site banner
naraburns  nihil supernum  1yr ago (text post)   38068 thread views

Culture War Roundup for the week of March 27, 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.

11
Top Bottom Old Controversial Comments
Jump in the discussion.

No email address required.

Remember how back in 2016, there was a funny meme going around about how you could text to vote for Hillary? A man named Douglass Mackey was behind that, who has been found guilty of election interference by a jury in New York. The argument goes that this effectively deleted a bunch of votes that should have gone to Clinton. Okay, so how many?

Leading up to Election Day, at least 4,900 unique telephone numbers texted “Hillary” or something similar to the 59925 text number, the U.S. attorney’s office said.

...I'm not an expert on the 2020 allegations of election interference, but come on now, I'm pretty sure those allegations were more than just thousands of votes. And they were dismissed on account of not likely having affected the election. Regardless, the meme was clearly a joke; that 4,900 number seems absolutely paltry and criminally charging him is making a mountain out of an anthill.

More importantly, it's not hard to interpret this in the light of Trump's recent indictment for a matter that also transpired in 2016. Now, I can understand the argument that the reason they didn't try to charge him then was because he was the president, and it would be pretty hard to try to bring charges against the president while he's in office, therefore they waited until he was out. Or, they didn't know that he paid off the porn star until recently. But this? Douglass's tweet was very public and they could've easily charged him all the way back in 2016 if they wanted to. Why are they doing it now?

Some previous discussion here more contemporaneous to the original indictment.

The court's first amendment analysis at the motion to dismiss phase is here, but not very compelling. The denial of motion to dismiss summarizes it in courtlistener as :

"18 U.S.C. § 241 as applied in the Indictment does not, as a matter of law, violate the First Amendment because although the case involves false utterances, it is at its core, about conspiracy and injury, not speech. To the extent that the case does implicate the First Amendment, it is constitutional under the standard for false utterances set forth by the Supreme Court in United States v. Alvarez . 132 S. Ct. 2537 (2012). Although Defendant Mackey contends that the false utterances are protected as satirical speech, that is an issue of fact for the jury."

There's a few specific comparisons, but they're pretty limited to largely slapping the fraud exception onto things.

And the DoJ's comparable case from an earlier motion is almost universally non-speech matters:

It is beyond question that the right to vote may be injured by non-threatening means. See e.g., United States v. Saylor, 322 U.S. 385 (1944) (ballot stuffing); United States v. Classic, 313 U.S. 299 (1941) (manipulating ballots and false certification); United States v. Mosley, 238 U.S. 383 (1915) (omitting ballots); United States v. Haynes, 1992 WL 296782 (6th Cir. 1992) (unpublished) (withholding ballots); United States v. Stone, 188 F. 836 (D. Md. 1911) (confusing ballots)...

... For example, in Anderson, the Supreme Court affirmed a Section 241 conviction because the defendant’s casting of fictitious ballots “injure[d] the right of all voters in a federal election to express their choice of a candidate and to have their expressions of choice given full value and effect.” 417 U.S. at 226; see also United States v. Weston, 417 F.2d 181, 183 (4th Cir. 1969) (“[I]t has been established in this circuit that the procurement of absentee ballots in violation of state election laws is indictable under 241.”) ...

... Consistent with the Supreme Court’s holding in Anderson, courts have long held that Section 241 prohibits deceptive or misleading behavior intended to deprive voters of their constitutional right to vote. In Stone, the court found that a conspiracy to print misleading or confusing ballots that made it easier for a person of limited literacy to vote for a Democrat than a Republican violated a predecessor of Section 241. 188 F. at 839-40.

or involve professional speech that's been long-excluded in very specific contexts:

Indeed, deception that injures other constitutional rights has also been found to violate Section 241. For example, courts have approved the use of Sections 241 and 242 to prosecute police officers who violate the Fourth Amendment by making false statements in search warrant affidavits, conduct that, like the defendant’s, includes misleading words. See United States v. Melendez, 2004 WL 162937 (E.D. Mich. Jan. 20, 2004) (denying motion to dismiss in Section 241 case). Melendez and a Sixth Circuit case, United States v. Bradfield, 2000 WL 1033022 (6th Cir. July 18, 2000), involve, among other things, “falsified police reports” that injured the right under the Fourth Amendment to be free from unreasonable searches. Melendez, 2004 WL 162937, at *8. The Melendez court held that, “[b]ased on these cases, the conduct alleged in the indictment is unlawful according to pre-existing law and satisfies the fair warning concern of Lanier,” and it denied the defendants’ motion to dismiss. Id., (citing United States v. Lanier, 520 U.S. 259 (1997))

