’d be seen as having a much more successful presidency. He chose to pick super-corrupt people–generally speaking–after running an entire campaign on draining the swamp.) I think Biden’s White House will be far cleaner than what Trump has proven to us that he was willing to do. And we know that his son will be a million miles away from any position of power…for God’s sake; Trump has his totally-unqualified daughter and totally-unqualified son-in-law entrenched as some of the most powerful voices in his administration! It reads as a bad joke…but it’s our reality.

          1. Trump’s other sons are major surrogates that people take seriously for some unknown reason. But unfortunately, Beau Biden passed away as did his eldest daughter Naomi back in 1972. You’re right that Hunter will definitely be a no show around the office given recent events. And despite being a social worker and activist, Ashley Biden keeps a relatively low profile. So we at least won’t have immediate family corruption.

          2. “Why on earth do you link (sic) Biden would be so miserable?”

            Like any politician of long tenure, Biden has more than enough in his history to criticize, even condemn. But no serious person believes that all the acts of dishonesty, malfeasance, incompetence, and immorality committed by Biden in his >40 years in the public eye, aggregated into one neat pile aren’t swamped into insignificance by a typical week in the life of Donald Trump. The notion that there’s any kind of equivalence is beyond risible.

            So why do they think Biden would be so miserable? They don’t. Their opinion has nothing to do with Biden, who on balance, is a decent man, the worst thing about whom can be said is that he’s a gaffe machine, and even in that regard he’s Churchillian next to Trump. So, again, why? Simply because he’s a Democrat, and these people are tribal absolutists. If Ronald Reagan came back and ran as a Democrat, they’d say he’s a worse person than Trump. They’ve abandoned all principle and shame for the sake of owning the libs.

    4. “why African-American’s might want to set the world on fire”

      Fake news. It’s white supremacist agents provocateurs doing the arson and looting in an attempt to discredit the movement and precipitate a race war.

      You fell for the right-wing talking points. Sad!

    5. All candidates or just the Republicans?

      I’m old enough to remmeber when Mitt Romney ran for President. The media labled him devil incarnate. GW Bush was literally Hitler.
      There is not a single republican the left will not smear, nor is there a single Democrat that is not on the short list, for Saint Hood.

      1. World record for number of lies per word in a single post.


    6. “And yet he might still get re-elected because white people like David Bernstein can’t imagine why African-American’s might want to set the world on fire.”

      I missed where David said that. Or where he mentioned any particular race, creed or color. African-Americans aren’t generally thought of as “swing voters.”

      1. I gotta find a better place to hang out.

        1. If you do, please let us know.

          1. It may not be a political message board.

            You get invested in a community like it’s something you have control over, but you don’t.

            It’s not even the unmoderated comentariat, it’s the thought leaders.
            Intellectual discourse on both sides keeps getting fringier and fringier at the moment, which kinda makes me feel like I’m failing to convince, despite how ridiculous that idea is.

            Though I don’t know how else I’d take breaks at work. This used to be a great place to let my brain idle between tasks. It still does that, but now it’s not as fun.

            1. The disintegration of the middle is a thing, but I don’t want to believe it’s as severe or irretrievable as the state of this comment section suggests. Not that I expect to find another early days VC. Too many of the factors that nurtured that chemistry are gone forever. And to be fair, there was always a fringe element. But it used to be so overwhelmed by rational voices on both sides that in context it was entertaining. But what it’s turned into here isn’t cute any more.

              The cultural forces driving people apart notwithstanding, there must be someplace on the internet where people discuss topical subjects without the weapons grade batshittery and bloodlust that’s come to define this place. Like you (though maybe for different reasons?) I prefer a right-leaning board. But I’d suppress my irritation at people I agree with being dopes if the closest thing to a balanced, genial discussion happened to be left leaning.

              1. Haha I do not equate Internet message boards with people generally.

                But either through a change in myself or in the baseline, I cannot find a place like the VC was in the late 2000’s and first half of the 2010s.

                I’ve found liberal message boards, but I’m a partisan contrarian and when they get dumb it’s just alienating and uncomfortable.

                Part of it must be the death of heavy moderation. But as I noted, a lot of it is driven by the bloggers themselves, not their commenters. I don’t see much of that anymore. When I see stuff on the VC I coulda seen on Free Republic in 2012, I don’t quite know what to think. Or do.

                Not that I despair; this is not my only outlet, and is still a good time with smaller doses of posting (similar to your deal, I’d say).

                1. We see that pretty much eye to eye.

                  If you do pull back it may be the final nail in this forum’s coffin for me. Not only do you nearly single-handedly hold the tin foil crowd accountable, but — and of course this is entirely lost on them — you’re remarkably non-tribal and good-natured about it. In short, I disapprove in advance of any reduction in your participation.

                  I suppose an argument might be made that you’re entitled to do what you want with your time, but having come out of a career in BigLaw, I’ve never understood that argument.

  4. A more honest opening statement would have been, “…he lacks the temperament and judgment to be president, according to my personal inclinations and picture of what a president should be.”

    On the other hand, to use a quote attributed to Lincoln anent General Grant, “…this man fights.”

    1. The journalism industry is morally bankrupt. It has never been about what Trump is doing as President but the criticism from the media is how Trump is acting as President. Style over substance but at least Obama was a cool hip black man.

    2. Being catty on Twitter does not make a man a fighter.

      1. No, but not caving when the left went apeshit with Kavenaugh is, nor, say, how he stayed true on that Russia impeachment farce by outing the previous administration for the political sin of spying on an opponent’s campaign…etc. etc. etc.

        Twitter is just one of the places where, due to the media’s reluctance to play it straight with him, he can sound off his opinions.

      2. Not a fighter?

        Identify a single human that would have survived, let along thrived, under the assualt waged against President Trump. Understand that no matter which Republican would have been elected, the exact same attack would have been launched by the FBI/IC/DoJ/State dept.. And not a single Republican would have fought back. Not the way the President has.

        1. Not a fighter?

          Correct. You confuse being a bully with being a fighter. He’s a coward, a/k/a the thing he brags about grabbing. He bluffs, he talks big. He doesn’t fight.

          Identify a single human that would have survived, let along thrived, under the assualt waged against President Trump

          No “assualt” (let alone assault) was waged on him in the first place.

    3. It’s a rhetorical device. Even if you accept the opening statement, he shows the clear and explicit lies that have been thrown against Trump from pretty much the day he got into office.

      I think this is the wrong format for this sort of post. It seems better suited to Facebook, or a meme. A news site is better for long-form entries.

  5. Trump may get reelected because he was elected the first time; because of voter suppression and intimidation tactics; and because he is the incumbent who has not only the traditional benefits of incumbency but also an AG who appears ready and willing to use the DOJ to Trump’s maximum value.

    1. OtisAH, you could well be speaking about Obama. I presume I did not I wake up on some sort of Star Trek parallel universe where you are your ideological opposite (and if so, where is Spock with the goatee?)

      1. No, I couldn’t. And I wasn’t.

        1. Of course you weren’t, but despite your protests, you actually could have been.

    2. Voter suppression and intimidation tactics. That old canard again. It’s a lie that you tell as you suck your thumb at bedtime.

      1. When will children and undocumented Americans be allowed to vote via Twitter or Facebook Live?

    3. “voter suppression and intimidation tactics”

      Yawn. Maybe get some new writers.

    4. “The Russians, General. Don’t forget the Russians.”

      1. So many memorable lines and scenes in that movie.

  6. His opponent voted for all those anti-crime bills, all those wars, the civil asset forfeiture system, 3 strikes, etc.

    Versus Trump who achieved the lowest black unemployment ever and led the way on historic justice system reform in the First Step Act.

    Trump also defeated ISIS and we just signed a peace agreement with the Taliban after 18 years of fighting.

    But keep talking about “temperament”. Because negative emotions and status anxiety matter and achievements apparently don’t.

    1. That low black unemployment and overall economy was a continuation of a trend going back to Obama. So the best you can say is that Trump did not screw it up. But that has all been wiped out anyhow. The First Step Act was quite modest, and the Trump Justice Department continues to oppose releasing people under that act. ISIS defeat was long in the making, and he signed an agreement with the Taliban mostly by giving them what they want.

      1. – No president ever achieved those employment numbers before. If Trump can do it once, why not twice? (No one knows the future, of course.)

        – If presidents don’t get any credit for economic conditions after 3 years, then you’re saying it’s irrelevant who we elect because the economy is random and policies make no difference. Plus then Obama gets zero credit for the economic recovery in 2009-2011 — just another random thing that happened.

        – If the First Step Act is so “modest”, where was it on Obama’s list of achievements? Or any of the Presidents before Obama? Is America so strongly united on everything that we routinely achieve beyond-modest reforms?

        – ISIS conflict was long when Obama was in charge, short when Trump was in charge. ISIS got going under Obama and Trump cleaned up the mess.

        – You want to keep fighting the Taliban for 18 more years? Why?

        1. “No president ever achieved those employment numbers before. If Trump can do it once, why not twice? (No one knows the future, of course.)”

          It does raise some important issues. How did the President achieve these numbers? Did he do it with tax cuts accompanied by no spending cuts? Is artificially juicing the economy with money borrowed from future people a good idea? Maybe one reason no other President has achieved those numbers before is because it’s a fucking bad idea? We could have 0% unemployment, I bet, with enough tax relief and stimulus. (I’m not being fair to the President, anyway, since so much of tax cuts and stimulus require a lot of other people involved, too.)

          1. Borrowing money from the future seems to alternately be called no big deal and then disastrous depending who gets to spend the money and take the credit. Every president and congress does it though. I think it will ultimately be at least near-disastrous. But every president and congress still does it and will still do it until then.

            Only one president achieved record low black unemployment though.

            1. “Every president and congress does it though.”

              No they don’t. In my lifetime the budget was balanced.

              1. Newt Gingrich. You should drop him a note to thank him.

                1. I was very thankful to the Republican Congress for holding the line on spending, and was also thankful to them (and President Clinton) on not using a boom period as a pointless excuse to cut taxes. It was a great moment in American political compromise. In hindsight, balancing the budget may be the greatest compromise political event of my lifetime. Raising taxes and cutting spending during a boom isn’t popular but it’s fucking responsible. And it is exactly what economists recommend, and what you would expect adults to do.

                  Your reaction says a lot. You go into the comment assuming that I’m incapable of giving credit to (what you think) are my political opponents. You’re wrong in a lot of ways. Fiscally conservative Republicans have never been my political enemies. I’ve voted for Republicans, including for President. Several times. I voted for Republican Senators and Representatives after the 1996 tax and welfare reform. More importantly, I’m perfectly happy to thank and congratulate my political opponents when they do things I agree with. I don’t engage with the world in your brand of absolute tribalism to such a degree that it would make it impossible–or even surprising for that matter–to make such concessions.

                  1. NToJ,

                    Exactly right. I agree with everything you said. And, like you, I have voted for Republicans at all levels (including Senate and President), even if I more frequently vote Democratic.

                    Extreme tribalism is a major problem of our time.

                    On the deficit, the data is unequivocal. Democratic Presidents are better, just as they are on free trade. Republicans give lip service to it, but have no stomach to actually do something about it when in power. They will, however, put pressure on a Democratic President, which is one reason the Democrats all have better numbers than Republicans on the deficit.

              2. Not unless you’re older than me, and I’m approaching retirement. Using the accounting practices required of the private sector, the federal government hasn’t run a surplus since shortly after WWII.

                It’s commonly claimed that the government ran a surplus several years during the Clinton administration, but that was what is known as a “primary surplus”, which doesn’t count money spent to pay interest on debt, among other things. In normal accounting terms, there was a deficit every one of those years.

                1. “…but that was what is known as a “primary surplus”, which doesn’t count money spent to pay interest on debt…”

                  What’s your source for this? The CBO has all the historical outlays here. The Total Outlays (Table H-3) has Net Interest which is “government’s interest payments on federal debt offset by its interest income.” The Outlays figure on Table H-1 for surplus years correspondences to the Outlays figures on Table H-3, which includes Net Interest on debt. And yet we still see surpluses.

                  Since 1974 we’ve had a “primary surplus” over a dozen times. But we did have actual surpluses in FY 1999 and 2000, even after factoring in interest on the debt.

                  But it really doesn’t matter whether we’re $1 over or $1 under the budget. For long-term planning, anything that keeps deficits low is great, since it reduces the future burden of interest payments. The more you borrow today, the more you will have to pay (in interest) tomorrow. If deficits are low enough, expected GDP growth can outpace interest. So you can have perpetual deficit spending while simultaneously interest as a percent of GDP goes down. But that can only happen if GDP growth over some period of time outpaces deficit spending. The beauty of the 1997-2000 fiscal responsibility was that it makes future budget balancing easier, since the interest we don’t pay later on money borrowed in the past is basically found money in the future.

                  1. It is so pleasant to see facts and reasonable argument rather than partisan carping and refusal to acknowledge even basic facts if those facts don’t align with one’s political commitments.

                    Thanks, NToJ, for consistently being one of the most reasonable posters on this site.

              3. for 1 year. Not overall for any congress or any presidency. Unless you’re 100 years old.

                1. As Brett pointed out, it depends how you measure it. If it’s primary surplus, it’s happened over a dozen times. One reason to use primary surplus–besides misleading the public–is because the Republican Congress that balanced the budget didn’t necessarily cause the previous debt that they had to pay interest on. So did those Republican Congresses in the mid-to-late 90s secure sufficient revenues to pay for the expenses they approved (as opposed to what some prior Congress had spent)? Yes. They did. We shouldn’t ignore the interest, but in terms of keeping their house in order, the 1997-2000 balanced budgets (“primary surplus”) reflected a fiscally responsible decision to authorize spending below receipts. We shouldn’t punish the merely “primary surplus” years (1997, 1998, as examples) that were really true deficits due to the profligate spending of decades of Democrats and Republicans that came before. I don’t have any idea what budgets Newt Gingrich voted on from 1979-1995, but assuming he tried but failed to keep spending down before taking up as speaker, I’m disinclined to blame him (or others) for merely barely breaking even. Don’t let perfect be the enemy of the good.

            2. And, please, compare every administration. The Democrats are always better on the debt.

              Nixon was far worse than Johnson, Ford was even worse than Nixon. In percentage terms, Carter was better than Ford. He was slightly worse (25-33% higher) in terms of nominal spending.

              Reagan was far, far worse than Carter by any standard. George H.W. Bush was marginally better than Reagan in percentage terms, but in nominal terms, he did nearly as much damage in four years as Reagan did in eight.

              Clinton balanced the budget and, in both percentage and nominal dollars, contributed less to the debt in eight years than H.W. did in four (or than Reagan did in eight).

              George W. Bush, obviously wanting to make the GOP proud, more than doubled the national debt and contributed more in nominal dollars, obviously, than everyone before him added together.

