Monday, January 31, 2022

Joe Rogan (or his guests) must be free to speak whether I agree with him or not

Glenn Greenwald recently posted a piece on his Substack discussing the attempts to cancel Joe Rogan's podcast. In that piece, he does not weigh in on whether Joe Rogan's opinions (or those of the guests on his show) are right or wrong. I don't know that Glenn Greenwald cares whether or not Rogan is correct. I do not know that I do either. I have not honestly watched Rogan's podcast and had no intention to do so prior to this controversy. The substance of Rogan's podcast is largely irrelevant to a much deeper and more disturbing issue illuminated in GG's piece which I will also poke at here, taking his commentary in what I intend to be a complementary direction. Either reading GG's lengthy(*) piece or watching Rogan's podcast may therefore be helpful but should not be required before continuing. I am also going to link some different material or presentations of the issue than the GG piece.

(*) I suppose I'm not one to talk...
[Updated 2021/01/01 typo fix, link about White House pressure to censor.]


Joe Rogan's podcast is the most popular on a platform called Spotify. There is no argument, either from Rogan or anyone else, that he deals with controversial topics and often in controversial ways. He hosts a variety of guests and interviews them or facilitates discussions. Recently, Rogan and his podcast came under fire by musician Neil Young for promoting "fake vaccine information". Neil Young threatened Spotify that if Spotify did not remove Joe Rogan's Podcast, Young would remove all his own material from the platform:

<<“I want you to let Spotify know immediately TODAY that I want all my music off their platform,” fumed the 76-year-old Grammy winner in the note. “I am doing this because Spotify is spreading fake information about vaccines – potentially causing death to those who believe the disinformation being spread by them.”>> [as quoted in the NY Post.]

The Rolling Stone reports on an open letter from a group of doctors also demanding Spotify deplatform Rogan and his podcast. Spotify has thus far responded by removing Young's material as requested, but keeping Rogan. As the Verge reports, this was likely an easy decision for Spotify because it would have made absolutely no financial sense for Spotify to choose Young (or any dozen like him) over Rogan.

Joe Rogan's Response:

Joe Rogan himself has responded to the controversy, describing the content, not just the "couple of episodes where he had on medical professionals and scientists who challenged the mainstream narrative on matters related to the COVID-19 pandemic" [ibid, above DWlink] but the series of episodes of which it is a part. In those episodes, Rogan hosted Cardiologist Dr. Peter McCullogh and microbiologist Dr. Robert Malone who, among other things, holds patents in technology that was crucial to the development of mRNA vaccines. Both are controversial figures. Both have made statements elsewhere I know I would disagree with, but it simply cannot be argued that they are not eminent scientists, well-published in their fields, and that their opinions are not noteworthy. Even if one or both were provably wrong on any number of individual topics, they are inextricably part of a larger public debate of paramount public importance.

But neither of these two controversial figures were hosted in a vacuum, rather as part of a larger pattern of covering the pandemic and its controversies overall:

<<"...And I’m interested in having interesting conversations with people that have differing opinions. I’m not interested in only talking to people that have one perspective. That’s one of the reasons why I had Sanjay Gupta on, Dr. Sanjay Gupta, who I respect very much, and I really enjoyed our conversation together. He has a different opinion than those men do. I had Dr. Michael Osterholm on at the very beginning of the pandemic, he is on President Biden’s COVID-19 advisory board. I had Dr. Peter Hotez on, who is a vaccine expert. I’m interested in finding out what is correct and I’m also finding out how people come to these conclusions and what the facts are.”>> [ibid, DW link]

Indeed, you can see from any index of the podcast episodes that his guest list is diverse, including figures from left and right, multiple sides of issues. Dr. Sanjay Gupta, in particular, was in fact interviewed on 21 October 2020 in episode #1718, Dr. Osterholm on 10 March 2020 in episode in #1439. That particular index I link is searchable and it also links to books mentioned in a given episode (if any). Glancing through the episodes demonstrates that the bibliography, too, is quite varied. Rogan further states that many facts which have been presented or taken for granted by some of these people-- people who are not provoking a backlash over "misinformation"-- have been provably wrong, that in fact mainstream media has consistently cancelled information opposed to "facts" we now know were false. I know myself that a number of my social media posts or comments touching these issues have mysteriously disappeared over the last couple of years, particularly on potential origins of Bat Soup.

