Tired of ‘Winning’ Yet?

By Kevin D. Williamson

Sunday, May 31, 2020

 

I’ve never really thought of Mark Steyn as a Palestinian suicide bomber before.

 

You’ll want some context.

 

Steyn, a wonderful writer and former National Review colleague, was filling in for Rush Limbaugh a few weeks ago, and he made the case for using antitrust law to bully technology platforms such as YouTube (a Google subsidiary) into giving Republicans a fairer shake. Steyn conceded that the idea might not have much legal merit but insisted that it was necessary on political grounds. The Left, he said, is “serious about power,” and therefore the Right has to be equally “serious” — even if that means, as it plainly would mean here, abusing federal antitrust powers in the service of partisan political ends.

 

Steyn was leaning on a classic political trope, in effect: “The other side is a bunch of rat bastards, and therefore it not only is morally acceptable for us to be rat bastards, but we have a moral obligation to be rat bastards — if you aren’t a rat bastard, you aren’t a patriot.” Those are my words; Steyn’s would be cleverer, and possibly sung.

 

That is a pretty common line of thought, if you want to call it that, on the right right now — and on the left, too. Our lefty friends moan that the Right has all the money on its side and all the corporations (except Google, PepsiCo, AT&T, NBCUniversal, Facebook, UBS, JPMorgan Chase, Deloitte . . .), and the Left is therefore justified in engaging in political violence, slander, lies, acts of suppression from the petty to the grand, blacklisting, etc.

 

These are obvious post facto rationalizations of bad behavior. It’s the same reason our Democratic friends have insisted that every Republican president of the modern era was the moral equivalent of Adolf Hitler — they want to behave badly, they do not have sufficient moral cultivation to control themselves, they are looking for a moral permission slip, and there is no ethical get-out-of-jail-free card like the National Socialist German Workers’ Party.

 

You hear precisely the same thing from people who seek to justify terrorism. Jihad apologists will tell you that of course the Palestinians have to employ terrorism, of course they have to send suicide bombers, of course they have to murder women and children in Sbarro — the Israelis are so vicious and nefarious that anything is acceptable in opposing them, but the Arabs cannot beat them on the battlefield, try as they might.

 

In the Age of Trump, Republicans call that “winning,” which is not exactly the right word.

 

President Trump, incensed that Twitter has put B.S. labels on a couple of his B.S. tweets — not the ones claiming Joe Scarborough murdered a woman, bizarrely enough — retreated into Generalissimo Walter Mitty mode, that thing he does where he postures like an autocratic tyrant and then does . . . squat, more or less. If Twitter doesn’t get its act together, he threatened, “We will strongly regulate, or close them down,” a completely empty threat. He then issued a patently unconstitutional and frankly ridiculous executive order purporting to punitively revoke legal protections enjoyed by technology companies (and publications with comments sections, such as National Review) under the Communications Decency Act. But, in spite of the best efforts of Senate Democrats, the First Amendment still stands and remains an operative part of the Bill of Rights. Twitter CEO Jack Dorsey will have a good chuckle and then mix himself another dihydrogen monoxide smoothie.

 

President Trump, ever the addict, was right back on Twitter, threatening to have the National Guard murder looters in Minneapolis. We don’t do censorship in the United States, and we don’t do summary executions, either. On Friday, another guest host for Rush Limbaugh allowed that the president’s actions were “unorthodox” or “outrageous.” We should speak plainly: These are lies and threats and abuses of the president’s position. These aren’t questions of etiquette. Republicans should stop making excuses for them or stop wrapping themselves in the mantle of patriotism — one or the other.

 

Republicans used to be the freedom people: free speech, free trade, free enterprise, free markets, freedom of religion, freedom of association, free to keep and bear arms. Trump and his partisans too often are the opposite of that: the neo-mercantilism people, the wildly expansive government power people, the Orbán toady people, the “total authority” people, the people who complain about abuses of presidential power on Monday and think up implausible excuses for them on Tuesday, the people who conflate corporatism with patriotism, the slanderers, the conspiracy goofs, the shut-down-Twitter-if-Twitter-doesn’t-do-what-we-want people.