              Obama inherited a trillion dollar per year deficit and the Great Recession but had far, far lower deficit spending in percentage terms than George W. Bush, but in nominal terms he contributed more. Bush handed him trillion dollar deficits and his last budget proposed a $600 billion deficit (prior year was about that).

              Trump came in and, instead of the proposed $600 billion deficit, signed the “biggest tax cuts ever” juicing the by roughly $100 billion more for that year. Despite the “greatest economy ever” Trump continued increasing the deficit every year such that we were running trillion dollar deficits in “the greatest economy ever.” And, obviously, by the end of his term, he will have added nearly as much to the debt in four years as Obama did in eight. And is leaving his successor a damaged budget that projects trillion dollar per year deficits as far as the eye can see. (Next year’s is already projected at $2 trillion.)

              Trump, as he managed to do with casinos (!), has bankrupted us. And he did it in the “greatest economy ever”, as if the longest expansion in history, which he inherited from Obama, wouldn’t end at some point. Utter incompetence. But, actually, it’s worse than that. He doesn’t actually care about the good of the country, his only goal was to artificially juice the economic numbers to dupe people like Ben into believing he is an economic genius who can “do it again.”

              Trump put us in as weak an economic as it was possible to do leading into the coronavirus catastrophe (even if we naively assume he didn’t make that catastrophe worse than it had to be). Rather than using the good times to reign in the deficit, he understood that he could take credit for a “great” economy and, for his gullible base, blame the budget disaster on others and forces beyond his control. If you are honest, Trump owns the fact that we are crossing a debt-GDP ratio that threatens utter economic chaos and political upheaval.j

              Again, went from $600 billion to $1 trillion deficits during the “best economy ever” and now he’s pushing a $4 trillion deficit…in a single year.

              If you care about economics or the Constitution, you should put in office someone who actually cares about the country and its continued economic health. Trump is obviously not that person.

              1. Yep, partisans can spin stuff however they want alright.

                1. Don’t be so hard on yourself!

                  1. What do you mean? It’s simply a fact that US Presidents and Congresses haven’t balanced budgets in general for 50+ years. There’s one minor, temporary exception during an economic bubble that doesn’t change anything.

                    Why are you dishonestly pretending otherwise? No one is fooled. Don’t you get tired of playing dishonest games? WTF is the point?

                    1. The historical data on Presidents and Congress and spending deficits is public record. The CBO has been publishing it since 1962. We can track years where it’s very low (<1% of GDP), low (1-3%), medium (3-5%) and high (5%+). Because of the large variance, it just not the case that every president and every congress has spent to the same degree. You know this but continue to insist otherwise. The worst offenders have historically been Republican presidents. Not because they are evil, but because Republican presidential candidates love to promise tax cuts that neuter revenues, and aren't averse to spending.

                      The eye-opening stat is that revenues generally go up. Not because times are always good, but because the country is increasing in size, and so as GDP grows, revenues grow. And GDP generally grows. Since 1962, federal revenues have decreased only a few times. Some of it is attributable to economic downturns. Others are tied directly to tax cuts by Nixon, Reagan, and W Bush. (While simultaneously doing nothing to curb spending.)

                      The flip side of that equation are outlays. When have they gone down? From 1964 to present:


                      Balanced budgets are a solvable problem. It takes a lot of effort to take on huge deficits, even in bad economic times. We've seen presidents/congresses increase taxes, we've seen them cut spending, but rarely have we seen them do both. But it's not some fucking mystery to solve. If we want balanced budgets, we have to increase taxes and cut spending.

                    2. Ben,

                      “There’s one minor, temporary exception during an economic bubble….”

                      NToJ has already responded as effectively as possible. But it is important to see that when a President and Congress are both under pressure to make a difference, they can. When voters completely ignore their party’s profligate ways, you end up with Trump and absolutely runaway deficit spending during “the best economy ever.” If the only explanation for that “one minor, temporary exception” was a great economy, then why did deficits explode under Trump and a Republican Congress during “the best economy ever”? You seem to think deficits are random. They aren’t. They just require partisans like you to stop being so partisan and hold your party to account instead of relying on the myth (as shown by the stats) that Democrats will necessary have bigger deficits.

                    3. OK. Good plan. It might work 1-2 years out of 50 or 60. You can keep making excuses for your team and condemning the other team for the same deficit spending.

                      Partisans are unbelievably tedious

                    4. Ben,

                      Obviously, the deficit spending is not the same with every administration. You telling yourself that is the problem. There is a definite difference between Republican Presidents and Democratic Presidents, with deficit spending always being less when a Democratic President is in office.

              2. You should tell black folks to remain unemployed to help the debt-to-GDP ratio.

                1. So, in addition to being racist, you are economically illiterate? Unemployment makes GDP worse which makes debt to GDP worse. Hello?

                  1. Sure. Not much reason to talk to completely tedious partisans. Go plague someone else.

                    1. You ARE a completely tedious partisan. I should spend my time talking to people who can acknowledge facts rather than run from them.

                    2. D deficits don’t matter, R deficits cause disaster. Oh no!!!! Because [bullshit rationalizations]. That’s why it’s not worth listening.

                    3. Ben,

                      You are mistaken. It was Dick Cheney who said deficits don’t matter.

                      Serious politicians understand that they do matter. Republicans have the vote of people like you who (a) care about deficits and (b) believe Democrats don’t, so Republicans follow the playbook you propose. Democrats don’t say a lot about the deficit, certainly not as much, but they have a freer political hand to do something about it because they are trusted not to be cutting deficits on the backs of the poor and middle class.

                      The irony is, as so often, Republicans are the profligate spenders they accuse the Democrats of being. (Though, yes, they all have incentive to borrow and spend. But the incentive is greater for Republicans because they have been so good at tarring the Democrats as the “tax and spend” party.)

                      Like on free trade, Republicans talk the talk, but are generally much more protectionist when it comes to walking the walk. Democrats don’t demagogue on free trade, partly because they have a lot of protectionist (Bernie type) voters. However, in practice, they are generally pro-free trade. Again, Clinton and Obama were both more free trade than W. and Trump. The reasons are the same: free trade is good for the country, so Democratic presidents will enter such deals. Republicans try to peel off Democratic/Independent voters with protectionist policies or give handouts to their reliable voters. (George W. tariffs for NC votes, Trump tariffs for farmers, etc.).

                    4. If you don’t believe that BS and are repeating it anyway, you’re an ***hole. If you do believe it you’re pathetic.

                      D deficits add up the same as R deficits.

                      And, of course, you’re there’s the role of congress. But you’re pushing a ridiculous double standard, and it’s already a Swiss cheese of phony rationalizations even without considering Congress. What a complete tool.

                    5. Ben,

                      “D deficits add up the same as R deficits”

                      No. They don’t.

                      It’s just counterfactual.

                      Congress does play a role. D-President plus R-Congress (definitely the lowest deficits); D-President plus D-Congress (tends to be second lowest); R-President plus D-Congress or R-President plus R-Congress (I am not sure the data really supports calling one worse than the other.)

                      The dynamic at work: A Democratic President is a single person who, historically, has actually cared about the good of the country and can make compromises with a Republican Congress that, with a D President, can help force some politically difficult choices. So the R’s push for lower deficits because they know most of the blame for any pain will be on the D President and they want lower deficits for the good of the country. The D President does because of the leverage the R Congress has and being able to place some of the blame on the R Congress (“my hands were tied”) and the President wants lower deficit for the good of the country. Both sides know the recent (since the 1980s) debt trajectory is not sustainable (although more modest deficits are fine).

                      But when there is an R President, D Congresses have been more likely to prioritize directing spending to things they like in exchange for letting an R President spend on things he likes and the R-Presidents have all chosen to make the bargain to spend more on D-things to also be able to spend more on R-things. D-President and D-Congress aren’t really any better because voters don’t like being told no to spending or tax cuts (though at least Ds show some spine on the latter because they know increasing spending and cutting taxes is disaster. When there is an R-President and R-Congress…well, spending and borrowing goes completely off the rails because the R’s aren’t willing to tell voters they can’t have everything they want including both increasingly bloated budgets and further tax cuts to “pay” for it. In fact, R’s trip over themselves taking credit for all the spending (Trump name on checks, farmer welfare checks, etc., etc.) while pretending their tax cuts will pay for it.

                      So, it’s not because R’s are bad people or D’s are good people (generally, some of each are bad, some of each are good). It’s the incentives at play. D-Presidents and R-Congresses each have an incentive to rein in deficits when there is a D-President and an R-Congress. Other combinations have less anti-deficit incentives all the way around.

                    6. Double standards need long rationalizations. Keep writing, longer and longer.

                      It’s all in the service of saying the good economy and low black unemployment … well nevermind any of that. Quick partisan pivot to the deficit. The deficit, which was never a problem between Jan 2009 and Dec 2016, now matters more than jobs.

                    7. There is no double standard. You are just making things up. I cared about the deficit in all years prior to 2016, so stop making things up.

                      NToJ made a salient point about how Trump kept the Obama recovery going: with deficit spending. You argued with him about the deficit. I chimed in on the deficit. There is no pivot, except now you want to pivot back to “the good economy and low black unemployment.” Which just raises NToJ’s point about how Trump managed to continue the trends that started under Obama: deficit spending and lowering taxes to increase the deficit even more.

                      You want to talk in jingos rather than actually engage.

                      You ARE a completely tedious partisan, uninterested in actually discussing the issues. Goodbye.

    2. Versus Trump who achieved the lowest black unemployment ever

      Conservatives used to understand that government doesn’t create jobs.

      and led the way on historic justice system reform in the First Step Act.

      In what way did he “lead the way” on this? You know that words have meaning, right?

  7. There is little question Trump will try to tear down Biden by painting him as an extremist. Given Trump’s miserable approval ratings, it’s likely his only chance.

    1. I agree. It’s kinda like how Romney, the moderate’s moderate, was given the 3rd degree this way by Obama?

      I would love a sorta 1992ish election, about economic policies and who checks their watch during a debate and who lies more about smoking dope and boinking mistresses.

      1. Obama’s net approval rating (approval minus disapproval) was about zero. Trump’s is about -10.

        1. “Obama’s net approval rating (approval minus disapproval) was about zero. Trump’s is about -10.”

          This is probably the most salient point. People are flinging their biases back and forth here, but at the end of the day, it’s the votes that matter.

          1. It’s not the vote that matters. The vote that matters happens in November. And in November 2020, like in 2016, I am likely to vote, thinking ‘Holy SH!t, how are these my choices?’ Many think it Trump is a terrible person. Mayhap he is. Many think Biden is a terrible person. Mayhap he is. One of them is almost certainly going to be president (health and Torricelli option being the most likely reasons someone else is sworn in in Jan 2021).

      2. Tbf, it was a little odd that Romney ran on a platform where his No. 1 priority was to repeal Romneycare.

      3. Martinned, Romney was not an ideal candidate from the GOP, but he won the process because the voters were told by the party elite that only a moderate had a chance of winning against Obama (and he was lucky not to have any serious competition).

        Josh…while approval ratings matter in the abstract, actual votes do (at least for elections, which is what the OP was making this thread about).

        1. I thought the point of the OP was that Trump is unpopular and his only chance of winning is to make his opponent more unpopular. And, I agree with that analysis.

        2. “Romney was not an ideal candidate from the GOP, but he won the process because the voters were told by the party elite that only a moderate had a chance of winning against Obama (and he was lucky not to have any serious competition).”


          And there ya go, the reason Trump will win: because we always fight the last war, and learn the wrong lessons from our enemies.

    2. approval ratings? The ones where President Trump is equal to, or higher than Obama at the same point of the Presidency?

  8. Why Trump might get re-elected.

    1. Trump been hard on China. Biden is soft on China. People think China’s to blame for the corona virus.

    2. People don’t like lockdowns. Democrats and liberal governors have been very pro-lockdown. Trump’s been working on letting businesses open up.

    3. As the lockdown lifts, the economy may boom back, helping everyone.

    4. Those more religiously inclined have viewed how Joe and the Liberals treat religion (as opposed to the protests). Those who want to defend religion and their religious rights understand the need for Trump.

    1. Would number 4 include the Archbishop of DC and the Episcopal Bishop of DC?

      1. When the Democrats in government somehow think that it’s just fine to have restaurants serve meals in restaurants to people in person, but also simultaneously think banning communion in Christian Masses is appropriate because of COVID-19 risks.

        Something’s gone very wrong with the liberal-group think.

        Meanwhile the Governor of Michigan violates her own social distancing order again….

        1. I could say the same about conservative group-think, thinking it is just swell to use government force for Richard III style photo-ops co-opting religious spaces over the objections of religious leaders themselves.

          Also, they literally forced a rector from their church.

          1. I must admit, that the mental imagery of a “Richard III style photo-op” is a good one. Shakespeare did not do him justice though, he was not that bad, but his version would do photo-ops.

            That said, do you feel the same way about the silly Obama and Coast Guard Admiral Thad Allen photo-op on the beach during Deepwater Horizon? It was about as stupid as the Trump photo-op. But at least for me, Trump’s signaled he would go to bad for religion. The extreme left has a particular antipathy towards Christianity and Judaism (but not Buddishm or Mohammedanism or Hinduism) and I’m not a Hindu.

            1. Trump largely has gone to bat for religion.

              Liberals are going and taking down license plates and issuing fines and jail sentences for those who would open a small religious service… Meanwhile, large protests are A-OK (but only the right sort of protest).

            2. The Obama photo-op that nobody remembers? And nobody remembers it, being silly or otherwise, because he didn’t violently push previously peaceful protestors out of the way so he could have the photo-op, including firing pepper pellets and smoke canisters at them or put in an order that resulted in an Australian news crew being assaulted by federal agents.

              Even if surveying the scene of a disaster is a “silly” photo-op. Every President does that, including Trump throwing paper towels at disaster survivors in Puerto Rico. But somehow using force to clear a public park of peaceful protestors in order to stand in front of a church (not inspect it, not even say something about Jesus and loving your neighbor) and awkwardly hold a bible is viewed differently by such staunch liberals as Generally Kelly and General Mattis. What wusses, huh?

              So, yeah, Trump’s phot-op was pretty much exactly the same as Obama walking on an already largely empty beach to be seen looking at the results of an oil spill.

              1. Hey, I’m not a nobody. heh. Though in 10 years, only some hard core news junkies will remember the Trump bible photo op. Be fair, there was lots of commentary on Obama’s silly oil spill photo op.

                1. I think it’s the salient moment of the protests so far.

                  1. “the” salient moment? Huh, I figured it was all the idiots taking a knee or the bleeding body of Mr. Dorn.

                2. Did former senior members of Obama’s administration or of his cabinet speak out against Obama for (wait, what constitutional rights or even sense of decency did he violate by walking on an empty, oil-stained beach getting his picture taken?) that photo-op? Heck, forget whether any prominent Democrats spoke out. Did any Republican Senators chastise Obama for violating America’s fundamental values, constitutional principles, or even decency for the Deep Horizon photo-op?

                  Be fair. The only resemblance between the two is that both involved Presidents in photos.