It'd be funny if this was the case that got SCOTUS to categorically disfavor any untrue speech, given the various changes to the bench, but it's more likely Mackey just has it disappear in a bunch of inventive decisions by state courts of appeal. As back in 2021, I can't see any way to merge this with existing jurisprudence -- 18 USC 241 is just far too ludicrously vague and broad, even if a law specifically about election-specific lies might be acceptable -- but I dunno how much that matters if no one's going to make this a cause celebre.

In Minnesota Voters Alliance v. Mansky, 138 S. Ct. 1876 (2018), the Supreme Court said: "We do not doubt that the State may prohibit messages intended to mislead voters about voting requirements and procedures." So the free speech argument does not seem to be very compelling.

Why are you mentioning that "the DoJ's comparable case from an earlier motion is almost universally non-speech matters?" The portions you quote are in response to a completely different argument: "The defendant’s due process argument is largely rooted in his assertion that he simply could not have understood that his alleged conduct was illegal." There is an entire section of that DOJ filing that discusses the First Amendment argument -- it actually discusses Mansky -- which goes on for seven pages.

I'm familiar with Mansky, and I referenced it at length in the previous 2021 discussion I linked above (indeed, started by referencing!). And I agree and agreed that a specific law against election-related false statements would (and should) probably survive SCOTUS scrutiny.

Why are you mentioning that "the DoJ's comparable case from an earlier motion is almost universally non-speech matters?" The portions you quote are in response to a completely different argument: "The defendant’s due process argument is largely rooted in his assertion that he simply could not have understood that his alleged conduct was illegal."

Because the First Amendment right to free speech is one of those few places SCOTUS has taken things seriously, and that section did not. It is not enough for First Amendment analysis to say that any imaginable law could prohibit conduct, thus this application of the law here is permissible: the First Amendment is one of the few areas where rather than the clear division of facial- and as-applied challenges, we have the glory that is the "chilling effects" doctrine. This nexus of due process and First Amendment concerns has driven a pretty wide variety of constitutional law, and they're pretty relevant here.

There is an entire section of that DOJ filing that discusses the First Amendment argument -- it actually discusses Mansky -- which goes on for seven pages.

A good half of that is defining the behavior here as fully non-speech conduct and compares to other obviously-and-well-established non-speech conduct (pgs 15-19), and of the few pages (19-22) even discussing it in the context of speech, the comparable cases are if anything worse than the due process section:

  • Anderson v. Celebrezze, where the court held "Ohio's early filing deadline places an unconstitutional burden on the voting and associational rights", quotes from part of the decision which is describing how the state has "has the undoubted right to require candidates to make a preliminary showing of substantial support" and "to prevent distortion of the electoral process by the device of "party raiding," the organized switching of blocs of voters from one party to another in order to manipulate the outcome of the other party's primary election".

  • Burson v. Freeman, where "There is a substantial and long-lived consensus among the 50 States that some restricted zone around polling places is necessary to serve the interest in protecting the right to vote freely and effectively..." "...provided that the response is reasonable and does not significantly impinge on constitutionally protected rights."

  • John Doe No. 1 v. Reed, where it was constitutionally permissible for a state law to require petition signatories to be disclosed.

  • Mansky, which as I'm sure you know was about people wearing political hats and t-shirts (and buttons?) at the polls themselves.

  • NCBCP v. Wohl, which was about robocall 'jamming' of a political centre.

That is, these all reflect clearly non-speech conduct, or closely-held locations, or sometimes both. The closest in comparison is Wohl, but cell phone direct messaging has long been given lower protection. More importantly, it used an entirely different statute(s) specific to the behavior at hand: Wohl was charged under 52 U.S.C. § 10307(b) ("intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for voting or attempting to vote") and 42 U.S.C. § 1985(3) ("conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote"). These statutes are both specific to the conduct (intimidation), the matter being defended (voting rights), and focused on an area with long-established exception (or at least as non-mushy as SCOTUS' "true threats" doctrine is.)

