A “Hard Cases Make Bad Law” Classic: The School Board President’s Kid’s Social Media “Hate Speech”

Cullman City

I’d make this an ethics quiz, but I think it’s too potentially important to treat as a jump ball. This is the kind of extreme mess that threatens free speech, especially when on entire political party is searching for an excuse to ban “hate speech,” once they have defined it just well enough to constrain political opponents.

In Cullman City, Alabama, the school board’s president’s son, who attends the school district’s high school, posted a video to SnapChat in which he could be seen and heard chanting “White power!” and “Kill all the niggers!” The video has been widely circulated among students. The parent of a black student who saw the video has demanded the resignation of Amy Carter (no, not THAT Amy Carter; don’t be silly), the school board’s president. The parent is also demanding that the school take action against the student. “Cullman City Schools would clearly punish our son if he made a video threatening the white students of Cullman High School,” she wrote in an email. “My son is one of a handful of black children in the school. Tell me how he wouldn’t be threatened by KILL ALL THE Ns?! Explain to me how this is not a threat.”

Well, I can answer that last part. Under First Amendment case law, the “true threats” doctrine holds that allegedly threatening speech cannot be punished unless the government can prove that the speaker meant to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual. A chant on a video posted on social media that mentions no specific student will not qualify as an actionable threat. Her previous question is tougher. The school and the town itself has a reputation for racial hostility toward blacks. The mother of the black student says her son has repeatedly been subjected to racist remarks during his four years as a student in the district. I see good reason for the video to be unsettling in that context.

On the other hand, I’m getting awfully tired of the “they wouldn’t treat a black adult/child this way if he/she did X” argument, which is almost never challenged even when it’s bigoted nonsense, as in the race-based attacks on the Rittenhouse verdict. It’s more presumed racism, and a cheat, a device to avoid making a solid argument.

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Monday Morning Ethics Warm-Up 2: More Rittenhouse, Because Attention Must Be Paid

KYLE-RITTENHOUSE-INTERVIEW-FOX-NEWS

1. Now THIS is an intellectually dishonest op-ed…even for the New York Times, and even for Charles M. Blow. “Rittenhouse and the Right’s White Vigilante Heroes” made my mind snap back decades to a Phillip Roth anti-Nixon satire called “Our Gang.” At one point, as Nixon tries to scapegoat the Boy Scouts of America for something (I can’t remember what, but it doesn’t matter), the White House issues a statement explaining that the Scouts carry scout knives in numbers exceeding “the entire population of Chevy Chase, Maryland” and leaps to announcing preventive measures against the BSA “in order to prevent the slaughter of the residents of Chevy Chase.” Blow condemns the verdict in the Rittenhouse trial as “another data point in the long history of some parts of the right valorizing white vigilantes who use violence against people of color and their white allies.”

On the way to that hysterical conclusion, he writes, “One can argue about the particulars of the case, about the strength of the defense and the ham-handedness of the prosecution,” which is a weasel-worded way of saying that Rittenhouse was acquitted because of the facts of the case. “One can argue” about the verdict, but only if “one” knows nothing about the law and has swallowed the Left’s false narratives. Next thing you know, Blow is drawing, Roth-like, an imaginary line from Rittenhouse defending himself against three attacks by white felons to Jim Crow lynchings. Then, of course, the line goes to the January 6 riot at the Capitol, because until Donald Trump gets a stake through his heart, this is all the Democrats have as they fight not to be swept out of office. “One could argue”—there’s that “one” again!—” that the entire Jan. 6 insurrection was one enormous act of vigilantism,” Blow intones. First, that riot was not an insurrection by any rational definition of the word. Second, all riots are “enormous act[s] of vigilantism,” especially the rioting that Rittenhouse foolishly and recklessly injected himself into.

2. One more reason Donald Trump has reason to feel that the election was stolen...The facts as they unfolded in the trial showed that Politifact, the flagrantly left-biased fact-checking group, wrongly called Trump’s statement “False” when he said during an August 31, 2020, news briefing that Rittenhouse had acted in self-defense. “You saw the same tape as I saw,” Trump said. “And he was trying to get away from them, I guess; it looks like. And he fell, and then they very violently attacked him. And it was something that we’re looking at right now and it’s under investigation.”

