What do sports and the American judicial system have in common?  Both employ an individual or individuals tasked with responsibility for interpreting and then enforcing the rules.  And in each arena, the measure of an official’s performance is quite counter-intuitive.  The highest benchmark of excellence is often the extent to which that party is invisible.

To understand this maxim, look no farther than the pass interference non-call in the 2019 NFC championship game between the the New Orleans Saints and the Los Angeles Rams.  An otherwise well-played, sustained effort by both teams was overshadowed by what became known as “the snafu under the dome.”  And Bill Vinovich, the game’s referee, became a household name.

I thought about Vinovich as I watched Judge Peter Cahill give final instructions to the jury in the Derek Chauvin trial before they left the courtroom to begin deliberations.  NOTE:  I had to just now look up Cahill’s name as I could not remember it after four weeks of watching him preside over the case.  What higher praise can any legal adjudicator earn?  This is not always the case. (Can you say Lance Ito?  I knew you could.)

It was 5:00 p.m. EDT when the jury was dismissed, just in time to switch to ESPN to get my daily dose of analysis of the previous day’s sports highlights.  However, as I reached for the remote, Cahill indicated he had some unfinished business with the prosecution and defense lawyers.   For the same reason one should never leave a movie theater before the final credits play out, I stayed with the trial coverage, wondering if I might get a preview of what might come post the jury’s verdict, especially if Chauvin was found guilty.

I am glad I did.  What followed was the true test of Cahill’s handling of the proceedings.  If found guilty, Chauvin would be subject to Minnesota sentencing guidelines which have different prison terms and fines depending on whether the crime is considered simple versus aggravated assault.  The defendant  is given the option whether that decision is made by the judge or by a jury.  When asked, Chauvin waived his right to a jury, leaving the decision to Cahill.  Wow!!  Even if convicted of second degree murder, the defendant thought enough of the judge’s fairness during the trial he was willing to trust him with a decision which could mean a significantly greater level of punishment.

It did not end there.  Eric Nelson, Chauvin’s lead defense attorney, then asked for a mistrial.  First, he focused on what he believed was prosecutorial misconduct during the state’s closing arguments.  When prosecutor Jerry Blackwell referred to the defense’s analysis of the evidence as “stories” versus “the truth,” Nelson objected claiming Blackwell’s choice of words was demeaning and violated legal precedent.  Without a moment’s hesitation, Cahill reminded Nelson why he had overruled the objection and why he had also warned Blackwell to be careful how he characterized the defense.

Nelson then suggested California Representative Maxine Waters had influenced the outcome when she called for more protests and confrontation on the streets if Chauvin is acquitted.  Nelson claimed this was a threat of more violence if the jury did not convict his client.  In the tradition of King Solomon, Cahill cut the baby in half.  First he chastised Waters and all other elected officials who showed such disrespect for the judicial system.  Moreover, he warned that Waters words could give the defense the opening it sought to declare a mistrial.  “I’ll give you that Congresswoman Waters may have given you something on appeal that may result in this whole trial being overturned.”  SIDEBAR: Where were all Waters’ critics when the former guy incited an insurrection of January 6th?

Then he explained in detail why he would not declare a mistrial.  He trusted the jury.  He had ordered them not to watch the news and had no reason to believe they had not followed his instructions.  In hindsight, I now understood what I thought was an overemphasis on the role of implicit bias during his final instructions to the jury 30 minutes earlier.  He acknowledged we all have such prejudices, but awareness of them gives each of us the opportunity to look beyond these natural predilections.  He was pointing out the difference between opinion and evidence, and the only thing that mattered when it came to the defendant’s guilt or innocence was the evidence.

Regardless of the verdict, the Chauvin trial is one more example that government, in the hands of competent individuals, can fulfill its constitutional potential.  How refreshing after four years of sound bites and tribalism to know the police will not always protect a rogue officer, there are capable prosecutors who rely on the evidence to make their case and there are citizens who fulfill their responsibility as jurors and eye-witnesses in the pursuit of justice.

But above all, if I were to be a defendant in a court of law, when the bailiff asks me to rise because “here comes the judge,” I hope it is Peter Cahill or someone with his wisdom and demeanor.

For what it’s worth.
Dr. ESP

Civil discourse in America has become a Shakespeare play.  The debate on almost every issue plays out in the same five acts associated with any of the bard’s tragedies or comedies.

• Act I/Introduction of the players.
• Act II/Emergence of the issue or situation.
• Act III/Climax or moment of illumination when the outcome is determined.
• Act IV/Response to the climax.
• Act V/Resolution or catastrophe.

