The fleecing of America
Saturday, October 09, 2004
Some headlines almost write themselves ... especially when it comes to clothing for sale from our friends at Newsmax, such as these fashionable items:
- "USS George Bush" fleece
Dude, you are stylin'!
Of course, these shirts actually honor the George H. W. Bush, a nuclear-propelled aircraft carrier, and technically have nothing to do with the current Commander in Chief. But as fashion statements go, do you think anyone buying these will know the difference?
[Hat tip to Paul Lukasiak.]
I've already remarked on how George Bush, in last night's debate, asserted that he would seek to appoint "strict constructionists" to the Supreme Court should an opening occur -- a position that, as I observed, has deeper ramifications than were discussed in the debate. These include undermining not only the right to choose an abortion but the very basic right to privacy itself.
But the problems with this approach to the law extend well beyond just these issues. It would be tempting to call the so-called "strict constructionists" deeply radical at their core, though that would be accurate in terms of their effect on the law. It would be more accurate, in fact, to label them profoundly reactionary.
"Strict constructionists" are not in favor of merely returning the nation to that mythical Golden Age of postwar America so beloved of conservatives when men were men, women were housewives, and Negroes knew their place. No, their brand of law actually hearkens back to an era in American history when civil rights and basic social equality were held permanently in abeyance by a court system whose first and last loyalties were to an elite ruling class of wealthy robber barons.
You see, "strict construction" is actually just another term for a kind of judicial philosophy called "legal formalism":
- Legal formalism is a view in jurisprudence and the philosophy of law. Legal formalists argue that judges and other public officials should be constrained in their interpretation of legal texts by their plain meaning and/or the intentions of their authors. Legal formalism can be contrasted to legal instrumentalism, a view associated with American legal realism. Instrumentalism is usually the view that creativity in the interpretation of legal texts is justified in order to assure that the law serves good public policy and social interests, although legal instrumentalists could also see the end of law as the promotion of justice or the protection of human rights. Legal formalists counter that giving judges authority to change the law to serve their own ideas about good policy undermines the rule of law. Another critique of legal formalism has been offered by the critical legal studies movement, which has argued that law is indeterminate.
Justice Antonin Scalia of the United States Supreme Court is noted for his formalist views about a variety of topics, particularly his view that the United States Constitution should be interpreted in accord with its original meaning and his view that statutes should be read in accord with their plain meaning.
Among the chief attributes of legal formalism is a callous indifference to the injustices inherent in a system of laws weighted in favor of a small class of wealthy elites:
- The second characteristic of legal formalism is its indifference to substantive justice. Dominant groups and individuals exercise their power by subjecting every citizen to the same rules so that formal justice masks substantive social differences and inequalities. Legal discourse is isolated from the purview of political, social and ethical/moral discourses, and legal reasoning is severed from any external criterion which can be used to judge and evaluate social behaviour. Thus moral standards, ethical behaviour and, crucially, questions of justice are eliminated from legal reasoning. What the law is and what it ought to be are argued by legal practitioners to be independent questions. Indeed, modern judges are expected to be remote and disinterested.
Legal formalism was a dominant force in the American courts between 1865 and 1930. it reached its apex, probably, in the period 1890-1910, when it was predictable in its wholehearted defense of the interests of the ruling elite, the 1 percent of the population who controlled well over half of the nation's wealth.
The result was a society in which 60-hour workweeks for laborers in all fields of production was the norm; in which child labor was rampant and innately abusive; in which workers had no rights to unionize or otherwise organize; in which eight-hour days and weekends were utterly unheard of. Formal education was largely reserved for the children of the upper and upper middle classes.
This milieu is thoroughly described in J. Anthony Lukas' final book, Big Trouble, pp. 280-281:
- ... In that first decade of the new century, the Supreme Court, presided over by Chief Justice Melville W. Fuller, was not a particularly distinguished judicial body. President Theodore Roosevelt, increasingly at odds with the Court, accused it of assuming "functions which properly belonged to the legislative bodies" and labeled one recent decision "a very slovenly piece of work."
As early as 1895, two of its landmark decisions -- Pollock v. Farmers Loan and Trust Co., which invalidated the federal income tax, and In re Debs, which upheld a federal court injunction to break the Pullman strike -- left the impression that the Fuller Court was hostile to the aspirations of labor and the poor alike. A decade later, this reputation was reinforced by the notorious Lochner v. New York, which invalidated a state law placing a sixty-hour ceiling on the workweek of bakery employees, because it violated liberty of contract. Moreover, the Court asserted that private contracts were outside the scope of the law and thus the state couldn't interfere with them. Like no other case before or after, Lochner stirred public outrage at the Court's rigidity, preparing a fertile field in which the seeds of Progressive dissent could flourish. Other decisions -- Adair v. United States (1908), which invalidated legislation protecting union activity, and Ex parte Young (1908), blocking enforcement of laws governing railroad rates -- put the Court increasingly at odds with the Progressive era. Henceforth, critics writing within that tradition accused the Fuller Court of using the constitutional ideal of "liberty" to camouflage its defense of narrow class interests. [Emphasis mine. -- ed]
The prevailing judicial doctrine of the time has been termed "formalism," which one commentator calls "less a habit of mind than a habit of style, less a way of thinking than a way of disguising thought." Opinions were frequently "bombastic, diffuse, drearily logical, crammed with unnecessary citations." Underlying the formalistic style was the cherished notion that judges did not make law but merely discovered it in precedent or in the fount of all wisdom, the Constitution.
The cult of the Constitution can be read in the exaltation by Henry R. Estabrook, a New York attorney: "Our great and sacred Constitution, serene and inviolable, stretches its beneficent powers over our land ... like the outstretched arm of God himself ... O Marvelous Constitution! Magic Parchment! Transforming Word! Maker, Monitor, Guardian of Mankind!"
... By default, the intellectual leadership of the Court fell to two justices -- David J. Brewer and Rufus W. Peckham -- who reflected the business-oriented conservatism that held sway in Washington for decades before the century's turn. Of the two, Brewer was the stronger personality and his worldview the more bleakly reactionary. As such, he drew Theodore Roosevelt's private but "profound" contempt.
Brewer and Peckham favored a "self-regulating, competitive market economy presided over by a neutral, impartial and decentralized 'night watchman' state." If pressures were building for government to shuck some of its vaunted neutrality in order to avoid social chaos, Brewer at least was having none of it. In a speech to the New York State Bar in 1893 ... he asserted that "it is the unvarying law, that the wealth of a community will be in the hands of a few," warned of "the red flag of socialism, inviting a redistribution of property," and cautioned that, unchecked, "the wide unrest that fills the land ... will culminate in revolution."
