The Verdict, the Video, and the Unreasonable Burden of Proof
S1: This ad free podcast is part of your Slate plus membership.
S2: Who are these videos for now at this point? Are they for people who really are interested in dismantling this form of policing that’s killed so many people? Or are they just people looking at this as entertainment? And at some point we have to to ask those tough questions.
S1: Hi and welcome back to Amicus. This is Slate’s podcast about the courts and the law and the Supreme Court. I’m Dahlia Lithwick. I cover the courts and the law for Slate. There is a lot of news this week coming out of one first street, including a decision Thursday reinstating juvenile life without parole, another refusal by the high court to take a big gun case and a reported two million dollar book advance for the newest justice. Justices Sotomayor, Breyer and Gorsuch are all out stumping about how very, very well they get along. Coincidentally, they’re doing that just as a bill to expand the size of the court was stomped to death by Nancy Pelosi. Later on in our Slate plus segment, we are going to talk to Slate’s Mark Joseph Stern about the shocking decision out of the courts this week in a juvenile life without parole case. We’re going to talk about Sonia Sotomayor and we’re going to talk again about court reform. That conversation with Mark can only be accessed by Slate plus members. And thank you for supporting the work that we do. If you think about justice, your eyes were probably on the Derrick Trovan verdict this week, it was a moment of profound national international reckoning when, after just 10 hours of deliberating, a jury in Minnesota found him guilty of second and third degree murder, as well as second degree manslaughter in the killing of George Floyd this past year. It remains astounding to me that this is the quantum of evidence. We need to prove that a police officer recklessly murdered yet another unarmed black man. But perhaps this is a moment for long fight for real, meaningful change around policing in the law. Last summer, we spoke to Vanita Gupta after George Floyd was killed. She was actually confirmed this week to be associate attorney general of the United States. And in that episode of June six, we talked to her about police reform and what needs to happen systemically for that to be achieved. Have a listen. Go back and have a listen to that show for her roadmap of what’s needed. We’ll link to it in today’s show notes this week. I can’t stop thinking about that video, that video taken by 17 year old Darnell Frazier as George Floyd’s life slipped away with Chauvin’s knee on his neck. The video becomes the irrefutable testimony in this trial. Margaret Sullivan at The Washington Post described this footage as the star witness. The existence of the video changed the way even the police themselves talked about and eventually testified about this crime for those who could bring themselves to watch it as it played on an unending loop. The video changed the world last summer because it made this verdict seem almost inevitable. Indeed, it says so much that videos were the closing argument for both the prosecution and the defense. But if we start from this proposition that but for the video, there would have been no conviction at all and I wrote a version of that piece myself this week, we start in the middle of this tragedy because there is a lot that is wrong in a country that demands the spectacle of black death to believe what we know to be true. This isn’t just a law problem, although, of course, it affects the legal system. It’s a history problem. It’s a media problem. It’s a storytelling problem. And so we wanted to start there today with this question of what America needs to see before it will believe black and brown victims and why and who actually bears the burden of that. Today’s guest, Dr. Elisa Richardson, is author of Bearing Witness. Well, black African-American Smartphones and the New Protest Journalism. She’s an assistant professor of journalism at the University of Southern California’s Annenberg School. And her piece in Vox this week really stopped me in my tracks. It’s called We Have Enough Proof. What’s the purpose of sharing violent police videos anymore other than to traumatize black communities? Her piece forced me to really think carefully about the different burdens of bearing witness. Welcome to Amicus.
S2: Thank you for having me.
S1: Well, I think I want to start with this caveat that we are talking as journalists, you’re a journalist, I’m a journalist. We are not here today as lawyers to talk about the law, per say. But I think this conversation actually has a deep impact on how lawyers think about. What journalists bring to justice. I thought maybe we could talk a little bit before we start about just your own background, your own a story. You teach journalism, you think about you study social science. I think you probably work harder on this issue of how the news tells stories of racial injustice and violence and how that has changed with new technologies more than most of us think about it. So maybe let’s just start with you telling us just a little bit about how you came to this question of black lives and protest and journalism and justice.
S2: Absolutely. I think my first foray into this arena was really formed by working at Jet magazine. And Jet magazine, as many people know, is one of the longest standing African-American publications and its time before it ceased to publish. And it is also credited with being the first publication, only publication that was entrusted by Emmett Till’s family to publish his lynching photographs. And Mamie Till Mobley made a really difficult decision back then in nineteen fifty five to show the world what they did to her baby. Those were her words. And working in that building every single day, knowing that there were people who were present during that time. There were people in that building that I worked alongside who attended that funeral and who could recount to me over lunch just how it rocked the world and how seeing for the very first time that level of violence levied at a child really galvanized the civil rights movement. And just walking around as that being my first real job coming out of Northwestern Journalism School, really filled me with a sense of purpose to tell black stories with an incredible level of humanity. And so I spent a couple of my formative years as a journalist there, really learning while Mr Johnson was still alive from him about what it meant to really publish the full measure of black life, the good, the bad, the things that we’d rather not mention, the things that we’re very, very proud of and the complexity of black life. And so then as I began to see what other things I could do with journalism and really felt an ache to see more young people enter the field, I had a friend who was leaving at VCU, Morgan State University in Baltimore, and she said, you know, there will be an opening. Do you want to come and teach? And I thought I’ve never taught before. I myself have only been in the newsroom for six years or so. And she said, But you have been getting a crash course in what it means to make journalism, especially for black folks being at Jet magazine. And she said, how many of us actually get to work there? There’s only a few slots, about six staffers, and you’re one of them, so please come. And so I interviewed for the job and took it. And I fell in love with just the energy that young people have, and particularly in the city of Baltimore, the frustration that my students had with how the city was being portrayed not only in shows like The Wire, but on the nightly news. And they said, can we do something where we show not just the crime, but just the people trying to stop it, the people who are working in these communities. And so we launched the Morgan Mojo lab, which was the first mobile journalism lab. And it was at this time that the iPhone for the first time had a front and rear facing camera. And so in 2010, we set out to prove that you can make news with a cell phone. And we were invited around the world. We partnered with Global Girl Media, for example, and taught classes to South African girls, to girls in Morocco. And it was just a fascinating time where we were experimenting with the phone itself. But then on the continent at the same time, I am witnessing, like most other people, the Arab Spring and in 2011, just seeing the effects that the cell phone was having on the people of Egypt who finally got to tell their stories or stories that were coming out of Tunisia or Libya. And I think for me, seeing Moammar Gaddafi killed on camera was a watershed moment for me, because I thought were it not for cell phones, maybe I wouldn’t have been able to see this kind of thing and should I be seeing it? And it really sparked a quandary in me. How much do we need to see to be sympathetic and where do we go with this? So for the last 10 years, as the model just ebbed and flowed and took various shapes, I began to study it academically and say, what are the pros and cons of this? And in many ways, bearing witness. While black has been a blessing because it’s opened the eyes of many people who didn’t know that systemic police brutality is deadly in many black communities, it’s also really perform such an incredible toll on the communities that have been forced to pre litigate. Their own humanity in this way through video. And so that’s where I landed in terms of taking in these videos this last summer, and that’s really how my thinking has evolved on the matter. As someone who studied in traditional journalism at first and came up, if you will, in magazine and then experimented with Mojo and saw it grow. And then so I go dark in terms of covering the darker parts of humanity and really questioning how much more do we need of this.
