Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Sunday, April 11, 2021

Catholic legal education in an age of political tribalism

As we continue to make progress toward a post-pandemic future, we need to recognize that COVID is not the only force that has driven us apart from one another.  We are hopeful that social distancing requirements will be relaxed in the coming months, but we’d be naïve to believe that physical proximity will be sufficient to bring us all back together. 

I was reminded of that reality this morning by a Star-Tribune article about the bar owner in Albert Lea, Minnesota who defied the governor’s pandemic restrictions and is now on the run.  What was most striking in the coverage were the diametrically opposed opinions of Albert Lea residents: some praised her for bravely resisting government overreach, and some condemned her for prioritizing herself over her community’s health. 

So how should we train our graduates to be effective lawyers for the bar owner in Albert Lea?  She has, I presume, a deep-seated opposition to wearing masks as a response to the COVID pandemic, as may virtually all of her customers, business associates, family members, and friends.  When she asks our graduate for advice regarding compliance, how should our graduate respond?  With a categorial “you must comply,” or should she also opine on the chances of an enforcement action, the potential penalties, or the legality of encouraging customers to invoke disability exemptions from mask-wearing?  Does our graduate’s own view of masks’ efficacy as a virus safeguard matter to her advice? Does our graduate’s belief that her client is misunderstanding the purpose and intent of the mask mandate matter to her advice? What if she believes that the misunderstanding is shared widely by all of the groups whose views matter to her client? And how can she ensure that she is navigating these tensions with client-centered humility without undermining the rule of law?  Put simply, how should relationships matter to a lawyer’s work in our deeply divided nation?

This is not just about COVID, of course.  Our responses to pandemic restrictions are part of a broader set of beliefs that together comprise the social identities that are driving the grand sorting of our nation into increasingly distant and hostile camps.  Our perception of the debates surrounding the Derek Chauvin trial, the influx of undocumented immigrants in Texas, Georgia’s new election laws, climate change, the prioritization of religious liberty, and a wide variety of pressing policy issues are shaped by the lenses we bring.  Increasingly, Americans’ lenses are based on the camp with which they identify, rather than on their own assessment of the particular issue’s merits. 

This is one reason why I believe that legal education is absolutely essential to our nation’s future.  Law schools teach suspension of judgment, critical thinking, the cultivation of trust, precision with language, detached empathy, and the courage to represent unpopular clients and causes – these are all important habits for a divided nation.  And Catholic law schools should bring a long-overlooked dimension to the conversation: a willingness to go deeper, to discuss moral claims and the relationships that give rise to them.  If lawyers are not attentive to this dimension, we will be of limited help bridging a divide that is not primarily about legal interpretation or technique, and is not simply a product of opposing moral claims—it’s a product of cultures that shape and sustain opposing moral claims. Lawyers need to learn how to build trust across cultural boundaries.

We should think carefully about how we respond to the pressure points that our nation’s division will produce in the coming days.  We should never use division as an excuse to weaken our moral commitments, to withdraw from political engagement, or to slide toward an apathy-driven acceptance of the status quo.  However, we should be clear that the mission of Catholic legal education is not ultimately a call to win the battle for one warring camp or the other – it’s a call to help restore the relationships that have been broken.

April 11, 2021 in Vischer, Rob | Permalink

Friday, March 5, 2021

Thinking clearly about "cancel culture"

I continue to be concerned by our growing tendency to weaponize shorthand expressions for complicated ideas in ways that shed more heat than light. “Cancel culture” is in the news everywhere one turns, and it is being deployed in ways that are both too broad and too narrow: too broad to the extent the term is applied whenever someone experiences consequences for their actions (even self-imposed consequences, as the brouhaha over Seuss Enterprises' decision to stop publishing six of the author's books reflects); too narrow to the extent that the term tends to be applied to the opposing political tribe, not our own. Before reflexively shouting “cancel culture,” let’s ask ourselves three questions:
 