What's notable about formalism is the way it manipulates the meaning of the law to achieve a desired and predetermined result, especially by waving "liberty" as a catch-all excuse for any kind of corporate abuse of working people's rights. This propensity was as common in 1904 as it is in 2004.
Similarly, when "strict constructionists" declare Roe v. Wade an illegitimate ruling by claiming that the Constitution contains no right to privacy, they do so through a very narrow reading of the Bill of Rights. While arguing that no privacy right is explicitly elucidated, they conveniently overlook those parts of the Constitution that inherently depend on such a right: the Third Amendment's prohibition against the forced quartering of soldiers, the Fourth Amendment's declaration of "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures". It's also imnportant to keep in mind the Ninth Amendment, which makes clear that the listing of individual rights is not intended to be comprehensive, and that "the people" have other rights not specifically mentioned in the Constitution. It is, in fact, hardly a far reach to ascertain that a right to privacy is one of those.
Legal formalism is to jurisprudence what fundamentalism is to theology. It applies the same kind of backward logic, in which a position or belief is arrived at beforehand, and then evidence is gathered from a narrow reading of select verses to "prove" it. Its outcomes, as a result, are extraordinarily manipulable. While formalists are fond of decrying the "activism" of legal realists, the reality is that their own brand of legal philosophy was every bit as prone (if not more so) to activism on behalf of narrow interests.
Formalism, in fact, is responsible for some of the great travesties of American jurisprudence. It was, in fact, the ruling philosophy in the much-reviled Plessy v. Ferguson case, which maintained that a doctrine of "separate but equal" racial separation (later overturned by that notorious "activist" ruling, Brown v. Board of Education) was constitutional.
So it was noteworthy that Bush, in the process of explaining his support for "strict construction," trotted out the example of the notorious Dred Scott ruling of 1856 as an example of an "activist judiciary":
- Another example would be the Dred Scott case, which is where judges, years ago, said that the Constitution allowed slavery because of personal property rights.
That's a personal opinion. That's not what the Constitution says. The Constitution of the United States says we're all -- you know, it doesn't say that. It doesn't speak to the equality of America.
Actually, Bush had it precisely backward. In fact, the Constitution at the time declared Negroes were not full citizens. And the actual Dred Scott v. Sandford ruling, if you take the time to read it, was an exercise in an extraordinarily blind kind of formalism:
- The question is simply this: Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution.
... The words 'people of the United States' and 'citizens' are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government through their representatives. They are what we familiarly call the 'sovereign people,' and every citizen is one of this people, and a constituent member of this sovereignty. The question before us is, whether the class of persons described in the plea in abatement compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word 'citizens' in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate [60 U.S. 393, 405] and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.
In other words, the justices were ruling in precisely the fashion that Bush prescribes for any future Supreme Court appointee: they strictly adhered to the text of the Constitution. "Formalism" as a jurisprudential style had not been identified in 1856, but it's clear that its tenets were the same as those undergirding Dred Scott.
Notably, the ruling makes a classic formalist disclaimer regarding the duties of the court vis a vis the realities of the laws it is enfording:
- It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or law-making power; to those who formed the sovereignty and framed the Constitution. The duty of the court is, to interpret the instrument they have framed, with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted.
Bush's "strict constructionists" -- contrary to his up-is-down characterization of them -- in fact, given the same legal circumstances, would be likely to reproduce not just Dred Scott, but Plessy v. Ferguson and Lochner v. New York. And they would herald, almost just as certainly, a new "Golden Age" of iron-fisted rule by the nation's wealthy elites.
A little privacy, please
Friday, October 08, 2004
Speaking of lost opportunities, I thought John Kerry missed a key opening in tonight's debate to discuss just what's at stake with the Supreme Court appointments likely to occur under the next president's watch.
An audience member asked Bush who he would pick for any future opening. Bush answered:
- I would pick somebody who would not allow their personal opinion to get in the way of the law. I would pick somebody who would strictly interpret the Constitution of the United States.
... And so, I would pick people that would be strict constructionists.
Kerry's rejoinder mostly went after Bush's use of labels to make these kinds of decisions, which politically speaking may make a certain sense. But it missed the most significant point about Bush's position.
Voters need to understand just what Bush means when he talks about placing "strict constructionists" on the court. The "strict constructionists" who favor overturning Roe v. Wade, for example, do so on the basis of the argument that the right to privacy -- which forms the foundation of that ruling -- doesn't exist. You see, because this basic right is not explicitly spelled out in the Constitution, even though it is woven into its very fabric, these judicial activists of the conservative stripe claim that it's not innate to the rights Americans enjoy.
Taking away the right to privacy, of course, has ramifications well beyond abortion. And so when George Bush tells Americans that he intends to appoint these "strict constructionists" to the bench, they need to ask in return whether George Bush believes in the right to privacy.
Because the judges he wants to appoint don't. For most Americans -- who cherish their right to privacy -- that is a paramount consideration.
It may take some courage for Kerry to make this point. But the public will not be well served by having debates that dance around the real issues.
Can you say Sa-tan?
Listening to right-wing talk radio in Seattle tonight after the debate. A caller to KTTH-AM, home of Rush Limbaugh and Michael Savage, offered the following observation about John Kerry:
"I believe this man is an agent of Satan," the caller, an elderly woman, said.
One of the co-hosts said: "Hey, I like that."
Then she continued: "I believe he's going to pave the way for the New World Order, and eventually will help usher in the Antichrist."
The hosts thanked her for the call and went to a commercial break.
Won't get fooled again
For all the natter about timber companies and the fact that George Bush managed not to look like an utter buffoon in tonight's debate, there was one moment that I think will resonate throughout this election.
It came when an audience member asked Bush the following question:
- GRABEL: President Bush, during the last four years, you have made thousands of decisions that have affected millions of lives. Please give three instances in which you came to realize you had made a wrong decision, and what you did to correct it. Thank you.
BUSH: I have made a lot of decisions, and some of them little, like appointments to boards you never heard of, and some of them big.
And in a war, there's a lot of -- there's a lot of tactical decisions that historians will look back and say: He shouldn't have done that. He shouldn't have made that decision. And I'll take responsibility for them. I'm human.
But on the big questions, about whether or not we should have gone into Afghanistan, the big question about whether we should have removed somebody in Iraq, I'll stand by those decisions, because I think they're right.