S1: Alissa, you have already identified what I think is the beating heart of this conversation that I want to have with you today, which is what do we do about the fact that citizen journalism, new technology, the ubiquity of the iPhone, all of those things solve a whole bunch of problems, journalistic problems and justice problems and truth problems. But they also, in doing so, create a whole bunch of new problems. And you have been tilting, I think, pretty hard from your recent writing into feeling that the new problems being created are really profound and that we’re missing them, that when we say things like, oh, the video was the star of the trial and thank God for the video that got the conviction, we’re not seeing all of these cascading other problems, the downsides of making the video the hero. And obviously that’s why you’re sitting here. But I also want to step back out a bit, Elyssa, and put this in the context of your book, because I think your book is about this notion of bearing witness and ways in which bearing witness when you are black in America requires now has always required telling stories, but telling stories in the context of, as you laid out, three phases of American brutality and you break those phases out into slavery, lynchings and then racialized police violence today. And I think your point is that this act of bearing witness throughout all of this comes both from a place of almost complete powerlessness, but also actually massive power. Right?
S2: Definitely. And I’m so glad that you mentioned that this bearing witness, this act of doing this is not new. In the book, I write about these three overlapping eras of domestic terror against black people. And I start with slavery and explain how that morphed into lynching and how that then morphed into police brutality, which is often the first gateway if you survive it into mass incarceration. And throughout each of these eras, you have exemplars. You have people who are working very hard to shine a light on what’s going on and to scream and scream about those injustices through whatever technological medium they have at the moment. And so I start with people like Frederick Douglass who use autobiographies and pamphlets at the time at first, and he wrote not one, not two, but three memoirs to tell us how horrible slavery was and became one of the most famous men in the world because of his not only his writing, but his book tours and his photography and just the way he photographed himself so that people could see him as a human being. He understood very early on the power of imagery. And so he would couple those pictures with his writings and his oratory and really took the world by storm to let people know slavery needs to be abolished. And he was a mentor to I to be Welles. And I was very excited to see that, you know, as the different technologies are evolving and newspapers begin to become the way we communicate, she picked up that baton in such a seamless way from him to produce all kinds of lynching reporting. And so she was keeping a tally of all the African-Americans who were dying during reconstruction and beyond. As you know, the backlash to the end of slavery rose and as whites who lived in these areas did not want to have to compete with black people for resources. And so her red record earned her a posthumous Pulitzer Prize last year, making sure that people knew just how many lives were being lost. And then I think about as we move through time, when we think about police brutality, we think about it most visually during the civil rights movement. And I can think of, for example, Bloody Sunday and how that was mediated and how the iconic John Lewis we lost last year was met with a wall of police officers when he was trying to march for black enfranchisement. And so he, John Lewis, knew to use television, which only lasted 15 minutes, mind you, back then was 15 minutes in the evening that you had to make an appeal. And so the visuals had to be right. They had to be compelling. They had to be distressing enough to, again, galvanize people. But again, it wasn’t looped on a 24 hour basis. So that 15 minutes of fame, so to speak, is what John Lewis and many others like him knew to use to get people’s attention of what was going on in the South. And when we land at the smartphone, we have to recognize that even before the smartphone, there was one incident back in the 90s of George Holliday using his handycam to record Rodney King beating. And that video turned 30 years old this year. And there’s a huge space and time, does it mean that police brutality wasn’t happening, but enter the cell phone and we see Oscar Grant, we see him lying on the platform in two thousand nine and more than four people filming from various angles. The police officers there abusing him, handcuffed, prone, and then shot in the back. And so these are the images. These are the touchstones that I used in the book to connect these dots that from Frederick Douglass to ITV Wales to John Lewis to today’s brave filmmakers who are just in the wrong place, really at the right time. They’re all connected. They’re all trying to look. But this is the first time in history that they can look in real time. You see, during slavery, we could not look at the master beating someone. There’s an iconic scene in the film 12 Years a Slave, for example, where Chiwetel EGFR is hanging and the slaves behind him are sweeping up. They’re doing their chores. They’re not looking at him. You couldn’t or you would be punished, too. If we think about lynching photography, which was a gloating form of recording or documenting the lynchings that took place across America, white people took those photographs and they made them into postcards and traded them and sent them in the mail. But you don’t see black people in those photographs either. They’re not huddled in the corner. They’re likely fleeing town in many cases. This, however, is the first time that we can look in real time. What Darnell Frazier did is something that none of our ancestors were able to do. She was able to stand there as it was happening and say with her camera, I am not going to leave you. I’m going to make sure people know what happened to you. I’m going to make sure people know your name. And I’m going to try my very best to get justice for you. And by not leaving him alone in his final moments, that I think is the the indelible mark that I think of most is that she will live with that for the rest of her life. And for me, having African-Americans have me having to pre litigate their own humanity and record it and document those last precious moments in order to get justice shouldn’t even be a prerequisite. And so that’s really what the heart of my argument is now.
S1: Now, I want to be very clear, because I think I’ve read through this arc of your writing over the years and you’re thinking about this issue and you’ve really. Developed a different view, you’ve changed over time, I think, as you said, you started with the Arab Spring with really early instances of citizen journalists, the lofty notion that people with iPhones could change the world, that they were going to create a testament to violence, to change to civil rights that would really reshape everything. As you said, I think in your piece and as you said today, those Emmett Till photographs became engines of the civil rights movement. And then something changed for you in recent years. As I framed it at the beginning, you got to a point where you said, no, these downsides, these costs are simply too many. And now, as we reckon with the downsides, it’s too much. I think you wrote that it was actually George Floyd that that’s what broke you in your words. The video of the murder of George Floyd being played on a loop over and over again was having an effect on you that really upended this aspirational idea that technology in these videos and this testimony would take us to a better place. Is that fairly accurate, George Floyd, as the pivot for you personally?