 

Our friends on talk radio insist that we are one election away from “losing America.” If the president can shut down media he doesn’t like on a whim, then we already have lost it. All that talk of “winning” assumes a prize worth having and champions who deserve it.

 

That kind of winning looks a lot like losing.

Hong Kong and the Price of Freedom

By Michael Brendan Dougherty

Friday, May 29, 2020 11:21 AM

 

Beijing’s attempt to impose a national-security law on Hong Kong that would vitiate the city’s semi-autonomous status and undermine its common-law system is the most important political story in the world right now.

 

Why? Because it demonstrates a lesson we all need to internalize. The West long ago convinced itself that Chinese economic development would eventually lead to Chinese political liberalization, having previously applied the same theory to Warsaw Bloc countries in the later stages of the Cold War. In Poland and Czechoslovakia, history proved the theory to be precisely backward: Political revolution preceded economic reform. In China, a West-enabled economic boom has coincided with the Communist Party’s predatory capture of industries and the skills that go with them, which in turn has made the Party’s grip on political power and its influence over neighboring countries and the West only stronger.

 

For doe-eyed analysts of the 1990s, political and trade liberalization were two sides of the same coin; free nations would necessarily have an easier time accessing capital, manufacturing goods, and achieving prosperity. But China’s rise hasn’t worked like that. At the time of the peaceful handover of Hong Kong from the British in 1997, the city accounted for nearly 20 percent of the entire Chinese economy. Now, it accounts for less than 3 percent. Beijing recognizes the strong leverage that decline affords it, and has set out to make Hong Kong choose between prosperity and freedom: The city’s massive civic-protest movement against mainland subversion has been incredibly disruptive to its economy.

 

The pretense that China is just another “market player” allows China to put the same question to the West’s technocrats: What do you really value in the grand scheme of things — this abstraction called “political freedom,” or the freedoms that come from putting bread on the table?

 

From the Belt and Road initiative across Eurasia, to Huawei’s efforts to muscle in on 5G networks across Europe and the world, to China’s privileged position in Apple’s supply chain, Beijing consistently forces some version of this choice between material comfort and political freedom on others. Try to convince yourself that Chairman Xi doesn’t smile knowing that Apple CEO Tim Cook freely criticizes religious-freedom laws in the United States, but remains silent while the Chinese government rotates persecuted and interned Uighur Muslims into the factories of Apple’s subcontractors.

 

Hong Kongers have fought Beijing’s efforts valiantly. They turned back previous CCP attempts to consolidate power in 2003, in 2014, and last year. So we shouldn’t accept that Beijing’s subversion of Hong Kong is a fait accompli.

 

Well-intentioned proposals to open our countries to Hong Kongers and inflict brain drain on Hong Kong are premature and perhaps unwise. They would hurt those left behind in the city as much as dramatic trade actions would. Diplomatic efforts, meanwhile, need to focus on detaching European leaders from their long-standing hopes that China could serve as a welcome geopolitical counterweight to the U.S. Prime Minister Boris Johnson should be prodded — even shamed, if necessary — into doing his duty and standing by the terms of the 1997 handover. Angela Merkel and others should be reminded of the costs to native industry and political independence that deals with China carry. Coordinated efforts to stand up and even recapture key industries should be made by Western leaders so that their successors don’t have to make as many economically painful decisions in an effort to protect national sovereignty and political freedom.

 

Hong Kong may have more levers of power than it realizes. Much of the capital invested into mainland China and many of the enterprises that have entered the country have come through the city, because of its more secure property rights and its independent courts. An intelligent strategy of dissent in the street and wisely targeted diplomatic entreaties to sympathetic political and corporate leaders could put the choice between prosperity and freedom back on the CCP, and make freedom the more attractive of the two to Xi.