PolitiFact wrote that while Trump “correctly describes some minor details about that night,” it insisted that his comments “grossly mischaracterize what happened — leaving out that by the time of the events he described, prosecutors say Rittenhouse had already shot and killed a man.” Right—in self-defense. Since when is “what the prosecutors say” “fact” before a trial?

PolitiFact was working at linking Trump to a “white supremacist” as further advancement of Big Lie #4. It was wrong, Trump was correct. Now, neither Trump nor Politifact should have had anything to say about what happened before the trial; Trump, because Presidents should not comment regarding ongoing criminal investigations and prosecutions, PolitiFact because it cannot declare what “facts” are before the facts have been determined.

The factchecking operations, which dishonestly claim to be non-partisan, were used by the media to compile their biased “lies lists” on Trump and by social media to justify banning him as soon as he had been vanquished. In this instance, PolitiFact implied that Trump was distorting the truth to defend a “white supremacist” …who, in fact wasn’t, but the news media and pundits kept saying he was.

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Monday Morning Ethics Warm-Up 1: Rittenhouse-Free Zone Edition

JFK assassination

President Kennedy was assassinated on this date in 1963, easily my most vivid memory of any national event in my lifetime. I am not an admirer of Jack Kennedy as a President or a human being, but it is hard to imagine a more wrenching disruption of the nation’s course, spirit, fate and future than what occurred that day in Dallas.

We watched everything unfold for the rest of the week on our black and white TVs, from Walter Cronkite’s somber announcement that the President of the United States was dead, to the shooting of Lee Harvey Oswald, through to the D.C. funeral procession and John-John’s salute.

The day still represents traumafor me, and I am sure to many others of my generation: when Grace and I were planning our wedding in 1980 and November 22 was suggested as the most convenient date, I insisted on the 23rd instead. This is also the date that kicks off the dreaded holiday season, stuffed with milestones good and bad (I count seven between now and New Years), periods of anxiety, nostalgia and anticipation in between, and too much longing and memories of loss to bear.

I hate it.

1. Yes, it’s an unethical Christmas tree. In the town of Grimsby in North East Lincolnshire, the official Christmas tree has been taken down from the town center after a local uproar declaring the 10 foot, conical artificial tree a “national embarrassment.” It also cost a thousand pounds. The town’s explanation was, shall we say, confusing, with Councillor Callum Procter claiming,

There are great plans for celebrating the start of the Christmas period next week. Unfortunately, the Christmas Market tree was installed too early, and we understand that people were confused and thought this was our civic tree. The tree has been removed temporarily today and our contractors are reinstalling again, for free, ahead of the market next week. I’m looking forward to seeing people enjoying the illuminations, the market, and the revamped St James’ Square with the civic tree and the special lighting on the Minster as part of the Christmas experience.

Wait…the town is going to put the same tree back up, and everyone will like it because it won’t be “too early”? I am dubious. Here’s the tree:

bsd tree

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Comment Of The Day: A Rittenhouse Verdict Inventory…Part III: Facts Don’t Matter

dominos

I’m sorry about the apparent obsession here with the Rittenhouse case, but I believe that the episode has ethical significance on many levels, particularly in the way it demonstrates that toxic progressive bias has headed into end game territory, sort of like with rabies when a victim becomes afraid of water.

What we are seeing and hearing is ugly and would be frightening if it wasn’t so self-evidently irrational. I guess we have seen other examples where political fanaticism causes vast numbers of previously functional Americans to blow out their critical reasoning fuses for all to see, but right now I can’t think of one so striking. Groups that cease to be capable of reason tend not to do very well after a while.

Yes, Steve-O-in NJ has another Comment of the Day, and yes, it’s long, but it touches perceptively on too many important matters to let go by. I especially admire his description of the “chain reaction.” (I could not disagree with his last sentence more, however.)