First, what consequences have been imposed against the person deemed problematic? Has a social media post been criticized by others who find it offensive? That’s criticism, not cancellation. Has a person been disinvited from speaking at a conference or representing an organization based on something they have written or said? That may simply be enforcement of the boundaries surrounding an organization’s identity and values, not cancellation. (And yes, it’s problematic for a newspaper to stake out an identity that precludes the expression of controversial ideas.) Has a company been subjected to calls for a grass-roots boycott by those who find their practices or products offensive? That’s accountability in the marketplace of ideas, not cancellation. Has a company or person been effectively precluded from participating in the marketplace by those who control access to the marketplace? Now we’re getting close to cancellation, but we have to answer another question . . . .
 
Second, who is imposing the consequences? One genius of American pluralism is that people can live out their beliefs by joining together with others to support a particular way of life or moral perspective. Usually this happens through voluntary associations (churches, clubs, charities). But this can also happen through for-profit companies. If the mom-and-pop pharmacy down the street believes that the morning-after pill acts as an abortifacient and so declines to carry it, customers may choose them because of that stance, or customers may avoid doing business there because of that stance. No one would accuse the pharmacy of “cancelling” the big pharmaceutical company that makes the drug. As long as there is a functioning marketplace with viable options, we should applaud the diversity of moral claims reflected in our various associations.
 
But what if Amazon decides to stop selling a controversial book? Amazon – like other Big Tech companies – doesn’t just participate in the market; in a real sense, they function as gatekeepers to the market. When those gatekeepers act to remove certain people or ideas from circulation, we should be concerned. (That doesn’t mean it should never happen – e.g., I don’t think Amazon should sell a do-it-yourself kit for building a dirty bomb at home.) In my view, the power of Big Tech is what makes today’s “cancel culture” debates relevant. Many of the debates today are not really new at all, which leads to the last question . . . .
 
Third, am I tempted to describe as “cancel culture” something that has been happening for many years? Many debates about cancel culture today involve the use of racial, ethnic, or homophobic terms – the N-word most prominently. What’s changed, though, is the words that bring consequences, not our willingness to impose consequences for someone’s choice of words. There was a longstanding list of words that served as red lines not to be crossed (as George Carlin memorably explained), the F-word chief among them. In past eras, you could’ve lost your job, your reputation, and your social standing by uttering obscenities. In a way, we’ve traded the N-word for the F-word as the line not to be crossed, and I think that’s a healthy trade given each word’s history. The notion that words (or images) bring social consequences is not new.
 
Our social norms are changing. Maybe you disagree with those changes – if so, I suggest focusing your arguments on the substance of those changes and why you believe they are detrimental to society. Or maybe you think people shouldn’t experience consequences for the ideas they express – if so, I think your position would actually weaken the rough-and-tumble marketplace of ideas in our country, and that would be a shame. Or maybe you fear that certain arguments or beliefs are being removed from the marketplace, not through the free exchange of ideas, but through the top-down imposition of contested moral norms. If so, I share your concern, but the answer is not to issue blanket condemnation of the “cancel culture” bogeyman – it’s to take on an even more complicated topic: what should we do about Big Tech? (And no, I don’t know the answer to that one.)

March 5, 2021 in Vischer, Rob | Permalink

Saturday, February 20, 2021

"Deeply rooted in white supremacy"

How should we argue about deeply contested issues? This morning our local newspaper published an op-ed repeating an argument I’ve seen several times in recent weeks: warning that the pro-life movement is “deeply rooted in white supremacy.” That would come as a surprise to Clement of Alexandria (who expressed Christian opposition to abortion more than 1500 years before the United States even existed), to Mother Teresa (who criticized political leaders for their permissive abortion policies and their treatment of the poor), to Cardinal Wilton Gregory (America’s first Black Cardinal who has long advocated against both white supremacy and abortion), to Planned Parenthood founder Margaret Sanger (acknowledged recently by the organization as contributing a “racist legacy” through her eugenics ideology), and to millions of Black Americans today who oppose legal abortion at about the same rate as other Americans. To dismiss today’s anti-abortion advocacy as “rooted in white supremacy” disregards history and inflames an already difficult issue.
 