S2: Right. I would say that’s that’s very fair. I think that in the in the very beginning, as I was experimenting with mobile journalism and seeing it light up my students faces and just knowing that they probably wouldn’t have had a quick entry into journalism without this inexpensive device. I was very happy about that. And I thought this lowers the barrier of entry for people to participate in making news. They don’t need a fancy satellite truck. They can create their own broadcast and as they get even more sophisticated, can add effects and all of these things. And also, I should mention, when I was teaching in South Africa, we were there on APEP for a grant, which is an HIV AIDS grant. And so the girls we were teaching were HIV positive and openly. So they wanted people to know how they were born with it, how they live with it and these kinds of things. And one of my students passed away at the age of 18. She had TB and I just kept looking over the archive of her work as I was grieving her. And I thought were it not for this device, maybe I would never have known her story. Maybe the expensive equipment would have been a barrier for her to do journalism. And I was grateful for the mobile phone at that time. But as I’ve kind of traveled through time and have seen just the grief that these images have caused my community and so many people saying how many more videos do folks need to see? It really made me investigate why we needed them in the first place. And I came to some pretty grim elephants in the room that no one wants to mention. In the first being, most people believe the inherent the stereotype of inherent black criminality. And so when they’re looking at these videos, they’re looking for proof that that person did not deserve their demise, that they were a perfect victim, so to speak. And so what we’re saying is I’m going to reserve my sympathy unless you can prove to me that you were truly blameless in this. If there’s any inkling that you look like you may have deserved this kind of treatment from police, then I’m going to remain silent. And so I think for a long time that has been what’s going on. People have been looking for a modicum of proof that black people weren’t doing something that that warranted their death. The second thing I would think is that we don’t ask this of anyone else, of any other group of people. And that began to bother me greatly, especially when it came to Mr. Floyds killing. It was just looped on television and replayed like a sports highlight, sometimes with a trigger warning, sometimes not. In many cases. I didn’t have enough time to turn off the television before my children could see and I really didn’t want them to at ages six and eight. And so it for me began to feel like a new lynching photograph. I said, are we celebrating this in some circles? Know everyone is not viewing this the same way. Some people may have incredible sympathy. But then I began to see names popping up, similar to the ones that popped up on Trayvon Martin’s post-mortem pictures went up online. People said they were Trayvon and they would lay down on the ground like he was and, you know, feign his look of surprise at the moment of his death and have even a hoodie on and Skittles and iced tea. And the same thing happened for George when I saw white men posed like George Ford with a knee on the neck and pretending to be Officer Schavan. And that bothered me because I thought. Everyone is not looking at this through the same similar lens, and I started to talk to some of my friends who happen to be white and I said, how do you feel when you see these? And they said, well, I don’t identify with him personally because I’m not black. So I don’t see myself the way you see yourself in these videos or see a relative of yours saying, you know, that could be my dad or whatnot. And I certainly don’t see myself as the aggressor. I would never do that to anyone. I would never put my knee on somebody’s neck. And so I guess I’m kind of horrified at what I’m seeing. But I can pop in and pop out. You know, for me, it is a an opt in, opt out kind of thing. And they realized during the course of our conversation that that’s a privilege to be able to remove oneself emotionally from what you’re seeing. And that’s why I observed so many of my colleagues kind of eating cereal and watching this or, you know, just talking about it and having it loop in the background without it bothering them. And I would enter spaces and say, please turn this off. This is a snuff film. And they were just like, whoa, you know, I didn’t think of it that way. I’m just trying to educate myself on the issue. I really want to share it so that other people know we’re not black. And I said to them, you know, if all of the evidence over the last 200 years that black witnesses have put together don’t convince you that there is a systemic problem of anti black racism in the country, you no amount of video will. And that’s when one of my colleagues was saying to me, I think you should write that up, because I never thought of it that way. And I said, for sure, when white people die violently, we don’t ask for video. I’m old enough to have worked in the newsroom in the wake of the September 11th terrorist attacks. And I remember seeing people who were white being forced out of the Twin Towers and falling to their death. And I just remember weeping, just being so horrified. I said, we’re definitely not going to show this right. We’re not going to put this online. And people like, oh, absolutely not in the videos were scrubbed from the Internet and rightfully so. And then as a young journalist, I think about Daniel Pearl and I think about how he was decapitated on camera. And I think about, oh, my gosh, when I saw those videos, again, weeping for his family. And I just I’m glad that those videos are no longer online because they at one time were circulated greatly. And when I think about any number of the mass shootings that have occurred that have largely affected white people, what have we of journalists done as journalists? We have tried to humanize the victims as soon as possible without the gory videos. For example, on Miko’s the Las Vegas Music Festival, videos were one time online and they were circulated pretty widely and then you’d be hard pressed to find them now and rightfully so. We know that something horrible happened that day and we don’t need the proof. But what I did notice about that coverage is that even though it affected a large number of people, more than two hundred people, the media did their very best to find something humanizing about every single person, whether it was finding out if they had a pet, finding out if they had a hobby instrument they play, if they were in college, what was their major who were their friends? There were videos of them as children, home videos, loving ones and images that showed me how they lived, not how they died. I never saw one image run on television of anybody prone face down or running in that crowd. It was horrifying and we didn’t need it. And so when we think about even the more recent mass shootings that affected people who are not black, they think about the rise in anti Asian hate crimes and what has happened in Georgia. No one said, let me see the video. Let me make sure that these folks didn’t do something to provoke these mass shooters. Maybe something happened. Maybe there’s a prior relationship there that may have necessitated this. Let me see some some security footage. Maybe this is like an old massage parlor customer that is just disgruntled. No one said that it will be ghastly and indecent to suggest, even if we think about the FedEx killings that recently happened, that effect for Sikh Americans, no one went there and said, let me see those surveillance cameras, the security cameras in the building. Did they do something that seemed threatening? Did they somehow upset the former worker? No, no one says this at all, ever. But when it comes to black people, it’s let me wait and see. We’re going to reserve my judgment. Let me see a video first. And that bothers me. That bothers me. The fact that African-Americans have to relitigate their own death because it creates a diabolical cycle. Now, I see in terms of one, the first step is I have to produce video to show you that my loved ones deserve better to. I then have to release that video into the public and let it enter a. Court of public opinion to be picked apart by journalists and scholars like me, and then if it even goes to court, which many of them don’t, I have to let a jury look over this. And if I choose to sit in that courtroom to support my slain loved one, I have to watch that video over and over and over again. And then, you know, even if there is a measure of justice, we’re not that loved one is then entombed online forever. And so those deaths are not removed from the Internet in the way that the deaths of the people who died in 9/11 or Daniel Pearl or any number of the white victims of mass shootings are removed. You can Google Trayvon Martin, unfortunately. And one of the very first images that pops up is this post-mortem picture, it bothers me, is wrong. And I think a lot of it is born of again, of the stereotype that black people are inherently criminal and that the video will show us some exceptions to the rule that we can get behind. And I think after Brianna Taylor’s death, we have seen that we don’t need video to get behind a case. It just feels wrong or something doesn’t smell right. There was no video of Brianna Taylor being shot in her own home yet. Everybody just hearing the details wept. And many people across the nation descended upon her hometown to try to get justice for many, many months. And we know now that that didn’t turn out the way that many people would have hoped. And there’s an officer who’s come under fire for trying to get a book deal out of it. And so, again, I ask, who are these videos for now at this point? Are they for people who really are interested in dismantling this form of policing that’s killed so many people? Or are they just people looking at this as entertainment? You know, and at some point we have to to ask those tough questions. And the last thing I’ll say about that, that’s evolved. My thinking is when I consider another thing I’ll date myself on. I was working at Jet magazine when Nipple Gate happened, so to speak, and Janet Jackson had a wardrobe malfunction. Justin Timberlake, he ripped off a piece of her clothing and revealed a bare breast. And the nation just went into this huge uproar. So in dissent, we shouldn’t have had to see that during our two thousand four halftime show, the Super Bowl. And we need to do something. And President Bush, indeed, he revived or I should say reinvigorated the broadcast Decency Enforcement Act and increased the fines for companies that aired indecent material tenfold. So you could be fined ten times more. And many stations instituted delays, whether it was a two or five or 10 second delay, to try to catch things before the air to the public, that those were the fallouts of nipple gate and people thought, oh, she’s so indecent. And so when I thought, why wasn’t the looping of Black Death ever considered indecent? That is another thing that really troubled my thinking is that I had to report endlessly on the fallout of nipple gate and would Janet be able to bounce back. And Justin Timberlake recently has apologized for his role in, you know, keeping the misogyny going and pretty much being omitted from that narrative. He’s spoken up about it. And I think a lot about how we realize so many things much later on and how the media are now just questioning their role in perpetuating misogyny against people like Janet Jackson and Britney, which is for Britney Spears campaign. I don’t want this to be one of the things that people look back on so, so many years later. I don’t want this to go on much longer. I don’t want us to be 20 years after saying, you know, we got a little carried away with with publishing low hanging fruit. And that’s really what this is. It’s lazy journalism. The death is really not the full story there. Full life, how they live their life is part of that story. And I learned that from Mr. Johnson. But also the city itself needs to be indicted. You need to be looking into why are some of these cities and their surrounding areas a recurring site of death? Minneapolis, for example, bears further investigation. Why has it claimed the life of and its surrounding areas where others claim the life of Dante? Right. And Orlando Castiel and George Ward and so many others who are not on video? Why is that a hotbed? Why is Chicago now on the chopping block again for lying about what happened to someone? Laquan McDonald being the first case that was suppressed by Chicago police. And now this Adam Toledo story coming out is an embarrassment, quite frankly, for the city. And so when I think about certain cities being just horrible places, tough places to be black, I think why is no one investigating? Systemic racism that runs through the city’s veins, really picking it apart in ways that are meaningful and that would lead to real change, and then why isn’t anyone making sure that we have opposite images of these folks who are laying prone on the ground? Why are we making sure that we’re showing them why they’re alive? I think some of that is changing. Last night, I was really pleased to see joyrides coverage on the read out of McKeough Bryant and the fact that I got the chance to see her take talk in her doing things that little teenage girls do during her hair, singing along lip synching to songs. I thought this is what a sea change looks like. Yes, we know something horrific happened. Yes, we know that people need to be held accountable and that it bears further investigation. But as we move further along in this history of witnessing, we really need to say these videos should be for the families and they should be for juries and human consumption. You know, I really am hesitant about unless the family wants you to see it in the way that Mamie Till Mobley said, I want the world to see what they did to my baby. I think that it really should be up to the families. How much of that goes out to the world? Because what we end up remembering about their loved one is the startled look on their face as they were being shot. Look of terror, you know, signs of life leaving them. And no one needs to be entombed like that. And we reserve that only for black folks.