 

In a world that is quite cynical about power and money, Hong Kongers are doing something that should inspire all of us, demonstrating that freedom cannot be sold cheaply. We owe them — and ourselves — the best backup we can muster.

It Doesn’t Matter If Twitter Is a ‘Publisher’ or a ‘Platform”

By David Harsanyi

Friday, May 29, 2020

 

A number of conservatives seem wedded to the false idea that if social-media sites like Twitter act like “publishers” rather than “platforms,” they can be stripped of liability protections. Take my friend John Daniel Davidson, who writes in The Federalist: “If Twitter wants to editorialize and ‘factcheck’ President Trump’s tweets with disclaimers, then it should be treated like any other publisher.”

 

But it is. John makes numerous solid points about the transparently partisan and hypocritical way in which Jack Dorsey runs his business. And perhaps John believes there should be new legislation governing Internet liability. Right now, though, there’s no legal distinction between a “platform” and a “publisher” in Section 230. Twitter is already treated like every publisher.

 

The Wall Street Journal and New York Times are both publishers, and yet they also enjoy Section 230 protections for third-party content.  The law encourages moderation of third-party users.

 

Here is the relevant bit:

 

No provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.

 

Nowhere does Section 230 stipulate that this moderation needs to adhere to any ideological “neutrality” — a subjective, debatable and unconstitutional standard, even if it did.

 

If a commenter on The Daily Planet website defames someone by accusing them of criminality, The Daily Planet is not liable. If The Daily Planet commissions that commenter to defame someone on its site, The Daily Planet is liable. In the same way, if Twitter “factchecks” a user, its opinion should be considered published material that is no longer protected from liability. By offering one opinion, Twitter isn’t suddenly liable for the billions of other tweets that exist on its site, or for the opinion held in the tweet to which it is responding.

 

People keep telling me that Twitter was bestowed with some kind of special exemption, probably because they keep hearing it from politicians. “It’s pretty simple: if Twitter and Google and the rest are going to editorialize and censor and act like traditional publishers,” says populist Missouri senator Josh Hawley, “they should be treated like traditional publishers and stop receiving the special carve out from the federal government in Section 230.”

 

There is no special carve out for Twitter or Google in Section 230. When the law was written in 1996, politicians couldn’t conceive of the widespread democratization and interactivity of the 2020 Internet. Thankfully.

 

Now, I’m not a lawyer, and I concede that perhaps I don’t fully understand all the intricacies of Section 230 of the Communications Decency Act. What is certain, though, is that if Hawley passes a new bill that deprives tech companies of liable protections for third-party comments — and videos and memes and pictures they post — the Internet is going to be overwhelmed with lawsuits — often bankrolled by special-interest groups looking to shut down speech. Media companies will soon abandon open forums, because there will be no upside.

 

Right now, despite the position of Trump (and let’s not forget, Joe Biden), the Internet is a relatively open space. Entrepreneurs can create new interactive platforms. They can create sites that allow people to connect without worrying about being sued. The president can move to those sites — or to Facebook, where Mark Zuckerberg assures us he has no interest arbitrating political truths — and instantaneously take millions of users with him. What he can’t do, as I wrote yesterday, is override existing law.

 

Even if he could, all he’d be doing is destroying social media. Now, you might contend that’s a morally sound position. But it wouldn’t give conservatives more of a voice or make speech any freer.

Anger Is Justified, Riots Never Are

By Michael Brendan Dougherty

Friday, May 29, 2020

 

Sometimes a responsibility falls to you that you never anticipated. Sometimes history just demands that someone should say it: Riots are bad. Riots are never a coherent or moral response to injustice, they just multiply injustices and the rioters themselves often suffer more in the long run.

