By the way, apropos targeting metaphors and the like

Volokh, Eugene VOLOKH at
Thu Apr 1 21:01:42 PDT 2010

        I agree that Democratic elected officials aren't making statements directly advocating violence -- but neither is Sarah Palin.  I agree that eco-terrorists and rioters aren't close to being the mainstream of the Democratic party; but neither are the rare violent members of the conservative movement close to being the mainstream of the Republican party.  Of course the tea party wing is mainstream; but it's not advocating violence, just as there's a mainstream wing of the Democratic party that harshly condemns various police actions and alleged ecological malfeasance without advocating violence.  (I do think that occasional statements about Democrats apologizing for rioters, especially in racial contexts, do tend to "fan flames that these politicians know are there," but those too are exceptions.)  What I think I'm seeing here is the Democrats being given the benefit of the doubt (which I actually think they deserve, since I wouldn't fault the mainstream of either side here), while the Republicans are being held to a completely different standard.

        As to electoral strategies based on fear, of course both sides try to make people fearful -- and rightly so.  There are indeed many things to fear, and if we don't fear them adequately we won't respond adequately.  To be sure, we shouldn't fear them excessively, but that's a problem of excessive fear, not of fear as such.  Democratic politicians focused on fear of global warming, of nuclear proliferation, and so on; both Republican and Democratic politicians focused on fear of crime and terrorism, and of worldwide Communism in its day.  That doesn't make the parties responsible for the tiny violent fringes on the edges of their movement.