Here it is, on the post, “A Rittenhouse Verdict Inventory Of Ethics Heroes, Dunces, Villains And Fools, Part III: Facts Don’t Matter”…

***

So, the verdict is in and Kyle Rittenhouse walks on all charges. I thought about it, and as an attorney who has occasionally worked civil rights cases I do not see any bases for federal civil rights charges against him. Most of the federal civil rights statute has to do with punishing those who act under color of law to deprive individuals of their constitutional rights. Those statues are generally designed to bring down law enforcement officers who abuse their authority for no good reason. There is also the question of a hate crime, however, there has been no allegation nor proof that anyone he killed was a member of a protected class killed because they were a member of protected class.

The Federal statutes are simply not designed to give the federal government a second bite at every state murder prosecution that fails to make. I suppose the Feds could try to cobble together gun charges or terrorism charges (but that’s a very long stretch). However, they would still have to draw a jury pool from Wisconsin, and all of Wisconsin has now seen this trial and knows this would be just an attempt to punish someone for a crime he was already acquitted of. Jerry Nadler should have known better then to suggest this, but he was simply pandering to his base and his party’s base.

This was another classic domino situation of one breach of the law leading to more as described by the Hon. Guido Calabresi, senior judge of the Second Circuit Court of appeals, in an address at my law school graduation. Things were already tense in this country because George Floyd decided he would break the law and pass fake money, then resist arrest while high as a kite, then Derek Chauvin decided he would break the law and press George Floyd against the ground with his knee until he was fatally injured, then a huge number of people decided they would break the law and riot, then a whole lot of public officials decided they would break the law and fail to do their sworn duty to protect the people. While the nation was still reeling from this, Jacob Blake decided he would break the law and resist a lawful arrest, officers got heavy handed, and still more people decided they would break the law and riot, set fires, and destroy and ransack property that was not theirs to destroy or ransack. Kyle Rittenhouse unwisely decided to get involved in this mess, while armed. Three individuals with lengthy criminal records decided they would break the law and violate common sense and attack Kyle and try to kill him while he was armed for the rifle. Finally Kyle found himself with no alternative but to open fire, killing two and wounding a third.

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To Be Fair, Sometimes Twitter Justifies Its Existence: The Hilarious Maria Shriver Takedown

SG-Rittenhouse-SG-Shriver-GW-Ted-Kennedy-1200x630

Maria Shriver, once a Peabody and Emmy award-winning journalist for NBC News and now an occasional guest host, took to Twitter to post, “I’m trying to take a beat to digest the Rittenhouse verdict. My son just asked me how it’s possible that he didn’t get charged for anything. How is that possible? I don’t have an answer for him. The idea that someone could be out with a semi-automatic weapon, kill people, and walk is stunning. I look forward to hearing from the jury. This is a moment for them to explain how they came to their decision.”

Shriver’s brain fart is reminiscent of Jimmy Carter’s fatal debate fantasy on 1980 when he claimed that had been discussing nuclear policy with his daughter Amy. If anything, Shriver’s tale is more unlikely: her sons are 24 and 28. Aren’t these products of the best private schools better educated than to be mystified by the basics of criminal law? And how could Shriver think that Rittenhouse wasn’t charged with any crimes?

Knowing a hanging curve right over the plate when he sees one, Ted Cruz, as they like to say of Republicans, “pounced.” He tweetstormed,

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Weekend Ethics End Notes, 11/21/21: Rittenhouse Hangover Edition

July 5 Hangover

Arghh. Here’s one more thing to blame on Kyle Rittenhouse: in focusing on the deranged reactions to the verdict yesterday, I missed the opportunity to flag the anniversary of a landmark in world ethics: the beginning of the Nuremberg war crime trials on November 20, 1945. The trials were conducted by an international tribunal made up of judicial representatives from the United States, the Soviet Union, France and Great Britain. The defendants faced charges ranging from crimes against peace, to crimes of war, to crimes against humanity. The trials lasted 10 months and consisted of 216 court sessions.