 

Unfortunately it must be said, because absolute morons who would call the cops without hesitation if there were an unruly loudspeaker or birdwatcher in their nice neighborhoods are cheering on and excusing rioting — rioting that is destroying businesses, livelihoods, and even a community center for Native American youth. The apologists for rioting and arson accuse people who are appalled by these acts of not caring about injustices. It cannot be said emphatically enough: This is the precise opposite of the truth.

 

People who apologize for rioters say that rioting challenges the system. But of course it doesn’t. Robbing and shooting at Korean immigrants in Los Angeles, or nearly killing a random white truck driver, did not get anyone a tenth of an inch closer to justice for Rodney King or reform of the LAPD; these were just other barbarous crimes.

 

Indistinct blathering about “the system” is an attempt to smuggle away the reputation of revolutionaries and bequeath it to rioters. But revolutionaries join targeted violence to a political rationale. If the rioters are revolutionaries, they should tell us their grievances, describe their dreamed-of settlement, and show us they are burning down the right buildings and happy to shoot the right people. They haven’t done so, of course. But if revolution is unattractive in the absence of such a rationale, or inadvisable because it is futile, certainly a campaign of disorganized violence at whatever targets seem juicy in the moment is just mayhem for its own sake.

 

We must distinguish rioting and looting from protesting. People do not loot seeking justice for George Floyd, they loot for the loot. People don’t commit arson to make a political statement. What does burning an AutoZone even communicate if it could be translated into politics? People don’t assault those citizens standing in the way of looting and arson as a cry for help or to draw attention to social problems, they do so because looting and arson offer satisfactions to a reprobate will.

 

We’ve been told by people who live in safety or are perfectly able to retreat to it: “Riots are, at their core, a choice made by those in power, not people who participate in them.” But is this true? Misgovernance does have a price with regard to civil cohesion. But if riots are not a choice, then the people participating in them have no agency and can’t be said to be making a political statement. It would follow that there is no difference between a citizen destroying his neighborhood and another defending it.

 

Others belittle objections to riots as disingenuous demands for “civility” used to distract from injustice. This is projection: as if the plea not to commit robbery or set fire to your neighbor’s place of business was an attempt to make those angry doff their caps.

 

If you’re so morally insensate or well-educated that you can’t make a moral judgment without referencing a study or chart, look at the long-term studies done on rioting. Riots harm their communities. They don’t reform them. They often initiate a general spike in violent crime. Baltimore saw this spike in the past half-decade. Riots dissuade individuals, families, and businesses from staying in or joining a community. Who wants to raise their kids in the neighborhood where the police station had to be evacuated before it was set ablaze?

 

Romanticizing and indulging in rioting as a mere abstraction is not just wrong in some factual way about how the world works. It’s depraved and vile. George Floyd’s girlfriend said, “I am heartbroken. Waking up this morning to see Minneapolis on fire would be something that would devastate Floyd.” I wonder if the prestige magazines making elegant apologies for crime could print her view without describing it as reactionary and racist.

Why Did It Take So Long to Arrest Derek Chauvin?

By Andrew C. McCarthy

Friday, May 29, 2020

 

Rich Lowry and I were still recording The McCarthy Report this afternoon when news broke that former Minneapolis police officer Derek Chauvin had been arrested for the murder of George Floyd. The homicide occurred on Monday. Today is Friday. That’s why, before we heard the news, I spent several podcast minutes grousing about the fact that Chauvin had not yet been arrested.

 

As of this writing, the charging documents are not publicly available. Hennepin County attorney Mike Freeman announced that Chauvin is being charged with third-degree murder — sometimes called “depraved heart” or “depraved indifference” homicide. Under Minnesota law, third-degree murder occurs when a person, without intent to effect the death of a person, nevertheless causes death by an act that is “eminently dangerous to others” and “evince[es] a depraved mind, without regard for human life.”

 

The penalty is imprisonment for up to 25 years.

