site banner
naraburns  nihil supernum  1yr ago (text post)   34500 thread views

Culture War Roundup for the week of March 6, 2023

This weekly roundup thread is intended for all culture war posts. 'Culture war' is vaguely defined, but it basically means controversial issues that fall along set tribal lines. Arguments over culture war issues generate a lot of heat and little light, and few deeply entrenched people ever change their minds. This thread is for voicing opinions and analyzing the state of the discussion while trying to optimize for light over heat.

Optimistically, we think that engaging with people you disagree with is worth your time, and so is being nice! Pessimistically, there are many dynamics that can lead discussions on Culture War topics to become unproductive. There's a human tendency to divide along tribal lines, praising your ingroup and vilifying your outgroup - and if you think you find it easy to criticize your ingroup, then it may be that your outgroup is not who you think it is. Extremists with opposing positions can feed off each other, highlighting each other's worst points to justify their own angry rhetoric, which becomes in turn a new example of bad behavior for the other side to highlight.

We would like to avoid these negative dynamics. Accordingly, we ask that you do not use this thread for waging the Culture War. Examples of waging the Culture War:

  • Shaming.

  • Attempting to 'build consensus' or enforce ideological conformity.

  • Making sweeping generalizations to vilify a group you dislike.

  • Recruiting for a cause.

  • Posting links that could be summarized as 'Boo outgroup!' Basically, if your content is 'Can you believe what Those People did this week?' then you should either refrain from posting, or do some very patient work to contextualize and/or steel-man the relevant viewpoint.

In general, you should argue to understand, not to win. This thread is not territory to be claimed by one group or another; indeed, the aim is to have many different viewpoints represented here. Thus, we also ask that you follow some guidelines:

  • Speak plainly. Avoid sarcasm and mockery. When disagreeing with someone, state your objections explicitly.

  • Be as precise and charitable as you can. Don't paraphrase unflatteringly.

  • Don't imply that someone said something they did not say, even if you think it follows from what they said.

  • Write like everyone is reading and you want them to be included in the discussion.

On an ad hoc basis, the mods will try to compile a list of the best posts/comments from the previous week, posted in Quality Contribution threads and archived at /r/TheThread. You may nominate a comment for this list by clicking on 'report' at the bottom of the post and typing 'Actually a quality contribution' as the report reason.

16
Top Bottom Old Controversial Comments
Jump in the discussion.

No email address required.

A bit meta - but why is nobody here talking about - congressional hearings about twitter files, new January 6th footage - those look like a prime culture war fodder. And yet it is suspiciously silent here? Personally my reason is that I can't just wrap my head around what is going on really.

I’ll share something about the J6 footage. The video shows that the “shaman” Jacob Chansly was a non-violent protestor on good terms with the police whom guided him through the corridors of the capitol. He is on video praying for the police and telling everyone to leave peacefully after reading Trump’s tweet. Also persuasive is the fact that only 106 officers were injured, whereas 180+ officers were injured when the progressive insurrectionists in 2020 attempted to seize the White House (burning down a piece of history in the process, a church of God). Remember that the media then laughed because Trump was placed in a safe location.

This only interests me a little though. What’s more interesting and scary is talking to an older relative who refuses to even watch the tape. Why? Because the news pushed stories to his iPhone immediately after Tucker’s monologue (which has 4mil views only on YouTube plus everyone who watches JRE plus etc). The News pushed debunks, or perhaps prebunks, in an attempt to inoculate their subjects viewers from ever being persuaded by Tucker’s video. None of it had anything that even vaguely amounts to a debunking. If Chansley was indeed violent, it should be as trivial as publishing the clip. The shaman didn’t exactly blend in with the crowd. But in fact, they can’t debunk it, so they just attack Tucker with persuasive linguistic programming.

I also noticed how insanely uninformed my relative was on what happened in the Greater Insurrection of 2020. His entire memory of the event is “Trump dispersed peaceful protestors for a photo op”. The media is so crafty and so consistent in their messaging, it leads to such resilient disinformation. What, the President shouldn’t be able to speak a few miles from his house, about the piece of history insurrectionist burned down? That’s clearly insane.