BUSH: That's really what you're -- when they ask about the mistakes, that's what they're talking about. They're trying to say, "Did you make a mistake going into Iraq?" And the answer is, "Absolutely not." It was the right decision.
The Duelfer report confirmed that decision today, because what Saddam Hussein was doing was trying to get rid of sanctions so he could reconstitute a weapons program. And the biggest threat facing America is terrorists with weapons of mass destruction.
We knew he hated us. We knew he'd been -- invaded other countries. We knew he tortured his own people.
On the tax cut, it's a big decision. I did the right decision. Our recession was one of the shallowest in modern history.
Now, you asked what mistakes. I made some mistakes in appointing people, but I'm not going to name them. I don't want to hurt their feelings on national TV.
As Sam Rosenfeld (via Atrios) points out:
- Think about the only thing he pointed to as a mistake: appointments. That is to say, the only mistake he made is some other folks screwing up their jobs. Even his single mistake is someone else's fault. And then, the way he tried to tell the audience member that he knew the real reason she was asking her question -- that he knew the insinuation she was trying to make: "When people ask that question, they're really talking about Iraq". Who the hell is he to explain to an ordinary citizen what she meant by her own question? (And let's remember, the lady went out of her way to say explicitly to Bush that "you've made thousands of decisions as president that have affected millions of people," and then ask out of all those thousands of decisions what are three that were mistakes; how was that obviously a question about Iraq?) Bush's arrogance, his defensiveness, the insularity, the delusions -- it's all nicely encapsulated in that one answer.
The questioner -- seemingly a middle-class homemaker -- simply wanted to know if Bush could admit to having made mistakes. After all, most of us ordinary humans make them too, but we also tend to be acutely aware of them. That Bush was incapable of giving her a straight answer was incredibly revealing.
I also think Rosenfeld is on the money in pointing out that John Kerry missed a golden opportunity in the debate by failing to point out that Bush couldn't give her a straight answer. Because it's not the first time this has happened, of course.
Recall Bush's performance at one of his few lives press conferences earlier this year, on April 13:
- Q Thank you, Mr. President. In the last campaign, you were asked a question about the biggest mistake you'd made in your life, and you used to like to joke that it was trading Sammy Sosa. You've looked back before 9/11 for what mistakes might have been made. After 9/11, what would your biggest mistake be, would you say, and what lessons have you learned from it?
THE PRESIDENT: I wish you would have given me this written question ahead of time, so I could plan for it. (Laughter.) John, I'm sure historians will look back and say, gosh, he could have done it better this way, or that way. You know, I just -- I'm sure something will pop into my head here in the midst of this press conference, with all the pressure of trying to come up with an answer, but it hadn't yet.
I would have gone into Afghanistan the way we went into Afghanistan. Even knowing what I know today about the stockpiles of weapons, I still would have called upon the world to deal with Saddam Hussein. See, I happen to believe that we'll find out the truth on the weapons. That's why we've sent up the independent commission. I look forward to hearing the truth, exactly where they are. They could still be there. They could be hidden, like the 50 tons of mustard gas in a turkey farm.
One of the things that Charlie Duelfer talked about was that he was surprised at the level of intimidation he found amongst people who should know about weapons, and their fear of talking about them because they don't want to be killed. There's a terror still in the soul of some of the people in Iraq; they're worried about getting killed, and, therefore, they're not going to talk.
But it will all settle out, John. We'll find out the truth about the weapons at some point in time. However, the fact that he had the capacity to make them bothers me today, just like it would have bothered me then. He's a dangerous man. He's a man who actually -- not only had weapons of mass destruction -- the reason I can say that with certainty is because he used them. And I have no doubt in my mind that he would like to have inflicted harm, or paid people to inflict harm, or trained people to inflict harm on America, because he hated us.
I hope I -- I don't want to sound like I've made no mistakes. I'm confident I have. I just haven't -- you just put me under the spot here, and maybe I'm not as quick on my feet as I should be in coming up with one.
It's more than a little remniscent of Bush's recorded remarks last year in Tennessee (which wound up as the coda to Fahrenheit 9/11):
- "There is a saying in Texas and probably here in Tennessee "Fool me once (......---long pause, deep thought---.... ) shame ... on me. (another pause) Fool me twice ... (brief thought, apparently sudden insight) can't fool me twice ... won't get fooled again!"
As Mark Crispin Miller put it:
- Yes, and the reason why he couldn't say it is that Bush could never in a million years say "shame on me." If you watch that moment carefully, you can see that as soon as he realized that he was going to have to say "shame on me," he went to pieces. He quickly had to quote The Who instead: "Won't get fooled again." He could never admit fallibility because he is without a doubt the most stiff-necked, self-righteous and opinionated President we've ever had. For him, it is a point of pride that he can't change his mind. He sees total rigidity as a sign of "character" -- much like Nixon, his true spiritual father.
Unlike the last debate, we didn't see Bush physically get his back up and become the petulant, arrogant man we saw revealed behind the mask. But in this case, it was clear he did it verbally. And what it demonstrated, above all else, is the kind of unthinking self-righteousness that inevitably breeds the incompetence that has become this administration's hallmark.
The Rise of Pseudo Fascism
Wednesday, October 06, 2004
Part 1: The Morphing of the Conservative Movement
Part 2: The Architecture of Fascism
Part 3: The Pseudo-Fascist Campaign
Its whole purpose being the acquisition of raw power through any means necessary, the discrete "conservative movement" and its dealings can at times be extremely disorienting. The proliferation of Newspeak as a political propaganda strategy by the American right, in particular, has created a milieu in which up is down, wrong is right and ignorance is strength.
At times, is seems as if factuality has no real basis. Truth has no objective value; it is instead a mutable thing, readily manipulated through repetition of propaganda talking points.
Think back, if you will, to the 2000 election fiasco in Florida, resulting in the abominable Bush v. Gore ruling (whose continuing significance was recently limned in detail by Jeffrey Rosen of the New Republic). Al Gore, you may remember, chose -- instead of calling for an extralegal statewide manual recount, which would have been the fairest solution -- to follow Florida state law to the letter and filed for recounts in only a handful of given counties.
This led, of course, to Republicans claiming that Gore tried to "steal" the election by "cherry-picking" enough votes in a handful of counties. It's a popular meme that maintains a steady life on the right today.
But if Gore had chosen the other course -- calling for a statewide manual recount in all counties -- Republicans would have just as certainly attacked him for failing to follow the letter of Florida law.