              2. “including firing pepper pellets and smoke canisters at them ”

                You need to keep up, there was no gas used.

                For the record, I care not for Trump. But let’d be accurate – attack him for the things he’s done and not for products of the imagination. It’s not like there’s a dearth of pertinent real outrageous things he’s done…

                1. Jmaie,

                  Three days after the U.S. Park Police claimed that tear gas was never used on protesters outside the White House, the organization’s spokesman acknowledged that the chemical agents shot into the largely peaceful crowd have similar painful effects.
                  A spokesman for the Park Police said in an interview with Vox that his agency regretted using the term “tear gas,” noting that officers threw pepper balls containing an irritant powder and chemical agents that are designed to produce tears. Their use causes people to experience difficulty breathing and burning sensations on the skin.

                  I said pepper pellets (pellet, ball, meh). How about read what I wrote? So you are the one who needs to keep up, the Park Police admitted that’s what they used.

                    1. You are a gentleman.

          2. ahem, that should read “go to BAT”. Funny error actually.

    2. The religious angle has yet to fully play out. I think the Democrats are really going to regret how they trashed Christians during the lockdowns. They overplayed their hand for what seemed to be no appreciable reason (except to use authority). That might translate to a lot of votes for Trump come November.

      1. Christians, Jews, even Muslims….

      2. Until they’re reminded that they forced a priest from their church for a photo-op….

        1. “Their church”

          Are you sure about that?

          1. Well the rector is presumably a member of the Church, and goes there more than Trump. So it is almost certainly their church, in the same way the one you go to is your church.

            1. Yeah…that’s what I thought….

              They’re a rector…but not the rector of that particular church. But of a completely different church, with the same name… So, when they forced the rector away from the church (where she was assisting the protestors), she had to…go back to the church was she was ACTUALLY a rector…

              You ever get tired of the wordplay?

        2. An Episcopalian. Trump friendly religious don’t care about such creatures.

          1. Ah of course. I forget that Trump friendly religious people are mostly Real Christians™ with a smattering of Christian-certified Real Jews.™

            1. “Real Jews.™”

              Yes, Trump does get significant [though probably still minority] support from Orthodox and Haradim.

              1. Reformed Jews, like myself, are real Jews too and we support Joe Biden!

                1. Yeah, real Reformed (sic) Jews like yourself support bullshit.

                  There’s no such thing as a Reformed Jew. Troll better.

              2. Oh boy. The gentile Jew police are here again. You and Brett ever go down to the Conservative or Reform synagogues and tell them they aren’t actually Jewish?

                1. I belong to a Conservative synagogue myself. My wife’s family helped found one of the shuls which merged into it.


                  1. I sincerely apologize. I should not have assumed. I shouldn’t have made a flippant remark.

                    I am not Jewish. I was raised Catholic but left the church for a wide variety of reasons, and am an atheist more or less.

                    But I do not like the idea of anyone, particularly non-Jews, telling my Jewish friends or any other Jews that they aren’t really Jewish because of their politics. I find it a particularly odious sentiment. So I called it out. But I will be more circumspect in the future with my generalizations.

              3. The Modern Orthodox will support Biden.

                1. “Modern Orthodox will support Biden”

                  Yes, that is consistent with my “[though probably still minority]”.

    3. Trump’s approval ratings on handling coronavirus started out OK, and have steadily gone downhill, now matching his overall approval ratings (not good at all).

      1. “overall approval ratings (not good at all).”

        His favorability [very to similar to approval] rating on November 1, 2016 was 37%. Still won. Its higher now.

        He has to roll a 7-10 split again but you never know.

        1. He won because 1) Clinton was almost as unpopular, and 2) the electoral college (Trump lost the popular vote by about what you would expect based on the candidates’ favorability ratings.

          Right now, Biden’s favorability ratings are much better than Clinton’s.

          1. Are Joe’s favorability ratings really much better than Clinton’s?

            Right now, Joe is in the mid 40s for favorability. He’s got maybe 3 points on Trump. I mean, maybe Joe has 5 points on Clinton (compared to where she was in may/june 2016).

            But it’s not alot.

            1. Biden is just below net zero (favorable minus unfavorable) and Clinton was between -10 and -15.

          2. Right now Biden is so invisible he’s effectively a generic Democrat. And those always poll better than real Democrats.

            At some point he has to actually resume campaigning, and even, yes, share a debate stage with Trump. I expect that to be pretty brutal, even if they give him the questions in advance, would he remember them?

            1. Brett. You cannot seriously be this willfully ignorant about Trump’s ability on a stage. Don’t you ever listen to him talk? It’s all over the place. All the slurred words and rambling digressions peppered with insults and ridiculous musings? He’s not going to look more mentally fit than Biden.

              1. Have you seen Biden lately?

                1. Yes. I’ve also seen Trump the last three years.

        2. “Its higher now.”

          It’s slightly higher than the presidents who have lost their reelection campaigns recently (HW Bush and Carter) and slightly (Obama) to significantly lower (Clinton, Reagan) to the presidents who won reelection.

          I think he’s still going to win. His margin for error is the largest object in the universe.

          1. I wouldn’t characterize Trump’s approval ratings as being “slightly” lower than Obama’s if that label is meant to imply Trump has anything more than a long shot chance to win (absent Biden’s favorability coming down). But perhaps, it is only “slightly” lower in the sense that Trump has a chance to improve on his numbers. The problem for Trump is there is no evidence that he can improve on those numbers.

            1. Slightly lower at 6% (as of today). Maybe that’s charitable, but I was trying to draw a distinction between 2-3%, 6%, and double digits.

              There’s another variable here, namely his disapproval, leading to his net approval. President Obama’s net approval was about 1% this time into his first term, the President’s is about -11% today. President W Bush was -5.8%. Presidents Clinton and Reagan were around 15-16%. The President’s current net approval looks much more like HW Bush and Carter than it does like the people who won.

              History isn’t a promise. And he may not need to improve his numbers, only murder Biden’s. Maybe someone will find his private email server at just the right moment. There’s also a lot of very simple shit the President could do to juice his numbers a few percentage points. Believable contrition, accountability, etc. aren’t going to convince anybody on the hard left, but he could peel off a few independents. And the economy could rebound better than expected.

        3. Why care about Joes poll numbers?

          You can’t seriously believe he will be the candidate.

          It has nothing to do with politics, Joe is in steady cognitive decline. To anyone that has watched a parent slide into dementia, the signs or indisputable.

          1. Anyone who focuses on Biden’s cognitive abilities while ignoring Trump’s cognitive abilities makes me wonder about that poster’s, well, cognitive abilities.

            1. Trump is stupid.

              Biden…well…best pick the Biden’s VP candidate very carefully.

              1. Agreed. But the names floated around so far (eg, Stacey Abrams, Kamala Harris) are extremely bright and cognitively unimpaired people…even in areas where I disagree with their policy choices or their philosophies. I thought Mike Pence had integrity (Okay, I was wrong there.) But he was a great pick for Trump. Younger, definitely cognitively unimpaired, etc.. I simply cannot believe that a candidate in his mid or late 70s would pick a VP who also was in his or her 70s . . . even for someone as tack-sharp as Warren.

                1. Stacey Abrams would be a disaster. She’s got zero executive experience, zero government experience at the national level, her primary qualification is a failed governor’s campaign in Georgia. Her only government experience is her time as a state representative.

      2. His approval/disapproval ratings on every topic always eventually converge on the same numbers: A little worse than the fraction of the population aligned with the Democratic Party. Because he’s a pretty good President from a Republican point of view, (Not a moral icon, but Republicans don’t expect politicians to be admirable.) and from a Democratic point of view he’s a Republican, and so an object of loathing .

        1. Trump’s problem is those approval ratings strongly suggest he will lose. If he is to win based on his own merits, rather than pulling down Biden, he has to move those approval numbers. Armchairs’ argument that he can do so based on his coronavirus performance is not supported by the data.

          1. June 17th, 2016…

            Gallup’s latest figures show Trump at 31 percent favorable/63 percent unfavorable – significantly worse than Clinton’s 41 percent favorable/54 percent unfavorable.

            We know how that turned out.

          2. Did you know that, on election day, Trump was 21% underwater? Today he’s only 13.3% underwater.

            Biden is running about 1.5% underwater, mind you, and Clinton was 12.6% underwater on election day.

            So, he won in 2016 despite being 8.4% more unpopular than Clinton. Right now he’s 11.8% more unpopular than Biden.

            So you might think he only needs to bring Biden down about 3.4% relative to himself. Strikes me as feasible, at least.

            1. Brett,
              I think you’re pretty close to accurate. And, of course, you and we are talking about nationwide numbers. It matters not at all if Trump is underwater by, say, 20 point in California. It matters what Trump is, in Florida, and Michigan, and Penn., and Minn., etc etc..

              Nationwide polls tell us that, overall, Trump is seen as a horrific person and a dreadful president. But if those key Midwest states again thread the needle and go for Trump by small margins, then Trump will win a second term–regardless of what ‘the people’ in America think.

              Unlike in 2016, I don’t think people will be shocked/surprised by a Trump win. And, although I tend to generally disbelieve the power of the Bradley Effect, I do think it does apply to Trump.

              I think there were, and still are, a significant number of voters who are too humiliated to admit that they will vote for a pathological liar, sexual abuser, and lifelong racist. But, come November, they will indeed pull the lever for Trump. I have grave reservations about what the polls therefore say, and I’m automatically adding 3-4% to Trump’s side in any Midwest statewide poll between now and election time. Add to that, voter suppression in any state where Republican’s can effect this, and I can easily see Trump winning a bunch of states by the same slim margins we saw 4 years ago.

              1. “I think there were, and still are, a significant number of voters who are too humiliated to admit that they will vote for a pathological liar, sexual abuser, and lifelong racist. But, come November, they will indeed pull the lever for…”

                I suspect that more Trump supporters will feel shame but there will be a substantial number of Biden supporters as well. At least I hope most will feel ashamed…

              2. ” to admit that they will vote for athis pathological liar, sexual abuser, and lifelong racist,” instead of THAT pathological liar, sexual abuser, and lifelong racist.

                The real horror of modern politics is that there are seldom good choices available, just a choice between bad candidates. (At least at the federal level, where the parties can be effective gatekeepers.) I think this is the primary motivation for the charge of “whataboutism”; Democrats seek to win by pointing out the demerits of their foes, while “whataboutism” seeks to pretend that returning the favor is somehow a fallacy.

            2. I didn’t say bringing down Biden wasn’t doable. I only said that has to be his strategy since moving his numbers up seems like a lost cause.

              1. Just get Biden on stage and talking about black people or women or Indians….

                1. Or get Trump talking about literally any woman he dislikes, or black people, or Russia, or China, or Iran, or illegal immigrants, or police violence, or subjects starting with either a vowel or a consonant.

                  If your argument is that, on a given subject, Biden will be fumbling and/or incoherent, while Trump will be articulate . . . . (color me skeptical)

                  1. “If your argument is that, on a given subject, Biden will be fumbling and/or incoherent, while Trump will be articulate . . . . (color me skeptical)”

                    I never said Trump would be articulate. I was responding to Josh’s quote about “bringing down Biden”

  9. You could just say “People who want a bourgie liberal think Donald Trump lacks….”

  10. Another fact that still has to play out is how Biden will campaign (if he does at all). A big part of that will be his selection of a running mate. If he picks a left leaning VP and he runs left leaning then I think the road to the White House is going to be a lot harder for him. There are more people who are voting AGAINST the Democrat then are voting FOR Trump. Driving voters to NOT want to vote against him.

    1. if he does at all

      So far he has wisely kept his mouth shut. Never interfere with an enemy while he’s in the process of destroying himself, etc.

    2. I see little evidence of moderation among Dems. They need a Jim Webb. Klobuchar strikes right chords, but seems to have little chance in this moment.

      1. I’m frankly surprised that the Democrats ended up with a moderate like Biden. They could run a brick against Trump and it would still win. I’m surprised they didn’t go for Sanders. Pleased, but surprised.

        1. So Hillary Clinton didn’t even qualify as a brick?

          1. She didn’t have the benefit of having 4 years of actual Trump to run against.

            Also, note I said Sanders, not Warren. The person I figured the Democrats might go for is the sloganeering lefty, not the smart lady with the 10-point policy plans. They tried that with Clinton and both parts of that bit them in the ass.

            1. Well, she didn’t have the benefit of 4 years of trying everything under the sun to tear Trump down. But she did have the benefit of being able to accuse him of just about anything because he lacked a track record.

              In another comment, I provided a link to RCP’s Trump approval graph, which has run uninterrupted from the time Trump announced until today. Trump was a lot less popular when he was elected than today, governing has improved his standing with the public.

        2. Sanders didn’t win for the same reason he didn’t win 2016: only a small percentage of black voters were persuaded.

  11. Of course Trump might win. Three months ago Biden was on the verge of dropping out. Things change.

  12. Voted 3rd Party in 2016. Dislike Trump, but think his character defects are unlikely to be successfully emulated by others. Words are ugly, but policies do not merit the level of condemnation they’ve received. My children can understand that people are complex, that well behaved people can be be wrong, and boors can be right in decisions of consequence. The Resistance is a bigger long term threat to US, and I have not seen Dems acknowledge faults. Rewarding Resistance is likely to perpetuate their more insidious and apparently socially acceptable tactics. From that perspective Biden may not be most moderate choice.

    1. Which policies, specifically, did you have in mind? Because the only policies of Trump that he’s actually responsible for* seem like they deserve exactly the kind of condemnation that they got.

      * Occasionally Trump gets a little confused. Today he was bragging about legislation that passed in 2014:

      1. That’s a kind of moronic tweet. Never assume that someone on twitter knows what the hell they are talking about.

        Trump was undoubtedly referring to this: “Veterans to get expanded access to private doctors at VA expense starting Thursday [June 4th]”

        “Veterans will have expanded access to medical care outside Department of Veterans Affairs facilities beginning Thursday under a law signed by President Donald Trump last year and touted as a major achievement by Trump on the campaign trail.”

        1. See that’s your problem “Trump was undoubtedly referring to…”. I appreciate your sojourn into the mind of the Donald, but history suggests your presumption is a crap shoot. While your abilities with respect to “normal” human beings probably do better than chance anyone be hard pressed to say what he is thinking or what he will say next.

    2. What are the Resistance faults that constitute a bigger long term threat to the U. S.?

      1. The Founding Fathers, presumably. Wouldn’t want to encourage such tactics…

        1. You know, you really ought to look at the example of John Adams. He was the lawyer for the Redcoats attacked by the mob in the Boston Massacre, and successfully defended them for their defense of their lives against the mob. I recommend at the very least watching that mini-series with Paul Giamatti as Adams. Brilliant stuff that.

  13. Biden is a saltine cracker. Trump is the incumbent. The only person who can defeat Trump is Trump. Pass the popcorn.

  14. Reading this blog (with its comments) has persuaded me that the Conspirators’ efforts have been counterproductive. They wanted to promote more hiring of movement conservatives at strong law schools. They likely have pulled up that ladder and burned it.

