In which I get called “Thought Police”

by Walter Olson on October 20, 2008

[Note: see important update/P.S. at end].

As you may recall, I wrote a piece last week for City Journal taking issue with various calls around the liberal blogosphere for having the McCain-Palin campaign investigated or even prosecuted for supposed incitement to violence against its opponents (a charge for which credible evidence appears severely lacking in the first place). Along the way, I criticized a Concurring Opinions post by University of South Carolina associate professor Susan Kuo in which Kuo first endorsed the charge that the Republicans were engaged in “character assassination” and “peddling fear, hate, and outrage to an audience that appears highly susceptible to this message” and then helpfully laid out potential theories under which criminal liability might be assigned to inflammatory campaign speech of such a sort. I said I found it bizarre that Kuo entirely omitted mention of the First Amendment to the U.S. Constitution, and went on to cite a relatively recent (1982) case in which a unanimous Court had cited the First Amendment as protecting even fairly extreme language of incitement which was soon thereafter followed by actual violence. These circumstances, I concluded, virtually ensure that no American court would countenance a prosecution of McCain, Palin, or their campaign staffs for incitement on current evidence absent a rapid and spectacular change in Constitutional jurisprudence from its present stance.

Now Professor Kuo has responded in a new post at Concurring Opinions by calling me names. She writes that it was predictable that “the Thought Police” — she links that phrase to my piece — would quickly emerge to “chastise” her “for committing crimethink”.

Before turning to this amazing charge and unpacking its heavy freight of irony, let’s dispose briefly of a couple of Kuo’s incidental points. First, she claims I champion the idea that “the mere existence of the First Amendment invalidates the notion of criminal liability for political speech”. In fact, as even a hurried reading of my post should have revealed, I made just the opposite point: I noted that there are some circumstances (such as, but not necessarily limited to, intent to incite violence combined with co-ordination with those who commit the bad acts) where notwithstanding the Amendment political speech can cross a line into crime. I also noted that reasonable minds could differ about whether the Supreme Court drew the line on incitement in the right place in its 1982 case. In short, Kuo attributes to me an extreme position of her own invention.

Kuo also suggests that her post merely laid out a hypothetical (or “thought experiment”) about what the law might do as opposed to prescribing what it should do. I have no problem with hypotheticals and have been known to use them myself, recognizing that they can be (though I don’t think they were in this case) a bracingly non-normative device in which the actual prescriptive views of the narrator are irrelevant or impossible to discern. I simply think this hypothetical was rendered both bizarre and misleading by its omission of the First Amendment, by which the courts of this land have greatly curtailed the scope of criminal liability for incitement.

Now back to the question of who should get tagged with the dismissive Orwell-invoking cliche “Thought Police”. Let’s review the bidding. Sarah Palin and GOP surrogates stir up controversy by using blunt and divisive language to question Barack Obama’s judgment in the Bill Ayers matter. Voices around the liberal blogosphere then call for Palin & Co. to be criminally investigated and even prosecuted for riding this campaign issue too hard. Kuo, entering the debate, does not call these bloggers and Huffington Post writers “Thought Police” for suggesting that speech that offends them be subject to legal sanction, but instead conveys their views uncritically if not sympathetically. She then takes up her hypothetical of possible enforcement action against McPalin, outlining theories under which prosecutors might bring such charges and judges might agree to impose punishment, but does not label these hypothetical prosecutors or judges “Thought Police” for punishing the impassioned expression of political opinion. No, the only time the Thought Police make an entrance at all is after the fact, when someone presumes to criticize her. Only then does she detect, with fearful intake of breath, the sound of the hobnailed boots ascending the stairs. And it turns out to be that scary libertarian bogeyman, me!

I suppose I should take offense, but I haven’t managed to get past the comic aspect (& Ambrogi, Legal Blog Watch).