The truth -- that Gore had legitimate reasons for following either course -- had no chance in this case. What mattered was that regardless of his choices, Republicans were prepared to accuse him of trying to "steal" the election.
Then, of course, they proceeded to march forth and steal the election themselves.
Determinedly fair-minded liberals were largely left utterly baffled by this bizarre twist of events. They have been even more baffled by the subsequent course of the Bush presidency, in which -- despite a manifest lack of a mandate -- a radical right-wing agenda has marched relentlessly forward, culminating in the disastrous invasion of Iraq. Throughout it all, the steady drumbeat of the right has been to blame everything wrong with the world on liberals.
Today we have a milieu in which this administration's manifest incompetence is hailed as moral clarity; in which the torture of prisoners at American hands is dismissed as a fraternity prank; in which the internment of Japanese Americans in World War II is defended as a necessary step (that may need to be repeated); in which a policy to further denude America's forests is called the Healthy Forests Initiative, and the evisceration of the nation's public education system is named No Child Left Behind. We're relentlessly sold an image of Bush himself as strong and resolute, and yet when he appears for a national debate on TV, what we see instead is a "peevish and bored" caricature of a leader, a man more likely to remind us the feckless pointy-haired boss we all once had than an actual president.
At times it seems, when dealing with the modern conservative movement, as if we've entered a gigantic and remorseless mirror funhouse. Or more to the point, a dark and labyrinthine cavern, twisting in an endless maze, whose architecture we can only vaguely discern through upheld torches.
Every now and then, though, someone within the movement hierarchy -- often one at the very top -- will let slip a bit of the curtain, flashing a little light on the vastness and shape of the metastatic architecture of the conservative movement. When it happens, it can be a little like the scene in Aliens when Ripley's flamethrower lights up the interior of the lair into which she has wandered.
The mutability of truth is what has made confronting the conservative movement so maze-like -- you never know what kind of bizarre argument they're going to come up with next. At times they even turn established historical consensus on its head. First we get Ann Coulter penning a defense of McCarthyism in her book Treason; then we get Michelle Malkin justifying the forced incarceration of 122,000 Japanese Americans with In Defense of Internment. What's next? A text outlining the virtues of fascism? (Calling Michael Ledeen!)
But the movement not only makes reality a function of the movement's agenda; its agenda itself can shift rapidly according to the strategic needs of the movement in its acquisition of power. Thus, as described in Part 1, the conservative movement has come to resemble nothing so genuinely conservative at all but rather something starkly radical: profligate spending; incautious and expansionary wars, pursued unilaterally; the steady dumbing-down of the nation's education system. The neo-Confederate-laden GOP no longer has even a passing resemblance to the "party of Lincoln." Even at the micro-political level, in interpersonal debate, the famous conservative carefulness, politeness and reserve has utterly vanished.
The conservative movement, as such, is an ever-shifting beast. Its drive is power, and as such it has gradually adopted the familiar architecture of another power-mad phenomenon of mass politics: fascism.
In The Anatomy of Fascism, Robert O. Paxton explains how fascism similarly adopted and dropped ideologies at will, according to its power needs (pp. 16-17):
- In a way utterly unlike the classical "isms," the rightness of fascism does not depend on the truth of any of the propositions advanced in its name. Fascism is "true" insofar as it helps fulfill the destiny of a chosen race or people or blood, locked with other peoples in a Darwinian struggle, and not in the light of some abstract and universal reason. The first fascists were entirely frank about this.
- We [Fascists] don't think ideology is a problem that is resolved in such a way that truth is seated on a throne. But, in that case, does fighting for an ideology mean fighting for mere appearances? No doubt, unless one considers it according to its unique and efficacious psychological-historical value. The truth of an ideology lies in its capacity to set in motion our capacity for ideals and action. Its truth is absolute insofar as, living within us, it suffices to exhaust those capacities. [A. Bertele, Aspetti ideologici del fascismo, Turin, 1930]
The truth was whatever permitted the new fascist man (and woman) to dominate others, and whatever made the chosen people triumph.
Fascism rested not upon the truth of its doctrine but upon the leader's mystical union with the historic destiny of his people, a notion related to romanticist genius, though fascism otherwise denied romanticism's exaltation of unfettered personal creativity. ...
Fascist leaders made no secret of having no program. Mussolini exulted in that absence. "The Fasci di Combattimento," Mussolini wrote in the "Postulates of the Fascist Program" of May 1920, "... do not feel tied to any particular doctrinal form." A few months before he became prime minister of Italy, he replied truculently to a critic who demanded to know what his program was: "The democrats of Il Mondo want to know our program? It is to break the bones of the democrats of Il Mondo."
This fist-shaking style of response to normative political discourse, in fact, was one of the real hallmarks of fascism. It signaled, above all else, the rightness of power by virtue of its naked use to intimidate and silence dissent. To the fascist leader, diplomacy is a parlor game for the weak; what counts is the raw will of the man of action. Whether he is right is moot; what counts is his strength and resolve in the exercise of power.
The Ripleyesque moment when this aspect of the conservative movement's core was revealed came earlier this summer, when Vice President Dick Cheney told Sen. Patrick Leahy, in an exchange over policy disagreements and the rhetoric used in them: "Go fuck yourself."
Coarse language and threats have always been part of the political scene, and their appearance in rancorous exchanges between politicians is woven into American lore. But it is rare for someone as high-ranking as the vice president to use them, especially on the floor of the Senate, and in such decorous confines they are almost always accompanied by later apologies, especially in cases where an obscenity was used.
What was remarkable about this case was that there was no apology at all. Instead, Cheney defended the use of the epithet:
- "I expressed myself rather forcefully, felt better after I had done it," Cheney told Neil Cavuto of Fox News. The vice president said those who heard the putdown agreed with him. "I think that a lot of my colleagues felt that what I had said badly needed to be said, that it was long overdue."
"Ordinarily I don't express myself in strong terms, but I thought it was appropriate here."
This wasn't just an "isolated event." By the terms of his defense, Cheney's non-apology clearly signaled that this kind of response to critics of the conservative agenda was appropriate for movement followers as well. And indeed, one didn't have to look far to see the way Cheney's response filtered down to the rank and file, as from this story about a Cheney campaign stop in Ohio:
- Seventy-year-old Florence Orris, among those at the Parma rally, said she's backing Bush because of his integrity and strong faith. "Any man who has the courage to speak about our Lord has my vote," Orris said. She lamented the "ugly" tone of the campaign but nonetheless said she didn't blame Cheney for blurting out an expletive during an angry encounter with Sen. Patrick Leahy on the Senate floor last month.
