Monthly Archives: February 2021

Show trial

Trump’s second impeachment was, precisely as Republicans termed it, a show trial. Though it was not of the Stalinist variety, in which the full fury of a despotic regime is turned on the innocent. No, the Democratic impeachment managers, to the contrary, mounted a moving, professionally staged version of To Kill a Mockingbird in which prosecutors attempted to defend the Constitution. Jamie Raskin, reprising the role of Atticus Finch, mounted a convincing case and delivered an uplifting summation. But it fell on deaf ears of the GOP and the client, Justice, was condemned precisely like Finch’s client, Tom Robinson.

In the end, though, the Senate impeachment trial was nothing more than theater.

It hadn’t helped that the Democrats backed down at the last minute and refused to call witnesses. It hadn’t helped that several of the Maycomb, Alabama jurors — Klan members themselves — had been huddling with opposing counsel. It hadn’t helped that the impeachment process, as designed by the framers of the Constitution, is a joke. So much of a joke that during Trump’s first impeachment trial humor columnist Andy Borowitz joked that when El Chapo found out how impeachment trials were actually conducted he was outraged that his had witnesses!

This staged performance did reveal how broken the United States Constitution is. Operating precisely as designed, the Constitution shields America’s rulers from the whims of the little people. In addition to its broken courts, its broken presidency, its toothless House, and the highly undemocratic Electoral College, we have all seen in the last year alone how a partisan Senate can destroy accountability by any other branch of government. Indeed, the Senate is American democracy’s Achilles heel.

The almost religious reverence for the founders of the Constitution, who as Senator Ted Cruz put it, “fought and bled for freedom and then crafted the most miraculous political document ever conceived, our Constitution,” should really be questioned. The system they created is not merely showing its age. It’s just not working.

After the Senate’s impeachment theater, President Biden issued a bland statement lamenting the “trial” as a “sad chapter in our history” and naming the defense of truth the solution to re-uniting the United States.

But our problems go well beyond truth, as Atticus Finch might have argued — to recognizing and overturning centuries of white impunity. Not to mention ditching our dysfunctional form of government through a Constitutional convention — that is, before it self-destructs.

Speaking for many of us, Elie Mystal wrote in The Nation: “I Don’t Just Want Trump Impeached. I Want Him Jailed.” Mystal pointed to the racial injustices of recent arrests and selective prosecutions by courts, courts and legislators unwilling to pursue the many counts against Trump from the Mueller investigation and, finally, to the coup attempt that had no consequences.

Los Angeles Times editors have called for a Department of Justice investigation, impeachment or not. Lincoln Project co-founder George Conway suggested that the DOJ appoint a special counsel, a view shared by former federal prosecutor Renato Mariotti. And New York Magazine ran a piece reminding readers of what the prosecution of a former leader might look like: in 2012 Italy prosecuted its former authoritarian prime minister, Silvio Berlusconi, a man very much like Trump, on a host of charges ranging from sex with an underaged prostitute to bribery and tax fraud, even sentencing him to jail.

Although President Biden told the National Association of Black Journalists and National Association of Hispanic Journalists last August that he would not stand in the way of prosecuting Trump, in the next breath he said that it would be a “very unusual thing and probably not very … good for democracy.” By November Biden was telling advisors that prosecuting Trump wasn’t even an option. “I will not do what this president does and use the Justice Department as my vehicle to insist that something happened.”

Maybe Biden believes he can create bipartisan results, or even save the House from a Republican take-back in 2022. Maybe he thinks appeasing members of a party, 40% of whom believe in political violence, will brake what some see as an inevitable [cold?] Civil War. Good luck, Mr. President, but you’re kidding yourself.

But for all his reticence to prosecute a seditionist coup plotter, Biden still plans to pursue the extradition and prosecution of Wikileaks founder Julian Assange for publishing evidence of American war crimes. We may eventually get that Stalinist show trial after all.

Senators voting to acquit Trump

First stop on the school-to-prison pipeline

On February 3rd the Sentencing Project published a new study, Racial Disparities in Youth Incarceration Persist, by Josh Rovner, Senior Advocate Associate at the Sentencing Project. It examines disparities in arrests of white children and children of color, and it does not paint an encouraging picture.

For the NAACP the findings are no surprise. Black, Native, and Latino youth have been historically disciplined and arrested in disproportionate numbers and make up a lopsided percentage of those who are fed into the criminal justice system.