 

This is probably the appropriate charge. It is always dicey to make assessments when we do not know what evidence investigators have, but second-degree murder, which provides for up to 40 years’ imprisonment, must have been considered. That is a “crime of passion” type of homicide — not premeditated, but nonetheless intentional, out of an intense emotional impulse. From what we know of the incident, this appears more elongated and depraved than instantaneous and impulsive. Obviously, I am assuming first-degree murder and its potential life sentence were not on the table because there is no apparent proof of premeditation. (Minnesota does not have capital punishment.)

 

As I told Rich, I believe Chauvin should have been arrested days ago, if not immediately. The claim that the prosecutor had to wait to authorize an arrest until the investigators nailed down all the evidence is nonsense — notwithstanding that County Attorney Freeman repeated it in his press conference this afternoon.

 

It is standard practice for police who witness a violent crime, or who are reliably informed of facts that would support arrest for one, to place a person in custody. That virtually never means the case is ready, there and then, to go to trial.

 

The proof standard for an arrest on a complaint is probable cause that a crime has been committed. Probable cause is also the standard for indictment, but there’s an important difference. Complaints often get dismissed; indictment is that beginning of the formal process that leads to trial and a determination of guilt. Prosecutors thus do not indict unless they believe a rational jury could find guilt beyond a reasonable doubt, a standard more demanding than probable cause.

 

In the typical street-crime case, then, a person is arrested on a complaint and either detained or granted bail. Within a certain statutory period of time (usually, within ten to 30 days, depending on whether the person remains in custody), the prosecutor must make the decision whether to indict.

 

It is in that interim that the investigation proceeds. Investigators tighten up the proof from the low standard that justifies arrest to the higher standard needed to prevail at trial. But it is the norm for a violent-crime suspect to be placed under arrest immediately, notwithstanding that the case may not yet be ready for indictment. This prevents flight, destruction of evidence, intimidation of witnesses, and danger to the community.

 

It should go without saying that there is never any excuse for rioting and violence. Peaceful protest, however, is the American way. To the extent peaceful protesters are disturbed that Chauvin was not arrested, they are right to be.

 

Since race, regrettably, is the full-field explanation for all phenomena for many progressives, the controversy becomes a black–white thing because the victim was black and the perp is white. And since the regnant political narrative — however divorced from reality — is that police are on the hunt for African-American men, the controversy is swallowed by that narrative, too.

 

Nevertheless, I don’t look at this as a racial issue, or a “cops against black men” issue. It is a matter of equal protection under the law. Any civilian, regardless of race, who did what Chauvin did would have been placed under arrest. The police officer was not — even after he and his three colleagues were fired because their actions were so indefensible.

 

To be sure, police necessarily get a measure of consideration that the rest of us do not. When police get involved in an altercation, it is presumptively because they are doing their duty to keep the peace, not because they are causing the confrontation. Police use force under the color of law, so, other things being equal, a police use of force enjoys a presumption of legitimacy that a similar use of force by you or me would not.

 

All that said, it is well known that police may not use excessive force. It is obvious, and was in real time, that Chauvin’s use of force on Floyd was excessive. And this was not a situation in which, after excessive force, everyone dusted off and went on their way. Mr. Floyd died.

 

Investigators did not need to be sure that they could make a third-degree murder charge stick to know that some kind of prosecutable homicide happened in the killing of George Floyd. This was not a fleeting incident, or a situation in which Floyd was resisting — he was pleading for his life. At the very least, this was a negligent homicide; more likely, it was something worse. Obviously, it was a crime. When a violent crime has clearly happened, the person who committed it should be placed under arrest, immediately.

 

I doubt it will be fatal to the case, but the prosecution is going to take some hits over the delay. Chauvin’s lawyers will contend that he was not arrested because investigators recognized that there was insufficient evidence; they will add that he was only charged because Minneapolis was burning and the mob had to be satisfied. I do not believe that claim will overcome the evidence of guilt. But the claim would not be available if Chauvin had been arrested promptly, as he should have been.