> -----Original Message-----
> From: Nareissa L. Smith [mailto:nsmith at]
> Sent: Thursday, April 01, 2010 6:36 PM
> To: Volokh, Eugene; 'conlawprof at'
> Subject: RE: By the way, apropos targeting metaphors and the like
> Hi Professor Volokh.
> 1.  With respect to your first point, I again state that it's all about context. I
> won't bore everyone with the specific examples***, but many elected
> Republican leaders have used violent rhetoric.  Some might say that all of the
> statements are within the bounds of standard political talk.  However, when
> people show up to tea parties rallies with signs saying "We came unarmed . . .
> this time" it all takes on a different veneer and meaning.  You may disagree, but
> these type of statements are aimed directly to fan flames that these polticians
> know are there.  In this climate, such statements are, at worst, deplorable and
> at best, irresponsible.  That is why they are responsible, in part, for what the
> "kooks" do.  They tacitly encourage the behavior.  If you can show me a list of
> Democratic elected officials making statements directly advocating violence
> coupled with a group of people armed and ready to act on those statements, I'll
> consider it.   But unless that is the case, the right and left can't be compared at
> this point in time, as I stated.
> 2.  Your response references the eco-terror movement and spontaneous riots
> against police brutality.  Neither the eco-terror movement nor the spontaneous
> rioters are even close to being the mainstream of the Democratic party.  I don't
> recall any Democrats calling for eco-terror or police riots.  By contrast, there is
> now a "tea party" wing of the GOP.  (See Dede Scozzafava and the NY-23 race,
> for instance.)  If eco-terrorists and rioting kids were a core part of the
> Democratic base, I might agree, but that is far from true.  The tea party is a
> major part of the GOP base.  Thus, again, the comparison fails.
> 3.  I'm sorry you took umbrage at my discussion of GOP tactics over the past few
> generations, but I never said the GOP's positisions were bigoted.  I said that their
> electoral tactics are.  Many people much smarter than myself have documented
> how this "Southern Strategy" was crafted and executed since the Nixon
> Administration.  You say we should be afraid of terrorists and furloughed
> prisoners, and while that may be true, racialing those fears is unnecessary and
> unAmerican.  (Moreover, on terror, race isn't even a good proxy.  The "Captain
> Underpants" bomber was from Nigeria, Jose Padilla is Latino, Richard Reid is
> biracial, and John Walker Lindh (American Taliban) is Caucasian.).  At any rate,
> my point on this is not, as you suggest, to disparage those with whom I disagree
> by painting them as racist.  Rather, my point is that the natural outgrowth of an
> election strategy premised on fear will be fear.  In this case, supporters filled
> with fear.  Fear - especially when it is encouraged by people shouting
> "Armegeddon" and "revolution" - is a dangerous thing.  The responsible thing for
> the GOP leadership to do would be to tamp down the language and strongly
> distance themselves from this more hateful rhetoric and any violent acts as soon
> as possible.  Unfortunately, even after these acts of violence, there has still been
> tacit encouragement, with Boehner and others talking about how those people
> are justifiably angry at the "totalitarian tactics" of the health care passage.  But
> there is still time for the GOP to distance itself and change the message.   I
> sincerely hope they do.   In the Pentagon Papers case, several of the Justices
> that concurred noted that while they agreed that the First Amendment gave the
> NY Times and the Washington Post the right to publish their stories, they hoped
> that the papers would exercise discretion and responsibility in their exercise of
> that right.  That is what I am hoping for here as well.
> Thank you for your response and your time.
> *** examples can be found here:
> revolution/
> and here
> ________________________________________
> From: conlawprof-bounces at [conlawprof-bounces at]
> On Behalf Of Volokh, Eugene [VOLOKH at]
> Sent: Thursday, April 01, 2010 5:06 PM
> To: 'conlawprof at'
> Subject: RE: By the way, apropos targeting metaphors and the like
>         I appreciate Prof. Smith's kind words, but I'm afraid I have to disagree with
> her analysis.
>         1.  I find it hard to see substantial distinctions to be drawn between the
> Democrats' two (not one) targeting bullseye maps, with talk of "targeting" and
> (in one) "Behind Enemy Lines," coupled with the "If they bring a knife to the
> fight, we bring a gun," the "pitchforks" line, and the "punch back twice as hard,"
> and the "Fire Pelosi" / flames picture plus Sarah Palin's targeting cross-hairs
> map, even with her "don't retreat, reload" statement.  Both are well within the
> core of standard politics-as-war talk.  I can't imagine either being either more
> likely to be intended to produce violence, or more likely to simply produce
> violence.
>         2.  The melding of accusations of "violent verbal and visual rhetoric" with
> accusations of "a strategy of fear and hate" simply reinforces my sense that
> what's really happening here is just an attempt to taint with allegations of
> violence people whose viewpoints and policy prescriptions one wants to
> condemn.  Of course one should fear terrorists, who these happen to be mostly
> "Arab."  Of course one should fear criminals who are released on furloughs or
> otherwise.  There is a plausible debate to be had about whether the political
> tactics are excessive or not, and whether they play unduly on racial or religious
> hostility -- just as there's a plausible debate to be had about whether the
> constant cries of racism and bigotry about a wide range of national security
> arguments, crime policy arguments, race relations arguments, immigration
> arguments, and the like are undue attempts to silence legitimate opposition.
> But what I see below is basically a statement that the Republican P!
>  arty is evil, that its positions are bigoted, and that therefore we should be
> faulting them for extremist right-wing action -- while presumably the Democrats
> get a pass from extremist left-wing action (anti-police riots, anti-globalization
> riots, and so on) that is just as indirectly linkable to mainstream Democratic
> ideas as the extremist right-wing action is to mainstream Republican ideas.
>         I will have no part of that.  When there are attempts to taint people on my
> side -- not extremists, but the legitimate political opposition using standard
> political imagery -- with alleged responsibility for the actions of a few kooks and
> fools, I'm not going to stand by and accept that.
>         Eugene
> > -----Original Message-----
> > From: Nareissa L. Smith [mailto:nsmith at]
> > Sent: Wednesday, March 31, 2010 12:05 PM
> > To: Volokh, Eugene; 'conlawprof at'
> > Subject: RE: By the way, apropos targeting metaphors and the like
> >
> > Professor Volokh,
> >
> > I have the deepest respect and admiration for your body of work.  However, I