The good news from the study is that in the last decade youth incarceration has been cut in half. The bad news is that, for children of color, they are still targets of overzealous and racist policing and school discipline. Disparities in Latino youth incarceration have dropped by 21% — still not on par with national improvement — but Black and Native youth incarceration disparities have remained “essentially unchanged” in the last decade.

The Sentencing Project study quotes Tufts University Sociologist Daaniki Gordon, who notes that “police are […] more likely to intervene in behavior by youth of color that would go unremarked or ignored by police in neighborhoods where white youth predominantly live. Residential segregation leads to school segregation, and students of color often experience their misbehaviors treated as a disciplinary or policing issue while their white peers’ misbehaviors are more frequently seen as behavioral health concerns, potentially meriting a modified curriculum and additional school support personnel to assist with behavioral needs.”

As the study notes, criminalization of children of color often begins with, and right in, the schools. With very good reason schools have been correctly identified as the first stop in the school-to-prison pipeline. It is NAACP policy that armed police have no place in school hallways. Now that Massachusetts police reform has given school superintendents complete discretion over SRO programs, especially with case after case after case after case after case after case of children abused by SROs, it is up to school superintendents to prove that these programs do no harm to children of color. We call on Superintendent Thomas Anderson to stop the SRO program immediately and prove to city residents that it serves some positive function.

While Massachusetts has the fifth lowest youth incarceration rate in the United States, these low rates do not extend to Black, Native or Latino Children. Massachusetts has the ninth highest disparity between Black and white youth incarceration rates and is #1 in disparity in the nation between Latino and white youth incarceration — and it’s only worsening.

The Sentencing Project has offered three recommendations for state, city, and school policy makers:

  1. Racial impact statements: States and localities should require the use of racial impact statements to educate policymakers about how changes in sentencing or law enforcement policies and practices might impact racial and ethnic disparities in the justice system.
  2. Publish demographic data quarterly: States and counties should publish demographic data quarterly on the number of incarcerated or justice-system involved youth, including race and ethnicity. The federal government should disseminate this information nationwide.
  3. Invest in communities: States and localities must invest in communities to strengthen public infrastructures, such as schools and medical and mental health services, with particular focus on accommodating the needs of children of color.

Let’s look at how these are — or are not — being addressed currently.

As we learned in last week’s forum on Juvenile Justice and School Resource Officers, racial impact and racial justice are poorly-considered factors in both school and policing policy, or are simply not considered at all. Juvenile justice data is either not collected — in violation of state law — or it must be obtained by FOIA request or lawsuit. And budget priorities for communities frequently overlook social and human services in favor of simply throwing more money at policing.

The NAACP believes that this study adds to what many Americans have finally woken up to — that the American criminal justice system is deeply racist and needs much more reform than the band-aids and minimal reforms that timid legislators have come up with to-date.

You can download a PDF of the full Sentencing Project study from their website.

Sewer Diving

Since being almost completely exiled from mainstream Social Media networks after his failed coup attempt, people are asking where Donald Trump has gone. Some Americans are actually experiencing withdrawal symptoms from the absence of Trump’s daily crack pipe.

Along with Trump, many of his unhinged supporters have been banned from Twitter, Facebook, and others. But this has just inflamed white grievance and their warped perception that white racists are the real victims. Conservatives have been treating the 25,000 National Guard troops at the Capitol as a sort of Tiananmen Square moment, and their exile from Facebook, Twitter, and YouTube has now become, for them, the American imposition of the Great Chinese Firewall. While these developments are no such thing, they are overreach and overkill, and Liberals proceed down the road of heavy-handedness at their own, great peril.

So where has the Far Right and all their sewage gone? To answer that question I did a little sewer diving, and here is what I found.

Donald Trump can now be found on Gab and Telegram, although he is rumored to be toying with the idea of creating his own social network — which, based on the history of Trump Water, Trump Steaks, and Trump University, may not end so well. Trump has established an Office of the Former President, which so far does not have a website but did announce its existence on Telegram.