S1: So a couple of things also that I was really struck by in your Vox piece from this week, in your Atlantic piece from last year, and one is you mention this, there is an actual physical re traumatizing that happens to witnesses who see these videos over and over again. As you say, they see it like it’s a sports highlight loop and this is just ongoing violence against black bodies. I was reading an amazing piece by Tracy Clayton making the same point, saying you can’t understand the depth of what this does, the actual physical lingering pain of having to watch this over and over, how debilitating it is. And then secondly, and here’s where I’m going to date myself.
S2: As I was
S1: reading you, I was remembering covering Abu Ghraib and the torture photos that came out after it became clear that the Bush administration had this secret torture program and the photos that came out of American forces torturing prisoners, torturing half naked, badly beaten hooded prisoners and celebrating it, posing around these bodies and acting as conquerors. And I remember exactly the thing you’re describing this visceral horror and a deep feeling of empathy and compassion for these victims. And at the same time, I remember thinking, wow, we are going to get desensitized very quickly to these photos that if we see these, we’re going to need to see worse ones and more and more gruesome photos to elicit the same sense of shock and horror. And I guess I find myself thinking is part of what is troubling to you right now, that this video of George Floyd is so brutal, it is so painful. It evoked exactly the kind of global response it needed to. And yet. Would the next one have to be worse? Would it need to be the case that the next video is so much more shocking and horrifying to elicit the same response? And I guess that makes me wonder, first of all, does this question even make sense? But is part of what your fear is that you get desensitized so that the power of these videos in some sense falls away unless you jack up the horror every time.
S2: It makes an incredible amount of sense. And I’m so glad that you’re talking about the cinematic, visceral response that people have to these videos. I mean, I think immediately, as soon as you were giving your example, I thought about a Tatiana Jefferson who was shot in her home by police during a welfare check. She was playing video games with her relative. And I think about her not only because we went to the same college and I remember when the press release came out from our school, from Xavier University of Louisiana and it’s an BCU. So we’re all pretty close knit. So small school. And when we have losses like that, everybody feels that we were all texting each other like this is horrible. You know, what are we going to do? And I remember being very upset by the fact I didn’t see much coverage about her, her life and her plans. You know, she’s a biology premed student and really wanted to be a doctor and all of these things. And I remember the coverage being very limited to a neighbor who called police for a welfare check because they saw an open door at her house and then the police just immediately shooting into the window as soon as he detected movement. And it was her. And I think about that because months later, as I again could not put the story away, he just kept thinking, how’s her family doing? I was sad to find out that her parents died of heart attacks very shortly afterwards. And I thought what a traumatic toll that her death had on their lives. The stories both reported that they were in pretty good health before that. There was no indication that they’d already been sick. And the fact that they died of a broken heart just shows that this is an incredibly stressful time for families when they have to see these kinds of images mediated. And the video of a Tatiana Jefferson didn’t get as much attention, I guess, because it’s only kind of her shadowy figure behind a curtain. And I guess it wasn’t gory enough, you know, as you’re saying. But for me, it horrified me because I was thinking here she is in her own home. And it made me think of so many other women that don’t get their deaths televised, if you will, who die under the cover of night or under suspicious circumstances like Sandy Bland. And it makes you think about the zayani movement in terms of, you know, all the women who are likely to be harassed in quiet places, in dark places. And I think that is also the unintended consequence of having these photos, is that we don’t have enough stories about women and what they face in terms of police brutality because it happens away from a camera. It may be news organizations think that it’s boring visually because there’s nothing to show. And I think that that bothers me as well. The fact that things that maybe don’t have video won’t get as much press coverage when they probably should. And so, yes, to answer your question, I think there’s an incredible somatic toll on black people when their relatives die from violent police encounters and when they have to see these things over and over again. I talk to many of my students, it former ABC News, where I’ve worked historically black colleges and they’ve all said these things give me nightmares. And they said I just feel anxious. I can’t even look at the whole thing all the way through. I’m just like somebody just tell me what happened, to summarize it and to just to see that sea change in at first their enthusiasm, like finally we have coverage. You know, people will be able to see what happened to fill in the blank, you know, because there have been so many names. And then, you know, somewhere around twenty sixteen after endocast Castillos ghastly death on camera on Facebook Live, mind you, for the first time, one has been live streamed by Diamond. Reynolds is Brai fiancee. My students around that time said, I’m done. I don’t want to look anymore. That was the most horrific thing I’ve ever seen. And his four year old was in the car. And I remember being in class. I was teaching a summer school class that summer and it was online. And I was asking my students and really regretting we couldn’t be in person with each other how they felt seeing that video. And one the young lady said, you know, made me physically sick. I got sick. And that’s the first time I’ve ever gotten sick watching one of these. And I’m not going to watch anymore. And, you know, for me, I had been trying to because I’m studying this academically, compartmentalize and have days to write and days to grieve, days to write, days to grieve. But again, something about this George Floyd video just really broke. Something where I was thinking the look on this officer’s face as he’s doing it is just unbothered. He does not seem to care. He doesn’t he could have been squashing a bug for all he cared. And for me, just to be able to see with such clarity that the iPhone gave his expressions, the nonchalance that the other officers have during that moment. It just broke. It brought me to tears. I could not even watch the entire thing. I remember I said, well, I’m going to try to read the transcript. Maybe that will be less dramatic because I do have to talk about this in academic arenas. I need to know exactly what happened. Even the transcript had me weeping as he called for his mom. And as I talked to a number of, you know, people who are close to me, they were physically weeping and they were just like, I just feel so anxious and just knowing that as a grown man, he was calling out for his mom just hurt so much. And one person said in our group chat, do you think she came to get him? Do you think maybe because she was already deceased, that she came down to get them? Because we’re all moms here. We know there’s nothing you wouldn’t do move heaven and earth to get to your kid if they’re in trouble. And that made us all we we were all just kind of just weak for that day, just at the thought of not just the bodily harm we’re seeing, but a certain level of spirituality that black people have. And I just thought this is horrible. And as I began to find out more and more about Rihanna Taylor, I did start to have nightmares about that because I thought, wow, what I study could make me a target. You know, what? If the police come in here, how would I protect my children? You know, what would I do? What story would be told, what narrative would prevail? And that kept me up a lot. And, you know, I worry about black journalists and people who are forced to look at these things on the front lines. You know, you had last year a black journalist arrested live on air, you know, in cities telling them, I work for CNN, I’m a journalist. And they still arrested him. And he went to my school. He went to Medill and we had a huge session about it. So we can air out our feelings and talk about and show them support. But it was still demoralizing. You felt it in your body that at any moment this could be you. And, you know, to nab just credit, the National Association of Black Journalists has done a fabulous job of providing not only covid resources to journalists and having a covid relief fund to people who are out of work and can’t report. But also starting new fund, a new groups for journalists on the front lines of this kind of coverage to make sure that they’re not traumatized. And I’ve been a member since I was a college student, and I’ve never seen this level of distress amongst my colleagues. And I led the plenary session, the opening session for our national conference last year to really give space to that and to let them know that they could be human. It’s OK. And there was an outpouring of support and people said, I’m tired. This is so hard. It’s so hard to have to be professional and do stand ups when the person that you’re covering could be a relative of yours. And so all of these ripple effects that we didn’t see because we were so excited about the tech and I was one of them, I was an early evangelist. I really started to analyze and pick apart. And that’s my job as a scholar to see how things evolve and what is happening here. And is it still good? If it’s not good, what else can we do?
