“An Alabama jail incarcerated a pregnant woman for months after she said she smoked pot, refusing to release her unless she entered drug rehab.
The woman incarcerated in Alabama, 23-year-old Ashley Banks, said she was incarcerated at around six weeks into her pregnancy, according to a Wednesday report by AL.com. After six weeks of being jailed, she started to bleed and continued to do so for another five weeks, AL.com reported. She was forced to sleep on the floor due to overcrowding, she said, even after being diagnosed with a condition that heightened her risk of miscarriage.
Specialists repeatedly ruled that Banks didn’t qualify for free addiction services, leaving her unable to go to rehab.
“I have reckless murder cases where defendants have been released on bond,” said Banks’ attorney Morgan Cunningham, AL.com reported. “Requiring her to go to rehab is not Constitutional.”
Steven Donziger, the human rights lawyer who spent nearly three decades fighting Chevron on behalf of 30,000 people in the Ecuadorian rainforest, has been sentenced to six months in federal prison for “criminal contempt.” On October 1, in a lower Manhattan federal courtroom, Judge Loretta Preska justified imposing the maximum penalty by asserting that Donziger, now 60, had not shown contrition. She said, “It seems that only the proverbial two-by-four between the eyes will instill in him any respect for the law.”
In May, Preska had found Donziger guilty after a trial without a jury. And now Donziger, along with his family and scores of supporters, had to listen to the federal judge compare him to a mule who needed to be beaten with a piece of wood before complying.
Prior to sentencing, Donziger reminded the court in a polite and at times emotional statement that he had already spent 787 days under house arrest in his New York City apartment, a confinement that had put great pressure on his wife and teenage son. He explained that the court-imposed restrictions meant that his son had a father who was “unable to travel, leave his home except under narrow exceptions with court permission 48 hours in advance, unable to even go out for dinner, unable to have a father capable of doing all the things a father can do and should do with a child, including act with spontaneity.”
But even though Donziger was facing prison, he told the court he would not back down: “I have been attacked and demonized for years by Chevron in retaliation for helping Indigenous peoples in Ecuador try to do something to save their cultures, their lives, and our planet in the face of massive oil pollution. That’s the context for why we are here today.”
In response, Preska read out a prepared 50-minute statement for her harsh sentence. “Mr. Donziger spent the last seven plus years thumbing his nose at the US judicial system,” she said. “It’s now time to pay the piper.”
Donziger will not go to prison immediately. His attorneys will challenge the criminal contempt conviction, and they will also ask a higher court to put off his prison sentence pending that appeal. But Preska will keep him under house arrest, once again calling him a “flight risk.” In the past, she has warned that he “has ties to Ecuador,” insinuating that he would abandon his family and his New York City apartment to go live in the rain forest.
You can’t understand this latest injustice without looking back at Chevron’s long campaign against Donziger, who won a landmark pollution case against the oil giant in Ecuadorian courts in 2013. Chevron was ordered to spend $9.5 billion to clean up a contaminated area the size of Rhode Island, and to pay for the health care of the 30,000 plaintiffs whose communities have seen a rising number of cancer cases. Instead of following the legal order, Chevron launched a case in New York, and in 2014, a federal judge, Lewis Kaplan, found Donziger and some of his Ecuadorian allies civilly liable for racketeering, bribery, and fraud. Then, Kaplan asked the federal prosecutor for the Southern District of New York to put Donziger on trial for “criminal contempt” connected to the original conviction. The federal prosecutor refused, so Kaplan handpicked an attorney from a private firm, Rita Glavin, to prosecute—a nearly unprecedented legal maneuver.
As Chevron’s vendetta continued, international outrage grew. Just before sentencing, the United Nations High Commissioner for Human Rights issued an opinion in Donziger’s favor, ruling that his two years of house arrest was illegal under international law and that he had been denied the right to a fair trial. A panel of five prominent jurists called that confinement “arbitrary” and said that both judges, Kaplan and Preska, had shown “a staggering lack of objectivity and impartiality.” In court, Preska briefly acknowledged the UN findings only to dismiss them.
Once again, the mainstream media is largely ignoring Chevron’s campaign of retaliation against Donziger. The New York Times, Donziger’s hometown newspaper, reported nothing in the two days after the verdict, and has barely mentioned the case for the past seven years.
