One weird trick to show support for leftist civil liberties

The last couple of months have seen a lot of intra-left argument about the ACLU. And the last couple of years have seen a lot of argument, all over the place, about “free speech” – what should be included under that banner, what exceptions there should be, what the priorities of people who care about it should be, how tension with other important principles can be addressed.

A clear complicating factor is that many leftists (including me), to varying degrees, don’t believe that “free speech” advocacy in its currently-popular forms either equally protects or is intended to equally protect leftist speech. Quite frequently, it’s a rhetorical club for centrists, right-wingers, and fascists to hit leftists with, and sometimes a way for fascists, who, I have some bad news here folks, do not actually support the same ideals around free speech that centrist-liberal sorts do*, to curry favor with the more oblivious factions of centrists and libertarians. I think this is obviously the case right now for most “free speech” advocacy that is anything other than actual First Amendment advocacy. But what about actual First Amendment advocacy? Isn’t that what all the argument over the ACLU is about? Doesn’t First Amendment advocacy protect everyone? That’s the ACLU’s usual argument for representing horrible people.

Here’s a take that I’m not sure I’ve seen anyone make explicitly before (though I should note that I started thinking along these lines because of a couple of recent-ish comments by Malcolm Harris in a Twitter discussion that I was watching).

It was a mistake for the ACLU to decide, long ago, that it just doesn’t do criminal defense (that link is to the Washtington state affiliate because it was the first that popped up when I searched, but you can find a statement like this on any ACLU affiliate’s website). That it doesn’t do criminal defense even for, say, protest arrestees whose First Amendment rights have been violated. It was a mistake that has had the effect, though not, I strongly suspect, the intention, of convincing many leftists that First Amendment advocacy isn’t really there for them. The ACLU should use some of the large pool of donation money that it has gotten in the Trump era, to hire a few people who could defend arrestees and people under threat from the immigration system, whose First Amendment rights have been violated, as the NLG does in locations where it has the resources (the NLG is a wonderful wonderful organization and you should donate money to your local chapter, but it also doesn’t exist in every city, works on a shoestring budget, and is a bunch of volunteers with day jobs).

The ACLU does laudable work suing police and other state agencies for violating activists’ and others’ First Amendment rights, challenging unconstitutional laws that criminalize activism, and other work that is related to this issue. But when you’re being prosecuted, defending yourself is your first concern. It’s fraught and often unwise to sue the police or any other government agency while you still have an open criminal case (and all but impossible in most states to sue a prosecutor for prosecutorial misconduct). It’s hard to win a case against the police in general, thanks to qualified immunity. If you’re convicted at trial, or if you are intimidated into a plea bargain (even one where you don’t plead guilty but admit to sufficient facts) by the prospect of being railroaded into a significant jail or prison sentence if you assert yourself, you probably won’t be able to successfully sue the state for issues around wrongful arrest or malicious prosecution. You typically have to get rid of the charge first (after which the ACLU can do good things for you). If you’re being prosecuted, after being arrested for what should have been treated as protected First Amendment activity, what you need most is someone to defend you. And that kind of defense is hardly devoid of First Amendment subject matter – a lawyer can, for example, argue for your charges to be dismissed on constitutional grounds, or argue to a judge that First-Amendment-related case law and other material should be incorporated into the jury instructions, or make a closing argument that discusses freedom of speech.

I’ve been there, done that. The first and foremost thing you need if you’re being prosecuted for exercising your rights is for somene to defend you. Period.