Take, for example, the current debate over freedom of expression on college campuses.  In Act I we learned there were faculty, students and speakers on college campuses who claimed their First Amendment right to freedom of expression had been violated based on things they had said or written.  In Act II,  academic freedom of expression becomes the cause celebre of the University of Chicago, which in 2014, establishes a committee on freedom of expression and develops what becomes known as the “Chicago Principles.”  In Act III, the movement is institutionalized when the Foundation for Individual Rights in Education {FIRE)) begins promoting the Chicago Principles and establishes a rating system to measure an institution’s compliance.  Concurrently, Econ Journal Watch makes the connection between the free speech movement and a study they published that looked at the voter registration of 7,243 professors at 40 major universities which found (drum roll) Democrats outnumbers Republicans 11.5 to one.

Which brings us to Act IV, the response taking place in the Florida State Legislature where  the Republican majority recently passed HB 233 with stated objective “to protect the intellectual freedom and viewpoint diversity on state campuses.”  However, according to the Tampa Bay Times ,” the act would require public colleges and universities to survey students, faculty and staff about their beliefs and viewpoints.”  On April 6, the Florida Senate passed its version of HB 233 on a partisan vote of 23-15, WITHOUT DEBATE.  (So much for freedom of expression.)  The Senate version includes vague language which allows the State Board of Education (appointed by the governor) to determine if any response is required based on the survey results.  Opponents of the bill contend the vague language opens the door for curriculum mandates at state colleges and universities.

I am afraid we have to wait for Act V to see how this cliffhanger unfolds.  Will HB 233 lead to academic McCarthyism?  The bill also allows students to make audio and/or video recording of class sessions which can be used as evidence in cases involving alleged violations of a student’s freedom of expression.  Or is HB 233 just one more instance of GOP political theater to deflect attention from efforts to further restrict voting rights or the state’s response to the pandemic?  Or is the whole freedom of academic expression movement  the solution to a problem blown out of proportion.  In 2018, the Georgetown University Free Speech Project issued a report in which it found “roughly  90 incidents since 2016 in which a person’s free speech rights were threatened, of which two-thirds of the cases took place on college campuses.” (Source: First Amendment Watch at New York University, August 2018)

In other words, will the eventual chronicle of this  clash of viewpoints over the intersection of government and academia be titled “All’s Well That Ends Well” or “A Midsummer’s Nightmare?”

POSTCRIPT: Some Culture Should Be Cancelled

On last night’s edition of Real Time with Bill Maher, the host again accused liberals of being overly “woke,” pointing to a recent incident where Meyers Leonard, an NBA basketball player, was released by the Oklahoma City Thunder for using a racial slur.  Oddly, Mr. Politically Incorrect, who often accuses others of being snowflakes, was not willing to share Leonard’s word.  I think my readers can handle it.

During a live-streamed session of the video game Call of Duty, Leonard referred to another player as “a fucking kike bitch.”  To his credit, Leonard quickly apologized for his behavior but claimed he had no idea what the word “kike” meant.  As a result, the Anti-Defamation League and others suggested he talk with members of the Jewish community including Holocaust survivors about the origins and history of the term, which he did.

Maher, however, found this offensive.  He thought the original apology should have been enough.  He then reminded his audience his mother was a non-practicing Jew and asked, “Doesn’t that give me enough cred to speak for my people?”  I think you know the answer!

Maybe an individual who, in the 21st century, believes education is an inappropriate response to ignorance is someone who SHOULD be cancelled.

For what it’s worth.
Dr. ESP

NOTE:  The title of today’s post comes from an experience many years ago when my wife and I attended the performance of a music composition advertised as being written in the style of Bela Bartok.  When the ensemble played the final note, a member of the audience stood up and yelled, “RUBBISH.”  Yes, you could call it music by the technical definition since the composition consisted of a series of notes strung together.  But as I told my wife that day, “Just because you can do something, doesn’t mean you always should.”

On March 16, 2021, the Foundation for Individual Rights in Education (FIRE) posted an on-line news article by Adam Steinbaugh, director of the organization’s Individual Rights Defense Program, titled “University of Virginia, founded by Thomas ‘Blood of Patriots and Tyrants’ Jefferson, orders student’s sign removed because it ‘advocates’ violence.”

The sign (as shown here) is described by Steinbaugh in the article as “student Hira Azher’s new anti-racism display.”  The caption below the picture reads, “Burn it all down” and a quote from Kwame Ture (the legally adopted name of the civil rights activist born Stokely Carmichael), “In order for non-violence to work, your opponent must have a conscience” followed by the words “UVA Has None.”

In a March 12 letter to Ms. Azher, the University’s Facilities Management Division informed her it had been directed to remove the sign as it “advocates physical violence.”  The letter focused on two specific references, the phrase “Burn It All Down,” and the suggestion that “nonviolence is ineffective against UVA.”