<<"...for instance, eight months ago, if you said, ‘if you get vaccinated, you can still catch COVID and you can still spread COVID,’ you’d be removed from social media, they would they would [sic] ban you from certain platforms. Now, that’s accepted as fact. If you said, I don’t think cloth masks work, you would be banned from social media. Now that’s openly and repeatedly stated on CNN. If you said I think it’s possible that COVID-19 came from a lab, you’d be banned from many social media platforms – now that’s on the cover of Newsweek. All of those theories that at one point in time were banned, were openly discussed by those two men that I had on my podcast that had been accused of dangerous misinformation.”>> [ibid, DW link]

This is indisputably true. The truth of Rogan's statement does not mean that Malone or McCullogh are automatically right any more than it automatically justifies legions of information on covid-19 over the past several years (on all sides) that was known to be garbage at the time or that we know to be garbage now. Information has been so flatly contradictory that it is probably fair to say that the overwhelming majority of confident pronouncements on this virus, some by shysters, opportunists, and snake oil salesmen, some by government scientists and officials, has indisputably been wrong-- pretty much no matter what viewpoint you wish to take. These respected outlets-- it turns out-- dutifully echoed at times and actively promoted propaganda of the Chinese Communist Party which even China has since had to back away from. So, although this does not mean that any given controversial view must be right, it shows beyond a doubt that the self-appointed or generally accepted gatekeepers of debate have done a lousy job and have at times been actively suborned (wittingly or otherwise) as distributors of 'misinformation'.

So What Is This Really About?

Now we come back to Glenn Greenwald, who first talks about the development of the idea of "hate speech", the idea that it somehow was thought to represent a Constitutional exception to Free Speech/Free Exercise despite clear tradition and jurisprudence to the contrary, and then predictably blossomed into an authoritarian catch-all to suppress, effectively, "any speech that offends me". Glenn Greenwald, in particular, having started as a civil liberties attorney, has been writing pursuasively about free speech and free press issues for many years as first one party and then another was in power; his stubborn non-partisan consistency on free speech is one of the reasons I have followed his writings throughout that entire time. But even this malignant doctrine of 'hate speech' is not the limit of a larger cancerous growth:

<<Constitutional illiteracy to the side, the “hate speech” framework for justifying censorship is now insufficient because liberals are eager to silence a much broader range of voices than those they can credibly accuse of being hateful. That is why the newest, and now most popular, censorship framework is to claim that their targets are guilty of spreading “misinformation” or “disinformation.” These terms, by design, have no clear or concise meaning. Like the term “terrorism,” it is their elasticity that makes them so useful.>> [ibid, GG link at top.]

Nor is this 'merely' busybody censorship, an overzealous attempt to keep the public debate pure or reasonable or factual or unoffensive. As Joe Rogan points out above and GG methodically documents in the article being discussed and elsewhere, the escalating attempts to silence debate are pointed, direct, and overwhelmingly partisan.

<<When liberals’ favorite media outlets, from CNN and NBC to The New York Times and The Atlantic, spend four years disseminating one fabricated Russia story after the next — from the Kremlin hacking into Vermont's heating system and Putin's sexual blackmail over Trump to bounties on the heads of U.S. soldiers in Afghanistan, the Biden email archive being "Russian disinformation,” and a magical mystery weapon that injures American brains with cricket noises — none of that is "disinformation” that requires banishment. Nor are false claims that COVID's origin has proven to be zoonotic rather than a lab leak, the vastly overstated claim that vaccines prevent transmission of COVID, or that Julian Assange stole classified documents and caused people to die. Corporate outlets beloved by liberals are free to spout serious falsehoods without being deemed guilty of disinformation, and, because of that, do so routinely.>> [ibid]

Private or Public?

One might make the argument that pervasive and now routine partisan censorship by corporations in Silicon Valley and major media is not 'censorship', in the sense that it does not implicate the First Amendment. The First Amendment, as conservatives (myself included) have often pointed out over the years, only limits government conduct, not free association (or by extension disassociation) of purely private actors. This is true, and I continue to stand by that in principle. It is another example of Hannah Arendt's principle (cf. her "Origins of Totalitarianism" books) that it is inherently dangerous to mix the Private, Social, and Public spheres, by moving, for instance, conflict which is permissible (even if unsightly or hurtful) in the Social Sphere under government control. Such boundary-confusion inevitably promotes Totalitarianism. But the private/public distinction is not currently useful for precisely this reason of boundary confusion.