S1: Alissa, what I think I’m hearing you say is there are technical fixes, there are systems fixes you think suggested earlier. I know you’ve written this legislators could use the Broadcast Decency Act of 2005 and start fining TV news and social media platforms that distribute what you’re describing as snuff films of black lives create real financial structural incentives not to have black people dying on a loop every day on my television and social media. And that’s a part of this for sure. You’ve talked about it a lot, but. I think I’m hearing you say something much, much deeper, and I think what you’re saying is that we need to locate that George Floyd video, all the videos before. The ones that came after within this really horrifying legacy of lynching, postcards, acts of violence perpetrated on black bodies that are done as spectacle and that are performances of white supremacy, and that there’s a really deep cultural error that we make when black witnesses need to keep proving again and again that black victims really are victims as opposed to white victims who are just assumed to be victims. So what I think what I’m hearing you talk about is rethinking, bearing, witness. You have thought so much about what it is to be black and to bear witness. And you’re telling us that white people in journalism, white people, even the law needs to just do a much better job of bearing witness, because what we are seeing, what we think we need to see is constructed in a way that always, always. Is located within this history of black pain and the spectacle of black pain. And you’re telling me that when we say, oh, the video, the video, the video saved the trial and the video brought justice, this is not, in fact, the kind of bearing witness you are asking for. You are asking, I think, if it can be passed a little bit for a real solution, that is. A massive reframe, and it is way beyond just the little kind of tech fixes.
S2: Sure, and I think I’m glad that you said tech fix, because in the beginning when I was thinking of this, I think what can we do? After I saw this flawed video looping, I had journalists from around the nation write me after I’d written pieces about how we should look at these differently. And they said, well, what do I do? I work in a visual medium. How do I tell the story responsibly? Because I hear you and now I’m hurt. I realize I can do better. What is it? Should I just stop the video right before the moment of impact, before the moment of death? And they even reference the famous Vietnam of video or actually photograph of a man who’s about to be shot in the head. And they said, is that the kind of thing that we’re asking for them before the moment of death or they’re about to die? That I can just show up to there? And I remember feeling uneasy about that. And I guess I think that would be OK. But then even seeing, you know, that approach being taken with Adam Toledo, I was like, I’m still traumatized. So what can we do? And so to answer your question, part of this is, yes, saying we need to reserve the family’s need to reserve the right to decide how much gets circulated. And so they should be the ones to decide if they want the world to see what was done to their baby, in Mamie’s words. But part of that, in deciding to air or not to air, is also going back to a key failure of journalism. There would be no need to produce proof of one’s humanity or proof of one’s innocence if journalists did a better job of investigating the police’s words. And one of my favorite colleagues, Daniel Killgore, wrote a piece for the conversation this week where she’s talking about media coverage of police and protests and the blind spots in journalism, which are a tendency to go with the police said narrative. And those are her words, police said. And she picks out so brilliantly, these police said images in terms of early reports of Adam Toledo having a gun in his hand and early reports of Walter Scott, who was shot in the back lunging for a Taser. And had it not been for Faden Santana, turning that video over to the family, saying that’s not what happened, we may never know. And so she goes on to talk about just other cases where Brianna Taylor, the police report, said injuries none. Now, we know that that’s not true or that the seventy five year old man who fractured skull during that protest in Buffalo last summer, he, quote unquote, tripped and fell into a tree. Failure of journalism is to report police said this thing happened. And, you know, newspapers across the country parroted initially before the George Ford video surfaced that a man had a medical injury in the back of a squad car and died on the way to the hospital. And so some of our most respected publications went with that narrative. They went with it. And it’s embarrassing. Later when you have video that counters what you said, because it shows as a journalist really didn’t do a whole bunch of digging to see what happened. And that feeling of failure of journalism, taking those law enforcement accounts as fact is what needs to be worked on. We definitely need to make sure that we are taking that as a source, but that we’re also asking questions in the community about what happened and really investigating in the ways that our profession teaches us. One of the first things they say in school is trust but verify. And one of the old anecdotes is even if your mom tells you, still investigate it. And I think that me learning that as a journalist and not seeing it play out in the profession right now is very troubling to me as someone who teaches journalism and someone who really respects the field because of the sheer amount of work and hard it takes to get it done right. So in addition to figuring out how much of these videos we show, if at all, you know, I know everyone won’t be convinced some people will want to still publicize these. I think we should also be asking, how can we ask better questions about what happened here? How can we cultivate networks of other sources that can tell us firsthand what went on on the ground? How can we engage in reporting that’s not lazy. That doesn’t just take a press release from a police department and cut and paste. How can we make sure that we’re doing coverage that investigates the city itself and the precedents that have occurred there in terms of police brutality and trend pieces? And how can we make the city itself a character? I wrote a piece in The Atlantic a while back about Jacob Blake being shot in the back seven times in Wisconsin, and I thought no one thought to investigate that the Milwaukee area is perhaps one of the worst places to be black in America. It has one of the lowest. Quality of living for African-Americans, by all the measures, education, income and people are 12 black people are 12 times more likely to be incarcerated there than anywhere else. And so might this lead to how police view the community that they are policing, especially if they don’t live within it? These are the kind of questions that I’d love to see journalists not be afraid to dig into and ask. But all too often they’re relying on a press release rather than the actual people who live there. And if they do ask a citizen journalist for their opinion, it’s only to get permission for gory video. It’s not using that citizen journalist as a true expert witness on their own neighborhood. And so I would say the last remedy that I’d like to see is that journalists, professional ones who are members of the legacy media, come to rely on and come to trust some of the high quality citizen citizen journalists that are living in these cities. And that’s really what my book Bearing While Bearing Witness while Black is about. It talks about how do people become these star witnesses, if you will, in their own communities. A lot of people have engaged in this on a long term basis, and they know the ins and outs. They go to every city council meeting. Some of them have run for office and won. And so we’re seeing a sea change in the way news is made. A lot of African-Americans who live in these communities that have been marginalized have decided to create their own ad hoc news outlets in their independently running and operating. And they know things and do things. And so when journalists pair up with them, they are not going to replace you. I think that’s the fear. Instead, we should think of it like an EMT model where these citizen journalists are the first on the scene and they stabilize the patient, which is a story they figure out the five W’s who, what, when, where and why. And then they pass that story off more often than not to legacy media. Who are the surgeons here, the other professionals. And they can take it a step further, adding context and graphics and all kind of archival footage and have more access to people across the country. That’s the kind of partnerships that we need, that EMT doctor model. Instead of emailing someone and just saying, can I have your video? Can I put your video on air? So, again, a deeper respect for the storytellers who live in these towns is essential. And so I think we can get there in all new ideas. Sound radical when they’re first said. But I really just want my radical idea that we engender sympathy for black victims of police violence without video while investigating just as rigorously as we would for white victims. I really want that to be a reality sooner rather than later.