FIRE felt it necessary to engage in the situation by sending a letter to UVA, in Steinbaugh’s words:

…explaining that the university’s assessment that the display amounts to unprotected “incitement” is erroneous. The sign’s content would be understood by observers as political rhetoric, not as a student’s literal exhortation that others burn down the building in which she resides. Even assuming it were read literally, it is not likely to actually lead anyone to burn down the University of Virginia, much less do so immediately upon reading the sign.

In Adam Steinbaugh’s three-page letter to UVA,  FIRE reserves one paragraph at the very end to acknowledge the events of August 2017 when white supremacists and neo-Nazi marched on the University resulting in the death of anti-racism protester Heather Heyer.  Steinbaugh addresses this historical context as follows.

Instead, that violence–during which a white supremacist murdered a protester–should stiffen the university’s resolve to protect speech, not to use it as a basis to curtail expressive rights.

FIRE’s call to arms on this issue boggles the mind for more reasons than one can address, but I’ll stick to three.

First, a University has many responsibilities, including providing a safe environment for its students.  And on those sad occasions when it fails to do that, it is often held liable for its negligence or incompetence.  How easy is it for Mr. Steinbaugh, representing this self-appointed star chamber of what is or is not freedom of expression, sitting in an office in Philadelphia, to criticize  when the critic has no liability or nothing personally at stake?

In light of the events of August 2017, did it never cross Mr. Steinbaugh’s mind that the University was less worried Ms. Azher would incite violence than be the victim of it?  Does FIRE believe there are no white supremacists or neo-Nazis among the UVA student population?  Just imagine the response if an angry student, having seen her sign, broke into Ms. Azher room and harmed her.  What are the chances FIRE is going to testify on behalf of the University that UVA is not liable because it was more important they protect the student’s freedom of expression while ignoring any responsibility to protect her safety?

In the article, Steinbaugh finds it unimaginable anyone would take the phrase “burn it all down” literally.  Did he also find it unimaginable that Al Qaida could take down the World Trade Center or crash a plane into the Pentagon?  Or that insurrectionists would breach the U.S. Capitol in hopes of overturning a presidential election?  Or more than a half-million Americans would die during a pandemic?  In hindsight, like so many of us, I bet he wishes, on those occasions, someone had considered the possibility before it happened.

Second, Ms. Azher does not reside in just any old dormitory.  She lives in a room on The Lawn, the student housing which is part of Mr. Jefferson’s original design including the historical landmark Rotunda, which incidentally she incorporated in her sign.  She is in rarified company of alumni who have shared this space, including Edgar Allan Poe.  For many of us who are alumni, this is sacred ground.  It is a place where we celebrated the first warm day of spring playing frisbee or enjoyed an open-air free concert featuring The Fifth Dimension.  It is also a place that provided a brief refuge from the pressures of assignments and exams.  More importantly, it is where we spent our last day on the University grounds, receiving our diplomas.

I not only respect Ms. Azher’s activism against racism.  As you might imagine from previous posts, I welcome it.  I also believe she has the right to express her activism in words and images she deems appropriate.  But I am not sure that right extends to a venue where she is a guest.  It is an earned privileged (base on grades and activities) to live on The Lawn.  But with that privilege comes responsibilities.  If Ms. Azher wants to rent a billboard on Emmet Street, I say, “Go for it.”  But the door to her room belongs to the University which has conflicting responsibilities to individual students, the student population in general, being custodian of a historic site and to the community.  For FIRE to be blind to those competing obligations seems shortsighted (pun intended).  Life is not black and white (pun again intended).

Third, Mr. Steinbaugh obviously has not been reading newspapers or watching reports about the increase in targeted violence these past four years.  Nor does he seem to remember the exception to protected speech under the 1969 Supreme Court decision in Brandenburg v. Ohio goes beyond inciting violence.  It merely has to produce it.  You know, like a former president of the United States calling a pandemic the “China Flu” or “Kung Flu,” and there being a 150 percent increase in violent incidents against Asian-Americans since March 2020.  Or calling Latinos “breeders” and 23 Americans of Mexican ancestry being massacred in El Paso by an assailant who parroted that sentiment.

In closing, let me give Steinbaugh and FIRE credit where credit is due.  This is the first recorded case in legal history of “FIRE shouting First Amendment in a crowded student residence.”  I wonder how Justice Oliver Wendell Holmes would feel about that.

POSTSCRIPT

On March 13, 2021, Ms. Azher posted a picture of the door and the letter informing her the facilities division had been instructed to remove the image on Twitter under the words, “Fuck UVA.”   The University did NOT order or ask her to remove the Tweet.  Nor was she reprimanded for having suggested the University did not have a conscience when it came to racial issues.  Too bad FIRE chose not to acknowledge this aspect of her constitutional right to be pissed at the University administration or to feel it had not done enough to combat racism on campus.  They might have realized UVA had been quite accommodating when it came to her right to express her opinions.