This is anecdotal, but my observation is that protests representing different ideologies tend to run into different potential constitutional issues. The ACLU of Virginia landed in controversy for having taken on the case of the “Unite the Right” fascist rally in Charlottesville after a rallygoer killed a counterprotester. The (pretty dubious, in my opinion) issue at hand in that case was permits. The rally wanted a permit for one park, the city wanted to give them a permit for a different park, further from downtown and with more space to separate rally and counterprotests. The ACLU of Virginia decided that this was an important constitutional issue that they should prioritize, and that their doing so would benefit everyone’s free speech. If you think I’m being a little snarky there, you’re right. In part that’s because I think the ACLU, which gets far more requests for help than it can take on, should focus on the free speech cases of the oppressed, because I think that, and not the most reprehensible speech, is the most likely to be targeted by the state. In part it’s because I think “which city park do we get a permit for” is of dubious worth as a free speech case. In part it’s because I think they let themselves get suckered by people who wanted blood and terror and were using them in bad faith. But it’s ALSO because in the dozens and possibly hundreds of left-wing protests I’ve been at, permits rarely come up as a constitutional issue. For one thing, at at least 90% of them, nobody obtained or is seeking a permit (and the ACLU will sell you a shirt, which I own, emphasizing that you have a First Amendment right to protest without a permit)! At least in recent times, fascists like permits, perhaps because they tend to carry a certain level of state protection, and various privileges (e.g. around sound amplification), maybe access to a specific venue that requires a permit, and perhaps because they can then run around trying to confuse people by incessantly repeating “We were in the right, we had a permit!” as though the second half of that sentence has something to do with the first. Since most leftist protests aren’t seeking permits, free speech issues at leftist protests aren’t usually about permits, and protecting fascist permit access isn’t protecting the bulk of leftist protests. The free speech issues at leftist protests, in my experience, are usually things like “Police mass-arrested an entire group” or “Police arrested me for filming/watching/photographing” or “Police targeted me because I’m an anarchist.”

You may notice that the leftist free speech issue examples that I gave in the last sentence, if prosecutors decide to run with those cases, all involve prosecution, rather than something like permit wank, and thus require criminal defense. The ACLU, as it operates now, cannot help with those free speech infringement victims’ most basic and urgent legal needs. The ACLU, as it operates now, can’t defend the roughly 200 J20 defendants who are facing decades in prison for having attended a certain march. It can sue on behalf of a few arrestees, which is great and I am extremely glad that they’re doing it, but it’s not what most people need the most. If any arrestees in the recent St. Louis anti-police-brutality protests are prosecuted, the ACLU can’t defend them (though it can file and is filing civil suits on behalf of some people who were brutalized), even if their First Amendment rights were obviously violated. When I was being prosecuted, I was defended by volunteers from the Massachusetts chapter of the NLG, which has defending leftist protest arrestees as part of its mission. They brought in the First Amendment aspects of the case in all the ways that one can do so in an initial criminal trial, that I mentioned earlier in this post. They had assistance in trial prep from other NLG volunteers with various lawyerly day jobs, one of whom was, in fact, an ACLU employee – but he was wearing his NLG volunteer hat, not his ACLU employee hat, when he helped. The ACLU couldn’t represent me against a bullshit politically motivated prosecution. Because that’s not what they do.

When, because of asymmetry in the typical action structures of different ideologies, the structure of the ACLU is such that it can address the typical immediate concerns of fascists exercising their speech rights at demonstrations, but not the typical immediate concerns of leftists exercising their speech rights at demonstrations, leftists pick up on that, and perceive the ACLU’s concept of how free speech should be fought for as unfriendly and unhelpful to them. And friendly and helpful to people who want to kill them. The ACLU then attempts to explain (and I have no doubt that they sincerely believe it) how their work representing fascists protects everyone’s First Amendment rights. And quite a few leftists straight-up don’t buy it. In part that’s because many leftists don’t expect precedents set for groups dominated by white men who claim to be upholding some kind of traditional values, to be consistently and fairly applied by the courts/police/prosecutors to other groups. They don’t expect it to protect them from being brutalized, and that’s not a critique that’s just going to go away. But it’s also because leftists aren’t getting the foremost protection that they need from the ACLU, because the ACLU’s model doesn’t allow it. People have a vague idea that the ACLU’s job is to protect people whose constitutional rights are being violated by the government, and then the government is violating their rights and the ACLU isn’t there.

I realize what a huge departure this would be from its model, but the ACLU should be willing to defend some political defendants at trial. Not to patch up relations with the left, though I think it would be a positive step. Not because it’s going to neutralize every left critique of the ACLU (it isn’t, there are plenty of critiques, some of which I agree with and some of which I don’t, that have nothing to do with this). But because it’s work that’s really important to civil liberties in the US.