The point I want to make is not about abortion, it’s about how we argue. The effort to label anti-abortion advocates as white supremacists follows efforts to label proponents of single-payer health care as communists. Are there white supremacists who oppose legal abortion? Sure. Are there communists who support single-payer health care? Sure. But there is nothing intrinsic to single-payer health care or anti-abortion advocacy that compels an embrace of communism or white supremacy, and to suggest so is to adopt an approach to political debate designed to shed considerably more heat than light.
 
These are not isolated examples. Increasingly, our political disagreements on particular issues are being absorbed into a broader war between two vast tribal identities. Those who disagree with us on abortion don’t just disagree with us on abortion (or health care or immigration or police reform); they are “the other” – enemies in a winner-take-all battle of good versus evil. If they’re not actually white supremacists (or communists), they might as well be. There is no point in searching for common ground because they are evil, all the way down. Whatever we fear or hate most in the world gets attached to whoever stands in the way of our political objectives.
 
I think this approach to argument is actually a cop-out, a lazy excuse to avoid the hard work of engagement. If I can dismiss those who disagree with me as white supremacists or communists, I don’t have to listen to their arguments, much less offer a substantive response. This is no way to conduct a democracy.
 
There are strong arguments on both sides of the abortion debate, and we should engage them. There are strong arguments on both sides of the health care debate, on the immigration debate, on the police reform debate, and on many other vexing public policy challenges. That’s why they are difficult issues. Simplistic narratives and name-calling don’t make these issues any less difficult, just more toxic. We can do better.

February 20, 2021 in Vischer, Rob | Permalink

Thursday, February 18, 2021

We're All In This Together

OK, let’s talk about Ted Cruz’s trip to Cancun, not because it’s an easy target for social media outrage, but because I think it offers helpful insight into why we have become so frustrated with our political leaders. I fully understand a father’s desire to give his daughters a vacation in the midst of a challenging year, and I agree that Senator Cruz could have worked from Mexico via phone and Zoom. The vacation wasn’t a failure of logistics, and it wasn’t just a case of bad optics – it was a disregard of a core element of leadership: affirming through word and deed that, no matter the challenge, we are all in this together. Living out this affirmation as a leader has several dimensions:
 
First, leaders must be willing to share in the risk. If you are leading an organization that requires some employees to be on site during COVID, and you are working remotely from the safety of your home office, that sends a strong message to your employees who are on site. If your state is suffering through widespread power outages during frigid weather, and you remove yourself from those risks for sunnier climes, you’re not leading effectively. Ted Cruz needed to tell his daughters that the vacation would have to wait until the crisis was over.
 
Second, leaders must be willing to share in the sacrifice. Knowing that sacrifice is shared is a remarkably powerful motivator and encouragement for a community in crisis. When a leader doesn’t share in the sacrifice, there is no faster path to cynicism. When California Governor Gavin Newsom was photographed at a fancy dinner party, and it appeared that his group was not following the COVID protocols imposed on everyone else, that was a crushing blow to his ability to lead his state through the pandemic.
 
Third, leaders must be subject to the same accountability. When members of the public screw up, they usually have to make amends. Especially when they have influence over the tools of accountability, leaders have to make sure that they are transparent about their mistakes. When New York Governor Andrew Cuomo made misjudgments about placing people suffering from COVID in long-term care facilities early in the pandemic, that was bad, but given what little we knew about the disease at the time, it was arguably an understandable mistake. Working to conceal that mistake in the months since – for a leader – is inexcusable.
 
Fourth, leaders must show that we possess the same dignity. Leaders will invariably disagree about ideas with those whom they are called to lead. Disagreement should be open, direct, and respectful. Disagreement never justifies leaders characterizing those they are called to lead in ways that are demeaning or characterize a person as “the other.” That is why Hilary Clinton’s “deplorables” comment was so inappropriate, and it’s why so many of President Trump’s comments were inappropriate.
 