There is no question that had the war turned out differently, it would have been Allied generals and officials facing war crimes charges. It is often said that the trials were unprecedented, but there was a precedent, and it was cited as one at the time: the 1865 trial of Capt. Wirz, the Confederate Commandant of the Andersonville prison. That trial raised many of the same ethical issues as its successor. I have serious reservations about the ethics of the Nuremberg Trials, and I am sure that in this I am reflecting the objections of my father, a WWII veteran who felt they were the height of hypocrisy. “All wars are crimes against humanity,” he said.

On October 1, 1946, 12 Nazi leaders were sentenced to death. Seven others were sentenced to prison terms ranging from 10 years to life, and three were acquitted.

1. Sorry, more Rittenhouse ethics offenses:

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A Rittenhouse Verdict Inventory Of Ethics Heroes, Dunces, Villains And Fools, Part III: Facts Don’t Matter

Above is a comic I never heard of (but one with a regular platform), grandstanding over the Ritterhouse verdict as she reveals that she either has no idea what the facts are in the case, or is deliberately hate-mongering by sending lies into the public consciousness. She tells us that she takes her responsibility to “tell people what they need to know” seriously, and then tells them what isn’t true. “It’s not OK”, she says with great emotion. “For a man to garb a rifle, travel across state lines, and shoot three people and walk free.” In fact, it’s not “OK” for anyone to deliberately misstate the key facts of a controversial episode to the many ignoramuses who may be listening and are likely to be misled.

Rittenhouse did not “grab a rifle” and cross state lines. The law says that it is “OK” for someone—regardless of their race— to defend themselves with deadly force if they reasonably believe his life is at stake. Then she goes on to outright racism, claiming that whites have “always” escaped consequences when they engage in murder. She calls the judge and jury racist, for participating in a trial that acquitted a white man for shooting three other white men.

She seemed like an excellent introduction to this list of similarly dishonest, ignorant or hateful people showing their lack of fairness and critical thinking skills as they descended into hysteria and ugly rhetoric…because so many on the Left are receptive to it. This is not about a difference of legitimate opinion when Americans of note or in positions of influence and responsibility engage in inflammatory declarations based on a false description of what occurred.

Certainly the news media, even more than usual, played its “enemy of the people” role to the hilt, but its flagrant false reporting on the Jacob Blake shooting was four months ago. There is no excuse for anyone with integrity and responsibility still talking about the Kenosha police shooting “an unarmed black man” or representing Blake as anything other than a dangerous outlaw who was engaged in a crime, and justly shot. Because there was no racism or police brutality involved, the protests and riots supposedly prompted by the episode were contrived and based on incompetent (or intentionally incendiary) reporting. The subsequent narrative, that Rittenhouse was opposing “racial justice” and thus a “white supremacist” because he (foolishly, recklessly) sought to mitigate the destruction caused by an ongoing riot (triggered by an incident that only was “racist” in the overheated minds of the reporters and race-hucksters) cannot be defended.

The fools and dunces whose statements are noted below are shooting off their mouths (or social media accounts) in defiance of reality. As Bari Weiss points out in her substack essay (Pointer: John Paul),

To acknowledge the facts of what happened that night is not political. It is simply to acknowledge reality. It is to say that facts are still facts and that lies are lies. It is to insist that mob justice is not justice. It is to say that media consensus is not the equivalent of due process.

And, I would add, it is to say that just because politicians, celebrities, pundits and your Facebook pals are taking a position that literally makes no sense and is based on extreme bias and fantasy is not justification for following the parade.

Below is an incomplete list of the “Facts Don’t Matter” mob. Not surprisingly, I didn’t particularly respect any of these people even before they beclowned themselves in this ethics train wreck. Even so, there are serious problems in the culture (and the educational system) when so many default to gullibility, confusion, miserable logic and emotion. The unethical reaction to the Rittenhouse verdict is, perhaps, more significant than the verdict itself.

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A Rittenhouse Verdict Inventory Of Ethics Heroes, Dunces, Villains And Fools, Part II: Rogues Gallery [Updated!]