S1: Dr. Alissa Richardson is author of Bearing Witness While Black African-Americans, Smartphones and the New Protest Journalism. She’s an assistant professor of journalism at the University of Southern California’s Annenberg School. And her piece this week in Vox is called We Have Enough Proof. Elyssa, I cannot thank you enough for what I think is a really essential reframing and reorganizing of how we talk about these videos and bearing witness.
S2: Thank you for having me.
S1: We’re now at the portion of the show that everyone loves best, and that is our little special peek behind the curtain with Slate’s own Mark Joseph Stern, who covers the Supreme Court, who covers state courts, election law, LGBTQ issues and so much more at Slate. Welcome back to. I think I want to start ended the week, which is just incandescent fury at life without parole for juveniles decision that came down on Thursday and got like some attention, but probably not as much attention as it ought to do. You and talk a little bit about that?
S3: Yeah, well, I mean, I’ll just get more incandescent and my head might explode, but we should talk about it because it’s really important. And it’s the kind of mid level Supreme Court decision that’s really important to a lot of people, but doesn’t get the kind of coverage I think it deserves and doesn’t necessarily provoke the outcry that it deserves. So this is a case called Jones versus Mississippi. And the background here is that in 2012 and 2016, the Supreme Court, with Anthony Kennedy’s vote, put really, really strict limits on juvenile life without parole, which is the sentencing of a child to life in prison without even the opportunity, the possibility to prove that they are rehabilitated and secure. Early release. And the court basically said, look, only children whose crimes reflect permanent encourage ability and corruption can be sentenced to life without parole. Only the rarest of cases. Will this be acceptable? In almost all circumstances, it is disproportionate and thus unconstitutionally cruel and unusual to condemn a child to die in prison. And these are, I think, you know, pretty widely respected decisions. They didn’t really provoke a lot of outrage when they came down, even among conservatives. And a lot of states have begun to reform their their juvenile life without parole laws since then. But Anthony Kennedy then stepped down and he left his legacy in the hands of his successor, Justice Brett Kavanaugh.
S1: And we should say quite deliberately, right, is what he wanted to have happen.
S3: He told the Trump White House that he wanted cabinet to replace him and so gave Cavitat the keys to the kingdom. And on Thursday in Jones vs. Mississippi, Cavnar basically overturned those precedents without even admitting to it. Kavanaugh turned these really important, pretty, pretty sweeping decisions into this miniscule rule. Not that judges can almost never sentence children to life without parole. Not that judges have to take the transience of youth, the immaturity of children, the underdeveloped brains of teenagers into account, but simply that the judge must, in theory, have the discretion to issue a lesser sentence. So as long as the judge in theory could give a child a sentence of less than life without parole, then the Constitution has been satisfied. Even if the judge still gives that child a sentence of life without parole and does not take into account his immaturity, his youth, his underdeveloped brain, all of the mitigating factors that are so common in these cases. Right, because so many children who commit heinous crimes are abused in the home. They suffer neglect. They suffer trauma and terror at the hands of family and sometimes strangers. They have severe mental issues. But Cavanaugh said doesn’t matter. Judges no longer really have to take that into account. All of those decisions that my predecessor supported and wrote, they don’t matter and gutted this this really important bar against juvenile life without parole, without acknowledging what he was doing, pretended as though those decisions meant what he said they meant, when in reality he had eviscerated the substantive limits that the court had placed on juvenile life without parole as a sentence.
S1: And this is, I think, the important part, Mark, because as you say, this feels like a mid-level rate. This isn’t going to rise to the kind of thing that that is screamed from the front pages. But it’s not so much the decision. It’s how it was done and the subterfuge of, oh, we’re just continuing with precedent. We’re making a tweak, little nip and tuck. But essentially we are within the same realm as Justice Kennedy’s thinking and yet at the same time completely subverting it and not admitting it. And maybe talk a little bit about Justice Sonia Sotomayor in dissent, who pretty much, I think, lights up Justice Cavnar for the subterfuge.
S3: Yes, Justice Sotomayor in dissent, joined in full by both Elena Kagan and Stephen Breyer, which I was a little surprised by, because this is a very furious dissent. This pulls no punches. Justice Sotomayor accused Cavnar correctly of gutting these precedents while pretending to uphold them. She said that Cavnar is full. No one, those are her words that he had basically, like you said, engaged in this subterfuge to conceal this dramatic clawback of rights to children without having the nerve or the guts or the spine to acknowledge what he was doing. And I really encourage everyone to read Sotomayor’s dissent because it’s so powerful. But I also want to point out that Justice Thomas basically says the same thing in somewhat less harsh terms in a concurrence. And Thomas refused to join the majority because he pointed out the same thing that Sotomayor did, which is, you know, you’re actually just overturning or eviscerating precedent without admitting to it. And Thomas says, I would rather just admit to it and overturn the precedent outright and drop this pretense of adhering to it, then continue the farce, the fraud of claiming to uphold this decision while in reality gutting it of all of its substance. And Sotomayor cites Thomas approvingly in her own dissent. And so you have sort of the two opposite wings of the court here. Interestingly, Thomas and Sotomayor coming to the same conclusion about Kavanagh’s opinion, which is that it is fundamentally dishonest, that it just does not acknowledge the reality of what it’s doing and that no one benefits. Certainly none of the children languishing for decades in prison. Certainly none of the many committed attorneys trying to get them out. Certainly not lawmakers trying to craft statutes and rules that comply with the Supreme Court’s guidance. None of them benefit when the court pretends not to overturn precedent and does it anyway, like the least we could got here is a clear rule and an honest decision. And Cavnar has deprived us of even that.
S1: So two quick thoughts. One, I’m hardly going to be the first person to point out that so much of Justice Kennedy’s solicitude for young people when he was thinking about juvenile life without parole was really born of like Kennedy’s deep engagement with like juvenile brain science. And, you know, how we think about redemption and the possibility of redemption and how I mean, he really dove deep into this idea of teenagers are not fully baked and capable of changing,
S3: which is just objectively true. We should note, you know, like just oodles of brain science have shown that the parts of the brain that limits recklessness, that help people control their own impulses and violent behavior, that those parts of the brain are not fully developed. When someone’s a teenager, they’re not fully developed until, in fact, the age of about 25. And so it’s just objectively accurate that children, teenagers, young people are less culpable for crimes and have a much greater potential for rehabilitation concepts that are core to those past decisions that Cavnar just totally ignores and pretends like they don’t exist.
S1: Right. So let’s stipulate and I say this as a mother of teen boys that like I profoundly hope I know that this is in fact rooted in science. This is not controversial. But I also just have to as I say, I’m not the first to note to footnote. But I’ll say anyway that all this is coming from Justice Brett Kavanaugh, who admitted to, at his confirmation process, underage drinking and other truly reckless behaviors, now making claims about whether teenagers should be tarred for life with their own reckless and careless activities, when, in fact, his claim at his confirmation hearings was that nothing that happened to him or that he did as a teenager should matter today. The second thing that I guess we should talk about, and you’ve said this implicitly, you and I have been banging on and on and on about the shadow docket and the ways in which the court changes the rules in the dark of night without explaining. This is kind of a version of that, right. This is a version of and we talked about it last spring when the court handed down June Medical, which purported to uphold whole women’s health, while also in some ways gutting some of the core parts of it and taking us back to a world of Casey and not of whole women’s health. So I just think folks who are listening should think really carefully about these subterfuges, about the ways in which the court does things without telling us they’re doing things, whether it’s on the shadow docket or whether it’s saying, oh, this is just clearly in line with existing precedent while subverting that precedent. Because it leads me to my next question mark, which is this conversation about court reform. We talked about it a tiny bit last time, but there seems to be this growing consensus that until and unless the court writes the words Roe v. Wade is overturned, there will never be a mass. Public outcry for court reform, and I think you and I just need to say it really explicitly, it is entirely possible, just as you can do away with limits on juvenile life without parole, without writing that sentence, it is entirely possible to do away with Roe v. Wade. It is entirely possible to do away with one person, one vote. It is entirely possible to do a lot of things without writing the sentence X is overturned. Right.