Looking for a good counter-example? While she was far from the most memorable leader in Chicago's colorful history, something Mayor Jane Byrne did has stuck with me ever since I learned about it as a kid. She moved into the Cabrini Green housing project. Like other mayors before her, she pledged to improve public safety, but then she backed it up by actually living in a spot that was perceived as being among the most dangerous in the city. That’s a powerful example of how to say, “we’re all in this together,” and leave no uncertainty that you mean it.
 
The tendency to extend preferential treatment to ourselves over others is not a partisan problem - it's a human problem. It's one I struggle with as well, and when it's left unacknowledged and unaddressed, it's an obstacle to effective leadership.

February 18, 2021 in Vischer, Rob | Permalink

Wednesday, February 17, 2021

Ash Wednesday

Today we observe Ash Wednesday, which marks the beginning of Lent, the time in the Christian calendar that commemorates the 40 days Jesus spent being tempted by Satan in the desert. The ashes sprinkled on our foreheads remind us that we are mortal: we are dust, and to dust we shall return. As Pope Francis explained last year, though, “we are dust loved by God,” and the ashes are:
 
a reminder of the direction of our existence: a passage from dust to life. We are dust, earth, clay, but if we allow ourselves to be shaped by the hands of God, we become something wondrous. More often than not, though, especially at times of difficulty and loneliness, we only see our dust! But the Lord encourages us: in his eyes, our littleness is of infinite value. So let us take heart: we were born to be loved; we were born to be children of God. [Lent is thus] a time of grace, a time for letting God gaze upon us with love and in this way change our lives. We were put in this world to go from ashes to life. So let us not turn our hopes and God’s dream for us into powder and ashes. . . . Ashes are sprinkled on our heads so that the fire of love can be kindled in our hearts. . . . Our earthly possessions will prove useless, dust that scatters, but the love we share – in our families, at work, in the Church and in the world – will save us, for it will endure forever.
This year, it may seem like the last thing we need is a reminder of our mortality. Life’s fragility has probably not been far from any of our thoughts since the pandemic upended our world one year ago. The temptation to feign blissful ignorance of our mortality may sound pretty refreshing right about now. And it’s a temptation that may be within sight as vaccines roll out and something closer to "normalcy" looms over the horizon.
 
But, as Ash Wednesday reminds us, disregard of our mortality is not so blissful, and it is not without cost. As vaccinations become more widespread, I hope I don’t trade anxiety about my at-risk loved ones for complacency about each day’s significance. Pre-pandemic, I was adept at distracting myself from big questions with a never-ending blur of activities. While Ash Wednesday is not intended as an impetus to wallow in the stark fact of life’s brevity, it is an invitation to reflect: in light of my mortality, how shall I then live?
 
We do not achieve significance through impressive accomplishments; we honor our significance by living as though we truly believe that the “littleness” of each person we encounter is “of infinite value.” As we enter Lent, what would it look like for “the fire of love” to “be kindled in our hearts?” And what is the “something wondrous” we were called – indeed created – to become?

February 17, 2021 in Vischer, Rob | Permalink

Friday, February 5, 2021

What is Christian nationalism, and what is it not?

(This is an op-ed published by Religion News Service.)

One unfortunate aspect of the American culture war is the tendency to weaponize words in ways that stretch them beyond any semblance of their original meanings. Terms such as “woke,” “PC” and “cancel culture” are now deployed to signal that something is bad without shedding meaningful light on the reasons why it’s bad. 

The latest term to meet this fate may be “Christian nationalism.” Since the attack on the U.S. Capitol, it’s showing signs of becoming an all-purpose condemnation of any effort to integrate Christian beliefs with civic engagement, even perfectly peaceful ones.

So what is Christian nationalism, and what is it not?