Rogues

Having reviewed the depressing small population of Ethics Heroes in this Ethics Wreck in Part I, I’ll largely leave the determination of which of the following ethics miscreants should be designated as dunces, villains or fools (or all three) to you. In this, I take my lead from the Saturday Night Live game show, “Geek, Dweeb or Spazz?”

However, there are some easily identified Ethics Villains, beginning with

1. The President of the United States, who signed this official statement:

While the verdict in Kenosha will leave many Americans feeling angry and concerned, myself included, we must acknowledge that the jury has spoken. I ran on a promise to bring Americans together, because I believe that what unites us is far greater than what divides us. I know that we’re not going to heal our country’s wounds overnight, but I remain steadfast in my commitment to do everything in my power to ensure that every American is treated equally, with fairness and dignity, under the law.

I urge everyone to express their views peacefully, consistent with the rule of law. Violence and destruction of property have no place in our democracy. The White House and Federal authorities have been in contact with Governor Evers’s office to prepare for any outcome in this case, and I have spoken with the Governor this afternoon and offered support and any assistance needed to ensure public safety.

Ethics verdict: Despicable and inexcusable.

  • What’s Biden “angry” about? Nobody should be “angry” that a jury did its job, and nobody who paid attention to the trial can be “angry” that a jury couldn’t find Rittenhouse  guilty after the prosecution’s botched case. Anger implies wrongdoing. The President of the United States should never, in any case, express an opinion about a jury’s decision.
  • Does anyone think Biden followed the case carefully, or watched it unfold? His comment is a deliberate pander to the worst of the Democratic base, and does as much to encourage violence as anything Trump said after the election.
  • Moreover, Biden is personally responsible for much of the confusion and anger over the case, having twice called Rittenhouse, falsely, a “white supremacist.”
  • Then he has the gall to say that he promised to “bring Americans together” after he deliberately enabled the race-baiters in Kenosha, and that he believes that every American is treated equally, with fairness and dignity, after he poisoned public opinion against Rittenhouse.

Biden’s not just a weak and addled President. He’s a two-faced, mean-spirited creep.

The rest of the Rittenhouse Rogues Gallery members who can be comfortably designated as Ethics Villains:

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A Rittenhouse Verdict Inventory Of Ethics Heroes, Dunces, Villains And Fools, Part I: Not Many Heroes

We should condition ourselves to cherish those public events that lure so many into definitively exposing their character, values and acumen for all to see. The Jacob Blake shooting, the subsequent demonstration and rioting, and the Kyle Rittenhouse trial, all intertwined, constituted such opportunities.

There are very few organizations, publications and individuals who will leave the stage in this annoying act in The Great Stupid drama deserving the designation of Ethics Hero. Rittenhouse certainly doesn’t, and thus the misguided pundits, politicians and others calling him that are dolts. He might be called brave, but bravery without good judgment, skill and experience too often leads to disaster, as it did in this tragedy.

Among the easily identified heroes are, first by several laps, the jury. I thought it was possible that, like the Chauvin jury, the twelve citizens might yield to the unethical public pressure being placed on them and refuse to see the reasonable doubt that made a conviction of Rittenhouse unjust as a matter of law, once the non-felony charges were dismissed. They didn’t yield, and delivered the fair and correct verdict despite irresponsible statements by elected officials who should know better, a less than sterling performance by Rittenhouse’s defense, credible threats of rioting in their community if they refused to follow the Black Lives Matter/Antifa script, and legitimate concerns about their own safety. Continue reading →

Red Ipsa Loquitur: The Democratic Congressional Campaign Committee Statement On The Rittenhouse Verdict

“It’s disgusting and disturbing that someone was able to carry a loaded assault rifle into a protest against the unjust killing of Jacob Blake, an unarmed Black man, and take the lives of two people and injure another — and face absolutely no consequences.”

—–The statement from DCCC Chairman Rep. Sean Patrick Maloney (D-N.Y.).

Let’s play “Find the False Representations!”