Among these sources, including the GG article, you will find that the Biden Administration was among those pressuring Spotify to deplatform Joe Rogan. [2021-02-01: see this Townhall piece for press briefing video where White House continues pressuring Spotify for more censorship.]

This is not even-- not remotely-- a new phenomenon. We know, for instance, that former, prospective, and current government officials now routinely participate in distribution of misinformation and suppression of dissent in ostensibly private media. Just off the top of my head, we have Senator Elizabeth Warren acting officially in an attempt to coerce Amazon to censor a book on the virus in search results and Anthony Fauci's collaboration (the quid pro quo of which is still undisclosed) with Zuckerburg to supress discussion of potential covid origins. The Left (whatever you wish to call the elitist authoritarian progressive portion of politics epitomized by current DNC leadership which is not universally shared by 'liberals', especially when using 'liberal' in the classic sense) is not only using this kind of coordinated quasi-governmental control over debate frequently: as GG argues, it has now become the principle tool.

Those of you who know me long enough may recall that I, along with GG and others from among both liberty-minded Republicans and Democratic, 3rd Party and Independent (3P/I) allies, have been discussing the worrying potential of quasi-governmental prior restraint since before it became the principle tool of the Left. It was, in fact, a rather handy tool in the Bush/Cheney Administration. I was not silent on that issue when Republicans were involved. It ought be kept in mind, however, that the former Cheney contingent of authoritarian Republican elitists many of us fought against in the day became strident Never-Trumpers who threw their lot in with Biden and the DNC. Liz Cheney, the daughter, has become Pelosi's go-to tool and the father has been quite literally embraced by the Democratic power players along with open acceptance of his authoritarian censorship ideals by Democratic leadership, Big Media, and the America Civil Liberties Union. Recognition that this unholy alliance is deeply disturbing should not pivot on one's opinion of Trump, pro or con. In this time, the FBI and CIA have gone from being professed enemies of Democracy to its saviors. The far-left defund-the-police "Squad" directly enabled the extra-territorial expansion of the Capitol Police. There is a well-trafficked revolving door between former surveillance-state operatives and Big (primarily Democrat-aligned) Media. So, although government surveillance and suppression of speech coordinated with "industry partners" has been both a Republican and Democrat issue, it is almost exclusively a leftist disease at the moment.

First they came for...

Of course, among the stated reasons I opposed Bush/Cheney policies at the time and endured backlash to partner with Democratic and 3P/I activists to do it was for precisely this reason: what goes around comes around. This is no less true of liberal constituencies today who enable Cancel Culture. In fact, it is not difficult to think of left-leaning figures who have already been cannibalized-- or, it wouldn't be difficult to think of them if they had not already been cancelled. Totalitarianism, once it begins to churn, rattles and clanks in a parody of life. It chooses victims of its own volition, not according to the will of those who switched it on. It continues running even after those hapless fools are well-digested.

The Niemoller Principle eventually grinds the compliant with the contrary; the bones of cowards will lie with the courageous.

The prudent start reaching for the plug before the plug reaches for you.

Sunday, January 30, 2022

Prosecutorial Misconduct and Core Problems of Social Justice

In this San Francisco court case against police officer Terrance Stangel, once again, we have Brady Violations-- suppression of exculpatory evidence by prosecutors and police-- rear their ugly head. In this case, evidence is being suppressed by a District Attorney against an accused cop for almost certainly political reasons. This is one of the dangerous misapprehensions of the "systemized racism" narrative for justice reform. Many of the cases I post (usually in snippets on social media) where exculpatory evidence is suppressed are against minority (or indigent) defendants. Certainly, Harris' scandal related to suppression of evidence as a Drug War prosecutor primarily affected indigent and minority defendants. Cases I've commented about in Missouri happen in both Democrat-dominated St. Louis and the Republican portions of the state, often affecting minority and indigent defendants (especially with our dysfunctional public defender system). But that is not what it is about.

[Let me pause here for a moment for the disclaimers that 1) I am making no statement here about either the guilt or innocence of the officer accused, merely about the conduct in pursuing the case, 2) I am expressing purely personal opinion, not that of any group or organization.]