*For example, one fascist group, which has had significant presence at “free speech” rallies, wears and carries paraphernalia that advocates the state throwing leftists out of helicopters, Pinochet-style.

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Z is for zombie because this topic never stays dead

I’ve been seeing a resurgence in recent months of people arguing about the use of “Zionist” and related terms, people using those terms while obviously not knowing what they mean, and so on, so I guess I need to do a post on this, to try to make the discourse less terrible and useless. This is an argument for using terms correctly, and being aware of context, and also an argument that using precise language would avoid a lot of nonsense and carry more informational content. It is NOT an argument that you shouldn’t use the words “Zionist” and “Zionism” when you are talking about Zionists and Zionism, but explains what those do and don’t mean, and why some people instinctively wince at them, and explains other relevant words. It is also going to be US-centric, because that is the context that I know.

Zionism and the uses and misuses of the term

Zionism is a political ideology, a Jewish nationalism – perhaps more accurately, nationalisms, since it has many forms/factions – that says that there should be a Jewish state – not a state for all who live there that happens to have a Jewish majority or be a Jewish cultural hotbed, but a Jewish state, this is important because I was confused about it for a long time and know other people who have been too – in the historic Land of Israel. Historically, there were some factions of Zionism that weren’t oriented around a state (for instance, that focused on a cultural homeland but not a state-based one, or emphasized Jews coming together worldwide to take care of each other), or were oriented around a different kind or place of state (for instance, a binational state of Jews and Palestinians working the land of a mutual homeland together with equal rights, a position that is now overwhelmingly considered anti-Zionist rather than Zionist). These factions tend to have either died out or been redefined as not Zionism by larger parts of Zionism, since or before the establishment of the State of Israel. You may, occasionally, meet someone who calls themselves a Zionist on the basis of adherence to one of these non-Jewish-state-based ideologies, but in my experience this is very uncommon. So non-Zionism and anti-Zionism generally mean lack of adherence to, or opposition to, this set of “Jewish state” nationalisms. Certainly, when I describe myself as anti-Zionist, this is what I mean.

There is also a thing called Christian Zionism. Many forms of it are extremely creepy, hoping for mass conversion of Jews, or eventual annihilation of Jews during the End Times. Prominent Christian Zionist John Hagee has said that Hitler was sent by God to speed up the formation of the State of Israel. Some are more of the form “We need the Jews in Israel to be the front lines against the Muslim hordes,” which is also creepy, not to mention extremely Islamophobic. There are more Christian Zionists in the US than there are Jews of any attitude toward Zionism (and the numbers aren’t all that close). If you are scrutinizing Jews’ views on Zionism but not Christians’ views, then, IMO, you are messing up and being antisemitic, and if you are assuming that people defending Israeli atrocities are Jews you are definitely messing up and being antisemitic.

There are also people, Jewish and not, who are very defensive of Israel and/or anti-Palestinian, but aren’t Zionists. Perhaps they don’t care about Zionism per se but believe that Israeli Jews are getting a raw deal or see Israel primarily in terms of Israeli Jewish family and friends. Perhaps their key motivation is Islamophobia or anti-Arabism and they don’t care about Israel but really don’t like Palestinians.

One problem in a US context, that a lot of non-Jews on the left don’t realize, is that there is a long and vicious tradition of white supremacists/white nationalists/Nazis in the US (who are not known for caring about Palestinians) using “Zionist” as a code word for “Jew.” Jews are mostly very familiar with this usage. This causes a lot of Jews to have an instinctive reaction of fear or anger when hearing someone rant on angrily about how bad Zionists and Zionism are. Which poses a problem, because actual Zionism is an ideology, an ideology that forms the basis of a powerful country’s political system, that affects the lives and deaths of millions of people around the world in extremely significant ways, and therefore we need to be able to talk about it. My own view is that it’s a harmful ideology and we need to be able to oppose it. Palestinians, especially those living in Israel/Palestine, where there’s no context of USian white nationalists using the word “Zionist” in inappropriate and oppressive ways, need to be able to talk about it. But I think that in the US, this complicating factor makes it very important to not be sloppy, and for white Gentiles in particular to be mindful about how they’re coming off. Blame it on the white nationalists, who ruin everything.