Paul Miller, a Georgetown University professor and author of a forthcoming book on Christian nationalism, explains that Christian nationalism is a political ideology that holds that “the American nation is defined by Christianity and that the government should take steps to keep it that way to sustain and maintain our Christian heritage.”

If America was founded for a unique purpose by God, then the Constitution was divinely inspired, and displaying the American flag in church sanctuaries is not a blurring of American and Christian identity but a natural marker of faith. In the rhetoric of Christian nationalism,  power is emphasized over principle.

Why is Christian nationalism so dangerous?

Put simply, when we merge our religious identity with our political identity, we will do anything to ensure that our political tribe prevails. We are no longer debating ideas about which reasonable people can disagree; we are defending Christianity against its enemies.

It’s why Eric Metaxas said, in reference to his claims of a stolen election, that it’s “God’s will” for America to keep spreading liberty around the world, and so, “Who cares what I can prove in the court?” Regardless of what the courts say about election fraud, “we need to fight to the death, to the last drop of blood because it’s worth it.”

When a particular political outcome becomes a tenet of my Christian faith, there’s nothing left to argue about. And when there’s nothing left to argue about, that’s a very dangerous place for democracy to find itself.

So there you have the broad outlines of what Christian nationalism is. What is it not?

Christian nationalism is not Christian patriotism. Love of country is a healthy aspect of being human, a reflection that the particularity of place matters to our identity and values. Patriotism becomes unhealthy when we reimagine our national identity as an expression of divine will, elevating our nation above others on some sort of God-ordained hierarchy.

Christian nationalism is not Christian political engagement. We are not a “Christian nation” in the sense that Christian nationalists mean. We are a nation in which our political discourse has long been shaped by Christian values, on both the left and the right. The civil rights movement was infused with Christian images and principles. The progressive push for immigration reform prominently features Christ’s admonition about welcoming the stranger.

Christian ideas should only be an entry point to a broader conversation with Americans of any (or no) faith tradition, not as a sledgehammer to stop their contribution to the debate. On the issue that’s been the most contentious over the past half-century, abortion, the most effective pro-life voices have been steeped in Christian principles. But the core of their arguments has been grounded in observations about fetal development and articulations of life’s value in terms that are accessible beyond Christianity.

On both sides of the political spectrum, the most effective advocates convey the public relevance of Christian values in terms that are wide open to rational disagreement.

The dangers of Christian nationalism are real, but let’s not let tribal posturing confuse those dangers in ways that marginalize the values-based arguments that have been — and hopefully will continue to be — central to American democracy. 

February 5, 2021 in Vischer, Rob | Permalink

Wednesday, February 3, 2021

What does CST have to say about America's collapsing social trust?

What does Catholic social teaching have to say about America’s collapsing levels of social trust, which underlie the rise of conspiracy theories, the rejection of expertise, and the hollowing out of the political center? Put differently, if we read David Brooks’ recent essay on our nation’s moral convulsion through the lens of CST, what insights might we gain?  (Last year, [non-Catholic] Brooks called CST “the most coherent philosophy that opposes a philosophy of rampant individualism,” but I don’t think he’s addressed this topic at any length.)  We often invoke elements of CST in debates about particular policy issues, but what light might CST shed on a prudent path forward through this cultural moment?

Two questions might be helpful conversation-starters. First, while solidarity compels us to care about and for others, what does it tell us about the primacy of trusting -- and of being trustworthy -- as a necessary condition of such care? As we know, solidarity “is not a feeling of vague compassion or shallow distress” at others’ misfortunes, but rather “a firm and persevering determination to commit oneself to the common good; that is to say to the good of all and of each individual, because we are all really responsible for all.” (Sollicitudo rei socialis ¶ 38) What is needed is “a commitment to the good of one’s neighbor with the readiness, in the gospel sense, to ‘lose oneself’ for the sake of the other instead of exploiting him, and to ‘serve him’ instead of oppressing him for one’s advantage.” (Id.) The freedom made possible by solidarity is not “achieved in total self-sufficiency and an absence of relationships,” but only “where reciprocal bonds, governed by truth and justice, link people to one another.” (CDF, Instruction on Christian Freedom and Liberation ¶ 26)  The freedom made possible by solidarity “can be articulated only as a claim of truth.” (Id.)  Do we need to talk more about solidarity and social trust?