Back in 1993, Donziger, fresh out of Harvard Law School, joined an ongoing fight for environmental justice. The struggle against Texaco, which was taken over by Chevron in 2001, began in the late 1980s in eastern Ecuador, where the oil company drilled and operated wells from 1972 to 1992. Texaco had disposed of its drilling wastes by methods that in some cases would have been illegal in the United States. (More details are here.) Local people began organizing against the pollution in their rivers and streams and in oil-soaked stretches of their land. The case started in the New York federal courts, but then a judge ordered it sent back to Ecuador—a move that Chevron’s lawyers welcomed at the time. So, in 2003, the legal battle re opened in the eastern oil frontier town of Lago Agrio.
The case wound its way up through three levels of the Ecuadorian courts, and in the end, after Chevron exhausted all appeals, its guilt was confirmed. Meanwhile, though, its counterattack back in New York was underway. Chevron charged that Donziger and his allies had committed bribery and fraud in Ecuador to win their case, and it used the Racketeer Influenced and Corrupt Organizations Act (RICO), which had been designed to prosecute the Mafia. Donziger and the codefendants expected they would face a jury, but at the last minute, Chevron dropped its demand for financial damages. Under RICO law, this meant the defendants lost their right to a jury, and Kaplan alone would decide the case.
Donziger’s supporters objected to Kaplan’s pro-corporate statements and hostility toward the human rights lawyer during the RICO trial. Kaplan is a career corporate lawyer turned judge, with no experience in Ecuador or anywhere else in the Global South. Yet he decided which witnesses to believe and which to disregard—and in 2014 he found Donziger and the others guilty.
Only a corporation like Chevron worth billions could have financed such a prosecution. The oil giant paid for a disgraced former judge named Alberto Guerra and his family to move to the United States. Chevron’s lawyers rehearsed Guerra’s testimony with him 53 times before he went on the witness stand, where Guerra claimed that Donziger and an Ecuadorian lawyer had offered him a $500,000 bribe and that the pair had ghostwritten the final judgment against Chevron. Donziger and his defense team estimate that Chevron has spent $2 billion on legal fees and other costs. (Chevron’s designated spokesman, James Craig, declined to give the corporation’s own figure for how much it has spent on the case. Craig also declined to say if Chevron is still paying Guerra or if he is still living in the United States.)
Chevron’s attacks against Donziger did not stop after it won the racketeering verdict. The current contempt case began when the oil corporation petitioned Kaplan for access to Donziger’s personal computer and cell phone. Donziger declined, arguing that his electronic communications would give Chevron’s lawyers “backdoor access to everything we are planning, thinking, and doing.” He said he would wait until the US Court of Appeals heard his argument, and if it required him to, then he would hand over his electronics. Preska dismissed his defense and convicted him in May—again, without a jury.
It’s vital to recognize Chevron’s role in this legal persecution. Its attorneys show up at every Donziger legal case—even the ones that don’t directly involve the company. At the same time as Donziger was defending himself against the criminal contempt charge, he was also fighting the effort to take away his license to practice law in New York. The state bar association appointed a special officer named John Horan to preside over open hearings, and he found in Donziger’s favor. Horan, a former prosecutor, had harsh words for Chevron: “The extent of [Donziger’s] pursuit by Chevron is so extravagant, and at this point so unnecessary and punitive, [that] while not a factor in my recommendation, [it] is nonetheless background to it.”
Months later, a higher New York state court tossed out Horan’s finding and disbarred Donziger.
Putting Donziger in a federal prison for six months is more than vindictiveness. The $9.5 billion judgment against Chevron in Ecuador still stands, but the oil giant unloaded its assets there. That means the plaintiffs must collect in other countries where the corporation has holdings. Kaplan’s racketeering verdict specifically prohibited the Ecuadorians from forcing Chevron to pay the judgment in the United States. But there are promising possibilities in Canada and elsewhere. Donziger is forced to put those fights on hold while he tries to stay out of prison.
But there are signs that Chevron has gone too far, and that relentlessly pursuing a human rights lawyer is damaging its international reputation. The United Nations High Commissioner for Human Rights is only the latest sign of concern and anger. Sixty-eight Nobel Laureates have shown their solidarity; another 475 lawyers and human rights defenders have signed a letter that calls his prosecution “one of the most important corporate accountability and human rights cases of our time.” Representative Jim McGovern, a Democrat from Massachusetts, said after the prison sentence that “it’s the executives at Chevron,” not Donziger, “who should be behind bars.”