A quick note about “Zio.” This is another white supremacist/white nationalist/Nazi code word for Jew, popularized by people like KKK leader David Duke. Unlike Zionism, “Zio” is not a political program, about which discourse and debate is warranted. There is no legitimate reason to call someone a Zio. Don’t.

Another problem in a US context is that a bunch of people on the left are using “Zionism” to mean something narrower (or broader) than Zionism. A bunch of you out there think that “Zionism” means the specific political programs regarding Palestine of the last few Israeli governments, or a set of wars on Gaza. Someone I was talking with on Twitter encountered someone who thinks Zionism means a Jewish state that includes all of Jordan and most of Egypt. A bunch of you think anti-Zionism is the same thing as opposing the Occupation (and that that’s all that BDS, which I support, is asking), or opposing specific wars, or supporting the mainstream two-state solution, and that when you protested Operation Protective Edge in 2014 the people protesting with you were the anti-Zionists and the people counterprotesting you or trolling you online were the Zionists. Meanwhile, the center and right are doing their own versions of this. I’ve encountered plenty of people in those camps who think that Zionism means “believing that Jews should be allowed to live anywhere in the Israel/Palestine area at all” and/or that anti-Zionism means that Jews should be forcibly expelled from the area or killed.

One of the more blatant examples of the confusion, and how it obscures what people are trying to say, that I’ve seen recently, came from Ruptly’s Twitter account in March. Covering protests and counterprotests of the hawkish AIPAC conference in DC, (content note: link has a video showing hate symbols and physical violence/people being clubbed) they tweeted “Clashes break out between Zionists and anti-Zionist groups at AIPAC conference in Washington.” Which was inaccurate – the group being described as anti-Zionist, anti-Occupation Jewish group IfNotNow, explicitly takes no position on Zionism. The group described as “Zionists,” the JDL, are definitely Zionists, but this is a very vague way to describe them when a more precise one would be both more descriptive and more damning. Without going into the use of the word “clashes,” one of my least favorite ways to describe violence in protest settings, “Zionists and anti-Zionist groups” could have been rephrased here as “Kahanists and anti-Occupation Jews” (or, if they were afraid nobody would understand that wording, something like “far-right Jewish nationalists” instead of “Kahanists,” a word which I explain later in this post), and this would have been correct instead of incorrect and painted a clearer picture.

If Alice and Bob are having an argument in which they throw the words “Zionism” and “Zionist” around, and Alice considers herself an anti-Zionist because she supports a Jewish state in Israel and a Palestinian state in the West Bank/Gaza/East Jerusalem (which is actually called liberal Zionism), and Bob considers himself a Zionist because he thinks Israeli Jews should not be forcibly expelled from Tel Aviv, and Candace, listening to their conversation, is thinking only about white nationalist usage of “Zionist” any time either of them says it, not only is this conversation not conveying any information, I would say that it is conveying anti-information, and everyone is probably leaving it both angrier and more confused than they started out.

Sometimes, Zionism is in fact what you are talking about (for instance, if you are talking about the Nakba, or resistance to Palestinian Right of Return, or the meaning of “Jewish state”), and I don’t think anyone needs to use a euphemism there. In particular, it is, reasonably often, what Palestinians are talking about, and is the political system that Palestinians in Israel/Palestine live under (and in my experience, Palestinians there, unlike many USians, know what Zionism is). And, of course, if you want to express non-adherence to or opposition to Zionism, the terms “non-Zionist” and “anti-Zionist” become important. It took a long time for me to become comfortable calling myself anti-Zionist, and it is important to me to be able to do so.

Other times, a different, more precise, word or phrase would provide more and more accurate information. So here is a short glossary of useful words.