S3: Right. And I think that this decision in the juvenile life without parole case is sort of a roadmap, in a sense for a future courts, this future courts to overturn Roe without copping to it. You can see all of the tricks, all of the rhetorical moves that cabinet deploys here, plucking a few words here and there out of context, assuming this really reasonable tone of deep respect for precedent and the institution of the court and the people and, you know, self governance and pretending to adhere to your predecessors decisions while uprooting their very bases and moving in a totally new direction under this guise of lies. I mean, we should just call it what it is. These are lies. This is deception. And Sotomayor pretty much goes there in her own dissent. And if Kavanaugh can do it for juvenile life without parole, he can do it for anything, including abortion. And frankly, he already has. You know, if you read his dissent in June Medical, he’s trying to pave a way for states to shutter all abortion clinics within their borders without the court having to actually say we’re overturning Roe v Wade. Right. Cavnar is really good at figuring out how to make it seem like he’s adhering to the core of Roe and of Casey. Well, giving states a free rein to shut down all of their clinics and make it impossible for a woman to get a legal abortion within that state. And so when we talk about chloroform, when we talk about what it would take to move the Democratic Party, to move the White House, whatever, and we say not until the court writes the words rose overturned. That’s a recipe for no court reform ever. Right. Because I think you and I agree. Like, the Supreme Court’s just not going to do that. They’re too savvy, they’re too smart, they’re too political. And they know the backlash that would trigger and they’re going to avoid it. And so if court reform really hinges on the outright reversal of ROE, then court reform is never going to happen.
S1: And I want to just flick it. You know, at one piece I wrote this week saying we’re watching Amy CONI Barritt pretty consistently disappointing the people who paid a lot of money to get her on the court because she’s refusing to take abortion cases. We think she’s refusing, we think to take gun cases. There’s a sense that she’s not showing up for the conservative legal movement in the ways. That was hoped. I think it’s useful to say I wrote that piece before Cavener handed down Thursday’s decision, and in a sense, you and I have been talking on this show a lot in recent weeks about the ways in which, you know, Justices Alito and Thomas are playing a short game right there, not on the court for 30 years, that there was a sense that both Cavnar and Barritt and maybe to a slightly lesser degree Gorsuch, were mindful of the appearance of doing reckless things quickly, because why you’ve got 30 years to do it and you can wait till the Senate is in Republican hands and do all the fun things, then cabinet up, I think, surprised that theory. It looks as though to the extent you and I had been saying that Berrett and Cavnar were being a little more savvy and a little bit more pretextual and a little bit more incremental and careful that Cavenagh did not show up on Thursday.
S3: Yeah, it was Justice Scalia who once said that the only limits on the Supreme Court’s power are the justices own sense of what they can get away with. And I think that’s very true here. And, you know, we began by calling this a kind of mid-level case. And I think that’s exactly what’s happening here. All eyes have been glued on the Supreme Court with this Mississippi abortion case, with these other sort of so-called eugenics abortion cases. What’s it going to do? Are there going to be four votes to grant their Yorta Yorta people weren’t paying attention to Jones versus Mississippi during oral arguments? I think oral arguments have it right around, if not on Election Day. I mean, you know, people were busy. They didn’t take note of this. And when the decision came down, yeah, some people tweeted about it. People were mad. But it’s also kind of a complicated issue. You have to explain why the court didn’t outright ban life without parole for juveniles before, but it came really close. And now Kavanaugh has walked that back. And you kind of have to be like a bit of a SCOTUS nerd to fully understand what’s going on. And that’s exactly how Cabinet wants it. And because it’s in this slightly arcane area of the law, I think Cavanough feels he can go all out guns blazing. And this is what Cavitat looks like when he’s not tempered or limited by a fear of public backlash. He knows he can get away with this. And, you know, he sure did.
S1: So that’s a great pivot to the next just quick question, which is fear of public backlash. Dun dun dun. Sonia Sotomayor and Neil Gorsuch now join Stephen Breyer out on the stump saying, no, y’all, we are not political at all. We are really good friends. We love each other. We may disagree, but let it be super clear that there is no need to think about this court as a partisan institution because we are magic. And I think I just want to ask you this one question, which is, isn’t this strange stumping that we now have a third of the court out on the hustings reassuring us that they’re not partisan at all? By the way, after Sonia Sotomayor sets sets Cavenagh on fire on Thursday. But no, we’re all just disagreeing civilly. But this weird turn in the conversation, which is we’re all friends and we all get along, is such a very strange construction of the problem. Nobody says they have tiny spears and they go to the lunchroom and poke each other’s eyes that like the fact that they can be civil to each other in no way affects this conversation about the fact that the Supreme Court is a hopelessly political and partisan institution that has been functionally captured with three nominations that Donald Trump made, of which two were just bonkers, crazy. That has nothing to do with whether we disagree passionately or personally. Why are we having this strange response from the court that seems to be as long as we can tell people that, like, you know, we pat each other like silky ponies, we’re all friends here. Who cares? That’s not the problem.
S3: Right. So, you know, I would I would say that, you know, the justices deep down and I think this happens to almost all justices, they get this kind of Stockholm syndrome there on the courts. It’s like a monastery. They have to deal with each other all the time. And they come to believe in the apolitical nature of this institution and come to be the kind of institutionalists who feel compelled to go out there and say, no, don’t worry. You know, we don’t have our little spears’. We aren’t hunting each other down in the Great Hall like we’re all buffs. And we love going out for ice cream and whiskey or whatever. But, you know, the problem with that theory is that when Sotomayor actually writes opinions, as you said, she lights up her colleagues and pulls no punches. I mean, she really goes all in on Cavnar and pretty much calls him a liar. And she has done the same for Gorsuch in the past. She’s done the same for pretty much all of the conservatives. I guess not Barracas Barrett hasn’t done anything yet, but surely it’s going to come down the road soon enough. And so there’s this fascinating chasm between Sotomayor’s public comments on the court, which are whoopty. Do we all get along? We love each other. Everything is fine. And her actual writings, which are, you know, red alert, fire in the hall, like raising the red flag, there’s a huge problem here in this court. It’s like destroying our country and all good precedent. And it’s on fire and it needs rescuing. And I don’t know how to square those two. Sotomayor’s, to be perfectly honest, it seems like if you had to pick one to believe, then you should default to the actual writings of the justice rather than her resume convos with Gorsuch. But to to to address your broader question, you know why this might matter or not? When you’re trying to reform an institution, you don’t generally put too much stock in the claims of that institution itself, especially when you think it’s fundamentally broken, as I think we believe the Supreme Court is. And so what I would guess, leaving aside the Sotomayor puzzle or conundrum, is that the justices, including Breyer, are coming out and trying to sort of tamp down the zeal for court reform by making it seem like everybody gets along. You know, you should trust Steve Breyer. You should trust Sonia Sotomayor when they say there’s nothing wrong here, especially when they say it on Zoome and so charming. But that shouldn’t really matter. I don’t think it shouldn’t matter to Democrats. It shouldn’t matter to court reformers. It shouldn’t matter to the White House. It’s become fodder for conservative trolls. You know, every time a Democrat now talks about court reform, you see conservatives and Republicans saying, well, but Steve Breyer says we don’t need it. So, you know, how could you know better than Steve Breyer? And the answer is God bless Steve Breyer, a wonderful man, an American hero. But his opinion on court reform just doesn’t really matter.