Second, does subsidiarity require us to pay attention to expertise as part of identifying the appropriate level of society at which problems should be addressed?  The importance of the free, meaningful, and efficacious operation of mediating institutions presents the “most weighty principle” of subsidiarity:

Just as it is gravely wrong to take from individuals what they can accomplish by their own initiative and industry and give it to the community, so also it is an injustice and at the same time a grave evil and disturbance of right order to assign to a greater and higher association what lesser and subordinate organizations can do.  For every social activity ought of its very nature to furnish help to the members of the body social, and never destroy or absorb them.

(Quadragesimo anno ¶ 79)  What does this mean, if anything, for a rising tide of anti-expert populism?

I'm just starting to think about the answers, and I welcome suggestions of helpful resources (rkvischer [at] stthomas.edu).  These and related questions will be a significant component of CST's relevance to American life for the foreseeable future.  As Brooks observes,

The cultural shifts we are witnessing offer more safety to the individual at the cost of clannishness within society. People are embedded more in communities and groups, but in an age of distrust, groups look at each other warily, angrily, viciously. The shift toward a more communal viewpoint is potentially a wonderful thing, but it leads to cold civil war unless there is a renaissance of trust. There’s no avoiding the core problem. Unless we can find a way to rebuild trust, the nation does not function.

I believe that Catholic social teaching will provide important insights as we navigate these painful cultural shifts.  We need to discern and articulate those insights, and convene conversations that give the insights broad visibility and optimal opportunities to gain traction in the debates to come.  This could and should be a years-long project.

February 3, 2021 in Vischer, Rob | Permalink

Thursday, January 28, 2021

How should we think about the renaming debates?

On Tuesday night, the San Francisco Board of Education voted to remove the names of Abraham Lincoln, George Washington, and other prominent figures from 44 public schools over concerns that the figures had “direct or broad ties to slavery, oppression, racism or the ‘subjugation’ of human beings.” It’s tempting simply to roll our eyes and dismiss this as San Francisco playing up to its caricature, but these renaming debates will continue to swirl in cities across the country. Is there an intellectually coherent and morally prudent path to follow?
 
Yes. In the simplest terms, the renaming debate should explore whether a school's name causes reasonable observers to question the school’s commitment to the core values of its educational mission, not whether the historical figure’s behavior aligned with those values in every single respect. We need to avoid the extreme positions on both sides.
 
At one extreme, it is a mistake to dismiss these debates categorically as examples of political correctness run amok. Our decisions to honor particular individuals – and to ask families to entrust their children to schools that reflect those decisions – have real impact on well-being. For example, a Native American friend of mine explained that the abuse children of her community experienced in the assimilationist white boarding schools they were forced to attend created a distrust of schools that has extended across generations. As a result, academic success was not celebrated or encouraged when she was growing up.
 
So imagine being a Native American student asked to attend Ramsey Middle School in Minneapolis, named after the Minnesota governor who called for the extermination of the Dakota and persecuted the tribe in various ways. What message would you absorb every day walking into a building emblazoned with Ramsey’s name?
 
While my daughter was a student at Ramsey, the students successfully advocated to change the school’s name to honor Alan Page, the first African-American justice on the Minnesota Supreme Court. The students delved into history, evaluated the pros and cons, and persuaded the school board. I fully supported that decision.
 
At the other extreme, moral purity cannot be the standard for honoring historical figures. One of my personal heroes is Martin Luther King Jr., and he had some pretty significant moral failings; nevertheless, we honor him because the legacy of his public witness was transformational for our nation. Or consider Abraham Lincoln. We are ignoring history if we insist that his primary legacy was his failure to change the U.S. government’s relationship with Indian tribes, rather than courageous action to end slavery and preserve the Union.
 