"I'm almost getting to that point with my Democratic friends," she declared. "One of them told me this week she hates President Bush."
Lord knows, after all, that we never heard such vile language about President Clinton.
The flash of Cheney's signal to the troops illuminated clearly the fact that the conservative movement had developed an architecture to its argument -- that is, the core of its appeal to the masses -- that was indistiguishable from that of fascism. This became especially clear when considering how neatly it wrapped up, in those three short words, so many of the "mobilizing passions" that form the fascist appeal (described in Part 1).
Present in the thrust of this singular episode were the right to dominate others without normative restraints; the threat of exclusionary violence for those who fail to integrate with the movement community; the victimhood (at the hands of nasty liberals) that justifies any action; the beauty of violence and efficacy of will; and the superiority of the leader's instincts over logic and reason. Indeed, if there was any way of summing up Cheney's response, it was that it expressed a deep and abiding contempt for the weak, and the assertion of the right of power over it.
Cheney's remark was just the flash that initially revealed this architecture. The clearer view came a few weeks later, at the Republican National Convention in New York City. While anyone audacious enough to protest the proceedings outside was subject to the classic lockup treatment, often in scenarios straight out of a totalitarian state, those partaking of the big pep rally inside were treated to a whole menu of classically fascist mobilizing passions, played out on national television.
Foremost among the appearances of these passions was the convention's most memorable moment: When California Gov. Arnold Schwarzenegger told the assembled faithful, "For those critics who are so pessimistic about our economy -- donít be economic girlie men."
Sidney Blumenthal remarked in Salon on the deeper implications of this speech:
- Having established his citizenship, Schwarzenegger felt entitled to articulate the Republican credo -- of power over weakness. "If you believe this country, not the United Nations, is the best hope for democracy, then you are a Republican." Thus the immigrant blasted internationalism. "If you believe that we must be fierce and relentless and terminate terrorism, then you are a Republican." Thus he declared the Democrats soft. "And to those critics who are so pessimistic about our economy, I say: Don't be economic girlie men."
So beyond unilateralism, jingoism and social Darwinism lies sexual apprehension. Those who aren't with the program are queer. But the anxiety is even deeper than that of homosexuality. "Girlie man" is a peculiar accusation for being effeminate. It reveals fear of women and their complex values. The name-calling is a frantic effort to suppress nuance, which the action hero fears he may harbor within.
Like Cheney's remark, this brief moment neatly captured a range of emotional appeals from the fascist blueprint: contempt for the weak, the superiority of instinct over reason, the efficacy of will. It also raised the virtue of virile, masculine leadership, as opposed to "effeminate" policy built on wisdom. This mindset disdains intellectual rigor as an affectation of vacillating liberalism.
As Umberto Eco described it:
- The critical spirit makes distinctions, and to distinguish is a sign of modernism.
In modern culture the scientific community praises disagreement as a way to improve knowledge. For Ur-Fascism, disagreement is treason.
We have been hearing, of course, a steady drumbeat from the media's rabid right -- Rush Limbaugh, Ann Coulter, Michael Savage, Sean Hannity, and many more -- accusing liberals of overt treason and complicity with "the enemy." This raging anti-liberalism -- another key feature of fascism -- was prominent in Schwarzenegger's speech as well. He even resorted to a well-worn far-right canard when he described Hubert Humphrey's politics as something "that sounded like socialism."
It was an even more prominent feature of Zell Miller's speech the following night. Though Miller, nominally at least, is a Democrat, the entirety of his speech was a raging attack, not merely on John Kerry, nor on Democrats, but on liberalism in general. At times -- especially as he attacked liberal "pacifists" -- he seemed almost to be extolling the aesthetic (or at least utility) of war. Liberals, he contended, are incapable of keeping our families safe. A vote for George W. Bush was a vote for strength and resolve. The weak and vacillating Democratic nominee stood in stark contrast: "From John Kerry, they get a 'yes-no-maybe' bowl of mush that can only encourage our enemies and confuse our friends."
Miller expanded on this theme in suggesting that merely running against Bush in the election was a kind of treason, claiming that "our nation is being torn apart and made weaker because of the Democrats' manic obsession to bring down our Commander in Chief".
Miller's characterization of the opposition to Bush thus deftly identified it with attacks on the national interest by referring to him as "the Commander in Chief." It's a sly way of associating Bush's political enemies with our national enemies -- Democrats with Al Qaeda. Dissent is treason, indeed.
Of course, only a few short days later, Cheney himself made this suggestion explicit at a campaign stop, saying: "It's absolutely essential that eight weeks from today, on Nov. 2, we make the right choice, because if we make the wrong choice then the danger is that we'll get hit again and we'll be hit in a way that will be devastating from the standpoint of the United States."
But Cheney's speech to the RNC was also rife with these memes: The "strength" and "resolve" of the Bush leadership, contrasted with the weak and vacillating liberal Kerry contingent. Above all, Cheney hammered home the theme that post-Sept. 11 America faced a historical crisis of catastrophic dimensions, one that demanded exceptional responses:
- Sept. 11th, 2001, made clear the challenges we face. On that day we saw the harm that could be done by 19 men armed with knives and boarding passes. America also awakened to a possibility even more lethal: this enemy, whose hatred of us is limitless, armed with chemical, biological, or even nuclear weapons.
Just as surely as the Nazis during World War Two and the Soviet communists during the Cold War, the enemy we face today is bent on our destruction. As in other times, we are in a war we did not start, and have no choice but to win. Firm in our resolve, focused on our mission, and led by a superb commander in chief, we will prevail.
The culmination of these passion-laden appeals came with the RNC acceptance speech from George W. Bush himself, in which the attacks on liberals were given a few requisite lines, while the recurring themes of "strength" and "resolve" were driven repeatedly home, capped by an appeal to a vision of American exceptionalism and manifest destiny:
- Now, because we have faced challenges with resolve, we have historic goals within our reach, and greatness in our future. We will build a safer world and a more hopeful America and nothing will hold us back.
These themes have been the centerpiece of the Bush campaign since the convention -- Kerry an effete, vacillating "flip-flopper," Bush a virile, strong, resolute leader. Kerry a pointy-headed liberal, Bush a plain-spoken man of the people. And for awhile, it appeared to be working.
But then came the first presidential debate, and Americans were hit upside the cognition with the dissonance transmitted over their television sets: It was Kerry who looked strong and resolute, while Bush was not only weak and vacillating, he was forced to fall back to his mantra of strength and resolve and "hard work," all of which were plainly belied by the image the man himself presented.