I agree and agreed that a specific law against election-related false statements would (and should) probably survive SCOTUS scrutiny.

I guess I don't get why a specific law would and should survive scrutiny, whereas the application of the general law outlawing conspiracy to deprive someone of rights to the same conduct would not. As you know, the Court has often held that the application of a general law to the actions of a defendant violate that defendant's free speech rights, but I don't recall a single time that the Court said that a specific law that did exactly the same thing would somehow not be a violation of his free speech rights. That doesn't mean that they don't exist, but I would be interested to see one.

the comparable cases are if anything worse than the due process section . . . So, none of these all reflect clearly non-speech conduct

That does not seem to be true:

  1. Anderson is not cited for its holding or facts, but merely for "compiling cases that upheld restrictions on speech to protect electoral integrity."

  2. Burson is cited merely for the principle that even pure, political speech on the merits of candidates and ballot issues can be restricted in order to preserve election integrity. And the statute there "prohibits the solicitation of votes and the display or distribution of campaign materials within 100 feet of the entrance to a polling place. That is not "non-speech conduct."

  3. John Doe is cited for the same thing, and related to a law permitting the public release of referendum petitions. Signing a petition to but a referendum on the ballot is not "non-speech conduct."

  4. Wohl is cited merely for the claim that " lower courts have not been blind to the grave risks offered by conduct like that of the defendant" but, as you noted, it is about robocalls falsely telling voters that if they vote by mail, "your personal information will be part of a public database that will be used by police departments to track down old warrants and be used by credit card companies to collect outstanding debts." That sounds like pretty much pure speech to me.

No one has ever been prosecuted before for posting text-to-vote memes. How could he have known it was illegal? They have enough laws and subclauses and fine print to make us all guilty of something.

This is just special pleading. Just because he came up with a new way to violate an established law does not mean that he could not have known it is illegal.

If qualified immunity protects government officials who knowingly break the law, but who do so in a way that hasn’t yet been ruled to clearly violate their victims’ constitutional rights (e.g., police who steal $225,000 while on the job), wouldn’t you agree that a sane legal system should likewise protect non-government officials in a similar way?

Leaving aside the fact that, by definition, qualified immunity does not protect against violations of established law ("We need not determine whether the complaint plausibly alleges the violation of a constitutional right, because Mr. Montgomery fails to show that the officers' actions violated clearly established law." Montgomery v. Gerdjikian (no. 22-1126, 10th Circuit 2023)), and that QI only applies to civil suits alleging violations of constitutional rights, which with very few exceptions can't be be violated by non-governmental actors, this is a criminal case. Qualified immunity does not protect officials from criminal prosecution.

As an aside, I am no fan of current QI jurisprudence, but there are perfectly legitimate reasons for providing QI re suits under Section 1983, which allows a successful plaintiff to recover his attorney's fees from the defendant. Make it too easy to sue under Section 1983, and no govt official will ever even think to look cross-eyed at anyone with money. And, btw, "qualified immunity, as a federal doctrine, does not protect government officials from liability under state law." Mack v. Williams, 138 Nev. Adv. Op. 86 (Nev: Supreme Court 2022), citing many cases.

In Minnesota Voters Alliance v. Mansky, 138 S. Ct. 1876 (2018), the Supreme Court said: "We do not doubt that the State may prohibit messages intended to mislead voters about voting requirements and procedures." So the free speech argument does not seem to be very compelling.

Was the Supreme Court's next word "But"?

Well, you could look the case up to find out. But, yes, it was dictum, which is obvious from the construction of the sentence (and also obvious from the fact that I said that the Court "said" that, rather than "held" that, and from the fact that I said that the First Amendment claim "does not seem to be very compelling" rather than "is incorrect under current jurisprudence."). It was dictum because the law in question did not purport to do that, but rather purported to limit lies about the candidates: "But that interest does not align with the State's construction of "political" to refer to messages "about the electoral choices at issue in [the] polling place." And, as I noted, the AG cited Mansky extensively, and in fact the District Court relied on Mansky in denying Mackey's motion to dismiss on First Amendment grounds.

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