Important P.S.: I heard from Prof. Kuo herself this afternoon and we had a talk that was pleasant and in no way confrontational. She said her second post, to which this one responds, was dashed off in a spirit of light-hearted banter and that the last thing she meant was to call names or give insult. Obviously, it came across differently to me, and I reacted as one might to a seriously meant attack. As I noted, almost everyone who blogs has had the experience of writing something intended as funny that fails to register that way with part or all of the audience. And it’s probably also true that, as someone tender of my libertarian credentials, I’m especially apt to have my buttons pushed by any suggestion of being cast as Thought Police. Anyway, I’m glad to take Prof. Kuo at her word when she says she meant no offense, and I hope commenters at this site as well as Concurring Opinions will do the same (see also update post).

{ 3 trackbacks }

Walter Olson on the Thought Police | Unfair Doctrine
10.20.08 at 11:36 am
Not Thought Police after all
10.20.08 at 11:10 pm
Barack Obama: One Man, One Vote, One Time | ChooseTheHero.com
10.21.08 at 11:02 am

{ 14 comments }

1 John Rohan 10.20.08 at 5:57 am

Good post – it’s unbelievable she would call you the “thought police” without taking a look in the mirror first.

2 Ray 10.20.08 at 7:47 am

If you have a case, quote law. If you have no case, call names.

3 Bob Neal 10.20.08 at 7:59 am

The sad part is this person is teaching future lawyers at the school I attended. Though many on the faculty were over-the-top liberal when I was there, they at least articulated cogent arguments – not this kind of mindless name calling.

4 Todd Rogers 10.20.08 at 9:10 am

Admittedly, I spend (much) time on Kos, Dem-Underground, and other such sites (in the spirit of Vito Corleone – …keep your enemies closer) and think this kind of arguing is standard operating procedure for the left. The “I can do it but don’t you dare” double standard is so part and parcel that I’ve come to accept that all statements and arguments made by members of the left are at once drawn from this type of thinking and then built up thereafter. How dare we ask about Ayers and Wright? We should be minding serious issues such as Joe the Plumber’s tax lien, or his lack of paying homage to the plumber’s guild. Someone should see if Schumer has time to fit in another investigation.

5 shg 10.20.08 at 9:30 am

It curious that lawprofs are so terribly deferential to each other, so circumspect in expressing their disagreement, but suddenly turn vicious when confronted with a facial challenge.

They don’t take straight criticism well at all, and become very intolerant when someone just says what they think, without all the highly-nuanced, couched-in-wiggly-words, game. It’s a shame that it precludes having a decent debate on a subject of interest.

6 Richard Nieporent 10.20.08 at 10:10 am

The best that one can say about Professor Kuo’s original statement is that it was embarrassingly stupid. However, the real purpose of her comment was to threaten her political opponents with jail. Rather than being a hypothetical, it was a warning that speech deemed inappropriate by the real though police, the Left, will not be tolerated. Consider what she said to be a warning that if people like her get in power, there will be no First Amendment protection for anyone who dares oppose Obama.

7 Todd Rogers 10.20.08 at 11:28 am

This intellectual-ivory-toweristic attitude, often simply called “being a snob” is pervasive (particularly on the left, though the right has their fair share of hoity-toities, as well), among liberal academics, spinsters, drive-by’s, and lay-people. Of the handful of law-profs I’ve encountered, I can say in no exception did I ever meet one who appeared to go out of his or her way to demonstrate (attempt to demonstrate) intellectual superiority. Not to change topic, but in dealing with said professionals on the left, the fastest way to get their blood to boil and force them to manifest their true colors is to point out that the Clinton budget surplus and national debt reduction was mere accounting hocus-pocus and never really happened. Somehow this topic among the law-prof guild just touches a nerve and starts them going on like I’ve never seen. Give it a try some time, if you’ve ever looked in to it. Back on topic, wasn’t there a German dictator back in the thirties and forties who took issue with dissent? If memory serves me correctly, his soldiers used the same kind of threats to minimize opposing views. He was also a “champion” of the little guy – though he branded his version national-socialism. I think he also held a strong position on spreading wealth, though it was cloaked as something else.