    UCLA likely is tiring of wincing at and apologizing for Prof. Volokh’s contributions to public debate on issues such as race, guns, and Pres. Trump. Harvard surely wishes for a do-over on Prof. Vermeule after observing his exhibition of adult-onset theocratic, medieval positions. Conservative law professors have, in general, devoted more effort to defending Pres. Trump and deriding his critics than they have advocating for their ostensible principles with respect to government, bigotry, reason, science, and decency as the Trump administration has trampled them.

    Which strong law school would (or should) want to hire movement conservatives these days?

    1. Bob Jones Bible College and Liberty University

    2. Hey faker…yea you Rev (I know you looked at ‘faker’ even before I said your name), could you provide some evidence of a UCLA wince or apology for Prof. Volokh?

      1. Does this suffice?

        If not, check the Volokh Conspiracy post entitled “UCLA Law Dean Apologizes for My Having Accurately Quoted the Word “Nigger” in Discussing a Case,” authored (one word in the headline gives it away) by Eugene Volokh (April 14, 2020, 5:14 p.m.)

        (Other than that, nice comment.)

        1. Touche! I stand corrected that there was an (undeserved) apology for saying nigger in a law school class in appropriate context.

          You must still be hurting from the good prof removing your comments to bring it up on an unrelated thread about Trump’s reelection prospects.

          I’m glad that calling you the faker you are got your attention though.

          1. It’s bad enough for you to celebrate illusory victories, but doing so for Prof. Volokh — who is smart enough to know he falls on the losing side of the culture war — is particularly shabby.

          2. Pointing out clinger hypocrisy is always a worthwhile endeavor.

            When Prof. Volokh climbs off his hobby horse, playing free speech champion and bane of censors, I’ll stop mentioning that he engages in viewpoint-controlled censorship.

            If he apologizes, I might consider mentioning it less frequently.

            1. If he apologizes, I might consider mentioning it less frequently.

              Well, carry on… clinger. LOL

    3. That ladder has been in ashes for at least a decade. Faculty hiring of conservatives dropped off a cliff about 20 years ago, and hit the rocks a few years later. Nothing the Conspirators could do would change that.

      1. Right-wing professors will always be able to find jobs at the unranked, nonsense-teaching schools controlled by conservatives — the schools that don’t want anyone who is not a clinger.

  15. Don’t be afraid, David…. just show us on the dolly where the Bad Orange Man hurt you.

    1. That’s that gets me about the OP. He wrote a whole book about why Obama should have been impeached, but he can’t stop the handwringing about Trump.

      Where are these angels that we can have govern us?

      1. Yeah, Bernstein writes weird posts lately. Every single one of them starts by condemning Trump, and then follows on with a long story about why Trump is really right/it isn’t so bad/will win re-election/etc.

        With anyone else I’d think the author wanted to hide their Trump sympathies for fear of public condemnation in their peer group, or something like that, but David Bernstein doesn’t strike me as someone who cares about his reputation. So why doesn’t he simply come out and admit that, after 4 years of Trump, he’d like 4 more please?

        1. I can’t disagree with anything in that assessment.

        2. Probably because he actually doesn’t want four more years of Trump. He just wants four more years of some Trump-like things that are led by someone who isn’t Trump. He’s obviously not going to get that, but a man can dream. A man can dream.

          1. Well, to be fair, if somebody who was Trump-like in their policies but otherwise not Trump were available, I’d want them, too. I find Trump embarrassing.

            But not embarrassing enough to want a Democrat or a RINO in the office.

            1. That Trump has actually managed to implement a conservative agenda instead of just whining about things, throwing a few bones our way, and appointing squish Supreme Court justices…I’m willing to put up with his tactics and style for some actual success for a change.

              I’m just embarrassed about the spending binge when it comes down to it, because the left and the media has done the “stupid” and “Hitler” routine on every GOP president since Ike. They would have done it to him too, if it wouldn’t have been laughed at so hard. They still tried too.

              1. Trump’s first year in office he actually did submit a budget with spending cuts. He really did.

                Congress responded by enacting bipartisan spending increases with a veto-proof majority in both chambers.

                So Trump, not irrationally, decided that controlling spending wasn’t possible, and moved on to other priorities.

                I don’t think Trump is at all conservative, ideologically. He’s just a pragmatist who understands economics. To the extent he’s ideological at all, it’s a form of generalized nationalism: He thinks each country’s government should devote itself to the interests of their own citizens, not the world. Including the US. And that the world will prosper if they do that.

                The thing is, your average Republican President has been neither a pragmatist NOR a conservative. They’ve been squishy liberals who knew they had to lie about it. But they had an ideology, and it precluded them doing the conservative thing. Trump doesn’t have an ideology that drives him to avoid doing the conservative thing, and he understands the necessity of “dancing with the one what brung ya”, of delivering to his own base.

              2. A second point on spending:

                People frequently get into debt beyond any possibility of every paying it off. I did myself after being screwed over in a divorce.

                Initially there’s a certain degree of denial that you’re actually in this position, you want to think that paying your debts is a real possibility. But eventually life proves to you that it isn’t possible, that you’re going to end up cheating your creditors no matter what you do.

                At that point, some people go into extreme austerity, or immediately default, to minimize the extent of the default.

                Other people go on a spending spree, figuring that they’ll rip off their creditors for everything they can before their creditors figure it out, too.

                I think Trump might have come into office knowing that we, as a nation, were probably beyond the ability to avoid default. And he made a brief stab at trying to minimize the extent of the default, (Or at least stop spending the borrowed money on stupid stuff!) and the rest of the government told him it was going to be option #2, and the vacation in the Bahamas was happening regardless.

                So he’s been trying to set us up to come out the other side of that default in as good of shape as possible, by improving our economic fundamentals, and rendering us as self-sufficient as possible for the coming days when buying things outside the country will be difficult because our money won’t be worth much, and nobody will want to loan us anything.

                But he’s not wasting any political capital on preventing a default that’s now inevitable.

                This was actually my argument for Trump, back in 2016: That he had experience in taking large institutions through bankruptcy, and that was an important thing for a US President to have!

                1. Spending so long spinning theories about Trump’s actual agenda, that’s actually good and conservative.

                  Just like you spend a long time figuring out liberals’ actual agenda, which is actually bad.

                  Come on, man, just take the simple explanations; this is just silly.

  16. Hmmmm….should I be more afraid of one nutty grandpa who has been thoroughly called out for every move he makes and counterbalanced to the point of impotence or a cult spanning all spheres of society running amok unopposed? Basically the only thing about Trump is he Tweets and sometimes says nutty stuff, usually as a bargaining chip. Other than that he pretty much runs like a moderate Republican. For some reason nobody realizes that even after he does it over and over again.

    1. If you think that this is what a moderate Republican looks like, I shudder to think what you imagine an extremist Republican might say and do.

      1. Fewer transgender bathrooms and less government interference with cake shops. *shudder*

        1. Because Trump supported transgender bathrooms and government interference with cake shops? What are you talking about?

  17. I don’t know if he has dementia, or it’s just who he always has been, but Joe Biden comes across as dumber than a lobotomized basset hound with the charisma of a carp, and that is the only reason why Trump might be re-elected. Any other democrat would steamroll him.

    1. Biden might pull it off if he can keep it together through the debates, but if he Zones out during the middle of a debate he’s toast.

    2. Any other democrat would steamroll him.

      I know history can be boring. It was sooo long ago, doesn’t translate to modern times, etc, etc. But history of 4 years ago ?about a man running for president against a slate of savvy politicians, might be germane.
      President Steamrolled more than a dozen qualified candidates. Yet somehow you are claiming that the 20 democrats that failed on a grand scale to show they had superior political chops to the lump that is Joe Biden, would get close to laying a glove on President Trump.

      1. For some reason, people who don’t like Trump are absolutely committed to the view that he’s some weird aberration, a total incompetent, just a shambling collection of bad characteristics, who through some cosmic accident, (Curse Comey talking about the email server!) stumbled into being President.

        The idea that he won against experienced politicians despite being out-spent 2-1 and being less popular, out of skill and wit, is just inadmissible to these people.

  18. “Why might swing voters vote for him?”

    First thing to mind is Joe Biden.
    Second thing is the Democratic party platform.
    Third thing is the ages of the Supreme Court Judges.

    1. Those three reasons are pretty much why he won against Hillary.

      Any competent not corrupt Democrat who would have a “Sista Soulja moment” should win.

      1. Agreed, unlike what Ilya Somin was trying to argue during the 2016 election…. it was at least as much about voting against Hillary as for Trump. If Bernie Sanders had been the Democrat nominee, I would have voted for him over Trump. Instead, I voted for Garry Johnson. No way was I voting for Hillary Clinton.

        1. Can’t have a lady president? Or did you have a different pretext you’d like to share with the class?

          1. “Can’t have a lady president?”

            Hillary has never been a lady.

          2. There have been tons of women politicians who could have won that election. It was there for the taking. But Hillary was in the unique position of having a lot of baggage that animated the other side and having more hubris than any candidate in history. Her lack of “likability” combined with historically bad campaigning led to defeat against a candidate that even the republicans didn’t want.

            Side question… why don’t very many competent women run for high office? I mean, sure.. male politicians are complete ass-hats… but the top female pols on both sides are not what I’d call formidable. I suppose Kamala Harris comes close… but you can almost see the devil horns when she speaks… so nobody trusts her. Tulsi has high likability… She might have given Trump trouble. But Wilson, Gillibrand and Warren are terrible. Not because of their gender. Not because of issues. They just are not good candidates. Low charisma, not impressive in presence…. just not good as a candidate.

            But Condi Rice is way more imposing than any of them… or Fiorina et. al. I don’t know if she’s loose and funny enough on stage to compete with Trump when he’s really on, but she’s way better than anyone on the D side, and most of the R side as well. (that’s ignoring any stances on issues, just the charisma, looks, etc. that make a candidate appealing)

            So yeah… there are plenty of potential lady presidents out there. Apparently most of them are too smart to run for the office.

            1. why don’t very many competent women run for high office

              Euh, because if they do they get character assassinated like Hillary was?

              1. So, do you mean to imply that women are too weak to face the rough and tumble of politics?

                Or are you claiming that somehow only women politicians are victims of “character assassination”?

                ‘Cause I am pretty sure that the first one is gonna get you in trouble. And I’m definitely sure that the second one is just flat-out untrue. (although it is true that HRC had a wider variety of bizarre negative attacks thrown her way than most politicians face)

              2. Hilary’s character committed suicide. Shot itself twice in the back.

              3. Statistics say that, if women bother running, they’ve got as much chance of winning as men. They’re under represented among office holders only because they’re underrepresented among candidates.

                But ideology says women couldn’t, as a group, just have different inclinations from men, and just usually want to do something other than run for office. So the results of them freely choosing to do something else has to be attributed to discrimination.

            2. “But Hillary was in the unique position of having a lot of baggage that animated the other side and having more hubris than any candidate in history.”

              But she had SOMETHING going for her that those other women lacked, or one of them, lacking the baggage, would have taken her place.

              Hillary may have the morals of a snake, (That’s actually an insult to venomous reptiles.) but she’s probably the most skilled manipulator and plotter of her generation, or those morals would have just put her in prison, instead of twice wife of a President, handed a Senate seat on a silver platter, and coming within a few thousand votes of the White House herself.

        2. If Jim Webb had won the Dem primary, I’d have voted for the first Dem since I cast a ballot for Bill Clinton in 1992. It would have been a landslide for the Dems. But Hillary had a stranglehold on the party apparatus, and the Dems had moved to far left for poor Jim Webb.

          1. She didn’t have that stranglehold by accident, you know. She worked and plotted hard to get it, over many years.

            It’s the flip side of Trump haters not wanting to admit he’s competent: Hillary Clinton is probably the best in the country at what she does. What she does isn’t very admirable, but, damn, she’s good at it.

  19. There are a large number of votes who only vote for 4 issues: anti-abortion, anti-gay, anti-immigrant, and pro-gun. Trump gives them everything on those issues and the voters are happy to ignore everything else, no matter how bad, and they will enthusiastically support Trump all the way. He also gives big business what they want (less environmental, financial, and labor regulations), which helps. That is why Trump could win.

    And on the other side they are still sniping at Biden, not caring that the primary is over. The Ds have no unification.

    1. Anti-abortion: majority of Americans support right to an abortion at least through the first trimester, but not partial birth abortions (which the dems enthusiastically do)

      Anti-gay: nobody cares about this anymore, even in the reddest of red states

      Pro-gun: A year ago, this would have been a losing issue for the GOP. But with the latest unrest could work in their favor, especially if there is a spike in crime.
      Anti-immigrant: another moot point. Immigration has been declining for years, even before Trump.

      1. Pro-gun: More on this, from the video below, I’m seeing AR-15s and a 100rd magazine being carried openly in public*. All things the Democrats have banned in various states and things the NAACP is now promoting. Should be interesting to see the DNC platform when it comes to guns over the next month.

        *Misdemeanor in MN without a carry permit. Everything else legal for purchase in MN.

    2. Sooner or later, Biden and Trump are going to be on the same stage. And Biden is likely to forget which office he’s running for.

      The only reason Biden is still viable is that he’s in hiding.

      1. You really don’t want to play up the Biden has dementia angle. Do you not listen to Trump speak?

        1. So, out of the goodness of your heart, you’re giving advice to Trump about how to win the election? Anytime a liberal says “you don’t want to XYZ our your side will lose” that advice should be taken with a grain of salt.

          Trump often leaves a spoken paragraph a different place than he enters, but dementia? Nah. Biden has clearly not the mind he had during the Obama admin. Dementia? Likely not, but certainly age related decline. It happens to everyone.

          1. Yeah. I’m doing a bit of “concern trolling” here, I’ll admit it. But I really do truly think going all in on Biden having dementia when compared to Trump is a tactical mistake. Brett is being willfully ignorant about Trump’s mental capacity here. It’s not going to be genius lucid Trump on the stage versus a completely lost Biden.

            1. Trump isn’t particularly smart or articulate, but neither is he as dumb as the left portrays him to be. I would say that he, and a only 60 year old Biden, were about average intelligence. America’s system of choosing leaders selects on certain traits, like charisma, more than IQ.

              1. He has the low cunning of a manipulative middle school bully.

              2. I frequently cringe when listening to him speak, but speaking textbook English with a neutral accent isn’t the only measure of being articulate. Whether people (Who aren’t determined not to…) understand you is the best measure, and Trump does very well on that score.

                It’s a mistake to think that a billionaire who got elected President isn’t smart. He’s probably not Mensa material, but he’s unquestionably smarter than the average American.

                Nobody who reaches that level of politics or wealth isn’t very smart.

            2. The initial premise was “the only reason to vote for Trump is if the other side is worse”.

              Biden manages to be worse on “mentally stable”. That is an extremely low bar when Trump is the opponent. And he loses that one.