If Chansley was indeed violent

Violence is not an element of the crime Chansley pleaded guilty to, obstruction of an official proceeding. So it is irrelevant whether he was violent.

  • -14

In other words, for an extremely broad offense that was created to use against people interfering with trials and has never been used against protesters before, despite it being common for protesters to disrupt congress or other government proceedings.

https://archive.ph/XeEi2

Congress intended § 1512(c) – which was enacted as part of the Sarbanes-Oxley Act of 2002 – to broaden punishment for document destruction. As the Supreme Court explained in Yates v. United States, this was prompted by revelations of Enron’s massive accounting fraud and of the fact that the company’s outside auditor, Arthur Andersen LLP, “had systematically destroyed potentially incriminating documents.”

There is nothing in the legislative history that supports the notion that Congress enacted § 1512(c)(2) to criminalize the disruption of a Congressional proceeding by persons engaged in a political rally.

While that statute prohibits individuals from “corruptly obstructing” official proceedings, courts have interpreted those terms to include making false statements (see here, here, here and here), encouraging others to do so (here and here), falsifying documents, destroying evidence, thwarting a criminal investigation, or intimidating witnesses in a criminal proceeding.

None of these things happened on Jan. 6.

Further, demonstrators often disrupt congressional proceedings. Here are some examples:

The use of § 1512(c)(2) to prosecute demonstrators is novel. Other than the Jan. 6 cases, no reported cases prosecuted under § 1512(c)(2) since its passage in 2002 have involved a claim that demonstrations that disrupted an official proceeding committed an obstruction offense under § 1512(c)(2).

In other words, for an extremely broad offense that was created to use against people interfering with trials

That is incorrect. 18 U.S. Code § 1515 says:

(a)As used in sections 1512 and 1513 of this title and in this section—

(1)the term “official proceeding” means—

(A)a proceeding before a judge or court of the United States, a United States magistrate judge, a bankruptcy judge, a judge of the United States Tax Court, a special trial judge of the Tax Court, a judge of the United States Court of Federal Claims, or a Federal grand jury;

(B)a proceeding before the Congress;

(C)a proceeding before a Federal Government agency which is authorized by law; or

(D)a proceeding involving the business of insurance whose activities affect interstate commerce before any insurance regulatory official or agency or any agent or examiner appointed by such official or agency to examine the affairs of any person engaged in the business of insurance whose activities affect interstate commerce;

So, it does not apply only to disruption of trials.

There is nothing in the legislative history that supports the notion that Congress enacted § 1512(c)(2) to criminalize the disruption of a Congressional proceeding by persons engaged in a political rally.

Even if that is true (and see below), the problem with that is that under the textualist method of interpreting legislation, legislative history and Congressional intent are largely irrelevant, if the words of a statute are clear:

In statutory interpretation disputes, a court's proper starting point lies in a careful examination of the ordinary meaning and structure of the law itself. Schindler Elevator Corp. v. United States ex rel. Kirk, 563 U.S. 401, 407, 131 S.Ct. 1885, 179 L.Ed.2d 825 (2011). Where, as here, that examination yields a clear answer, judges must stop. Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438, 119 S.Ct. 755, 142 L.Ed.2d 881 (1999). Even those of us who sometimes consult legislative history will never allow it to be used to "muddy" the meaning of "clear statutory language." Milner, 562 U.S. at 572, 131 S.Ct. 1259. Indeed, this Court has repeatedly refused to alter FOIA's plain terms on the strength only of arguments from legislative history.

Food Marketing Institute v. Argus Leader Media, 139 S. Ct. 2356, 2364 (2019) [Opn by Gorsuch, joined by Roberts, Thomas, Kavanaugh, Alito and Kagan].

And see the LONG discussion of the application of Section 1512(c)(2) to Jan 6 here. Why is the court wrong?