Some useful words

Hasbara/Hasbarist – A form of Israeli propaganda aimed at an international audience, both elite and grassroots, to portray Israeli government behavior past and present in a positive light, often while portraying Palestinians or other Arab societies in a negative one, or someone who practices this form of propaganda. Please read this explainer on hasbara. In recent years, it has been particularly and intentionally aimed at international LGBTQ audiences and audiences of color (cis straight people in the US wondering why left queer spaces seem to often be flashpoints of controversy on Israel/Palestine: it is a reaction to this). If remembering the term is too hard, you can always use “propaganda” and “propagandist,” but it’s worth noting that this is a particular type of propaganda.

Kahanist – A follower of the ideas espoused by far-right Brooklyn-born rabbi Meir Kahane, including anti-Arab and anti-Palestinian racism and support for expulsion of Palestinians, anti-intermarriage views, belief that all Jews should live in an explicitly non-democratic Jewish Israel covering the territory of several modern Middle Eastern states and Egypt, opposition to liberal religious thought, anti-leftism/anti-communism, and support for violence against those perceived by Kahanists as enemies of the Jewish people (which includes Jews who support Palestinian/Muslim/Arab rights). Perhaps the best-known Kahanist organization in North America and Western Europe is Kahane-founded paramiltary group the Jewish Defense League (JDL), which was near-dormant in the US for some years after being caught trying to assassinate Rep. Darrell Issa in 2001, but has been active in Canada, and appears to be recently trying to reorganize in the US. Israel banned the two Kahanist former political parties, Kach and Kahane Chai, after the Cave of the Patriarchs massacre in the West Bank, in which JDL/Kach activist Baruch Goldstein murdered 29 Palestinian Muslims and wounded 125 more as they prayed at a mosque.

Likudnik – A supporter of Likud, Israel’s largest right-wing party, to which the current Israeli Prime Minister, Bibi Netanyahu, belongs.

Israel hawk – Self-explanatory, I think? Useful in that it doesn’t make any assumptions about ethnicity, religion, nationality, etc. Or even whether the person is a Zionist. Possibly the best generic term for trolls in your Twitter mentions calling you names for expressing too much sympathy for Palestinians. I have sometimes used “pro-Israel” in scare quotes for this, but I should switch because this is better.

Pinkwashing – An LGBTQ-related subset of hasbara. Probably the term in this blog post that’s more likely to get me in trouble, because I run into a lot of people who believe that use of the term “pinkwashing” is inherently antisemitic, and there’s a lot of confusion about what it means. So I will get myself in more trouble by reupping this post on the topic, especially Part 3. I think this is a term that’s both valuable and specific, which is why I’m including it. but it’s useful to make sure that the person you’re talking to knows what you mean by it.

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A tale of three protests

A small tale of three protests in Washington, DC, this calendar year, and their sequelae*…

January 20, 2017: Roughly 230 protesters, street medics, legal observers, and journalists, were mass arrested on Inauguration Day in DC during a black bloc anticap/antifa march that broke chain store windows. Police surrounded the march and did not allow anyone to leave, gradually taking people from the crowd to jail over a period of several hours. Some of those were pepper-sprayed, tear gassed, shot with less-lethals, or cut with shrapnel from concussion grenades. 213 are still charged with felony rioting, a charge that carries a potential 10-year sentence, and one who had that charge has taken a plea deal. The large majority are not alleged to have broken windows or done anything except be associated with or in proximity to the march, and as the article at that link makes clear, US attorneys in DC are treating things like black clothing and chants of “Whose streets?” as evidence.

February 16, 2017: Six protesters – four Jews, two Muslim Arabs – were arrested protesting the Senate Foreign Relations Committee confirmation hearing on David Friedman as U.S. ambassador to Israel. Three of the Jewish protesters paid small fines that day, the fourth was transferred to traffic court. The two Muslim Arab protesters, alone, were criminally charged by US attorneys in DC, with charges carrying up to six months in jail, simply for standing up and peacefully interrupting a speaker. The two men are fighting their charges, rejecting a plea deal and asking for a trial. American Muslims for Palestine, where they work, has been campaigning to raise awareness of what has happened and get the charges dropped, using the hashtags #DroptheCharges and #SelectiveProsecution, in conjunction with IfNotNow, the DC and NYC chapters of Jewish Voice for Peace, Code Pink, FOSNA, USPCN and USCPR.