S1: The day that question Sotomayor came out saying that the court is totally loving and nonpartisan, I think I posted on Facebook that lining up Steve Breyer, Sonia Sotomayor and Neil Gorsuch. To tell us whether or not the court was not nonpartisan was a little bit like lining up the Easter Bunny, the Tooth Fairy and Santa to tell us whether they were real. Like, of course, they believe in themselves. It doesn’t matter. And the other and this is a really inapt comparison. And I don’t have another one, but I just remember reporting on ME2 in the judiciary. Right. And the answer was always, we’re a family. We’re a family where we love each other. We’re a family. And the fact that you’re a family doesn’t mean that you’re not broken. And it’s always the people inside the institution who are using the idea that they really like each other to obscure the fact that stuff could be really, really crappy. And so I don’t know. I mean, I feel like on the one hand, my heart goes out to these folks. I understand it must chill their blood to hear this incredibly rancorous, wholly political, wholly partisan, ugly conversation happening out in the world. It’s not good for the court stipulated. It’s really bad for public esteem in the court. And that is what they’re freaking out about. And at the same time, I think that just lying to us, the fact that the court is not a partisan enterprise I just think is not helping it. As you say, it feeds the discourse rather than calming it. And I think it just makes them look like they’re not credible at all. So, you know, if we’re having to have a conversation about which Sotomayor is really the one who writes these angry, ferocious dissents or the one who genuinely likes Neil Gorsuch, God bless her. That’s not useful for the court at all. Mark, let’s talk about Monday. Let’s talk about the court. There’s a big, big argument coming up that I think, again, is one of those ones that slides under the radar and may be a big fat deal. Can you?
S3: Yeah, absolutely. So this case is called Americans for Prosperity versus Rodriquez, and it is one of the biggest, maybe the biggest free speech cases of the term, maybe just one of the biggest cases of the term period, because it’s a way for conservatives or it’s viewed by conservatives as a vehicle to further conceal their own dark money machines and hide their donors from public scrutiny. So basically what’s going on here is the California has asked nonprofits and remember, this is the United States. So when we say nonprofit, we’re including extremely political, openly partisan lobbying groups that manipulate nonprofit status to avoid having to pay taxes and disclose donors in the first place. California has asked nonprofits to turn over the identities of donors who give above a certain dollar amount. And it’s calculated based on the amount of money that this that the nonprofit takes in. It’s very complicated, but basically it’s only really high level donors here. And let’s be clear about this. California does not publish the names of these donors. California does not put this information out there. You can’t even go to the attorney general’s office and inspect it. It’s only for the attorney general. And the reason why California passed this law is because there’s a lot of charity scam in this country. As my earlier comment might suggest, there’s real charity fraud. And it’s not just political stuff. It’s not just dark money stuff. There are organizations that solicit money from people and claim they’re going to use it for one thing, and then they use it for a totally different thing, including sometimes self enrichment. This has been a real problem in California and across the country. And despite the way that the plaintiffs have tried to frame this case, to try to create this narrative of persecution, that’s the back story here. So I think we should be clear about that. The other thing I think we should be clear about is that the amount of money that you have to give in order to have your name turned over to the attorney general is massive. So Americans for Prosperity, this is a Coke group. They’re one of the plaintiffs in this case. In order to even be affected by this law, you would have had to give Americans for Prosperity three hundred and forty one thousand dollars, OK? Three hundred and forty one thousand dollars. That’s a lot of money. And it would seem to me that if you’re giving that much money to a nonprofit, you might actually have a vested interest in having the attorney general make sure that it’s actually using that money in the way it promised to. So that’s the way that I see this case. And I think that’s the way that this case is, is honestly framed. But again, the way that conservatives have framed this case with Americans for Prosperity for this case is a sheer persecution. They claim that California is targeting conservative nonprofits, that they’re trying to intimidate donors, they’re trying to chill speech and prevent people from giving money to these groups. And they claim that California has actually allowed the names of these donors to become public. Because these groups hired a hacker to attack the California database, the state system, and hack the names of the people who gave this money. So just to be clear here, again, these names are not put out there. These groups had to hire a hacker to dig them out from the guts of the California system to find them. And then they found them. And they claim that California maybe did this on purpose, that they’re trying to put these names out there in the kind of backdoor way, which is all nonsense. So they’re claiming that this case is no different from a case from the 1960s called NAACP versus Alabama, where the state of Alabama, which was very racist at the time and still is, of course, but different thing. The state of Alabama forced the NAACP to turn over its entire membership list for the very obvious purpose of persecuting people on the NAACP membership list and scaring people out of joining the NAACP in the first place. OK, black people getting persecuted by Alabama lynch mobs for donating a dollar to the NAACP in 1960 is just categorically and fundamentally different from a millionaire or billionaire giving three hundred forty one thousand dollars to the Koch brothers in twenty twenty. And I think the efforts to erase that distinction and I know I’m rambling here, this obviously really gets my goat. The efforts to erase that distinction are dishonest and duplicitous. And to me it’s kind of disgusting because it trivializes what the Alabama case was all about. And it tries to draw an analogy to today’s rich white conservative donors that just does not exist.
S1: Do you want to talk for a second about the fact that some of the free speech heroes of the left are right in there with California’s rich white donors?
S3: Yeah, I mean, this is a real problem. I think that groups like the American Civil Liberties Union, the ACLU, have signed on to join with the conservatives in this case and say that, in fact, these really wealthy donors have a right to conceal their identities, not just the ACLU, but also the NAACP Legal Defense Fund, the night First Amendment Institute, the Human Rights Campaign, the Pan American Center. They all joined an amicus brief siding against California, framing this as persecution and saying that these donors have a First Amendment right to conceal their identities. Again, not from the public, because this law doesn’t even give their identity to the public, but from the attorney general to do bread and butter attorney general stuff by investigating charities to make sure they’re actually doing charity.
S1: It feels of a piece with the conversation, ironically, that I had with Jameel Jaffer of the Night First Amendment Institute recently about how we are starting to really conflate national conversations about cancer culture and doxing and terrorizing of people who speak with the conversation about what free speech actually protects. I mean, this feels like it’s very much of a piece with making a category error that then really, really becomes doctrine.
S3: Yes, that’s right. And this is not an accident. Right. This is a long term campaign on the right, namely to transform basic disclosure laws and disclosure requirements for political spending and political giving into some kind of cruel doxxing that reflects state hostility to freedom of speech. And that is a scary thing with the Supreme Court, because Clarence Thomas has long been on a crusade to abolish all disclosure requirements in political contributions and political spending. And it’s pretty easy to count for possible votes to join him in that in that quest now. And this case could be the one to sort of open the doctrinal door to that earthquake in campaign finance law.
S1: Well, we will keep our eyes on it. And, Mark, as ever, you are even when incandescent begins, incandescent grows more incandescent ends incandescently. You are a national treasure. Thank you so much for being with us this week.
S3: Much appreciated. Thank you, Dolia.
S1: Marc Stern covers the courts and the law and the Supreme Court and many, many other things for Slate. And that is a wrap for this episode of Amicus. Thank you so much for listening and thank you so very much for your letters and your questions. You can always keep in touch at Amicus, at Slocomb, or you can find us at Facebook dotcom slash amicus podcast. Today’s show was produced by Sara Burlingham. We had research help from Daniel Maloof. Gabriel Roth is editorial director. Alicia Montgomery is executive producer. And June Thomas is senior managing producer of Slate podcasts. And we’ll be back with another episode of Amicus in two short weeks. Take care, Tollman.