So, it does not apply only to disruption of trials.

That is what I said. It is an extremely broad law that was originally created with the ostensible purpose of stopping stuff like destruction of evidence or intimidation of witnesses, and was previously only applied in that way, but that going by the text can be used to apply severe criminal charges to broad categories of protest activities. Now, if it was applied equally I might be at least somewhat sympathetic to the idea of cracking down on protest in general and pushing all political questions to be settled in the voting booth. But what makes it worse is that it is clearly being applied selectively based on the viewpoint of the protesters, a novel application of a law created because those charging them find the political cause of "Pence shouldn't certify the election results due to supposed evidence of fraud" particularly objectionable.

the problem with that is that under the textualist method of interpreting legislation, legislative history and Congressional intent are largely irrelevant

Your own link admits how absurdly broad the text is:

must be limited for it would otherwise produce "an absurd result that the Congress could not have intended in enacting the statute"). For instance, a person outside the Capitol building protesting legislation while it is under consideration by a congressional committee is surely attempting to "influence" the proceeding, but no one would seriously contend that such an act violates section 1512(c)(2). The same is true of a citizen who emails her congresswoman to urge her to vote against a judicial nominee. The court therefore appreciates the dangers that an unrestrained reading of section 1512(c)(2) would cause.

So how exactly do they distinguish between political activity prohibited by the text of the law that "nobody would seriously contend" actually violates it, and political activity prohibited by the text of the law that gets you years in prison? Well, they think this protest was bad:

Defendants are accused of having, individually and collectively, acted with the purpose "to stop, delay, and hinder the Certification of the Electoral College vote." Indictment ¶ 38. Wearing paramilitary gear, and with some moving in a "stack" formation, id. ¶ 39h–i, Defendants "forcibly storm[ed]" past exterior barricades and law enforcement, id. ¶ 39j, to carry out a planned "operation to interfere with the Certification of the Electoral College vote," id. ¶ 39a. Once inside the Capitol building, some made their way to the Senate wing of the Capitol and "push[ed] against a line of riot police officers guarding the hallway connecting the Rotunda to the Senate," retreating only after officers deployed a chemical spray. Id. ¶¶ 151–154. Others moved toward the House of Representatives. Id. ¶ 156. Some entered with bear spray and assaulted police officers. Id. ¶¶ 164–168. Their alleged conduct was no mere political protest or trespass.

Notice how, for instance, other protesters committing violence renders it "no mere political protest" and serves as justification for applying the law to nonviolent protesters like Chansley. That's sure not the standard that was applied to BLM protesters, including the ones who disrupted "official proceedings" by doing stuff like repeatedly setting that Portland courthouse on fire. But of course the primary determination of how the apply such a broad law isn't even with the court deciding which protests they like and which they don't, it's with those deciding to charge people with it in the first place. Code Pink loved to "obstruct, influence, or impede" Congress, but obviously nobody ever charged them under this law. In fact after writing that sentence I searched and here's an article from 2 weeks ago:

Code Pink protesters disrupt inaugural House China committee hearing

Two Code Pink activists attempted to disrupt the inaugural hearing of a House select committee on the Chinese Communist Party and were escorted out by security officials.

During testimony by former White House National Security Adviser H.R. McMaster, a woman from the pro-China leftist group held up a sign stating, “China is not our enemy,” and began shouting.

The capability of motivated reasoning to come up with reasons why such an overbroad law should apply to your political enemies is more than sufficient. The law should either not exist or at least not be interpreted as applying to cases anything close to this.