March 26, 2017: Progressive Jewish group IfNotNow protested the annual AIPAC (American Israel Public Affairs Committee) policy conference. People in the IfNotNow group, and later a Palestinian-American man curious about what was happening, were repeatedly attacked, with flagpoles and fist/foot strikes, by the JDL (Jewish Defense League), a Kahanist paramilitary group. JDL members also threatened to snap off the fingers of a Palestinian Al Jazeera reporter and hassled Code Pink demonstrators across the street. The Palestinian-American man they attacked was hospitalized, having to get 18 stitches, and nearly lost an eye. An IfNotNow Boston member received a concussion. There was minimal police intervention until there had been multiple attempts pushes by the JDL into the large IfNotNow group, at which point they formed a line between the groups. In the second video in +972 Magazine’s article about the events, one can see police belatedly and briefly talk to a JDL member in a blue hoodie after one of his own people pulled him to the side. They did not, however, arrest him, even though as that video and others show, he had already attacked multiple people. This left him free, as can be seen in the first video, to participate in the attack on the Palestinian-American man (which police were rather slow to stop, being apparently more concerned with containment). Two JDL members were eventually arrested (see here to get a sense of how reluctant the police were to do that). One was charged with assault with a dangerous weapon (which carries up to 10 years in prison), and one with assault (I have seen conflicting reports about misdemeanor assault, which carries up to six months in jail, vs assault with serious injury, which carries up to 10 years in prison), though hate crime enhancements allow for up to 1.5 times the maximum sentence in all cases. No other JDL members have been charged by US attorneys in DC, though the first video clearly shows more than two people attacking the Palestinian-American man.

From these three incidents, all involving the US Attorney’s Office in DC and DC law enforcement (though the Friedman case presumably involved the Capitol Police rather than DC’s MPD), I have some of the following inferences and thoughts.

– DC police consider broken windows in a business district to warrant more urgency than people in a protest setting being attacked and beaten.

– DC police consider every politically aligned person in the vicinity culpable and subject to arrest if someone breaks windows in a business district, but not if someone attacks people who are in a protest setting. They didn’t even consider the people who actually committed the attacks culpable, only arresting two after a lot of advocacy by the Palestinian-American man’s daughter, and after those two attempted to flee the scene.

– The US Attorney’s Office in DC considers breaking windows, or being in proximity to and in rough political alignment with, someone who broke windows to be a crime roughly as severe (minus the hate crime enhancement) as beating someone in a protest setting with a flagpoles and fists/feet and putting them in the hospital.

– Two Muslims who protested at a Senate committee hearing are being prosecuted while most of the JDL members who attacked people outside of AIPAC are not, and that says something unflattering about the US Attorney’s Office in DC and its priorities.

– DC police do not prioritize the safety of Arab or progressive Jewish bodies.

– The US Attorney’s Office is engaging in racist selective prosecution of Muslim Arab protesters relative to white Jewish ones.

– Does the US Attorney’s Office buy into both stereotypes about Muslims and Arabs being inherently threatening, and stereotypes about Jews being weak and unthreatening (for that matter, do the police, and is that relevant to how they handled the AIPAC protests)?

To learn more about how you can help the two Muslim Friedman hearing protesters who are facing selective prosecution (especially if you are in the DC area and could do court support!) see here. I can’t find anything about ongoing support requests from Kamal Nayfeh, the Palestinian-American man beaten by the JDL. To support the legal fund for those arrested on Inauguration Day, go here.

*In the interest of full disclosure, I was a medic at the Inauguration protests (not on that particular march, though I saw the kettle from the outside and treated some of the people who had been on it, either on the streets, for those who managed to flee before police closed in, or later at jail support), and at the IfNotNow AIPAC protest. I was not part of the Friedman protest, though I am friends with one of the Jewish arrestees.

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