By the way, apropos targeting metaphors and the like

Stan Morris stan at smmorris.com
Fri Apr 2 09:19:28 PDT 2010


As  someone who used to be a regular on this list I proffer the 
following nice capsule of political violence in the U.S. 
http://online.wsj.com/article/SB10001424052748704896104575140063408610580.html

At 08:46 AM 4/2/2010, you wrote:
>         Here's the thing:  A Democratic contributor (albeit likely 
> a crazy one) made threats against Republican Rep. Cantor.  A brick 
> was thrown through a Michigan Republican Party office, 
> http://www.detnews.com/article/20100329/POLITICS03/3290404/1361/Brick-thrown-through-window-of-Howell-GOP-office. 
> Andrew Breitbart reports that he was threatened pro-Sen. Reid 
> protesters threatened 
> him. 
> http://gatewaypundit.firstthings.com/2010/03/andrew-breitbart-describes-harry-reid-supporters-on-the-attack-audio/. 
> People threw eggs at a Tea Party bus.  Bricks were thrown through a 
> Virginia Republican Party office, 
> http://www2.dailyprogress.com/cdp/news/local/crime/article/vandalism_strikes_albemarle_county_gop_headquarters/54116/. 
> Republican Rep. Michelle Bachman reports that her property was 
> vandalized and that she has received 
> threats. 
> http://gatewaypundit.firstthings.com/2010/03/radicals-vandalize-michele-bachmanns-property-video/. 
> Was this because of Obama's and the Administra!
>  tions' talk of punching back twice as hard, of bringing a gun when 
> others bring a knife, or of pitchforks?  I suppose it's possible, 
> but pretty unlikely.  Surely much of the violence is a result of 
> hostility to Republican positions, and the Democrats have been 
> encouraging hostility to such positions; but I see little reason to 
> draw a link to specific Democratic statements, or to fault the 
> Democrats for making those statements, or for engaging in 
> legitimate criticism of the Republicans despite the possibility 
> that a few violent people will engage in violence and vandalism 
> because of their anger.
>
>         My suggestion is that we apply the same standard to Republicans.
>
>         Eugene
>
>
> > -----Original Message-----
> > From: Chambers, Hank [mailto:hchamber at richmond.edu]
> > Sent: Friday, April 02, 2010 6:13 AM
> > To: Volokh, Eugene; 'conlawprof at lists.ucla.edu'
> > Subject: RE: By the way, apropos targeting metaphors and the like
> >
> > The original point the Democratic leadership made was that Democratic
> > representatives were being threatened and had campaign offices vandalized
> > based specifically on their support of the health care reform 
> bill, with the
> > subtext being that such conduct was a not too surprising result 
> of imagery and
> > rhetoric coming from their Republican colleagues.
> >
> > The statement from Rep. Cantor (my congressman) noted that Democrats
> > needed to stop whining because Republican congressmen, including Cantor,
> > received death threats and had their offices vandalized.  I do 
> not think Cantor
> > linked his problems to his health care position.  Other 
> responses, including from
> > Rep. Boehner, suggested that the tactics were bad, but that 
> people had a right
> > to be very upset over what the Democrats had done.
> >
> > Cantor's statement was nonresponsive to the specific issue raised by the
> > Democratic leadership.  Boehner's response seems to suggest that the
> > perpetrators (presumably just the vandals) were misguided regular 
> folks rather
> > than crazy fringe people.  Regardless of their actual feelings, 
> neither Cantor's
> > nor Boehner's statements were simple statements that denounced the behavior
> > that precipitated the Democratic leadership's concern.  For good 
> or for ill,
> > neither felt he was under the obligation to make such a statement.
> >
> > -Hank
> >
> > Henry L. Chambers, Jr.
> > Professor of Law
> > University of Richmond
> > 28 Westhampton Way
> > Richmond, VA 23173
> > 804-289-8199
> >
> > -----Original Message-----
> > From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-
> > bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
> > Sent: Friday, April 02, 2010 12:02 AM
> > To: 'conlawprof at lists.ucla.edu'
> > Subject: RE: By the way, apropos targeting metaphors and the like
> >
> >         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.
> >
> >         Eugene
> >
> > > -----Original Message-----
> > > From: Nareissa L. Smith [mailto:nsmith at fcsl.edu]
> > > Sent: Thursday, April 01, 2010 6:36 PM
> > > To: Volokh, Eugene; 'conlawprof at lists.ucla.edu'
> > > 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:
> > > http://www.alan.com/2010/03/28/right-wing-encouraging-violence-riots-
> > and-
> > > revolution/
> > > and here
> > > http://thinkprogress.org/2010/03/26/video-gop-extremism/
> > >
> > >
> > >
> > >
> > >
> > >
> > > ________________________________________
> > > From: conlawprof-bounces at lists.ucla.edu [conlawprof-
> > bounces at lists.ucla.edu]
> > > On Behalf Of Volokh, Eugene [VOLOKH at law.ucla.edu]
> > > Sent: Thursday, April 01, 2010 5:06 PM
> > > To: 'conlawprof at lists.ucla.edu'
> > > 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 fcsl.edu]
> > > > Sent: Wednesday, March 31, 2010 12:05 PM
> > > > To: Volokh, Eugene; 'conlawprof at lists.ucla.edu'
> > > > 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 lists.ucla.edu [mailto:conlawprof-
> > > > bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
> > > > Sent: Wednesday, March 31, 2010 2:16 PM
> > > > To: 'conlawprof at lists.ucla.edu'
> > > > 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
> > > > http://www.verumserum.com/?p=13647 .
> > > >
> > > > (2)  A Democratic Congressional Campaign Committee site,
> > > > http://www.dccc.org/content/recovery (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
> > > > http://www.youtube.com/watch?v=z6b1VOAATNk, 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
> > > > _______________________________________________
> > > > To post, send message to Conlawprof at lists.ucla.edu
> > > > To subscribe, unsubscribe, change options, or get password, see
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> > > >
> > > > Please note that messages sent to this large list cannot be 
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> > > >
> > > >
> > > >
> > >
> > > _______________________________________________
> > > To post, send message to Conlawprof at lists.ucla.edu
> > > To subscribe, unsubscribe, change options, or get password, see
> > > http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
> > >
> > > Please note that messages sent to this large list cannot be 
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> > > Anyone can subscribe to the list and read messages that are 
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> > can
> > > read the Web archives; and list members can (rightly or 
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> >
> > _______________________________________________
> > To post, send message to Conlawprof at lists.ucla.edu
> > To subscribe, unsubscribe, change options, or get password, see
> > http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
> >
> > 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 
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> > read the Web archives; and list members can (rightly or wrongly) 
> forward the
> > messages to others.
> >
> >
>
>_______________________________________________
>To post, send message to Conlawprof at lists.ucla.edu
>To subscribe, unsubscribe, change options, or get password, see 
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>
>Please note that messages sent to this large list cannot be viewed 
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>(rightly or wrongly) forward the messages to others.

Stan Morris, Lawyer
P.O.Box 879
Cortez, CO 81321
970.565.3771(voice)






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