I took your claim to be that the law did not apply to the Jan 6 events. But if your claim is instead that it is overbroad, that is a different question. Maybe it is. But note that other courts, in completely different contexts, have rejected that precise argument re this precise law. To quote the case I linked:

The Second Circuit rejected a similar argument in United States v. Thompson , 76 F.3d 442 (2d. Cir. 1996). There, the defendant was convicted of witness tampering in violation of 1512(b)(1), and on appeal argued that " § 1512 violated his First Amendment rights by broadly ‘proscrib[ing] persuasion.’ " Id. at 452. The court rejected that argument, reasoning that "[a] prohibition against corrupt acts is clearly limited to ... constitutionally unprotected and purportedly illicit activity." Id. at 452 (internal quotation marks omitted). "By targeting only such persuasion as is ‘corrupt[ ],’ § 1512(b) does not proscribe lawful or constitutionally protected speech and is not overbroad." Id. ; accord United States v. Shotts , 145 F. 3d 1289, 1300 (11th Cir. 1998) (citing Thompson ); United States v. Brenson , 104 F.3d 1267, 1280 n.6 (11th Cir. 1997) ("A prohibition against corrupt acts does not proscribe constitutionally protected speech and is clearly limited to unprotected activity.").

The Court then observed that the indictment alleged acts intended to disrupt the proceeding, not mere speech.

Moreover:

we have vigorously enforced the requirement that a statute's overbreadth be substantial, not only in an absolute sense, but also relative to the statute's plainly legitimate sweep. See Board of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 485, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989); Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). Invalidation for overbreadth is "`"strong medicine"'" that is not to be "casually employed." Los Angeles Police Dept. v. United Reporting Publishing Corp., 528 U.S. 32, 39, 120 S.Ct. 483, 145 L.Ed.2d 451 (1999) (quoting Ferber, 458 U.S., at 769, 102 S.Ct. 3348).

United States v. Williams, 553 US 285, 293 (2008).

Also, "[f]acial overbreadth has not been invoked when a limiting construction has been or could be placed on the challenged statute," Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973). Construing the law to not apply to speech, even loud disruptive speech such as the Code Pink one, goes a long way toward addressing potential overbreadth issues.

Do you believe that is the normal punishment for such crime?

Well, according to the plea agreement, the sentencing guidelines range was 41 to 51 months. He got 41. So, yes.

  • -11

The question isn’t what sentencing guidelines say. The question is what does the average person get. For example, certain protestors without authorization got into private areas for senators to protest Kavanaugh. Were those persons even arrested let alone stuck with 41 months? The context of these statutes do suggest some degree of violence.

Moreover the elements of the crime require that it be unauthorized. Yet here the defendant is thanking the police for letting them in and was escorted by 9 police officers when there was no one else around; these police officers even tried to unlock doors for him. This is at least a mitigating factor.

He should’ve gotten jail time but 3.5 years seems excessive given that other protestors probably received zero jail time and the context muddies the water.

For example, certain protestors without authorization got into private areas for senators to protest Kavanaugh.

I am not familiar with those specific people. Did they do so with the intent to disrupt an official proceeding? And, apparently 300 people were arrested at some point. Not sure if they are the ones you are referring to.

Moreover the elements of the crime require that it be unauthorized

Where do you see that? The statute reads:

(c)Whoever corruptly—

(1)alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or

(2)otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.

I think you might be thinking of another charge such as entering or remaining in a restricted building

This is at least a mitigating factor.

Well, he did get the low end of the sentencing range. And, besides, the final offense level it calculated after mitigating and aggravating circumstances are added. Eg: According to the plea agreement, his agreed-upon offense level was reduced for acceptance of responsibility

  • -12

You are missing the point. Sure, you can certainly make the case that Jacob Chansley’s actions were criminal if you look only at the bare letter of the law, and ignore context. The argument is, however, that there have been thousands of other people, hundreds in the specific example of Kavanaugh hearings, that also broke the bare letter of the law in roughly the same degree of egregiousness as Chansley, but none of whom even faced anything close to criminal trial, much less years in prison. The argument here is about malicious prosecution which is completely outside historical norms for the behavior.

Imagine, for example, that federal government found that some of these protesters are not US citizens, but permanent residents, and found that they are not carrying their green card, as required by law, and charged them with misdemeanor and put them for 30 days in jail. The letter of the law clearly allows that, but it would be completely outrageous, as this law is never enforced in any other circumstance, so it would be hard to see it as anything other than malicious political targeting.