What’s more, a movement to boycott Chevron is in the early stages. Big Oil is under scrutiny because of its role in the climate crisis, and divestment campaigns on college campuses and elsewhere are starting to have an impact. Large institutional investors may also start to pay attention. CalPERS, the giant retirement investment fund for California government employees, is headquartered in Chevron’s home state, and the teachers and municipal employees who contribute to it may ask why it holds $456 million of the oil giant’s stock.
Chevron must have hoped that its long retaliation campaign would force Donziger to abandon the fight for environmental justice—but it appears its aggressive strategy is backfiring.
Woke language hides illiberal tactics in liberal aims
By: Joseph Heath
After several years of creeping illiberalism under the guise of progressive politics, American liberals are finally getting their act together. They are pushing back, creating several organizations committed to combating the influence of “woke” politics and ideology. They have momentum, not just because many woke mantras like “defund the police” have proven spectacularly unpopular, but also because there is genuine growing alarm about the intolerant and authoritarian brand of politics that has become associated with the woke left.
Unfortunately, many of the woke genuinely do not understand why anyone finds their politics, or their political tactics, threatening. In particular, the accusation that they are being authoritarian, or that “cancel culture” is a threat to freedom of expression, is one that they are simply unable to process.
There is a reason for this — and one that’s worth understanding. There are several key phrases that play an enormously important role in woke politics (e.g. “safety,” “mental health,” “microaggression,” “bullying” and even “human rights”) which they use to deflect the accusation of authoritarianism. If you adopt the right words, it’s easier to convince yourself that you’re the good guys even as you’re acting like the bad ones.
I want to take a shot at explaining how this works.
The most important thing to understand about woke politics is that it is not a conventional form of illiberalism, it is better thought of as a type of “illiberal liberalism.” It involves making a set of political demands that are fundamentally illiberal, but then articulating them in a way that fits the conventional structure of liberal political discourse. Because of the way that their complaints are packaged, the woke are able to brush off criticism of their tactics.
Take an issue like freedom of speech. There are various versions of this traditionally liberal virtue; predominant among them, is that those who hold this belief are opposed to content-based restrictions on speech. In the old days, lots of politicians didn’t really believe in freedom of speech, as many among the ruling class maintained straightforwardly illiberal views.
Consider, for example, the aftermath of the “police riot” that occurred during the 1968 Democratic Party Convention in Chicago. The Democratic nominee, Hubert Humphrey, put the blame for the violence squarely on the protesters. In those pre-feminist times, it was a common tactic for hippie protesters to provoke police by describing, in graphic detail, the various sex acts that they intended to perpetrate on the wives and daughters of the forces of order. Humphrey found this intolerable, and so defended police violence in the following terms:
The obscenity, the profanity, the filth that was uttered night after night in front of the hotels was an insult to every woman, every mother, every daughter, indeed, every human being, the kind of language that no one would tolerate at all. You’d put anybody in jail for that kind of talk. And yet it went on for day after day. Is it any wonder that the police had to take action?
This is good-old-fashioned illiberalism. Someone said something outrageous, something intolerable, and so needs to be punished for it. If you insult the police, you can’t complain if you get beat up. According to Humphrey, it was the content of what the protesters said that justified throwing them in jail.
What I find striking about this example is that people who want to censor speech don’t talk this way any more, because it is such an obvious violation of liberal principles. Modern enemies of free speech have found ways to formulate their demands for punishment in ways that violate the spirit, but still respect the letter, of those very principles. Most obviously, they take advantage of certain exceptions to the general prohibition on content-based restrictions.
Anyone who has studied free speech issues or read John Stuart Mill’s On Liberty will of course be familiar with these exceptions. The biggest one is that, while it may not be permissible to prohibit the expression of an idea, any particular episode of speech can be prohibited if the performance of the speech act is likely to bring serious harm to some other person. Mill, for example, famously suggested that while it was permissible to publish the opinion that “corn dealers rob the poor,” chanting that slogan in front of an agitated mob outside the corn dealer’s home is another matter entirely. The latter can be prohibited, because it is likely to cause harm to the corn dealer.