POST POSTSCRIPT

If you search the term “student rights” on FIRE’s website, you get 28,399 hits.  However, if you search “student voter suppression” you get THREE hits, none of which deal with state efforts to make it harder for students to cast ballots in federal, state or local elections.  I guess disenfranchisement of a student’s constitutional right to vote in public elections does not constitute FIRE’s definition of “freedom of expression” or fits their mission of protecting “individual rights in education.”  I wonder why?

For what it’s worth.
Dr. ESP

A few posts back, I discussed the difference between acknowledging Donald Trump as “the” president versus “my” president.  Words matter.  This time the distinction lies between the words “voter” and “voting.”

Much is being written and talked about concerning “voter suppression.”  The Brennan Center for Justice reports, as of February 19, 2021, “state lawmakers have carried over, pre-filed, or introduced 253 bills with provisions that restrict voting access in 43 states.”  To be fair some are multiple versions on a single issue.  For example, 11 bills related to absentee voting have been introduced in the current session of the Alabama legislature.

But it is not the voter who is being suppressed.  The registered voter will still be there.  What is being affected is the ability of that person to cast a ballot during an election.  Therefore, the more accurate term would be “voting suppression.”  And as we know from multiple sources, including his recent statement before the Supreme Court, Michael Carven, attorney for the Arizona Republican Party, admitted the target for “voting suppression” is likely Democratic voters.

If you want to understand the difference between “voting” versus “voter” suppression, you have to start by looking at the Marist Institute for Public Opinion survey, conducted March 3-8, in which respondents were asked, “If a vaccine for the coronavirus is made available to you, will you choose to be vaccinated?”  Why is this important?  Leading health experts from Dr. Anthony Fauci to CDC director Rochelle Walensky contend Americans can return to a reasonable level of economic and social normalcy when 75 to 80 percent of all adults have been vaccinated, a prerequisite for effective herd immunity.

So let’s look at the numbers.  According to the Marist survey, there is still work to do.  Among all adults, 30 percent say they would not get vaccinated, while 22 percent indicated they had already received at least one dose and another 45 percent said they plan to get vaccinated when their turn comes.  But the average for the total population, as usual, does not tell the whole story.  Consider the following data on certain subsets of individuals who say they will not get vaccinated.

Republican Men/49 percent
Trump Voters/47 percent
White Men without College Educations/40 percent
White Evangelical Christians/38 percent

In contrast, the population cohort with the smallest percentage of vaccine deniers is (drum roll) Black Americans.  How many news reports have focused on anticipated resistance by African-Americans, based on the historic abuses of minorities as medical trial subjects, the most obvious being the Tuskegee Experiment when 600 African American men in Macon County, Alabama were selected to study the progression of syphilis, which at the time had no known treatment.  Instead of testing the efficacy of penicillin, the most promising treatment, all 600 were given a placebo.

How could the pundits be so wrong?  Maybe, based on the morbidity rate among minorities, Black Americans understand how deadly COVID-19 can be.  Call it common sense.  Unlike Jina Militello, a school teacher and 2020 Trump voter, who appeared on today’s edition of Morning Joe.  When asked by NBC reporter Kate Snow why she is not listening to the advice of health officials, Militello responded, “I believe the risk from the vaccine is greater than getting the virus.”  Sound familiar?  How many converts were COVID-19 deniers until someone they loved or they themselves contracted the disease?  Militello is obviously outside the one in five Americans who knows someone who died from COVID-19.

Which brings me back to the difference between “voter” and “voting” suppression.  Voting suppression did not work in 2020 and will not work in the future.  Why?  Because as rightfully predicted by many, determined Democrats  will “walk through fire” when anyone tries to disenfranchise them.  Sadly, that will not be the case when it comes to vaccine deniers.  Even as the number of deaths from COVID-19 continue to decline, the percentage of the remaining deaths will be significantly highly among the unvaccinated.  And if that cohort consists largely of Republican men and Trump supporters, will GOP leadership understand they are suppressing their own electoral base when they do not encourage their supporters to get vaccinated?  Not by making it harder for them to cast a ballot, but by increasing the odds they will be eliminated forever from the voting pool.

It reminds me of an old joke.  A driver slows down to avoid hitting a jaywalker.  The passenger says, “Why did you slow down?  He was smoking and is going to die anyway!”  Worried about a friend or relative who continues living in that alternative Trump/GQP universe?  Don’t worry.  There are 50/50 odds they are not going to get vaccinated and you will not have to worry about them much longer.

For what it’s worth.
Dr. ESP