Historical analysis requires us to evaluate the entire arc of a person’s life and work. We need to demonstrate empathy – the Ramsey name didn’t bother me until I took time to listen to the experiences of Native Americans in Minnesota – but we also need to exercise reason. If we’re incapable of recognizing that Abraham Lincoln is worthy of honor because of his positive contributions to the American story, we are on a very troubling path. If your feelings about Lincoln are just as valid as the historical facts about Lincoln, we’re not far from the post-truth world of QAnon.
 
If every interpretation of a contested social symbol is equally valid, there’s really nothing to talk about. History becomes another battlefield in our never-ending culture war. We still have to settle the contest, of course, and we’ll do it through raw power. That’s not a recipe for social cohesion, robust pluralism, or a historically literate citizenry. It’s a recipe for chaos.

January 28, 2021 in Vischer, Rob | Permalink

Friday, January 22, 2021

Big Tech is a problem - Amazon's termination of service to Parler is not

Like many Americans, I'm concerned about the power Big Tech wields over our economy, over the ways we obtain (and are influenced by) information, and over our personal data. That said, Amazon’s termination of Parler from its web-hosting service after the attack on the U.S. Capitol appears to have been sensible and legal. Yesterday a federal district court judge rejected Parler’s request for a preliminary injunction, and it may be helpful to summarize the judge’s decision before the legal merits get spun beyond recognition in the never-ending tumult of our culture wars.

The facts: starting in mid-November, Amazon began notifying Parler of problematic content on its platform. (I won't offer examples of the many posts encouraging violence against specific individuals, but you can see for yourself if you search for Amazon's response brief to Parler.) After the U.S. Capitol attack on January 6, content encouraging violence continued to grow on Parler. The Parler CEO acknowledged a backlog of 26,000 posts that violated its community standards yet remained on its service. On January 9, Amazon announced that it would suspend Parler’s account, and Parler sued.

Note that this case has nothing to do with the First Amendment, which applies only against the government, not against a private company like Amazon. Parler did not even allege a First Amendment violation. So what did Parler claim?

First, Parler alleged that Amazon’s termination of service violated the Sherman Act because it was “designed to reduce competition in the microblogging services market to the benefit of Twitter.” To prove a violation of the relevant portion of the Sherman Act, Parler needed to show 1) the existence of an agreement; and 2) that the agreement was an unreasonable restraint of trade. Unfortunately for Parler, there was no evidence of an agreement between Amazon and Twitter to harm Parler in order to help Twitter. Contrary to Parler’s allegation, Amazon does not currently provide online hosting services to Twitter. According to the court, Parler has provided “only faint and factually inaccurate speculation.”

Second, Parler alleged that Amazon breached their contract by failing to give Parler 30 days’ notice before terminating services. Parler did not deny that content on its platform violated Amazon’s Acceptable Use Policy, and Parler failed to note that the contract permits Amazon to terminate immediately in the event of a breach.

Third, Parler alleged that Amazon intentionally interfered with its business expectancy, which requires evidence of interference with its business “for an improper purpose or [using] improper means.” The court ruled that Parler raised no “more than the scantest speculation” of improper purpose, and the evidence suggests that Amazon’s action “was in response to Parler’s material breach.”

The court concluded that “the likelihood of Parler prevailing on its claims is not a close call,” as Parler’s allegations “are both inaccurate and unsupported.” Further, the court “rejects any suggestion that the public interest favors requiring [Amazon] to host the incendiary speech that the record shows some of Parler’s users have engaged in.” Parler’s motion for a preliminary injunction was accordingly denied.

We need to sort through difficult issues regarding the power that a few large technology companies have accumulated, and we need to try to do so without reflexively grabbing for the familiar lenses provided by our highly partisan political environment.  Catholic legal theory should have something to say about all this. Amazon's decision to stop hosting Parler is not the proper vehicle for that conversation – based on the evidence offered, the decision appears to have been morally prudent and legally justified.