Telegram, a messaging service with channels that users can subscribe to as easily as Twitter, has recently attracted a large number of Far Right voices. They include familiar names like Trump himself, former First Heirs Ivanka and Don Jr., Steve Bannon, Dinesh D’Souza, Sheriff David Clarke, Michelle Malkin, Laura Loomer, Ben Shapiro, Rush Limbaugh, Dan Bongino, Charlie Kirk, Breitbart News, Project Veritas, Turning Point USA, The Daily Wire, The Blaze, Right Side Broadcasting, Epoch Times, the Bannon War Room, One America News, Sean Hannity, Jeanine Pirro, Rudy Giuliani, Jack Prosobiec, Scott Presler, Sarah Huckabee Sanders, Kayleigh McEnany, Andy Biggs, Marjorie Taylor Greene, Paul Gosar, Lauren Boebert, Ted Cruz, Devin Nunes, Lindsey Graham, Jim Jordan, and others.

American Conservatives frequently supplement an unhealthy, unholy diet with intravenous vitamin drips from QAnon’s Q-Tip, the Boogaloo Boys Intel Drop, the Daily Groyper, and other white supremacist groups. These supplements are entirely unncessary because American Conservatives have been getting far more than their minimum daily requirements of fascism, nazism, anti-semitism, Islamophobia, and white supremacy for many years. And the content, it is important to note, is not all that different from the more “mainstream” Conservative views.

Other “victims” of internet moderation have moved to Parler, though it has been unable (or at least slow) to reload its Amazon cloud data to a new site. While inspired by mainstream Republicans, the January 6th coup was coordinated via social networking by extremists, and Parler was instrumental in the effort. With YouTube cracking down on hate speech, Rumble has become the go-to site for uploading videos filled with hate speech and conspiracies.

Since the pandemic, Liberals have been calling for more “moderation” (if not outright censorship) of crackpots spreading dangerous information. For their part, “mainstream” Republicans have been getting nuttier and more extreme. A new report from the Southern Poverty Law Center reports that the “Capitol Insurrection Shows How Trends On The Far-Right’s Fringe Have Become Mainstream.” This belated revelation has frightened even the GOP. Today RNC Chairwoman Ronna Romney McDaniel distanced herself from election conspiracies Rudy Guilani delivered from RNC offices, wondering “what is the liability of the RNC, if [Giuliani’s] allegations are made and unfounded?” It will be interesting to see if the “moderate” wing of the Republican Party will join Democrats in calling for forms of internet censorship.

Yesterday the New York Times published an article called The Coup We Are Not Talking About by Shoshana Zuboff, author of The Age of Surveillance Capitalism. Zuboff, to her credit, faults surveillance capitalism for monetizing data that ought to be protected from “data mining” by internet services like Google or Palantir. She also faults surveillance capitalism for selling or patriotically donating that data to America’s vast security state. Zuboff is in favor of anti-trust actions to break up large, dangerous monopolies. And Zuboff is also a strong proponent of privacy legislation to protect citizens from facial recognition and other forms of exploitation of personal data.

But Zuboff is also in favor of measures that go well beyond regulation into governmental intrusions into the proprietary algorithms that search engines use, “comprehensive audits” (whatever that means), and most frightening of all — copying European laws like the British Online Harms Bill, which make companies responsible for “public harms.”

The American Security Establishment (NSA, CIA, FBI, DOJ, DHS, etc.) has long demanded weakened encryption protocols in order to “protect Americans from harm” by snooping on everything transmitted over the internet. But, of course, one person’s “harm” is another’s freedom. If Wikileaks offers a roadmap for what’s coming, censorship and persecution based on “public harm” will soon extend to more whistleblowers the government doesn’t like and those espousing unpopular sentiments, such as defunding police, burning flags, or socializing Medicine.

This is the slippery slope that Zuboff — and many Liberals — want to descend.

At the heart of the “censorship” (or “moderation”) debate is compromise language inserted into the 1996 Communications Decency Act. One section, 47 U.S. Code § 230 — “Protection for private blocking and screening of offensive material” — does two main things: (1) it holds internet providers harmless from prosecution for inflammatory or libelous posts by their customers; and (2) it also holds internet providers harmless from lawsuits by their customers if they attempt to block or censor inflammatory or libelous content posted on their platforms.

Liberals and Conservatives both hate Section 230 — for different reasons. Liberals don’t want to hear hate speech and they don’t care much about the Civil Liberties implications of censorship. Conservatives don’t mind hate speech, or they routinely traffic in it, and they too don’t really care about the Civil Liberties implications.