              Biden has always been a hothead, easy to provoke and prone to both temper tantrums and flights of fancy.

              But he’s incoherent this year. Not Trump “what the heck are you on about?” incoherent. Not even logically incoherent. I mean, completely incoherent. The poor guy cannot hold a thought in his head sometimes.

              Even if he wins, it is clear that he cannot serve as President. Not in a Trump “don’t let that guy near the levers of power” way. He cannot serve in a “he needs in-home care” and “take away the keys” kind of way. It isn’t a value judgement. It is a health issue.

              Which could actually win the election.

              If you have a Giant Douche and a Turd Sandwich… but you let everyone know that the Turd Sandwich is going to resign immediately…. you could win. Because the best quarterback on every nonwinning football team is always the backup quarterback.

              Nobody will take a hard look at the veep – particularly if they announce late. But everyone will assume that they are going to be the actual president.

              1. You know, you guys tried this ridiculous Hillary is near death’s door thing before and it didn’t work at all. I feel like there is an effort to gaslight people (or yourself) into thinking Biden is completely convalescent to justify voting for Trump.

                1. If you can watch Biden speak and not reach that conclusion…

                  Well… I suppose we all have opinions.

                  As far as “one side is worse than the other”, it really doesn’t come down to Biden. He’s kind of off to one side for the last 11 years, so that doesn’t attach to him on a personal level as much, even though he was in the White House when all of the shenanigans started.

                  No, even a perfectly healthy Biden would be burdened by the conduct of the left over the last few years. The overreach has been staggering. If you can watch the level of coordinated attack from the left against all political enemies, real and imagined and not come away worried… well, I suppose that’s a good way to know which team you are on.

                  If everything wasn’t such a dumpster fire, this would be the year… Libertarians vs Greens, hundreds of seats changing hands, a real libertarian (or progressive) moment.

                  Instead, we have Trump and a bunch of crazy people who want to usher in a socialist paradise.

                  1. I expect Trump to lose solely because there aren’t enough uneducated bigots and disaffected culture war casualties — not even in the desolate backwaters — to position him for another Electoral College trick shot.

                    America has become less white, less bigoted, less rural, less religious, and less backward in four years. Just not enough ignorant bigots left.

                    1. “America has become less white, less bigoted, less rural, less religious, and less backward in four years.”

                      I think you just stepped on your narrative there….

  20. How similar is America to 1933 Germany? Not very much. There are probably too many dissimilarities to count. Plus, we’re still a few years away from the two candidates most likely to lead us into an American-style fascism from being on the verge of power. The audience can guess who those are. But on the other hand Christopher Browning, a preeminent and well-respected Holocaust historian, did compare Mitch McConnell to Paul von Hindernberg….which isn’t great to say the least. Although there is a lesson in that: conservatives, only you can stop fascism. You’re a main target for fascist appeals, and because you occupy so many power positions in government will be the kingmaker in this regard. Your track record of stopping bad people from getting into government is not great recently, but I believe in you (sort of). You’re the real Antifa, but you need to show it.

    1. What does Christopher Browning, the eminent Holocaust historian, have to say about this –

      “A number of kosher stores and synagogues were vandalized and looted in the uptown Los Angeles neighborhood of Fairfax, between Saturday night and Sunday morning, by people protesting police brutality…

      “It was also reported that Congregation Beth Israel, one of the oldest synagogues in Los Angeles and also on Beverly Boulevard, was defaced with antisemitic graffiti that read “F**k Israel” and “Free Palestine” scrawled along its walls.

      “In addition to destruction and graffiti inflicted upon the synagogues, a number of kosher restaurants, bakeries and stores were ransacked by protesters, looting much of the merchandise and causing extensive property damage.”

      Maybe you’re right, only conservatives can stop this sort of thing…

      1. I don’t know. I suggest you ask him? But, Antisemitism and fascism aren’t the same thing. Left-wing movements are easily susceptible to antisemitism too. Antisemitism is not a necessary component of fascism. Although I assume it will eventually creep in to any American fascist movement, I assume a successful American fascist party won’t need to use overt appeals to antisemitism or even dog whistles. There are plenty of other out-groups here to demonize.

        1. I look forward to the day when people will be judged, not by the brown color of their skins, but by the brown color of their *shirts.*

          1. For fascism, black shirts; think Italy, not Germany.

            1. To be fair, I was addressing a commenter who invoked Paul von Hindernberg – the guy who made Hitler Chancellor. So a German comparison is just riffing on a theme.

  21. This is why “voting” in national elections will never, ever fix what ails this country. Washington D.C. is never going to fix itself.

    At best, it will always be a lesser of two evils situation, and more likely it just doesn’t make a damn bit of material difference either way.

    Aside from the need to reverse the trend away from decentralized government and toward a larger and more centralized government, which has been a constant basically since the founding, the problem is a more fundamental human one.

    People need to stop looking to the government and politicians, especially those in D.C., as the vehicle for manifesting morality. Abject ignorance of history has reached astounding levels.

    1. This is correct.

      And also how they identify the nutty people that they can safely ignore.

  22. As with everything I’ve ever read that is of the ‘this is how you get Trump’ genre reads like someone rationalizing why they in particular are voting for Trump.
    Dunno if that’s where Prof. Bernstein is, but certainly this is reflected in these comments. Which are quite low substance, because no one is really voting for or against Trump based on policies it seems.

    1. Obvious troll RabbiHarveyWeinstein hardly needs to do any work, as he takes both sides of an issue to screw with people.

    2. I’ve been around for almost 50 years and one thing that is clear is that nobody ever votes for a candidate based on policy-it’s based on a mental ratio of how much they like one candidate vs how much they dislike the other

      1. Even more than that – people seem to simply have a “gut reaction” for most of their decision. Which guy looks like a better leader? Who is “impressive”? Who has that intangible “charisma”?

        We have tribalism – “my tribe” vs “not my tribe” and we have a gut reaction. That’s about all there is to it.

        I agree with you… people can talk all they want about specific issues – very few people make their final decisions that way. They seem to have a gut reaction and then rationalize their way to the conclusion that they were right about their gut instinct.

  23. Trump *will* get re-elected. Mainly because Biden has become a Bernie bro. Biden is now so far to the left to placate the Dem party that Che Guevera looks like a Republican.

    Anyway, I met the last persuadable voter back in Feb, she was 70 and died of COVID in March. R.I.P.

  24. Your open nails it.

    The only reason to vote for Trump is that the other side is worse.

    We are living in a Giant Douche vs Turd Sandwich world.

    Neither is worthy of the office…

    And yes. The DNC are so very, very much worse. They’ve gone from “big government evil” way over into crazy town. Trump is terrible. And they manage to make him look like a sane choice. That’s a very impressive feat.

  25. someone rationalizing why they in particular are voting for Trump.

    Exactly. If Trump gets re-elected it will be because people like Bernstein grab on to any excuse to vote for someone who not only, “lacks the temperament and judgment to be president,” but is also an incompetent, cruel, and utterly dishonest individual, and has an Administration full of knaves and fools who are taking a wrecking ball to the country.

    But hey, Bernstein is pissed about a couple of headlines, so maybe that’s good enough.

  26. Electing Biden, or whoever the Democrat nominee turns out to be, is the greater evil. You must be pretty fucked-up to think otherwise.

    If Trump is elected then there is the possibility of another Gorsuch or Kavanaugh on the Supreme Court, maybe even two. If Biden (or any Democrat) is elected then any SCOTUS replacement is going to be shit because even if the Republicans hold the Senate they will do what they always do when a Democrat president nominates a judge, they will bend over and grab their ankles.

    You may think President Trump is a bowl of shit but the Democrat is a truckload of shit you will have to eat if the Democrat becomes President.

    1. You might make a variant of that argument…

      Trump is incompetent… too incompetent to do any major damage, and he accidentally does the right thing from time to time.

      Meanwhile, a Biden presidency will be run with ruthless knowledge of the system and the cooperation of the bureaucracy – whether it is Biden who does the directing or someone else. They are already close to closing the noose as it is, absent control of the executive.

  27. Other than the fact that the Democrat nominee is senile, racist, pedophile, and rapist?

  28. Um, so is this article anything more than a retreat to Godwin’s Law? This kind of crap has no place on an otherwise quality publication like the Volokh Conspiracy. Embarrassing.

    Btw, if Trump wins, it’ll be because of the economy.

  29. Bernstein is right. If people think they’re voting for headline writers, Trump’s chances will improve.

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University of Washington Urging "Accommodations," "Especially" for "Members of the Black Community," as to Assignments and Exams

"Accommodations might include extra time to finish assignments or providing a 'final examination optional' pathway, for example."


From the University President and other officials:

We are writing to urge you, in these final weeks of the quarter, as assignments become due and exams are taken, to be especially responsive to the needs that your students, especially those who are members of the Black community, may have for accommodations as we conclude the school year. Accommodations might include extra time to finish assignments or providing a "final examination optional" pathway, for example.

Thanks to Prof. Glenn Reynolds (InstaPundit) and Jessica Custodio (Campus Reform) for the pointer.

Equity and Juries in Patent Law

A cert petition to watch at the Supreme Court


For those who are interested in equitable remedies or the Seventh Amendment, there's an interesting cert petition by Seth Waxman et al. in TCL Communication Technology v. Ericsson, Inc. (Hat tip to Andrew Hamm at SCOTUSBlog.) I've only glanced at it, and haven't read the opinion below. But it seems to call attention to a basic but unfortunately common mistake about remedies: thinking that monetary awards, or even backward-looking monetary awards, are necessarily legal. There's a rich history of monetary awards in equity, and one use of them is to complete a decree of specific performance. Failing to recognize that equity can "top off" its other remedies and award equitable compensation leads to errors about the Seventh Amendment, including the injection of juries into equitable decisionmaking. This one is worth keeping an eye on.

(Some leads for readers: The leading source on equitable compensation is Meagher, Gummow, and Lehane's treatise on equity. This equitable remedy is also discussed in my Oxford Handbook chapter on fiduciary remedies and in the "Equitable Compensation" chapter in the latest edition of Ames, Chafee, and Re on Remedies.)


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  1. Need to look more closely at the case, but the recurrent problem in patentdom is the ability to acquire injunctions by non practicing entities. The issue there is that of irreparable harm. If they aren’t a direct competitor, then they probably can only really incur monetary damages.

    The thing about injunctive relief is that injunctions were routinely utilized for economic advantage during litigation. Because of the royalty structure of many industries, halting production via injunction for alleged patent infringement, is often far costlier than they would get through court determined royalties. So plaintiffs would routinely obtain injunctions in order to halt production of major products containing arguably patented components or sub components. Inevitably that would result in significantly higher damages than would otherwise be warranted.

    The line between practicing and non practicing patent owners is because the practicing patent owner can claim permanent market loss as their irreparable injury. But the non practicing owner can not make that argument, and as a result, should be satisfied with actual damages (which typically means a reasonable royalty). We are talking hundreds of millions, if not billions of dollars here, hence a lot of pressure not to eliminate injunctive relief to non practicing patent owners.

  2. Very interesting. I’ve always been fascinated by the Seventh Amendment. A brief review of the cert petition makes it seem like this could be a cert worthy case. They did a good job of distinguishing between specific performance and the rule from Dairy Queen vs. Wood. Also since it’s the Federal Circuit…they’re probably wrong, at least as far as the Supreme Court is concerned.

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Powerpoint Slides and Other Resources for 100 Supreme Court Cases

Email me if you'd like access to our library, which is perfect for distance learning constitutional law class.


Randy Barnett and I prepared powerpoint slides for the 100 cases in our new supplement. The slides include photographs of the people and places involved, study guide questions, and brief summaries of the facts of the case. We plan to add multiple choice questions and a teacher's manual soon. These resources, along with our video library, will be super helpful for teaching constitutional law in a remote environment.

Here is a preview of our slides for Youngstown Sheet & Tube Co. v. Sawyer.

If anyone would like access to the entire library, please email me: josh-at-joshblackman-dotcom. We're happy to share. With so many classes going virtual this fall, these resources may be helpful to keep students engaged.

I've pasted below the list of all 100 cases, sorted chronologically, which you can peruse.

  • Jay and Marshall Courts: Chisholm v. Georgia (1793), Marbury v. Madison (1803), McCulloch v. Maryland (1819), Gibbons v. Ogden (1824), Barron v. City of Baltimore (1833)
  • Taney Court: Prigg v. Pennsylvania (1842), Dred Scott v. Sandford (1857), Ex Parte Merryman (1861)
  • Chase Court: United States v. Dewitt (1869), Hepburn v. Griswold (1870), Knox v. Lee (1871), The Slaughter-House Cases (1873), Bradwell v. Illinois (1873)
  • Waite Court: United States v. Cruikshank (1876), Strauder v. West Virginia (1880), The Civil Rights Cases (1883), Yick Wo v. Hopkins (1886)
  • Fuller Court: Hans v. State of Louisiana (1890), United States v. E.C. Knight (1895), Plessy v. Ferguson (1896), Champion v. Ames (1903), Lochner v. New York (1905), Muller v. Oregon (1908)
  • White Court: Buchanan v. Warley (1917), Hammer v. Dagenhart (1918), Schenck v. United States (1919), Debs v. United States (1919), Abrams v. United States (1919)
  • Taft Court: Pennsylvania Coal Co. v. Mahon (1922), Adkins v. Children's Hospital (1923), Meyer v. Nebraska (1923), Pierce v. Society of Sisters (1925), Gitlow v. New York (1925), Buck v. Bell (1927)
  • Hughes Court: O'Gorman & Young, Inc v. Hartford Fire Insurance Co. (1931), Stromberg v. California (1931), Nebbia v. New York (1934), Schechter Poultry Corp v. United States (1935), West Coast Hotel v. Parrish (1937), NLRB v. Jones & Laughlin Steel Corp. (1937), United States v. Carolene Products (1938), United States v. Darby (1941)
  • Stone Court: Wickard v. Filburn (1942), Korematsu v. United States (1944)
  • Vinson Court: Youngstown Sheet & Tube Co. v. Sawyer (1952)
  • Warren Court: Brown v. Board of Education (1954), Bolling v. Sharpe (1954),
  • Williamson v. Lee Optical (1955), Cooper v. Aaron (1958), Sherbert v. Verner (1963), New York Times v. Sullivan (1964), Heart of Atlanta Motel v. United States (1946), Katzenbach v. McClung (1964), Griswold v. Connecticut (1965), Loving v. Virginia (1967), United States v. O'Brien (1968)
  • Burger Court: Roe v. Wade (1973), Frontiero v. Richardson (1973), Buckley v. Valeo (1976), Craig v. Boren (1976), Regents of the University of California v. Bakke (1978), Penn Central Transportation Company v. New York (1978), Cleburne v. Cleburne Living Center (1985)
  • Rehnquist Court: South Dakota v. Dole (1987), Morrison v. Olson (1988), Texas v. Johnson (1989), Employment Division v. Smith (1990), New York v. United States (1992), R.A.V. v. City of St. Paul (1992), Planned Parenthood v. Casey (1992), Church of the Lukumi Babalu Aye v. City of Hialeah (1993), United States v. Lopez (1995), Seminole Tribe of Florida v. Florida (1996), Romer v. Evans (1996), United States v. Virginia (1996), City of Boerne v. Flores (1997), Printz v. United States (1997), United States v. Morrison (2000), Board of Trustees of University of Alabama v. Garrett (2001), Nevada Department of Human Resources v. Hibbs (2003), Gratz v. Bollinger (2003), Grutter v. Bollinger (2003), Lawrence v. Texas (2003), McConnell v. Federal Election Commission (2003), Gonzales v. Raich (2005), Kelo v. City of New London (2005), McCreary County, Kentucky v. ACLU of Kentucky (2005), Van Orden v. Perry (2005).
  • Roberts Court: District of Columbia v. Heller (2008), Citizens United v. Federal Elections Commission (2010), United States v. Stevens (2010), McDonald v. City of Chicago (2010), Snyder v. Phelps (2011), Brown v. Entertainment Merchants Association (2011), NFIB v. Sebelius (2012), Fisher v. University of Texas at Austin I (2013), United States v. Windsor (2013), NLRB v. Noel Canning (2014), Burwell v. Hobby Lobby Stores (2014), Obergefell v. Hodges (2015), Fisher v. University of Texas at Austin II (2016), Whole Woman's Health v. Hellerstedt (2016).