Digby had one of the most incisive takes on this:
- George W. Bush is a man with two faces--- a public image of manly strength and a private reality of childish weakness. His verbal miscues and malapropisms are the natural consequence of a man struggling with internal contradictions and a lack of self-knowledge. He canít keep track of what he is supposed to think and say in public.
There is no doubt that whether it's a cowboy hat or a crotch hugging flightsuit , George W. Bush enjoys wearing the mantle of American archetypal warriors. But when he goes behind the curtain and sheds the costume, a flinty, thin-skinned, immature man who has never taken responsibility for his mistakes emerges. The strong compassionate leader is revealed as a flimsy paper tiger.
On Thursday night, the president forgot himself. After years of being protected from anyone who doesn't flatter and cajole, he let his mask slip when confronted with someone who didn't fear his childish retribution or need anything from him. Many members of the public got a good sharp look at him for the first time in two years and they were stunned.
That is, perhaps, the important thing to remember about both the undercurrent with which we are faced: Fascism, at its core, is a fraud. It promises the triumphal resurrection of the nation, and delivers only devastation. Strength without wisdom is a chimera, resolve without competence a travesty.
And a hollow, pale imitation of a fraud -- which is what the pseudo-fascism now being practiced by the conservative movement amounts to -- can be readily revealed for what it is, if its opponents have the strength of character to stand up to them.
For all his other failings, John Kerry did so last week in the debates, and in the process exposed Bush, and the entire architecture of his appeal, for a weak, hollow fraud. The only response that the Bush team is likely to muster henceforth is a kind of impotent screaming, raising the volume of the "flip-flop" attacks on Kerry, throwing more shit on the wall in the vague hope that something will stick.
In a normal political environment, this might not be a problem. But the conservative movement controls all the reins of power now. It is not about to relinquish any of them willingly. And it has the devout backing of a substantial portion of the American populace, even if it eventually proves to be a minority.
These people have no intention of sharing power with liberals. Indeed, their entire agenda, in the end, is devoted to eliminating liberalism completely. By any means necessary.
We may have finally illuminated the lair at the center of the labyrinth, but we've only begun fighting our way out.
Next: The One-Party Apocalyptic State
Why the Hailey case matters
Sunday, October 03, 2004
A quick note to explain something about the harassment of Utah State professor David Hailey that I don't think is understood fully about his now-controversial study:
The study is a piece of research in progress. Hailey has never promoted the study publicly. What you see is a professor's research project intended for students and colleagues at Utah State to comment upon and contribute to.
As Hailey told me today: "This was never intended for public consumption."
The study appears as part of the Utah State internal Web site for its Interactive Media Research Labs, which Hailey oversees. It includes a syllabus for students and some of the projects that will be discussed in the course, including the Bush Memo Study. It was only through distribution of its URL through Internet backchannels that Hailey's critics became aware of it.
In other words, they've barged into an ongoing college project and attempted to academically lynch its author for merely considering a hypothesis they believe to be heretical.
A couple of commenters in the thread below have pointed out the larger significance of all this. First, there was cs:
- I for one am thrilled USU is considering legal action. In fact, I have long thought one thing celebrities -- often libeled with little to no legal recourse -- might do is create a foundation / endowment to finance legal battles against libel / slander for political ends against private individuals -- especially academics.
It seems to me Dr. Hailey's could be an interesting, perhaps precedent-making case. As academics frequently use the internet to disseminate draft articles and research, it seems difficult to argue that merely posting his hypothesis and study on a department website constitutes thrusting himself into the public eye in this controversy.
However, even if he were to be judge a Limited Public Figure in this instance, a charge of "actual malice" is not unprovable, especially if pre-trial investigations and /or discovery uncover politically interested linkages between website owners, surrogates and operatives / supporters of the Bush campaign.
The whole thing could get very, very dicey. One of the most effective ways of making the julies of the world think twice about harrassing real and imagined opponents on command -- again, especially in academia -- may be to force them to hire attorneys and face the consequences of their actions within the legal system.
Next came Sara:
- In many respects this issue is a classic Academic Freedom and Intellectual Freedom issue with some consequence.
My hope is that AAUP will consider supporting this case should it mature in a significant way -- and here's why.
The essence of any field of academic research is the publication of the fruits of work for the purpose of allowing others with similar interests and knowledge to critique ongoing work -- and by critique, I do not mean smash up, misrepresent, or use as the basis for personal attacks. Critique means evaluate according to a generally accepted set of scientific or disciplinary rules. It is the core of the whole academic enterprise -- and the scientific one too.
It's one thing to publish properly founded dissent to someone else's work -- it is quite another to import into this process character assassinations, threats, political pressure on an employing agency, threats to collegues and all the rest. I hope the AAUP takes an interest and gets involved.
But I have a second concern -- and that's the need for strong support for the "public scholar" -- that is the individual with appropriate credentials and knowledge base who attempts to participate meaningfully in public debate. We've already seen cases where all sorts of negative political pressure is directed at scientists who engage in "popular distribution" of their work on things like Global Warming or the effectiveness of "abstinence only" sex ed programs (among others) -- where strong-arming researchers substitutes for legitimate topical discourse.
Incidentally, Dr. Hailey told me the study was short on explaining his methodology largely because it was simply an early working draft and he hadn't thought it necessary. He's planning on producing a paper in the next week or so detailing this aspect of the study, and I'll be posting the details here when they become publicly available.
I'm painting my house. So my progress on Part 3 of "The Rise of Pseudo Fascism has been slowed a bit. It'll be up in a day or so, I hope.
The blogosphere, really, has the potential to be a great innovation in American journalism. As I've argued previously, it represents in many ways the democratization of journalism, the ability of voices of all kinds to participate in the sharing and distribution of information that might otherwise be choked out by the bottleneck that mainstream media have become over the past decade and longer.
But there's an important caveat to all that: If bloggers want to act as journalists, they need to conform to basic journalistic standards. Or they will, in the end, pay for it.
These standards, of course, have come in for severe erosion in recent years, especially as image- and sound-bite-oriented television broadcasters have come to dominate the scene. The product is often a lazy kind of journalism in all spheres of the industry that substitutes "he-said/she-said" reportage for substantive analysis of truthfulness, as well as a willingness to discard basic standards of balance and factuality in pursuit of of proving often partisan theses. This is as true of CBS' manifest failures in vetting the provenance of the Killian documents as it is of the New York Times' steadfast support of Jeff Gerth's clearly shoddy Whitewater reportage.