January 22, 2021 in Vischer, Rob | Permalink

Wednesday, January 20, 2021

How should Christian faith shape our political engagement?

Whether today’s inauguration causes you to feel more hopeful about our nation’s future or more anxious, I hope Christians can pause for a moment to reflect on the role that our faith plays in our political engagement. If we’re not happy with the voices that loudly proclaim direct knowledge of God’s will for American politics (often arising on the right), and we’re not ready to agree with the voices that insist faith has only a marginal role to play in our political discourse (often arising on the left), what’s the path forward?
 
My favorite line from Abraham Lincoln’s second inaugural address – delivered near the end of a brutal and bloody war – was his observation that both sides “read the same Bible and pray to the same God and each invokes His aid against the other.” It was a simple recognition of our shared humanity and shared faith, even at a time when we were killing each other in a conflict over the deeply immoral practice of slavery. Lincoln did not accuse those fighting for the Confederacy of not being “real Christians,” he did not claim that God had personally assured him that the Union’s cause was just, and he did not assert that God's plan for civilization hinged on the outcome of the conflict. Instead, he recognized that those on the other side were just as sincere in their faith as he was.
 
Did that humility weaken his resolve to win the war and end slavery? Not at all. Did his empathy for those supporting the Confederacy lead him to look the other way and ignore their support of a deeply unjust institution? Hardly. Humility and empathy shaped the way he engaged his opponents, not his commitment to the moral claims underlying the conflict.
 
The answer today is not, as some insist, to exclude commitments grounded in faith from our political discourse. The answer is to articulate the public relevance of our faith commitments in terms that reflect humility and empathy. Three helpful questions emerge from the powerful example provided by Martin Luther King Jr.
 
First, is faith being invoked as a conversation-stopper? Dr. King’s faith was inseparable from his public witness. Faith was not out of bounds for him, but his faith was not invoked to shut down dissent or signal an us-versus-them worldview. His opposition to segregation was grounded in his belief that “a just law is a man-made code that squares with the moral law, or the law of God.” However, he went on to explain that “an unjust law is a code that a majority inflicts on a minority that is not binding on itself.” King did not ask his listeners to embrace the religious foundations of his truth-telling (though many did); he asked them to embrace the resulting moral claims, regardless of how one arrived at them. He brought his faith into the public square without a trace of embarrassment, but it was the beginning of the conversation, not the end of it.
 
Second, is faith being invoked as a rationale for self-righteousness? Dr. King’s practice of Christian love did not always make even his own followers comfortable. He challenged his followers to overcome their fears and refused the easy path of telling them what they wanted to hear. Even within the black community of his own city, Dr. King showed that love is not passive – it pushes, it stretches. Dr. King worked to motivate the community to organize and persist in the Montgomery bus boycott, and he encountered significant resistance to his efforts initially. In loving others – friend or foe, black or white – Dr. King did the work that allowed him to see the world through others’ eyes, but he insisted that they expand their view to encompass a truer, less isolated vision of their own well-being.
 
Third, is faith being invoked in ways that foster hatred of our opponents? Dr. King preached and practiced love for his enemies. Loving the white man, according to King, was in part a response to the white man’s needs, for the white man’s personhood was greatly distorted by segregation, and “his soul greatly scarred.” Dr. King’s advocacy was always a call to restore the relationships that were only possible when black Americans and white Americans stood equal before the law. His invocation of faith made clear that even white segregationists were worthy of the beloved community.
 
If we seek to build the beloved community over the next four years, how should Christian faith shape our political engagement? If we aspire to follow the examples of Lincoln and Dr. King, we cannot accept the reflexive demonization that increasingly seems to shape Americans’ struggle for justice. Political conflict is inescapable, but authentically Christian engagement must recognize that justice is not ultimately about power – it’s about relationship.

January 20, 2021 in Vischer, Rob | Permalink