Yes, I am familiar with the concept of selective prosecution (not malicious prosecution, which is a tort). But if you are going to claim that they "broke the bare letter of the law in roughly the same degree of egregiousness as Chansley," you should probably cite some evidence of what explicitly they did. Because it seems to me that attempting to prevent the peaceful transfer of power from the loser of an election to the winner is pretty egregious.

More comments

Count 2, 3, and 5.

And yes there was an intent to interfere with Kavanaugh deliberations.

Additionally, I imagine the looters who were attacking the White House got less than 3.5 years.

That is, there is massive discretion in charging and pleas. Citing the sentencing guidance is far downstream of the relevant decisions.

Count 2, 3, and 5 . . . That is, there is massive discretion in charging and pleas.

Yes, there is, and prosecutors always charge as much as possible, and most charges are eventually dropped when more facts come to the fore (and sometimes charges are added when more facts come to the fore). The entire allegation is that this guy was treated more harshly than is normal, but what the prosecutors did as in fact completely normal. That doesn't mean it is ok, but the claim that he was somehow was singled out is not supported by simply pointing to what was alleged in the indictment.

And yes there was an intent to interfere with Kavanaugh deliberations.

I cannot comment unless you can link to exactly what you are referring to.

Additionally, I imagine the looters who were attacking the White House got less than 3.5 years.

Were they attempting to disrupt an official proceeding? It doesn't sound like it.

More comments

No, but do you believe that the official 12th-amendment electoral vote count is the normal official proceeding for such crime?

No but it doesn’t seem to me much worse compared to say interfering with the advice and consent for a SCOTUS justice.

But in actuality, not by the letter of the law but how it plays out, the residue of violence colors the view of judges and prosecutors. Chansley was held without bail, and he was charged extravagantly despite all of the other protestors being guilty of the same crime.

Charged extravagently? Obstruction of an official proceeding seems to be the most serious charge in the indictment. And if you think 6 counts is extravagent, you clearly are not familiar with standard practice.

  • -11

... I get that you're bouncing off the "corruptly obstructing official proceeding" having the maximum theoretical charge, but it's "Violent Entry and Disorderly Conduct in a Capitol Building" seems kinda relevant. The man's a putz, but you can stick with the truth and still say that.

What is this place?

This website is a place for people who want to move past shady thinking and test their ideas in a court of people who don't all share the same biases. Our goal is to optimize for light, not heat; this is a group effort, and all commentators are asked to do their part.

The weekly Culture War threads host the most controversial topics and are the most visible aspect of The Motte. However, many other topics are appropriate here. We encourage people to post anything related to science, politics, or philosophy; if in doubt, post!

Check out The Vault for an archive of old quality posts. You are encouraged to crosspost these elsewhere.


Why are you called The Motte?

A motte is a stone keep on a raised earthwork common in early medieval fortifications. More pertinently, it's an element in a rhetorical move called a "Motte-and-Bailey", originally identified by philosopher Nicholas Shackel. It describes the tendency in discourse for people to move from a controversial but high value claim to a defensible but less exciting one upon any resistance to the former. He likens this to the medieval fortification, where a desirable land (the bailey) is abandoned when in danger for the more easily defended motte. In Shackel's words, "The Motte represents the defensible but undesired propositions to which one retreats when hard pressed."

On The Motte, always attempt to remain inside your defensible territory, even if you are not being pressed.


New post guidelines

If you're posting something that isn't related to the culture war, we encourage you to post a thread for it. A submission statement is highly appreciated, but isn't necessary for text posts or links to largely-text posts such as blogs or news articles; if we're unsure of the value of your post, we might remove it until you add a submission statement. A submission statement is required for non-text sources (videos, podcasts, images).

Culture war posts go in the culture war thread; all links must either include a submission statement or significant commentary. Bare links without those will be removed.

If in doubt, please post it!


Rules


Recommended Posts And Communities

Recommended Realtime Chats