Nonetheless, the arrival of bloggers on the journalistic scene -- especially their heady self-contratulatory response to having successfully embarassed CBS News -- represents not just a new phase in journalism, but a new phase for bloggers as well.
While CBS' failures are one thing, still, much of the critique of CBS' documents, I believe, is based on utterly useless data that proves absolutely nothing. Indeed, if you want to see yet another example of how one of the bloggers' favorite "proofs" falls apart on close examination, check out Paul Lukasiak's latest contribution to the Document Wars.
The hard reality, for anyone serious about document verification, is that almost nothing can be proven one way or the other about the documents' authenticity without a copy of the original documents themselves in hand. No one has produced these yet, and until there are, everything remains almost purely a matter of speculation.
Unfortunately, this has simultaneously meant that almost any speculation can gain an audience. And right-wing bloggers, their arms still in traction from patting themselves on the back ad nauseam, have continued to attack apace -- including descending full force on anyone who dares question their basic tenets.
This brings us to the case of the folks at Wizbang, who have in recent days been devoting themselves to attacking the work of Utah State professor David Hailey, in particular his research in a study titled "Toward Identifying the Font Used in the Bush Memos", which argues that the CBS documents likely were in fact produced not with a word processor but with a typewriter.
You can get a sense of the tenor of the attacks at the original post with multiple updates, as well as at posts dubbing the matter "Haileygate". While commenters at the blog have been even more crude, the blog's authors have hardly been shy in flinging accusations. Their core mantra is that Hailey is "a liar, a fraud and charlatan." Even in its more toned-down recent posts, the blog's authors insist that Hailey has committed "academic fraud."
This is the same blog which, as I've described previously, fell for a clear hoax from an anonymous Internet poster claiming that Iowa farmer Martin Heldt -- whose FOIA requests uncovered much of what was originally known about Bush's National Guard records -- had tried to sell these documents to various campaigns. Based on the bogus testimony, the Wizbangers decided that Heldt was the "forger" of the documents -- a blatantly wrong and false accusation which it has neither corrected nor apologized for.
They've continued in the same vein with the Hailey report -- openly libeling their subject and accusing him of unethical and potentially criminal behavior, all without the benefit of getting a response from him as well as any consideration of the gravity of the charges. Even their most recent posts continue to assert the "academic fraud" charge.
This has not occurred, of course, without consequences in the real world. As the Deseret News reports, the result of Wizbang's campaign has been a flood of nasty and accusatory e-mails directed at Hailey, his department head, his dean, and even the president of Utah State, demanding Hailey's head for having ventured such a thesis:
- Since posting his findings on the Web, Hailey has for the past week received hundreds of e-mails that he now simply forwards to a file he created called "hate mail." The subject line of one e-mail reads, "In more ways than one, you are a fascist hack."
Hailey's plans are to read through the mail more thoroughly for another research project but not until he is "emotionally stable." He said he couldn't sleep Thursday night because people are attacking his credibility and credentials.
"In a virtual reality situation, they're coming on campus and trying to lynch me," Hailey said over the phone.
... Without a request for an interview, USU President Kermit Hall called the Deseret Morning News with his own take on the situation.
"Whoever it is," Hall said of the e-mails, "is clearly trying to intimidate the university and trying to intimidate Professor Hailey."
Hall called Hailey's research "legitimate" and said the professor has every right to engage in and publicize the research.
"There's been an effort to suggest that the administration put him up to this -- the answer to that is, 'wrong,' " Hall added. "There's a suggestion that the purpose of his work is to join some kind of political action -- that's wrong."
Hall called the blogging and e-mails the "worst kind of smear" against academic research and the opportunity for academics to share their research within academe and with the "wider" public.
... An unidentified person claiming to represent the www.wizbangblog.com Web site called Smitten and accused Hailey of "academic misconduct." There were 50 pages of blog entries critical of Hailey on the Wizbang site as of Friday.
Hailey's heresy, of course, was arguing thus in the conclusion of his study:
- Since current odds hold that the Bush memos are faked, the question of their authenticity turns to whether CBS should have known they were inauthentic Ė if, in fact, they are. In fact, there seems to be nothing in the memos that indicates they are faked. All evidence points toward a mechanical production process and away from a digital process.
Furthermore, the mechanical process seems to be consistent with typewriters used in the military at the time in question.
If I had been one of the experts advising CBS, I would have advised them that there is nothing physical in the memos implying they are not authentic. All indicators imply they are authentic. I would have told them that from my point of view, the memos are worthy of presenting to the public.
It's worth noting, of course, that Hailey brings a highly specialized set of credentials to the puzzle:
- I served in the U.S. military (Army) from 1963 to 1972. For five of those seven years I was an Army illustrator responsible for short run publications including memos such as those in question. Ultimately, I have a total of almost 35 years experience examining document production, including analyzing and specíing type. I have an archive that includes military documents produced between 1963 and 1984 and have access to a repository of military documents here at the university. Finally, I have extensive experience using computers to manage and manipulate images, including type.
I interviewed Dr. Hailey today by phone from his office in Logan. He maintained that his research was sound, readily refuted his critics, and pointed toward further steps that he thinks will eventually exonerate him.
He told me that he had personally received hundreds of e-mails, nearly all of them nasty and accusatory, nearly all of them calling him a fraud. As the News reported, his department head had received a call accusing him of "academic misconduct." So far, he said, the confrontations had not invaded his home or his personal life.
The core accusation by Wizbang -- that he had cut and pasted an upper-case "th" into the document -- he said, represented a basic misunderstanding of what he was presenting. As the study itself warns:
- Using the hypothesis established from examining the Bush memos, it becomes possible to create a virtually flawless replica. Please understand, however, the replica is not typed. It is produced by examining and replicating the original font used in the memo. It is not a demonstration that I can type a replica memo, it is a demonstration that the font in the memo is probably Typewriter.
Hailey said that the entire lines of reproduced type are simply sample letters of the type he hypothesizes is the actual type in the memos -- namely, a condensed Slab/Serif version of an IBM font similar to ITC American Typewriter, and not the oft-hypothesized Times New Roman -- essentially cut and pasted in the proper order.
"At no point do I claim that this reproduces the memo on a typewriter," Hailey told me. "Every letter in it, in fact, is cut and pasted. That's explicit in the exercise."