Brady Violations-- and prosecutorial misconduct more generally-- are primarily a political tool. They are used to drive arrests and convictions so that people see police and DAs "doing something". We naturally want police to make arrests and DAs to get convictions in order to keep our communities safe, but we (ought!) want them to arrest and convict the right people, the people actually guilty, not just anyone who can pad the numbers. Political pressure, however, inevitably tempts police and prosecutors-- both consciously and unconsciously-- to push for the victory in front of them, to convince themselves that the suspect they have is the guilty person and rationalize "whatever it takes" to "get them." If our officials were not subject to this kind of temptation, they would be superhuman. We know from Madison that in fact neither our citizens nor our officials are angels and they never will be. That is why we need both police/prosecutors and checks on their behavior, checks like the Brady Rule.

Rules are useless, however, when not enforced. That is true of criminal law and it is true of rules governing the government. So, what happens in most cases where Brady Violations are uncovered? Often just what appears to be happening here: nothing whatever.

"[Investigator] Hayashi said [on the stand and under oath] she was pressured to sign the affidavit after the comment from the witness was removed."

And the response of the judge?

"The judge indicated that because there was other evidence similar to what Hayashi did not disclose, there was no clear indication of evidence being suppressed."

So, because not all of the exculpatory evidence was withheld, no harm, no foul. Never mind that an Investigator has expressed under oath that she experienced habitual pressure to sign (questionable) documents for fear of being fired, and that we therefore have no idea what else might have been suppressed, amplified, or even strategically delayed to harm the defense's case. The judge further says, "the DA is not on trial". Sure, nor are they ever likely to be. That is the problem. If the judge does not deal with misconduct in the case before them, it will almost certainly never be raised anywhere else: is the very prosecutor creating an environment of pressure to suppress evidence likely to voluntarily bring charges against his or her own employee for doing their bidding? Of course not. The idea is laughable.

But the defendant here is hardly minority or even indigent (the common overlap between those categories is another fruitful topic for discussion, one that Sowell explores). They are, in fact, in a category many in politics profess to be immune from this kind of shenanigans. But that is exactly it: no one is immune. It is not 'systemic racism' but run-of-the-mill politics. The DA made a campaign promise to prosecute cops and is delivering on that, no different from the DA who promises to "get drugs off the streets" What's a little rule-bending for such a worthy goal? Eggs and omelettes, after all.

We are, each one of us, a world in an eggshell.

The problem is political, not racial. Systemic, yes, but not "systemically racist". Politics shifts. The categories of people who are valid political targets flop around in the political winds and the attention of the mob, a theme Hannah Arrendt builds around in her works on Totalitarianism. The victims of tomorrow are not predictable from the victims of today, only the attitude that political blood-letting is acceptable-- even necessary--  remains and-- if we allow it to-- builds to the combustion point. In the end, that is everyone's problem, like a fire loose in a packed neighborhood.

As Thomas Sowell frequently points out, a clear view of a problem is necessary to exploring solutions. A politicized view of the problem obscures the deeper truth that it is the political blood-letting itself to blame, the society that not merely tolerates but demands hyperpartisan competition for retribution, where Republicans and Democrats scheme to outflank each other to be "tough on X". That is where CRT fails. That is where the War on Drugs and the War on Terror fails. It is where the present War on Police and War on Trump Supporters fails. It is, ultimately, per Arrendt, where the "Jewish Question" lead. They are all symptoms of the same phenomenon.

So what is the solution? Arendt outlines boundaries between private action, public (social) action, and government action, in some ways analagous to but subtly different from the public/private spheres our Framers wrote about. Conduct which is healthy and desirable in one sphere (say the social) is actively dangerous when it crosses into an inappropriate sphere (say government). This is true even if conduct in its proper sphere cause strife and controversy. When we enact government solutions to social strife, we escalate violence and enable totalitarianism. The same happens if we push private solutions to what are criminal offenses properly under government (vigilantism). Brady Violations, along with a whole host of related prosecutorial and police misconduct, often stem from a boundaries problem. Our system contains a fundamental principle that prosecutors are officers of the court, not merely partisans in a contest: it is not their job merely to 'win' but to seek a just outcome. It is most certainly not the prosecutor's job to seek "social justice", not for any interest or faction. The very idea of "social justice" in that meaning is totalitarian and unacceptable. Whatever social justice this mob or that mob thinks is good and desirable at the moment, the behavior of withholding exculpatory evidence simply does not belong in the government sphere of a free society

These boundaries are seldom enforced in the justice system and, to a large degree, that is because too many people-- inside and outside government-- believe misconduct is desirable. We simply get the government we ask for and deserve.