> > steadfastly disagree with you here.  Your message below is creating a false
> > equivalency.
> >
> > First, it is a false equivalency to compare the democrats map with targets on
> > Republican districts to the Sarah Palin map with democratic districts in the
> > crosshairs.  This is so not only because cross-hairs are much more suggestive
> of
> > violence than a bullseye, but also because the democratic map was not
> > accompanied by a suggestion that supporters "reload."  Messages are all
> about
> > context.  The fact that one - ONE - DNC map can be pointed to does not erase
> the
> > background and the backdrop of what is happening in America right now.  It is
> that
> > backdrop that gives the crosshairs meaning.   This violent verbal and visual
> > rhetoric has not been isolated.  Rather, it has been the stock-and-trade of the
> > GOP for some time.  Over the past few decades, the GOP has adopted a
> strategy
> > of fear and hate to win elections.  Sometimes it's a fear of brown people (1988
> -
> > Willie Horton), (2004, "Arab" terrorists).  Sometimes it's a fear of people who
> love
> > differently (2000 and 2004 and 2008 initiatives to ban same sex marriage to
> "get
> > the base out.")   The rancor surrounding the 2008 campaign illustrates this as
> > well.  From the very beginning, the McCain-Palin rallies attracted - and in the
> > beginning at least, stoked - flames of hatred and resentment.  The signs and
> > messages at those rallies were appalling to many Americans - left, right, and
> > center.  It got so bad that McCain himself had to intervene to tell a supporter
> that
> > she could in fact trust Barack Obama if elected, that he was a good man, and
> not
> > a Muslim.   That was the beginning.  Then you had the town hall "meetings"
> and
> > the tea party "protests."  Protesters even attempted to carry guns to an event
> > where the newly elected President was speaking.  The rage has been barely
> > containable.  Moreover, you have elected members of Congress encouraging
> this
> > uncivil and unsafe behavior.  Not to mention, there is the far right wing - Rush
> and
> > Glenn - that stoke the flames of hatred every day on their programs.  So, I
> > respectfully disagree with you here.   In crim law, we would say that the mens
> rea
> > is proven through circumstantial evidence. In evidence, it would be evidence of
> > modus operandi.  At any rate, given the back-drop, there is no way to equate
> the
> > right with the left. The right has the clear intent and desire to benefit from this
> > hatred and mean-spiritedness.
> >
> > This is particularly true because leaders on the left are not encouraging the
> > violence.  John Boehner had a chance to distance himself and his party from
> this
> > mess when he was asked about the recent threats to members of Congress.
> But
> > rather than say, "It is always wrong to harm a member of Congress," (which is
> > true), he spent the first few minutes justifying and explaining why these people
> are
> > angry.  A member of Congress excused the actions of the man that flew a
> plane
> > into a Texas FBI building. Some on the right are even trying to explain away a
> > right-wing militia's plan to assassinate POLICE officers(!).    That is not
> > leadership.  The message from GOP leadership has not been strong against the
> > threats of violence nor the actual violence that has occurred.
> >
> > All of this amounts to "fomenting and encouraging," in my opinion.
> >
> > Compare this to the reactions from the left.  Barney Frank and John Lewis are
> > verbally attacked in the most vile of ways.  Barney Frank says it's part of the
> cost
> > of being a high profile Congressman.  Joe Wilson shouts down President
> Obama
> > in the State of the Union.  The President responds by smiling.  Smiling. That is
> the
> > difference.  There is no organization or responsible elected official on the left
> that
> > is fomenting a climate of hatred and outright disrespect.  Therefore, the cases
> are
> > inapposite.
> >
> >
> >
> > Nareissa L. Smith
> > Assistant Professor
> > Florida Coastal School of Law
> > 8787 Baypine Rd.
> > Jacksonville, FL  32256
> > (904) 680-7674
> >
> >
> >
> > -----Original Message-----
> > From: conlawprof-bounces at [mailto:conlawprof-
> > bounces at] On Behalf Of Volokh, Eugene
> > Sent: Wednesday, March 31, 2010 2:16 PM
> > To: 'conlawprof at'
> > Subject: By the way, apropos targeting metaphors and the like
> >
> > To then-candidate Obama's "If they bring a knife to the fight, we bring a gun,"
> > President Obama's warning about people with "pitchforks" coming for
> business
> > executives if it weren't for his Administration, and the White House's advice to
> > "punch back twice as hard," let me add two more items:
> >
> > (1)  A recently uncovered 2004 Democratic Leadership Committee map with
> > targets on the states that the DLC urges targeting, the headline "Targeting
> > Strategy," and a caption that starts, "Behind Enemy Lines."  See
> > .
> >
> > (2)  A Democratic Congressional Campaign Committee site,
> > (also pointed to by the page I just
> linked to
> > above), with targets on the districts of targeted Republican congressmen.
> Click
> > on each target to see the congressman's photo and name, and the title
> "Targeted
> > Republican."
> >
> > Now I wouldn't suggest that any of these are reprehensible "fomenting or
> > encouraging" "vandalism and violence."  None of these, I think, are intended
> to or
> > likely to lead to vandalism or violence; they are just normal political rhetoric.
> But
> > since some think that "Fire Pelosi" with flames in the background of a picture
> of
> > Pelosi, or the Sarah Palin map with the cross-hairs on districts that are being
> > targeted, qualifies as such "fomenting or encouraging," and since the question
> > was raised whether Democratic and Republican readers have tried to do this to
> > the same extent, I thought these examples were worth noting.  I expect there
> are
> > plenty of others; but it's not easy to search for them, since they haven't led to
> > much public comment precisely because they are normal political rhetoric.
> >
> > Also, on the separate topic of speech by the rank and file, see
> >, containing quite a
> compilation
> > of "Bush as Hitler" and similar statements.  Naturally these are cherry-picked
> by
> > the creator of the video, and not representative of critics of Bush generally;
> but my
> > sense is that the same is true with Obama as Hitler statements.
> >
> > Eugene
> > _______________________________________________
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> >
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> >
> >
> >
> _______________________________________________
> To post, send message to Conlawprof at
> To subscribe, unsubscribe, change options, or get password, see
> Please note that messages sent to this large list cannot be viewed as private.
> Anyone can subscribe to the list and read messages that are posted; people can
> read the Web archives; and list members can (rightly or wrongly) forward the
> messages to others.

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