In fact, that's the whole point of Hailey's work: It is simply a hypothesis. He hasn't reached any final conclusion, because none is finally possible without the original documents. What he is doing is examining the available evidence and arguing within the limits imposed by them.
And all Hailey is claiming, if you read his study carefully, is that he believes the font in the memos is that particular version of the IBM font similar to Typewriter. The evidence to substantiate his hypothesis, he believes, could be found by examining other documents produced within the 111th Fighter Interceptor Squadron at that same time period.
Here's what he told me today:
- To be perfectly honest, my research up to this point was strictly to examine this font and determine if it was Times New Roman. And then it was to go a step further and say, OK, if it's not Times New Roman, what is it? Not specific font, just what font family it is. And that's what I've been doing up to this point.
Now, having done that, basically, I'm finished with this research project, and all I have to do is finish writing up this report. But the next project is going to be to track down duplicate documents -- documents done on the same machine.
I was prepared to go on and just do my other research -- because this was an academic process. I just said -- oh look, here's what I see, this is how I see it, this is why I see it this way.
Basically, I end by saying, I'm not saying that these documents are authentic. I'm saying that if somebody will go out and look at all the documents in the 111th, they will either find documents that match this -- in which case this is probably authentic -- or they will not find documents that match this, which means this is bogus. And that's what I said.
It's also worth noting, of course, that Hailey's critics have focused on line reproductions, which are secondary to his argument, and ignored the heart of his thesis: namely, that multiple examples of particularized wear on certain of the letters in the documents -- especially the "e"s and "t"s -- are typical of letters produced by mechanical typewriters and are not likely to appear in a word-processor document.
Moreover, even the celebrated superscript "th" provides evidence the document was produced by a typewriter:
- Superscripts on a computer font tend to be low, permitting the printer to print a line in most cases in a single pass. For typewriters, height is not so important. This does not say that the superscript could not be digital. The quality of the superscript "th" in the Bush Memos is so bad that deriving much information other than its relative placement is impossible.
The overwhelming evidence that the documents were produced by a typewriter led Hailey to conclude that there was a high likelihood they were authentic. After all, if that was the case, then there was an extremely low likelihood that any forger could have pulled it off. As he explained to me:
- If this was a forgery, then this person typed that thing on a machine that no one's going to believe. The person couldn't possibly have chosen a worse typewriter and a more difficult to find typewriter to do this forgery on. Which means that if they are typed, probably they are authentic.
If you apply Occam's Razor, then this guy is either extremely brilliant, because what he has is this very specialized typewriter that is so unique that there's only one like it just every thousand miles kind of thing. And it is actually the typewriter that was used at that center. So this person actually knows that this typewriter was there and that there will be paper there -- there will be memos there and other projects there that will match. And if it's a fraud, it's that good.
We'll leave it to Dr. Hailey's further investigations to determine whether or not his hypothesis holds up. In the meantime, it's clear that if nothing else, his critics at Wizbang, and their associated minions, have fallen far short of giving his work a fair hearing.
As David A at ISOU observed:
- I feel that Wizbang and its writers have every right to question research and reporting that they disagree with, I do not feel they have the right to destroy someone's career because they disagree with them. If the professor is guilty of some sort of fraud, his University should be free to investigate under their standard academic processes, not be overwhelmed and pressured by a bunch of partisan hacks who likely don't even understand all the complexities of his research.
Conservatives get very upset when you use the Nazi metaphor to describe their tactics, and I am loath to do so under anything but the most extreme cases, but let the chips fall where they may in this case. Call it McCarthyism, Nazism, Digital Fascism, whatever, but limiting debate on an issue to all but those who agree fanatically with you, and attempting to squelch any opposing point of view, represents the very traits that many of my Right Wing friends protest as metaphors for their behavior. This case... clearly to me, is a scary one for its implications, and while I agree that the Rather documents were fakes, I don't agree that someone should have their life and credibility destroyed because they don't happen to share my beliefs...
David needn't worry, actually. Because the folks at Wizbang are about to discover that there are consequences for leveling these charges.
While it's true that, as the Deseret News reported, Hailey himself is not considering legal action against the authors of the Wizbang posts that have openly libeled him, the same cannot be said of the officials at Utah State University.
Hailey, in fact, assured me that the university's attorneys consider the Wizbang posts "fully actionable" and are in the process of preparing legal remedy for the defamation of character that the blog has leveled both against Hailey and the university. It's difficult to say at this point whether they will act on it, but there's at least some likelihood they will.
This is a matter of academic freedom to USU officials, Hailey said. "When you start attacking legitimate research just because you don't think it's something that should be explored, you're attacking the right of academics to work freely. That's an important battle for them."
Interestingly, in another post, one of the Wizbang authors boasted of the new status of bloggers:
- It was my adventure debunking Professor Hailey that lead me to an epiphany. I no longer what to be called a blogger and neither should you.
We are not bloggers, We are independent, peer reviewed journalists.
Well, OK. Fair enough. Just about anyone who wants to can probably call himself a journalist, really. That's the whole point of blogging, isn't it? To disseminate information that should be circulating in the journalistic media but isn't.
But the newly proclaimed journalists of the blogosphere might want to pause for a moment and consider some advice from a journalist who has been through a few document wars and court threats: If you're going to level serious charges of unethical or scandalous or especially criminal behavior, then you had by God better be ready to back it up in court.
There remains in full force today a body of libel law that makes it posssible for aggrieved parties to file civil actions against persons who level such charges in public and in print, and the mere fig leaf of free-speech rights will not protect you if you have failed to meet basic standards of truthfulness, fairness and factuality. This is as true for bloggers as it is for the ink-stained wretches who man the front lines of actual print publications.
Now, it's true that for public figures -- thanks to New York Times v. Sullivan, libel laws are nearly unusable for anyone who rises to the level of "public figure." That's because public figures now must be able to establish "malicious intent" on the part of the libeler, and such proof is a real rarity. However, this limitation does not hold for private figures such as Dr. Hailey (though it may, in fact, for the university).
So here's what is probably about to happen: USU's attorneys will send legal letters to the Wizbang authors demanding a full retraction (and, if justice is served, a full apology to both Hailey and the university), upon pain of facing a civil action for libel. If the authors refuse, then they'll be served with more papers detailing the civil lawsuit filed against them.
It's ugly, but it's a hard, cold fact of the real world of journalism.
In any event, the Wizbang authors may soon find themselves wishing they had applied a little old-fashioned journalistic prudence before rushing to print with their manifestly reckless accusations.
But in the process, they may provide a useful object lesson for us all.