Is "Defunding the Police" Libertarian?


I have become increasingly cognizant of a tendency of many libertarians to conflate "libertarian" with "antigovernment." There are a variety of groups and movements in the U.S. who hate "the government" for their own reasons, but aren't by any stretch of the imagination libertarian. If you hate the U.S. government because you think is it's controlled by "Zionists" who are trying to destroy European American culture by organizing an alliance of Third World immigrants and native African Americans, you will likely support dramatic cuts in government; but you are not libertarian, because if you thought "your people" were in control, you would happily have a massive, unlibertarian federal government.

Back when Ron Paul's presidential campaign was receiving support from various racist individuals and groups, his campaign's official position was that it welcomed support from *anyone* regardless of ideology, so long as they supported limiting the federal government. That's exactly the mentality I object to.

Libertarians hopping on the "defunding the police" bandwagon once again reminds me of the crucial but neglected distinction between being libertarian (or classical liberal) and being antigovernment. Protection of life, safety, and property is a legitimate function of government. Even Robert Nozick was fine with funding the "night watchman" of the night watchman state.

There are plenty of police reforms that could be enacted from a libertarian perspective that would improve matters. Qualified immunity reform is libertarian. Holding police accountable for misbehavior is libertarian. Reducing the power of police unions is libertarian. Getting rid of overtime and pension abuse is libertarian. Banning no-knock raids is libertarian. Reducing bloated police department bureaucracies is libertarian.

Broader reforms that would reduce the need for police and reduce police/civilian encounters are also libertarian. Getting rid of victimless crimes, especially the drug war, and certain categories of criminal business regulation that should be handled civilly is libertarian. Getting rid of taxes that lead to black markets that in turn lead to police/civilian encounters is libertarian. Abolishing laws that allow local governments to put people in jail for failure to pay civil fines is libertarian. Separating forensic science services from prosecutors' offices is libertarian. Holding prosecutors accountable for misconduct is libertarian. Finding alternatives to prison for certain categories of offenders is libertarian.

By contrast, "defunding the police," if that just means willy-nilly cuts, is not libertarian. This is true especially given that police departments will inevitably follow the "Washington Monument" strategy, in which bureaucracies respond to budget cuts by cutting what is most painful to the voting public. What is very likely to suffer is the legitimate function of the state in preserving people's lives, safety, and property from criminals, while not reforming the system at all nor doing anything about abusive police officers.

If defunding the police means getting rid of the police entirely, without any remote prospect of alternative means of protecting lives, safety, and property suddenly arising in its place (and in the current legal environment, the anarcho-capitalist dream of private protection services replacing police is impossible, even if it were somehow practical), is both crudely antigovernment and stupid.

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  1. In my experience, “libertarianism” is whatever the person standing in front of you with a dog-eared copy of “The Fountainhead” says it is. And no two are the same. I chalk that up to the fact that, like “originalism,” it’s a bullshit philosophy that is rarely applied as described.

    1. Harsh, but I can see why you would think that. But there are nuts of all sorts in every political party, just look at the Republicans and Democrats. Hell, many of the Republicans I talk to lately seem the think these nationwide riots are a mass conspiracy funded by Gates or Soros or … Who the fuck knows, but it’s insanity is only exceeded by their frothing single minded support of President Trump. And the Democrats have their moments, though currently they pale next to this dumpster fire that used to be a democracy.

    2. And how does that make libertarianism different from any other of our favorite isms?
      Communism, socialism, populism, liberalism, constitutionalism, democracy-ism, authoritarianism, anarchism, plutocracy-ism, racism, etc. etc. They are all bullsh*t terms by the same measuring stick you’re using — they are defined by the person who professes to belong to whatever group. Come to think of it, Judaism seems to suffer the same problem, there are many varieties of that and you wonder what they have in common except a Jewish mother. Islamism has its problems too, and many of them don’t seem think much of each other. So, I don’t think we should put too much stock in trying to pin down exact definitions of any particular ism. I think we all know what they have in mind, broadly at least. And that’s enough for civil discussions, don’t you think?

  2. The police should take a week off as a trial run for defunding.

    1. Great idea, as long as they let people borrow all their weapons during the week off. I’m sure they’ll be returned in good order.

  3. Prof. Bernstein, thank you for pointing out this nuanced position. Even though Trump and his ignorant followers believe things are black and white, in real life they’re rarely – if ever – are.

    1. “Even though Trump and his ignorant followers believe things are black and white”

      Its not Trump nor his followers who want to abolish police.

  4. It is quite disorienting to agree with Professor Bernstein. But what he suggests is not only “libertarian.” It’s sensible policy.

    1. The Founding Fathers would agree with you about the sensibility of libertarian (classical liberal) policies.

  5. Just remember that the leaders of America’s largest cities could have shown leadership in curbing police violence and militarization decades ago.

  6. Police unions have contracts that prevent other remedies. Judges enforce those contracts with no regard to the hardships they cause the public. Elected leaders can’t fix ruinous pension systems and can’t fire abusive officers. Courts and prosecutors let police get away with murder (literally).

    A reformed police would be better than no police. Show how a few US cities succeeded in reforming their police.

    If reforms can’t happen or don’t happen, then disbanding the police is the only option left. Elected leaders can replace them with an entirely new agency with new rules.

    1. Also, defund the police is needed as a counterpoint to the let’s not do anything position.

      There’s a sizable crowd who likes the way things are: the police can do what they want. They’re only hurting people who are not like me. We need them to arrest people who (are not like me ) and want to own a gun. Or who leave their house without a mask. Or who say mean things to the very special diverse people who must be protected and celebrated.

      If no one is pushing for changes that are too extreme, you end up compromising on changes that don’t really change anything.

      1. I’ve seen no evidence – can you present any? e.g., polling – showing that most or many people believe the “police can do what they want.” Who says this? Anyone who does will be thoroughly and completely denounced by others.
        Professor Bernstein listed about 8-10 things that can be done to “change things”, to perhaps mitigate police misconduct and hold officers more accountable. You completely reject them out of hand. Over the decades cities and states have passed enormous reforms on law enforcement. Hiring more black and minority officers, training changes, community out reach. Enormous improvements have been made. This is not the 1960s or 1970s when police like those in Philadelphia or the South could literally act with impunity.
        Over the past two decades the violent crimes rates in America has dropped dramatically. Thousands of black men and women
        are alive today who were being killed before. Saved by, in part, the very police departments you wish to throw aside. Do you want to return to those days? I hope not.
        Yes, there clearly are abuses. The militarization of police departments is absurd. Reason magazine has documented where policies have gone wrong. But we need to view this in full, not in a one-sided “everything is corrupt let’s throw it out” view you have.

        1. A list of ideas that would improve things is not a list of actual policies that can actually be enacted and implemented. If a judge says it violates the union contract and can’t be implemented, then how does it get implemented?

          Disbanding them is a last resort option. Threatening it seriously might help overcome resistance to the other more measured reforms on Bernstein’s list.

    2. Reforms don’t happen because politicians don’t want them to happen. Certainly that is true in cities with “strong mayor” systems.

  7. My question is more pragmatic. So, after we defund the police and achieve the acme of social justice, are we supposed to haul the carcasses of the guys we shoot breaking into our home to the curb for the regular trash pick up day? Or will there be a number to call and Soylent Green stickers for body bag pick up, they way we do for grass clippings, leaves and tree branches? Or just Colt, Kimber and S&W branded wood chippers for recycling?

    1. The acme of social justice would be not disbanding the police force but repurposing it to go after peaceful citizens (for made-up crimes, like saying mean/insensitive things), while leaving real criminals roam free.

      1. I hear that in England the acme of social justice has been achieved.

    2. You’ll still pay protection money, you’ll just pay it to BLM or a BLM-approved gang affiliate.

      1. “Se vogliamo che tutto rimanga com’è bisogna che tutto cambi”
        — Il Gattopardo –

        1. Plus ca change, plus c’est la meme chose, n’est ce pas? I’m pretty sure I read that somewhere.

  8. Here’s one version of libertarianism worth pondering seriously:

Please to post comments

Today in Supreme Court History

Today in Supreme Court History: June 5, 1916


6/5/1916: Justice Louis Brandeis takes the oath.

Justice Louis Brandeis


L.A. Politicians Planning Big Gift to Gun Industry, Private Security Companies

The likely unintentional result if the City of Los Angeles implements its plans to reduce the proposed police department budget (now $1.8B) by $100-150M.


See this story, and also this one:

Garcetti spoke of "reinvesting in black communities and communities of color."

The mayor proceeded to announce $250 million in cuts to the proposed budget and to reallocate those dollars to communities of color, "so we can invest in jobs, in education and healing." L.A. Police Commission President Eileen Decker then announced that $100 million-$150 million of those cuts would come from the police department budget.

I doubt this will on balance help black and Hispanic Angelenos, who are especially at risk of the violent crime that police are most needed to fight (much more so than of the violent crime that the police do indeed sometimes commit), see, e.g., these homicide statistics. But it surely will lead more people to conclude that, as police protection declines, self-protection becomes all the more valuable—as does private security, for the few rich enough to afford it.

UPDATE 9:35 pm: I should add that, if the politicians were to frame this as, "We're not going to increase the LAPD budget as much as we were planning to, but think instead about how better to spend the money to invest in things that we think can help prevent crime" (the original proposed budget apparently included a huge increase), the effect would be quite different. But they're deliberately framing it as cutting, because that gets them the anti-police message they want. Well, that message is likely to have other effects, too.

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  1. There is actually a poll that shows that 90% of blacks and Hispanics think that their neighborhoods need MORE police officers, not less.

    And many of them in the same poll are ALSO concerned about police misconduct, proving that ordinary people can hold more nuanced and balanced views than their educated betters. (Cue: Arthur Kirkland).

    As a small-l libertarian, I have long been concerned about police misconduct against all citizens, especially exacerbated by militarization, qualified immunity, civil forfeiture and unaccountable police unions.

    But I will observe that in the utopia that will come to be after the police are abolished, everyone will carry an AR15 as if it is a Gucci handbag and the rioters and looters will either be machine gunned or sold as slaves.

    1. The cost of private security is labor, but if it is volunteer, that disappears. I can see the Black & Hispanic men who want their families & businesses safe patrolling their neighborhoods.

      The question will be if it becomes a collective patrol, like the volunteer fire departments of today, or if they only protect the property of their members, like 300 years ago.

      The reason we went to municipal fire departments was that the competing fire departments would fight at fires and attempt to prevent each department from fighting fires of their customers.

      1. The *price* of volunteer labor may be zero, but the *cost* is quite high. Assume a 10 hour workday, counting commute and lunch, and 8 hours sleep, that leaves 6 hours for breakfast, dinner, and time with family. Assuming each neighborhood watch requires just one hour of each family’s time, that’s 1/6 of the time, and most families would find that a burden to repeat even once or twice a week, let alone every day.

        1. The price will be higher than that.

          What generally happens when vigilantes have to take over police functions is that they start dispensing justice too.

          They aren’t going to build their own jails, so that leads to 4 outcomes: fines (taxes), beatings, banning, and killings.

          It’s not a new phenomenon, and it’s why we decided police are the best solution to the problem a long time ago. It’s very imperfect but the alternative is worse, and it’s doesn’t lead to less violence or more equal justice.

          1. You mean the *cost* will be higher. The *price* can stay at zero for all that matters.

    2. They’re referring to “quality,” not “quantity.”

      1. That’s not what the poll asked. But you can certainly run your own poll.

        1. Don’t need to. They are not asking to have greater numbers of police abusing them. They’re referring to quality, not quantity.

  2. “for the few rich enough to afford it”

    Like Garcetti?

  3. Municipalities cannot afford the pensions anyway. With the unfunded municipal pension bubble ready to pop, seems inevitable to me that support for public unions wanes. Long term, I see this as a good thing for accountable government.

    1. The real question is not “whether” public support for public sector unions like the police decline, its whether Republicans will be smart enough to get ahead of this and lead the charge.

    2. What public authorities at all levels can “afford” can’t possibly have anything to do with decades of conservatives bashing against taxes, can it?

      I guess that’s another chicken that’s come home to roost: starve the state: Decades of bashing against taxes = not enough military forces to protect the common affairs of the bourgeoisie

      1. Martinned has got it! Our government is simply underfunded. If only we spent more, the government would have enough money to fix all these problems!

        I mean, we only spent $7.3 trillion on government at all levels last year. That’s only 34% of GDP. So there’s another two thirds of everything we earn that isn’t being used for the public good by government.

        We are off to an excellent start on remedying that this year though! We’ve plopped a whopping $8 trillion in extra spending on the pile so far, including the actions of the Fed. So spending at a 2/3 of GDP clip is already in the offing… and they claim they aren’t done yet. And that’s just at a federal level.

        Of course, those revised 2020 numbers also assume that GDP is unchanged. Normally you could project a 2% growth in GDP. But we’ve taken an entire quarter off. So I really don’t think you can count on growth this year.. maybe a contraction in GDP is in the offing.

        Plus, you have to think that several states are going to have to bump spending to handle this crisis….

        So we could be on track for spending at 70% of GDP or more this year.

        Would that do it? Could letting the government control 7 cents of every dollar we earn finally make the difference?

      2. “What public authorities at all levels can “afford” can’t possibly have anything to do with decades of conservatives bashing against taxes, can it? ”

        LA is a Democratic city with a Democratic dominated council and usually a Dem mayor. The last GOP mayor [after the 1992 riots] was a liberal businessman.