8 Deoxy 10.20.08 at 12:17 pm

I suppose I should take offense, but I haven’t managed to get past the comic aspect.

Ouchie. The rest of the thing makes a mockery of her, but this just really brings the pain – you’re so pathetic that your attempts to harm me don’t offend me, they make me LAUGH. Ouchie.

Of course, the rest of your post is spot-on, as well – being called “thought police” by the people who actually practice this sort of thing would pretty well peg the irony meter, at least if that wasn’t actually a normal part of being thought police (accuse your opponents of your sins).

9 Walter Olson 10.20.08 at 12:20 pm

Before we stray too far off course — and the appearance of Nazi comparisons nearly always signals that something of that sort has happened — Scott’s point about lawprof collegiality calls to mind an incidental point. My City Journal article gave favorable mention to a Prawfsblawg post by Prof. Howard Wasserman which, politics aside, made the needed points about the First Amendment’s relevance. I didn’t realize it then, but Prof. Wasserman also posted that piece at Concurring Opinions itself, which meant that one of Prof. Kuo’s co-guest-bloggers was conspicuously yanking the rug out from under her analysis (though without linking her post or mentioning her by name). Yet Kuo does not call Wasserman names like “Thought Police”, or indeed acknowledge his post at all. The hobnail boots are mine alone to wear.

10 mojo 10.20.08 at 1:43 pm

We are the dead.

11 Bumper 10.20.08 at 2:11 pm

Professor Kuo suffers from Group of 88 syndrome. Sadly the cure rate is abysmally low, maybe 1.5 in 88.

12 David Wisniewski 10.20.08 at 8:52 pm

Free speech for me, but not for thee.

13 someone 10.21.08 at 7:19 am

I can’t imagine how her comments could possibly have been interpreted as “humor,” especially given the context, in that you did indeed criticize her statements.
It seems much more likely that she was very angry, decided to intimidate by employing irrelevant (at best- hypocritical and lacking in any degree of self-awareness, at worst) attacks, and hoping that such attacks goad you into a flame-war over who is more Orwellian (and thus leading to a draw). You caught her by surprise by making a reasoned argument against her flawed contentions. Her deaming her statement as “humor” is the easiest way she can save face.

14 1stRichard 10.21.08 at 12:02 pm

Spread the blame, the kill him statement at a McCain rally is fake but it was headline news, the blatant “character assassination” of Joe the plumber, the Cindy McCain smear, from the blogosphere there are such outrages comments as “Bush is a terrorist so therefore McCain is a terrorist” and much more. Is there some firing back in self defense? You must take this as a whole account of a campaign and there is a lot of blame to be had on the Obama side. “What if, after drinking the Kool-Aid of campaign rhetoric, a rabid supporter sought to perpetrate harm on another candidate?”

Look at what side stepped over the line first….

rubico 09/17/08(Wed)12:58:04 No.85782727

…..”I really wanted to get something incriminating which I was sure there would be, just like all of you anon out there that you think there was some missed opportunity of glory, well there WAS NOTHING, I read everything, every little blackberry confirmation… all the pictures, and there was nothing, and it finally set in, THIS internet was serious business, yes I was behind a proxy, only one, if this $%(# ever got to the FBI I was #@(&@, I panicked, i still wanted the stuff out there but I didn’t know how to %^$%#$#@ all that stuff, so I posted the pass on /b/, and then promptly deleted everything, and unplugged my internet and just sat there in a comatose state”…..

There is more to “drinking the Kool-Aid of campaign rhetoric”, the virtual media blackout of anything negative about Obama is provoking harm. There are a lot of questions, not only about Ayers and Obama but Wright, Odinga, Khalidi, Rezko, Marzook, Katz, Said, al-Mansour, ACORN and much more. What we have in its place is a void and some of it is filling with what may be provocative rhetoric. And who is responsible for filling this void?

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