Former president Donald Trump wanted to repeal Section 230, going so far as to threaten to veto the National Defense Authorization act if 230 were not revoked. And our new president is on the same side of the issue. When asked one year ago by the New York Times what he thinks of Section 230, candidate Joe Biden betrayed his ignorance of the law, saying, “[The Times] can’t write something you know to be false and be exempt from being sued. But [Facebook CEO Mark Zuckerberg] can. […] And [Section 230] should be revoked. It should be revoked because [Facebook] is not merely an internet company. It is propagating falsehoods they know to be false, and we should be setting standards not unlike the Europeans are doing relative to privacy.”

Trump’s and Biden’s views are shared by a large bipartisan crowd from Nancy Pelosi to Josh Hawley, and by Centrist Democrats and even a few progressives.

But as Ars Technica internet policy reporter Timothy B. Lee explains, “Biden is wrong to suggest that Section 230 treats Facebook differently from The New York Times. If someone posts a defamatory comment in the comment section of a Times article, the company enjoys exactly the same legal immunity that Facebook gets for user posts. Conversely, if Facebook published a defamatory article written by an employee, it would be just as liable as the Times.”

Those who want to impose more censorship (“moderation”) forget that if legislators can constrain internet freedom of speech, then constraints on print and broadcast media could easily be next.

In September 2020 former Attorney General William Barr weighed in on revoking and/or revising Section 230. One of Barr’s rationales was to permit more federal “oversight” of internet content and to give prosecutors greater latitude to prosecute indecency, terrorism, cyber-stalking, and “illicit content.” Barr also wanted backdoors into social networks and encryption keys the government could use to snoop on internet traffic.

But Barr also wanted changes that held online publishers like Twitter and Facebook to their own Acceptable Use policies — not arbitrary, capricious decisions to permit one user to abuse published policies while banning another:

“Section 230 […] should not hinder free speech by making platforms completely unaccountable for moderation decisions. A platform that chooses not to host certain types of content would not be required to do so, but it must act in good faith and abide by its own terms of service and public representations. Platforms that fail to do those things should not enjoy the benefits of Section 230 immunity. [My] proposal adds a provision§ 230(c)(l)(C) to make clear that online platforms can continue to take down content in good faith and consistent with their terms of service without automatically becoming a publisher or speaker of all other content on their service.”

As much as I revile William Barr, this last suggestion made more sense than convoluted and antidemocratic proposals to enforce “good citizenship” and “prevent harm” through what can only in the end be called by its proper name: censorship.

Legal remedies for willfully spreading lies, slandering or threatening people, or cyber-stalking already exist. Dominion Voting Machines had the right idea when it slapped Rudy Giuliani with a $1.3 billion lawsuit. And guess what? Fears of further liability from Giulani’s lying seem to have gotten Ronna McDaniel’s attention, too.

Ultimately it is up to laws to correct these injustices and to prosecutors to go after internet crime. But if the FBI can only muster the half-hearted prosecution of white supremacist coup plotters, and no one ever attempts to stop the steady stream of interstate phone scams ringing our phones at dinnertime, you can bet that new laws will also be enforced selectively, or not at all.

Liberals believe that the toxicity of the internet is responsible for the January 6th coup attempt. It seems to escape their notice that it was rallying calls by the former president, aided and abetted by numerous speakers and Far Right organizations who showed up on Pennsylviania Avenue on January 6th to urge a mob to lay siege to the Capitol. It was Republican legislators who conducted prohibited tours of the Capitol, informing the plotters where Democratic offices were located, where the safe rooms and tunnels could be found, and about the emergency signals in Congressional offices.

It was Trump’s Acting defense Secretary Christopher Miller who issued “stand down” orders to the National Guard, and the Metro Police. It was Miller who barred the use of weapons, air support, surveillance, who limited National Guard troops to 340 people, who basically de-fanged the police against a violent insurrectionist mob. If we really want to look at how the coup attempt could have been prevented, don’t look at censoring social media — which merely echoed the false claims of Trump and his Congressional co-conspirators — but to those who called the mob to “stand by” and then on the day of the siege urged them to go to war.

Once again, existing law is quite capable of holding plotters and seditionists responsible. But enforcement of existing law is always a matter of political will.

Finally, no matter the medium, there has always been a steady stream of crazy, racist sewage Americans consume, and it will continue to be produced even if its authors must resort to using mimeograph machines again. If we pursue the recommendations of people like Ms. Zuboff, William Barr, Donald Trump, and Joe Biden to attack social networks instead of pursuing prosecutions, we will punish the public instead of coup plotters. And we will still have failed to fix the white supremacy at the heart of the coup attempt — while irrevocably destroying what’s left of our democracy.