        No conservative has any influence whatsoever in it tax structure.

      3. LA is a progressive paradise, and like most Deep Blue progressive paradises, it becomes brutal and oppressive across the board.

        It’s not just police brutality either. It’s simple casual oppression. The city does very little to prevent graffiti vandalism of private property. But the private property owner must clean up the graffiti at her own cost or the city will fine her.

        This is just one of many many examples.

  4. I don’t understand ho wit’s even legal for the city govt. to reallocate funds in the budget to political organizations.

    1. What law would prevent it?

      1. You think politicians can spend money any way they choose, regardless of legislation authorizing expenditures? Like it’s a big, giant slush fund of some kind? That’s not how government works, or is supposed to work according to the law.

        1. What turnip truck did you just fall off?

          Governments at all levels make grants to all sorts of private entities many of which are obviously political some are the private arms of political groups or individual politicians.

  5. This combined with Minnesota’s “upcharging” for the Floyd case (an upcharging that practically guarantees an innocent verdict, while simultaneously discouraging police) means….We’re going to see the Freddie Grey situation again. But potentially nationwide.

    For those who need a reminder, Freddie Grey died while in police custody in Baltimore. So, the over-eager prosecutors there decided to charge everyone. They didn’t get a single guilty verdict.

    But the Baltimore PD took the message home quite well. Don’t take any risks. Don’t engage in any policing unless absolutely necessary. Don’t get out of your car and walk around the neighborhood. If you see something suspicious…don’t approach. Let it go.

    The result of course? A spike in Baltimore’s murder rate.

    1. You clearly don’t know about what you’re talking. First of all, it isn’t called “upcharging”, it’s called “over charging” IF you could even call it that in George Floyd’s case. Second, your ignorance is further illustrated by you saying this “upcharging practically guarantees an innocent verdict”. That is an extremely ignorant interpretation of what overcharging is. It’s actually the opposite. A prosecutor overcharges as a tactic to get a jury to “split the baby” and find the person guilty of a lesser included offense (i.e. charging someone with murder and the. Asking for a lesser included offense or manslaughter bc it’s easier to obtain). Finally, you may call yourself an armchair lawyer, but you don’t know a damn thing about it. In American courts, common law (i.e. case law) díctates anytime the facts presented via testimony and evidence support it, a lessor includes offense must be given by the judge. Therefore, your idiotic armchair opinion that “practically guarantees an innocent verdict” is based in 100% fiction. It doesn’t happen that way and never has. I GUARANTEE you, Derek Chauvin will be convicted of manslaughter, at best, but most likely he will be convicted of 3rd degree murder. In fact, the prosecutor should have filed 2nd degree or 1st degree murder charges in my opinion, and that wouldn’t even be overcharging it, Bc that is what that POS did. How do I know any of this? I’m a real trial lawyer for the past 18 years and was a prosecutor for the first 4.5 years. I’m also white, in case you want to know, and this issue isn’t about racism, even though that is what the media and the Dems want everyone to think. However, police kill more whites people every year by far, double the number of black people killed, and that should be obvious as to why, since the white population makes up the majority. This is ahí it abuse of power, police brutality, or simply put, “asshole cops”. Where people have their rights violated every day in America, but they don’t call it racism, they just call it what it is. That is the same thing you have here, but then the Dems wouldn’t be able to attack Trump if they called it what it really is. So instead, that is why all of these Democrat strongholds were looted and burned, and by whom? Why weren’t they stopped? It’s all a coordinated effort to create something out of nothing, bc the media and Dems will do anything to keep Trump out of office, including allowing the destruction of people’s businesses and violence upon violence. That is how a police precinct was able to be burned to the ground, and why all you hear from the media is blaming Trump and white people, and how bad black people have it. They are all playing the black communities again for fools, expecting them to roll out and vote Trump out of office. The. They will go back to doing nothing for the black people, just like the Dems never have and always do…amazing they have convinced this many people to buy their bull$hit for this long .

      1. Can you elaborate on the evidence you see that would provide probable cause for a first degree murder charge?

        (It is perhaps worth adding that the case law in Minnesota makes it clear that third degree murder is not a lesser included offense of second degree murder, at least on these facts.)

        1. Noscitur — After the guy in handcuffs loses consciousness, and the cop keeps his knee on the neck for almost 2 minutes more, what is that except action to make sure he dies? Tell me, what other explanation can you think of?

          1. He didn’t die of strangulation. He died of a heart attack.

            1. Armchair lawyer: I believe the coroner’s conclusion was that he died of asphyxiation.

          2. Stephen,

            He’s asking about first degree murder charge suggested by Ellzax, not the actual second degree murder charge issued. In Minneosta, that appears to require premeditation and an aggravating factor (such as the victim was a child, a cop, etc.), or murders the person during a sexual assault, burglary, etc. Your comment about “make sure he dies” doesn’t speak to any of those factors. (It may speak to second degree murder versus third degree murder.)

            1. Thanks for that NToJ. I do think the circumstances prove premeditation. That is what my question was about. Didn’t know about the aggravating factors part.

              1. Proving that the officer actually /intended/ George Floyd to die would be an awfully hard case to make, whereas it seems pretty obvious (to me at any rate) that he acted sadistically in a way that one could reasonably foresee might lead to death — and that did lead to death. I don’t know Minnesota’s law. In general terms that sounds like reckless disregard for human life, which would generally be manslaughter.

                But who knows? Maybe the cop was planning for qualified immunity to intervene, as it has so many times before.

      2. Calls someone ignorant. Thinks Chauvin woke up one day and said ‘yeah going kill me some black people, that will work out well for me!’

      3. Overcharge: Charge someone for a more serious offense than is warranted to attempt to get a plea bargain deal.

        Upcharge: Take the original, rational charges that were filed, then upgrade them for a higher charges due to zealotry from a new proescutor.

        Why the new charge is idiotic: Because the second degree murder charge is that Flynn was murdered while Chauvin was committing or attempting to commit a felony offense.

        What’s the felony offense? Restraining a criminal suspect. You can argue the technique was negligent or reckless. But the action of restraining itself “felony assault”? You really want to make that case? Have that on the record, restraining a resisting suspect is felony assault?

        1. Have you actually verified that “restraining a criminal suspect” IS the felony offense the second degree murder charge will be predicated on? Because I find that rather unlikely.

          Now, it’s likely that Chauvin’s defense will be that the predicate felony he actually is charged with was, instead, just him restraining a criminal suspect. By kneeling on said suspect’s neck for 8 1/2 minutes…

          I would gladly make the case that kneeling on a suspect’s neck for 8 1/2 minutes, including continuing to do so after they lose consciousness, was at best reckless.

          1. The argument being made is that restraining the criminal suspect is felony assault. They need the felony assault charge, so they can charge the other officers with aiding and abetting.


          2. The officer was barely “kneeling” on his head. Read the autospy. No facial trauma. If someone really kneeled on your head while you’re on asphalt, you’d have significant bruising or worse.

    2. So this ignorant lobsterman isn’t the only one who noticed the “upcharging” of what was a sketchy case to begin with….

      1. Look, if a mob of people have been burning buildings down and beating old ladies with 2×4 clubs for daring to stand in the way of their looting, I’m listening very closely when they start demanding harsher charges for all 4 suspects.

        If not for the sake of old ladies who are getting beaten by mobs, then for the fact that the mob knows my name, my face and can easily determine where I and my family reside.

        I can easily rationalize that choice by the fact that I have months to work out the details of a case, but rioters are looking for targets right now

  6. They should put up cameras and use face recognition technology to make policing more efficient.

    1. I totally agree! I Have been preaching that for years. Our US and state lawmakers have failed us. They have the technology, and as constituents we should all demand the police be monitored 24/7 with body cams, dash cams, booking cameras etc. They DO have it in many places, but not all. The cops don’t want it, though, and they have learned how to abuse it. This should be monitored by independent agencies, so the police Dept in question can’t hide or destroy or turn off the cameras. And YES, they DO that already. There is no excuse in this day and age why we don’t have mandatory surveillance of all police activity. It would also protect the police depts from frivolous lawsuits wherein people lie about what happened to them. The police should want it, but they don’t bc of shut head cops like D Chauvin. RIP George Floyd, and I hope Chauvin goes to prison for life, along with those other three assholes that didn’t do anything to help him. And yes, I’m white. This isn’t about racism, this is about police brutality and abuse of power, bc white people’s rights are violated every day in America also. They just don’t call it racism, they call it what it is, an abuse of power.

      1. Crime has been dropping for close to 40 years. Why should police brutality cases be any different? Local governments are afraid to generate accurate statistics, but they should not be.

    2. YAAAY Libertarianism!!!

  7. I don’t think the line between a billion-dollar budget and efficacy, or even just number of officers, is nearly as clear as all that.

  8. Does anybody else have the sense that “right” and “left” are flipping? That the supposedly ‘liberal’ elite oligarchs who own much of the media want to become a more or less hereditary ruling class, guarding the institutional gateways to privilege? And looking down upon ‘petty bourgeoisie’ and traditional labor, but appealing to the ‘lumpenproletariat?’ That the tech elites are really the ‘right’?
    And suddenly we ‘small L libertarians’ , left as the advocates of traditionally ‘liberal’ views of rights, privileges, and the nature of humanity, that we are now the ‘left’? Is this whiplash, or our heads spinning? Does it change our message?

    1. The Left’s tactic of asking the Right for equal treatment works because the Right values fair treatment.

      The Right’s tactic of asking the Left for fair treatment doesn’t work because the Left doesn’t value fair treatment.

    2. I don’t have that sense at all, because it would require me to rely entirely on, and be very confident about, vague political definitions that aren’t really applicable to the overwhelming number of people I interact with. “Does anybody else have the sense that [what follows is a bunch of code words placed seemingly randomly]…” Naw, bro. I don’t even know what the words you use mean, so how could I comment on whether it describes a phenomenon that I also see?

      1. I should add that maybe it would help if you used less coded language, were more specific, and had examples to help illustrate the things you are trying to describe.

    3. It’s certainly the case that the right is the side that cares about robust defense of freedom of speech, which would have come as a big surprise to the founders of the ACLU.

  9. It seems that this move in LA is just an example of how big city mayors are trying to escape their responsibility for failing to curb police violence and abuses for decades. The police are answerable to the mayor and if the modes of police behavior have not improved, the mayors must accept the blame. If the city police have become more militarized, the mayors are to blame.

    When city police become the first line of dealing with mental illness, despite lack of training, or become the de facto social workers for the homeless, that is not the fault of the police or their unions, the buck stops with the mayor.

    It may happen that big city mayors have been predominantly of one party, but this observation fits both right and left feet.

    Don’t be fooled by this political juke; it is a transparent doge to escape dodge to escape accountability.

    1. “Hmmmm…how can we maximize this situation? I know! Divert police money to social programs! It simultaneously gives a good feeling of kicking the police in the nuts, while lavishing money on voters, always a plus!”

      “But they want better policing in their crime-infested areas, not less.”

      “Doesn’t matter. By the time the upward crime statistics appear, the election will be over.”

      1. Krayt, as has said before by somebody, ordinary cops aren’t in the crime-prevention business, they are in the somebody-committed-a-crime business. Detectives are more useful against crime.

        I think in many jurisdictions it would save a lot of money, and deliver more security, to halve the beat cops, and double the detectives. For another big advance, ditch the militarized policing, and take half that money to hire more detectives.

        1. You have this exactly backwards. Detectives don’t prevent crimes, they investigate crimes. Beat cops do at least occasionally prevent crimes.

          1. Jailing criminals prevents crimes two ways—deterrence and incapacitation. That is what detectives do.

  10. Advocating police reform is one thing. But making Trump the candidate who doesn’t want to abolish the police is a rather bold strategy.

    1. How do you figure? Trump doesn’t mind the police as long as they don’t investigate him and his friends, and more generally do as he says.

      1. I think TwelveInchPianist’s point is that the left will allow Trump to pitch himself to the voters as “My adversaries are the ones who are talking about abolishing police departments — I’m the guy who will keep that from happening.” That’s a “rather bold strategy” as a jocular term for a “politically foolish strategy.”

  11. Given the amount of excessive force we have witnessed by police officers in response to peaceful protesters, reducing their budget just makes good sense.

    The police need to be reminded that they work for us and that they are public servants. The attitudes we see with so much excessive force are not those of public servants fulfilling their duty to protect and serve.

    For example, consider this video from Buffalo:

    We need some sort of balance with the police. I don’t think we have it. And withdrawing funding is one source of leverage we have to ensure good behavior.

    Police departments that do an excellent job and maintain excellent community relations deserve more funding. Those who do less well, deserve less funding. This is how any business in the private sector works. This is how the public sector should work also.

    1. “ Given the amount of excessive force we have witnessed by police officers in response to peaceful protesters, reducing their budget just makes good sense.”

      I think that you are delusional. And that is the problem. For the most part, the protesters go home at dusk and the domestic terrorists come out and start looting, burning, and attacking the police as well as a number of non police. Police are dying. Civilians are dying, at te hands of these domestic terrorists.

      Downtowns across the country have been looted and burned out. Even the flagship Macy’s in NYC. Police cars burned in numerous cities. All by your peaceful protesters. And a lot more Blacks murdered than the one who set this up. And you are buying into the fable that these are resulting from peaceful protests.

      The center of this terror campaign is a nationwide conspiracy that many have been expecting since last summer. So far it has been much better coordinated than the responses have been (except in places like Coeur d’Alene, where the appearance of large numbers of well armed citizenry appears to have turned away overflow “protesters” from nearby Spokane).

      1. “I think that you are delusional.”

        Delusional or gaslighted. The media ARE selling, hard, the idea that the riots and looting are just peaceful protest. Unfortunately, this is going to work on some people, who don’t regularly access a wide enough range of sources, critically enough, to be able to tell when they’re being fed BS.

      2. Why have people been expecting it since last summer? What, in your view, is the instigating event that occurred last summer?

    2. And yet, you look at public schools sometimes….

  12. “I should add that, if the politicians were to frame this as, “We’re not going to increase the LAPD budget as much as we were planning to, but think instead about how better to spend the money to invest in things that we think can help prevent crime” (the original proposed budget apparently included a huge increase), the effect would be quite different.”

    They said they’d invest the money diverted from the police into “jobs, education and healing.”

    education – doesn’t LA already have a whole school system?

    jobs – a new Civilian Conservation Corps? What are the specifics?

    healing – does this mean health-care reform, or a more hippie-ish, touchy-feely definition of healing?

    In short, other than a slogan for more spending, what do “jobs, education and healing” actually entail, and how do we measure success?

    1. It means “handing out contracts to cronies in the black community so I can protect both my standing and their standing”.

      It doesn’t really matter what the contracts are for as long as the money is funneled to the right sorts of people.

