E-Pluribus | Apr. 26, 2021
Here is a roundup of the latest and best writing and musings on the rise of illiberalism in the public discourse:
Allen Dickerson: ‘Donor Disclosure’ Chills Free Speech
The Supreme Court is getting ready to hear a case involving current vice president and then-Attorney General Kamala of California and free speech. The case, Americans for Prosperity Foundation v. Rodriquez, relates to California’s attempts to force charities and non-profit advocacy groups to disclose donor lists ostensibly to help with investigations. While Allen Dickerson argues the court’s decision for the plaintiffs should be a slam dunk, observers cannot ignore the potential impact of the political atmosphere on the outcome of the case.
California’s policy would turn that rule on its head. The attorney general’s pretext for warehousing contributors’ identities is so thin that nearly any government would be able to make similar demands. One can imagine how such databases could be weaponized as social mores change. Consider how a similar policy might have been abused during, say, the national debate over same-sex marriage.
But even if this case is straightforward, no Supreme Court case occurs in a vacuum. This one comes amid intense polarization and hand-wringing over “dark money” — a catchy slogan that eludes definition and is used more often to avoid debate than engage in it. There is pressure on the justices to further cramp private association.
Some advocacy groups have for years wanted nonprofit contributors to be disclosed publicly. The legendary First Amendment lawyer Floyd Abrams has joined them in a brief on behalf of his eponymous institute at Yale Law School, calling for the compulsory public disclosure of donors to any group discussing “matters of public concern.” He argues that the public has a “First Amendment interest” in such information. While Mr. Abrams has done more for the First Amendment than almost anyone alive, he is mistaken.
Read the whole thing here.
Andrew McCarthy: Chauvin Defense Witnesses Face Post-Trial Intimidation Campaign
The trial of Derek Chauvin has already seen some disturbing attacks on the concept of due process (see E-Pluribus, April 20, third item.) Now Andrew McCarthy writes of two defense witnesses from that trial that are being subject to some forms of harassment or intimidation that, if such actions were to become commonplace, could produce a chilling effect on those called upon to testify in trials, particularly a trial that has political overtones. Some may see it as “accountability” for someone who is “helping” someone viewed as a bad person, but McCarthy assures us no one would be happy with the end result of such a practice.
Dr. Fowler is a very impressive and accomplished forensic pathologist. That is why the state of Maryland was happy to have him for 17 years. There is no reason to believe that he gave anything other than honest testimony. And not that this should matter — witnesses are supposed to answer questions truthfully and let the chips fall where they may — but Fowler’s testimony hardly precluded Chauvin’s guilt. It might potentially have convinced the jury that Chauvin had reason to believe the restraint tactics the police used would not have imperiled the life of a normal, healthy person. That could have helped the defense argue that Chauvin lacked criminal intent on the two murder charges. But it would not have helped Chauvin on the crucial question of causation, nor would it have been much help on the manslaughter charge — on which prosecutors needed to show only recklessness, not criminal intent.
Importantly, Fowler’s testimony could have helped Chauvin only because the facts of the case also lent themselves to a conclusion that medical and drug-abuse problems were contributing causes of Floyd’s death. That is hardly Dr. Fowler’s fault, let alone a situation fabricated by his testimony.
Meanwhile, last weekend, vandals smeared pig’s blood on the former home of Barry Brodd, leaving a severed pig’s head behind. Brodd is the former federal and state law-enforcement officer who testified as a use-of-force expert in Chauvin’s defense case. Brodd has not lived at the California residence for years, but investigators suspect the obvious: The sickening display was intended as retribution for his testimony.
As I reported at the time, Brodd was shredded on cross-examination by prosecutor Steve Schleicher. His testimony thus turned out to be a coup for the prosecution. Nonetheless, Chauvin had a constitutional right to due process of law, rudimentary components of which are the right to present a defense and call witnesses to testify on behalf of the accused.
The Left, which is given to impassioned demands for due process when the accused are foreign terrorists or corrupt politicians with a “D” after their names, is clearly having a problem with the principle that everyone, including indicted police officers, is entitled to constitutional safeguards.
We have reached a dangerous pass.
Regardless of whether one agrees that Chauvin should have been convicted on all three counts against him, there was sufficient evidence to uphold the verdicts as rational. That, however, is an entirely separate question from whether Chauvin was adequately afforded due process.
Read it all here.
ICYMI: Mike Abramowitz and Nate Schenkkan: The Long Arm of the Authoritarian State
Back in February, Mike Abramowitz and Nate Schenkkan addressed the increasing reach of oppressive regimes as they seek to silence and/or punish those who dare oppose them. The authors identify several factors contributing to this disturbing trend, among them technology, hostility to asylum-seeking and even ordinary migration, and unintended consequences from the war on terrorism. Abramowitz and Schenkkan write that strict accountability and consequences for totalitarian governments that carry out such actions are a must along with reforms within democratic nations if these rogue activities are going to be curtailed.
Solutions will also require that democracies look within themselves. That means democratic governments restoring the fundamental right to seek asylum; conducting sustained outreach to vulnerable communities without making them targets for increased surveillance; using diplomatic and financial pressure to reform Interpol so it can no longer be abused; and shutting down commercial spyware exports that facilitate repression. These steps can strengthen protections for exiles and make it harder for states to reach their nationals abroad.
Transnational repression is a problem that illustrates how, now more than ever, “over there” is in fact “right here.” In a 2018 speech, Joe Biden accurately linked the global rise of authoritarianism with the turn to xenophobia and illiberalism inside democracies. President Biden’s administration has already taken laudable steps to move away from the hyperaggressive immigration and border policies of the Trump era, which should reduce opportunities for other states to exploit the U.S. immigration system against exiles. The administration has also frozen the previous administration’s questionable arms sales to Saudi Arabia, and the new director of national intelligence, Avril Haines, has pledged to submit the intelligence community’s report on Khashoggi’s killing to Congress. These are not yet a strategy to counter transnational repression, but they are signs pointing in the right direction.
Read it all here.
Around Twitter
Academic freedom, watch lists, hate speech, free speech…
Censorship and COVID-19:
“Biggest threat”? Senator Ted Cruz: “Twitter says, we have the power to shut down the press”
The Foundation for Individual Rights in Education on standing and/or kneeling for the National Anthem:
