Mimesis Law
21 May 2019

Reading The Riot Act

November 14, 2016 (Fault Lines) – Tensions are flying high in the wake of Donald Trump’s surprise electoral win. Depending on whom you believe, there are either nationwide protests or nationwide riots at the prospect of four years of a President who, for quite a while, polled as the most disliked candidate in U.S. history. (The fact that his counterpart was the only candidate to give him a run for his money in that regard underscores how desperate things have gotten.)

With protests and riots come cluelessness, crime, constitutional violations and shoddy, misleading reporting. For roughly the past seven years, since BART officer Johannes Mehserle shot Oscar Grant in Oakland, civil unrest has broken out with surprising regularity, often in response to police killings or an adverse result in a legal case against cops. This time is different: not only are the protests nakedly political, but they appear to be on a bigger scale than we’ve seen in a while.

Accurately reporting on events like these is a challenge in and of itself; in addition to all the misinformation floating around and the sheer complexity of the undertaking, journalists who go to the scene run the risk of getting lawlessly arrested or beaten by the mob. To make sure the efforts of people like Kyle Ludowitz, a citizen journalist who had his camera smashed and was brutalized by masked anti-Trump demonstrators, don’t go to waste, there are a couple of things those of us who read news articles, tweets and posts about these demonstrations should keep in mind.

Number one: there are a lot of hoaxes going around, and we’re particularly susceptible to them at an emotional time like this. Confirmation bias is a powerful thing. Because most of us don’t have the time or energy to carefully weigh both sides of a given debate, we settle for the viewpoint that disrupts those of our beliefs that are deeply held least and move on. As a result, when new evidence comes along, we tend to see it when it supports our conclusions and ignore or overlook it when it doesn’t. The alternative, after all, is checking to see what the truth of the viewpoint we didn’t choose means for the truth of our deeply held beliefs, and that takes more time and energy than anyone’s got.

So when those of us who think anti-Trump demonstrators are immoral scumbags see a story about rioters beating a disabled veteran to death, it gets shared countless times – even though it’s a fake. Likewise, when the people who think Trump’s supporters are immoral scumbags learn that a young Muslim woman told police she was beaten, robbed and stripped by white men shouting racial slurs at her, they get predictably outraged – even though it turns out the woman made up the allegations (and has since been charged with filing a false report.)

And there’s another factor: because of the rise of what sociologists Bradley Campbell and Jason Manning call “victimhood culture,” aggrieved, overly emotional people – especially but not exclusively on the Left – have a strong reason to invent hoaxes, because it’s by advertising and exaggerating the wrongs done them that they get others to step in and tell them how awesome they are/rebuke the people who hurt their feelings. As a result, people who value truth over partisanship should be especially careful to doubt dispatches from the front lines, especially if they’re sensational or tug at the heartstrings. Remember the Whole Foods “fag” cake fiasco.

Second: speech isn’t illegal just because it’s offensive, even if outrageously so. Some reports of mind-bogglingly sick bigotry will turn out to be true. One notable example of flagrant racism surfaced yesterday: a house in Pittsburgh, CA was photographed displaying a banner promising to lynch blacks. While that’s twisted enough, the local police’s promise to deal with it added injury to insult. As horrifically offensive as speech may be (and it doesn’t get any worse than that), that isn’t cause to silence it.

It bears repeating: vile opinions aren’t criminal because they’re vile. Unless they fall into a SCOTUS-recognized category of historically-exempt speech, they are protected, and cops (and the people calling on them to investigate) are wasting the taxpayers’ money. Nor do vile opinions fall into such a category because they’re vile; to make the cut, they have to pass certain tests. And though this is a bit of an overgeneralization, overblown, histrionic rhetoric of the kind that’s been everywhere since Trump clinched the win is unlikely to qualify.

For instance, in the case of the Pittsburgh banner, people are already arguing that it constitutes incitement or a true threat. Alas, it doesn’t: to meet the standard for incitement under Brandenburg v. Ohio, it would have to be “directed to inciting or producing imminent lawless action and [] likely to incite or produce such action.” Leaving the question of intent aside for the moment, the banner in all its bigoted silliness doesn’t make the imminent lynching of blacks likely – and indeed, no one has yet been lynched because of it.

Nor is it a true threat. That analysis requires us to ask if a reasonable person, looking at the banner in context, would interpret it as a sincere expression of intent to do harm. To that end, we can look for certain indicia, including whether the banner targets anyone specific and whether it conveys that the speaker will act. Again, while it may be seriously distasteful rhetoric, rhetoric it remains. It’s not actionable.

Sadly, the best thing to do about this kind of display is also the least immediately satisfying – call it out on Twitter. It may not feel as righteous as calling the cops on the guy, but it’s the only constitutionally acceptable thing to do. Plus, this and nothing else is what Twitter was made for.

Finally, beware of propaganda. Every news outlet has its own spin. The trick isn’t so much reporting inaccurate things as putting facts in a misleading context. (Think Vox.) Sift through what you know to be happening and come to your own conclusions. It’s never wise to rely too heavily on any one publication, especially if it turns out their editorial style is a little less than objective.

And that about wraps it up. Good luck out there. Hopefully, you’ll be able to stay sane in the middle of the madness.

9 Comments on this post.

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  • william the stout
    14 November 2016 at 10:54 am - Reply

    Turns out the guy making the (clearly 1st Amendment protected) statement was a black guy. So presumably the statement is anti-lynching as opposed to pro-, although with some statements it’s really hard to tell.

    Anyway, today the people who were infuriated by the sign yesterday can flip around to defend it, while the people who were defending it yesterday can flop around to be really, really offended by it.

    And all of those people wonder why there’s a sizable number of us eligible voters out here who are so disgusted that we’ve just tuned it all out and refuse to play. Somehow it’s all our fault…….

    • David Meyer Lindenberg
      14 November 2016 at 11:20 am - Reply

      Yup, the homeowner came forward and said as much. Something very similar happened in San Francisco, where a protester flew a Nazi flag from his home and it was (predictably) misconstrued.

      A powerful reminder that even verified stories can turn out to have unexpected twists.

  • Jim Tyre
    14 November 2016 at 11:00 am - Reply

    DML,

    Your title is “Reading the Riot Act.” I’ve heard that phrase many times, but universally, the users of it fail to quote the Act or link to it. And, though my research skills may have atrophied with age, I’ve never been able to find the text of it. Heck, I’m not even sure if it’s a single federal Act, or a series of state and/or local acts.

    Good lawyers (including me, for the sake of argument only) like to read primary sources. So could you help a poor fella out and give us the full text of or a link to The Riot Act? Thanks so much.

    • David Meyer Lindenberg
      14 November 2016 at 11:20 am - Reply

      Why do you hate my wordplay-y titles so much?

  • Picador
    14 November 2016 at 11:06 am - Reply

    Jim:

    The Riot Act was an act of the English parliament in 1714.

    https://en.wikipedia.org/wiki/Riot_Act

    “Reading the Riot Act” is a reference to the fact that British police were obliged to warn a crowd before enforcement of the Act, using language making specific reference to the enabling legislation, much like placing an arrestee under caution (the UK equivalent to US Miranda warnings).

    William:

    Yes, the writer of this story seems not to have read the linked article about the “racist” banner. The man posting the banner was using “the N word” in protest for his treatment (as a black man) by the authorities over some sort of legal grievance. A bit intemperate, perhaps, but entirely inapposite to the story’s concerns about white supremacist rhetoric on the rise.

    • David Meyer Lindenberg
      14 November 2016 at 11:31 am - Reply

      Jim knows, he’s just yanking my chain. And see above: this is a story about dealing with disinformation, not “concerns about white supremacist rhetoric.” If anything, the homeowner coming forward is yet another reminder of the importance of skepticism. Even straightforward stories can prove to be anything but.

      • Jim Tyre
        14 November 2016 at 11:40 am - Reply

        Jim knows, he’s just yanking my chain

        D*mn, you’re on to me! (Can I use “d*mn” here?)

        • David Meyer Lindenberg
          14 November 2016 at 11:43 am - Reply

          Heck no. Hang on, let me censor you.

  • Jim Tyre
    14 November 2016 at 11:43 am - Reply

    First, you must learn to use “reply” correctly. ‘-)