  13. Not sure I see why cutting dollars means reduced police efficiency. Maybe it just means the budget for militarized policing gets cut. In terms of expenditures, militarized policing has got to be the least efficient part of any police budget. Cutting it would likely increase budget efficiency. It would deliver useful reform (and widespread pubic relief) in any case.

    More generally, EV’s attempt to link surging gun sales with Democratic politicians is lame. Gun culture in America generates its own surges, all the time, over everything. There are folks around who apparently cannot think of any way to respond to events—policy events, natural events, civil restlessness, election results, economic downturns, whatever—except by purchasing guns and ammo.

    Except for occasional public forays to display guns in public—apparently with an eye to intimidate the unarmed—buying guns and ammo seems to be the principal method some folks use to relate to the world around them. In a world where there is so much they feel they cannot do, buying arms gives them something they can do. It’s apparently reassuring for them.

    It’s not good for the nation. Whether or not the folks buying all these arms become dangerous themselves, the guns will outlast them, and eventually be dispersed into other hands, with menacing figures undoubtedly among them.

    It feels like EV is cheering those reflexive gun buyers on. He seems to enjoy the intimidating implications for the future, or at least not worry about them. Which looks peculiar, given how much greater is EV’s personal agency and access to power, compared even to typical middle class Americans, let alone the apparently power-starved gun-surge guys.

    I have said before that I suspect EV lacks experience with deadly gun use, either as a participant or as a witness. To guide gun policy, that is the only kind of gun experience safe to rely upon. Without it, what takes over is too often a mishmash of empty rationalism, plus pop culture gun celebration, plus self-satisfied but also self-deceptive gun-range experience—all blurring together into poorly-founded dreams of private prowess and public efficacy.

    EV’s comments on guns come across as an uneasy hybrid of sound legal expertise, unrealistically benign assessments of gun culture implications, out-sized public influence, and outright gun romanticism. Say what you will, EV on guns is an American original, and an unsettling one.

    1. Not sure I see why cutting dollars means reduced police efficiency….

      Cutting budgets means less police officers and/or lower pay (which makes it harder to keep get or keep good police officers).

      Less police officers means longer response times, which means more unsolved crimes.

      1. Just out of curiosity: Do you think that logic also applies to other areas of government activity? (Say, the CDC?)

        1. “(Say, the CDC?)”

          Its budget has gone up every year for decades.

        2. Yes*

          *So, when large government organizations have their budget cut (like the CDC), it’s usually on a program specific basis. If, for example, some might think the CDC should focus on infection diseases, and was becomingly unfocused as an institute due to its research on everything (for example, domestic violence, which some might consider not the proper domain of the CDC).

          If people thought that, then by cutting the budget devoted to CDC domestic violence research, the upper management would have more time and attention for critical infectious disease research.

      2. “Cutting budgets means less police officers and/or lower pay (which makes it harder to keep get or keep good police officers).”

        No, it doesn’t mean that unless the cuts are to the personnel budget. And even if they are, that could mean a number of cuts that don’t include a reduction in force.

        1. Realistically, it does. That’s because personnel budgets regularly account for 80-95% of the entire police budget. In LA for example, the total police budget was 1.86 Billion. But Personnel costs accounted for 1.75 Billion of that. If you’re going to cut $150 million from the police budget, there is no physical way to do that without cutting personnel.

          Now, if you just slash salaries (as opposed to slashing the number of positions), you run into a series of different problems. Even if you could get that past the contracts with the union (and California state law that is very employee friendly), then you run into a different problem. Good police officers are in demand. If police see their salaries being slashed in one jurisdiction, they’ll think about moving to a jurisdiction that is willing to pay them what they’re worth. And it’s the good ones who will get the job offers. Leaving the “bad” ones behind.

          1. “Realistically” your aunt’s balls. What is far more likely is new or that vacant positions will go un-filled; programs, like outreach, will be reduced or cut; facility upgrades will be put off; new vehicle and equipment purchases will be delayed; and any other of numerous other decisions that do not include a reduction in the number of police.

            None of this is to say there *won’t* be a reduction in force. I don’t know what they’re planning. But I have plenty of experience in this area, and “cuts to their budget” does not “mean” a reduction in the number of police.

            1. When “vacant positions go unfilled”….that means less police officers.

              If you have “plenty of experience in this area”, I provided a helpful link to the City of LA’s budget. It outlined the exact numbers that go towards personnel expenses, as well as the rest of the police budget.

              Please tell me how you’re going to cut $150 million from that budget without hitting personnel?

              1. No, it doesn’t. In fact, departments keep positions vacant on purpose for various reasons. It might be time for you to consider that your speculations do not make up for your ignorance on the matter.

              2. Oh, and I already provided a few examples how. There are many ways to move money and priorities around that do not require terminating officers.

                1. Be specific. Very specific. What in that budget above would you cut and how, in order to save $150 Million?

                  Are you arguing that the department budgeted for a $150 million dollars worth of positions that they intended to keep vacant (and not spend the money on).

                  1. No, I’m not going to do that for many reasons, not the least of which is that I am not in charge of L.A.’s budget planning.

                    Yes, departments (not just PD) keep positions open. Among the reasons they do is for budgetary reasons. Have space for three Deputy Chiefs; use two; then use the money for the third at a later time for whatever need (possibly to help fund lower positions, among others). It is a common budgetary maneuver. It’s even possible, though incredibly unlikely, that 8% of their budget is vacant positions.

                    Of course, I listed other areas besides vacant positions that can be used to manage the proposed cuts. The fact you want to keep yanking that one thread is telling. For instance, it tells me I’m wasting my time here (which, tbh, I already knew).

                    You started this off by proclaiming that budget cuts “mean” reduction in force. I’ve explained why you are wrong to say that. And there’s no reason for me to keep banging my head against your wall.

                    1. You really, really, don’t get the SCALE of the budget cuts being proposed.

                      This isn’t a 1% or 2% reduction in the budget. This is on the order of an 8% cut, in a department that spends 94% of its budget on personnel. It’s a $150 million dollar cut. It’s huge.

                      Let’s start stripping all the “non-personnel” costs.

                      Wipe out the entire transportation equipment budget. That’s $10 Million. Wipe out all uniforms. That’s another $4 Million. Wipe out all office and administrative supplies. That’s $23 million. Wipe out every single firearm and ammunition acquisition. That’s $5 million. Wipe out all field equipment (like bulletproof vests) That’s $10 million.

                      OK, the Cops now have no new cars, no new bullets, no new uniforms, no new office equipment, and no bulletproof vests. You’ve saved $52 million. You need to save another ~$100 million. What are you going to cut next?

                      Unless you think the LAPD is “hiding” $100 million in vacant positions on its books somehow.

                    2. Armchair, this is about just one item on your budget list, the $10 million for transportation equipment. Does that include police cars? Wikipedia tells me there are 10,000 police officers in L.A. If you put two officers in each squad car, and run each car for 3 shifts, then one car serves the needs of six officers per day. Very roughly, obviously, that suggests about 1400 cars (You need more than 6 officers per week). But that assumes maximum efficiency, which probably is not even approached. When I look it up, the figure I find is 6,000 cars.

                      What do those cost, and how long do they last? My guess is about $40,000 per car, (because cop cars are beefed up when manufactured, and expensively equipped before seeing service). And two years max for service life, because police cars are in service 24/7, around the clock. And police departments don’t retain vehicles which break down. (Two years is the service life my own small town police force uses, by the way.)

                      Long story short, $10-million seems wildly unrealistic. Replacing half that fleet every year would run about $120-million, less whatever they get selling the used ones (probably one pittance per car). Is it possible you misunderstand the budget numbers? Or that the public budget numbers are unreliable?

  14. “LOS ANGELES – Masks. Hoodies. Sledgehammers. Crowbars. Baseball bats.

    “These are the descriptions Jewish business owners cited when talking about how their stores were looted and ransacked, and synagogues were vandalized with graffiti after peaceful protests spiraled out of control in Los Angeles beginning on Friday night and continuing into the weekend….

    “[Aryeh] Rosenfeld [owner of a lotted business] described the scene late Saturday night with people driving down the Fairfax district streets screaming, “effing Jews,” at them. He said when they saw a police car, they waved it down, hoping they would arrest a looter they had pinned down, but the cop said, “We can’t do anything, we have officers who need assistance.””

    It sounds like a round of budget-cutting is in order. /sarc

  15. This is nothing but political posturing. They had proposed adding 671 million to the LAPD budget which probably would have been pared down anyway. So Garcetti claims he is “cutting” 100-150 million so he can look woke. What a joke. Of course they probably will dole out some amount to the “black community” which will undoubtedly go to race hustlers and con men. New community services will sprout run by people getting 250k salaries and staffed by family and friends.

    1. “This is nothing but political posturing.”

      Exactly. Due to the virus shutdowns, muni income is cratering. Every part of the LA budget is going to be cut.

  16. Wow, who knew a maximum 8% cut to a $1.8 billion budget would have such consequences? I look forward to the rest of this series where you discuss the problems associated with cuts to social services, which occur far more regularly than cuts to police budgets.

    1. Otis,
      Have you ever run a business with a 90% labor expense. And 8% cut invariably leads to at least that large a layoff. As the cops get paid much more than admins, that means that the overall layoffs will be ~10% or about 500 people.
      May not be a big deal to you but your job is not on the line

      1. I’m not repeating my responses to Armchair. You can just look up a couple threads and read it yourself.

  17. That’s been politician-speak for as long as I’ve been following politics. Not increasing the budget as much as you had at one time planned to increase the budget = “budget cuts”.

  18. I want to foreground this:
    I think that you are delusional. And that is the problem. For the most part, the protesters go home at dusk and the domestic terrorists come out and start looting, burning, and attacking the police as well as a number of non police. Police are dying. Civilians are dying, at te hands of these domestic terrorists.

    So despite the countless videos of police beating or hurting innocents, the we should not believe our lying eyes, but rather Bruce’s evidenceless invocation of terrorism.

    1. I must have watched over 300 Twitter videos over the last week, almost all raw videos posted by bystanders.

      The vast majority of protestors have been peaceful.

      There are certainly some videos where police are unquestionably beating or hurting innocents, including one here in Austin, where a cop fired a rubber round and hit the head of a bystander who was just standing there observing the scene.

      There are far more videos where the rioters have been physically pushing, throwing rocks, provoking confrontation and progressing to rioting, looting and burning thereafter. As just one example of the famous St. John of the Photo Op church:

      Fire set at historic St. John’s church during protests of George Floyd’s death

      This happened the night before, which is why Trump chose it for his photo op. No one on the left seems to care that a church was set on fire!

      On the same night the protestors were aggressively trying to rush the White House perimeter. Watching the live feeds from the scene, I actually got a little anxious that they might succeed and bloodshed would certainly result.

      The First Amendment protects peaceable assembly. It does not protect fighting words, physical confrontations and street fighting. And a huge amount of that has been committed.

      1. Your anecdotal survey is 1) unreliable, and 2) doesn’t matter.

        In protests about police brutality, the police being brutal is rather a big deal, regardless of some arbitrary baselines you set based on all the time you spent on twitter.

        No one on the left seems to care that a church was set on fire!
        Because 1) there is no sign of what happened, and 2) it did not actually burn down. Attempts don’t carry the same weight. But you have a narrative to push so your weighting is different. Fine for you, not very convincing for the public.

        The First Amendment protects peaceable assembly. It does not protect fighting words, physical confrontations and street fighting. And a huge amount of that has been committed.
        Street fighting? Fighting words?!! You do realize what you are defending, as responses to that, right?

        1. Are you saying that it’s OK to set the church on fire because it didn’t burn down?

          It did not burn down because the fire department got to it in time!


          1. There is nothing in what Sarcastro said that could possibly suggest he thinks it’s ok to burn a church or attempt to do so.

            The reason nobody cared about some half baked, abortive arson attempt is because the church is managed by adults. Life moved on. It would take a complete asshole to try and use that paltry fire starter’s failure as an excuse for a photo op. Only an Olympic-level dickweed would then use that as an excuse to make a cringeworthy, unnatural bible porn. And then it would take a true world class bullshitter to send his lackeys to pretend that it was all just bad timing. And here you arguing that the church was chosen by the President because of the fire. How stupid do you feel?

        2. I’m sure you’d take the same attitude about a similarly unsuccessful attempt to torch a rural black church, right?

  19. Call it “often libertarian,” or a “Ted Cruz-class libertarian,” but it’s still just an authoritarian right-winger in faux libertarian drag.

  20. “The Los Angeles Police Department is launching an investigation into officers who were caught on camera using batons on protesters and officers who were photographed hitting a homeless man in the face, according to department spokesman Joshua Rubenstein.” — The Washington Post.

    “Make sure those officers get a raise!” — an “often libertarian” blog.

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Oral Dissents at the Supreme Court: They Can Still Happen


In most years, the Supreme Court Justices go on the bench to announce their opinions in person, with the authors of each majority opinion reading a brief summary. A few times a year, dissenting Justices who feel strongly enough will also read a summary of their dissents, which can often add drama and draw public attention.

As Josh noted on May 24, this Spring the Court is obviously not meeting in person to announce opinions, so the Justices aren't reading aloud from their opinions, either; Josh regretted that. An AP story today discusses the matter as well, quoting several experts who view the practice as valuable.

I just wanted to mention that there's no reason why such reading of dissents—or, for those Justices who want to, majority opinions—couldn't continue this year via streaming audio. The Justices' May oral arguments were made available to the public via what was essentially a conference call streamed and archived by C-SPAN.

Precisely the same technology could be used for Justices who want to read opinion summaries. A Justice who wants to do this could just alert the Chief and the other Justices, and ask that such a call be set up; the other Justices would be welcome to be on the call, though there's no reason why they should all feel obligated. (Presumably the majority opinion author might feel obligated to read the summary of the majority, and maybe some others might feel that they ought to listen in, but it would be a very slight burden on most of the colleagues.)

In principle, I suppose a Justice could just unilaterally ask the administrative people to arrange this, though I would think such a move would be seen as uncollegial. But if the Justice asks the others, I expect that rejecting such a reasonable request—which is very much in keeping with the tradition of oral dissents—would be seen as uncollegial, too. And of course several Justices might want to do this, each for a different case.

So we might yet hear oral dissents, likely with accompanying oral summaries of the majority (and maybe even the very rare oral concurrence). If we don't, that would be just the choice of the dissenters, not some inherent limitation stemming from the technology, court rules, or tradition.

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  1. Asking the Court’s press officer to post a PDF statement might work just as well. Presumably within the remit of justices individually, and the Court already publishes their speeches when requested.

    Mr. D.

  2. This is a new environment, and bad things could happen. Since they are present when opinions are read from the bench, should Justices be virtually present when individual Justices read their opinions online? Will the temptation on them to succumb to political pressure by not “showing up“ for opinion reading be great? Will such reading of opinions, especially dissents, be seen (and used by politicians) as simple preening by Justices, eroding their authority? If any of these is true, we risk frittering away years of accumulated capital, whether of comity among Justices or the authority Americans have been willing to grant the Court.

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