While this caveat may seem reasonable at first glance, it creates all sorts of problems, precisely because the concept of harm is not well-defined. Notice that in Mill’s example, the speaker does not directly harm the corn dealer. The speaker rather incites the mob, and it is members of the mob who then pose a threat to the corn dealer (and that threat may never materialize).
This loophole is the one that has been taken advantage of most aggressively by the woke left to push for restrictions on speech. When they come across something they don’t like, rather than calling for censorship on the basis of content, they will instead attempt to restrict it on the grounds that it causes harm. Of course, they are smart enough to realize that the mere fact that it upsets them is not enough to qualify as a harm. So they posit a causal connection to a more serious physical or psychological harm. For example, students who are trying to censor the expression of ideas in the classroom will claim that the discussion makes them feel “unsafe,” or that it threatens their mental health. What is crucial about this move is that it allows them to call for illiberal actions (i.e. censorship or punishment of speech) on grounds that are, in principle at least, not illiberal.
Consider a concrete example of this. My own academic discipline was rocked by a cancel-culture scandal in 2017, involving an article published by the Canadian philosopher Rebecca Tuvel in the journal Hypatia. In the article, Tuvel upset a lot of people by asking the awkward question why, if it’s all just socially constructed, we accept the claims of people who want to switch genders, but not those who want to switch races. What ignited the real controversy, however, was not the article, but rather the attempt by hundreds of academics to cancel it, by signing an online petition demanding that the journal retract the piece.
This recent trend of demanding the retraction of controversial academic work is a perfect example of illiberal liberalism. Traditionally, the way that philosophers have responded to journal articles they disagree with is to write their own articles criticizing the view. Demanding that the journal retract the paper is an entirely different tactic. On the surface, it is not illiberal, since academic journals are committed to publishing material that meets a certain standard, and are committed to retracting work that is subsequently shown to have fallen below that standard. And yet at the same time, it is clearly punitive. Having published a journal article that subsequently had to be retracted is a major stain on a scholar’s reputation, and could easily serve as an obstacle to being granted tenure.
In the case of Tuvel’s paper, the purpose of the online petition was obviously punitive, since the case for retraction was non-existent. It was clearly a demand for censorship (something illiberal), but it was presented under the guise of a demand for retraction (something consistent with liberalism).
In the petition letter, the central argument for retraction was made in terms of the “harm” caused by the article, as well as the claim that its publication was “dangerous.” Many wondered how an article published in a feminist academic journal, dealing with an entirely abstract argument about identity and social construction, could possibly cause harm. In its defence, some of the signatories pointed to the high rate of suicide among transgendered individuals, claiming that anyone seeking to ask questions or to debate their claims was putting them at risk of self-harm.
This argument is obviously spurious. The suggestion that upsetting someone who belongs to a social group with an elevated suicide rate should count as a “harm,” sufficient to justify restrictions on speech, is not a defensible conception of harm. Young white American men who own guns also have an extremely high rate of suicide, and yet no one worries much about hurting their feelings. More generally, expanding the category of harm in this way makes it so broad that practically any action can be construed as harmful, and therefore completely undermines freedom of speech. This argument was obviously being gerrymandered to prohibit the expression of a specific view that certain people found offensive.
What is crucial though is the form of the argument. By pointing to these ephemeral harms, those who are trying to engage in censorship of speech that they disagree with are nevertheless able to convince themselves that this is not what they are doing. The appeal to harm is a “fig leaf” argument, in that it conceals their true motive from others, but also, one senses, from themselves.
This analysis allows us to better understand some of the strange “snowflake” behaviour that one sees among young people of a certain political persuasion. Explicitly or implicitly, they have internalized the idea that in order to get other people punished for doing things you don’t like, you have to claim that they have harmed you. This is why they are so quick to claim injury (e.g. damage to their mental health, fear for their safety, etc.), in circumstances that a normal person would shrug off. They are like soccer players trying to draw a penalty. It’s not a “culture of victimhood,” on the contrary, it is more often an act of social aggression, since these performances of injury are typically carried out, not to attract sympathy, but rather punish and control others.
This is also why HR departments have become an important vector for illiberalism. At my own university, for example, staff at the Office of Accessibility Services have attempted to censor the curriculum in certain philosophy courses. The logic of this is not difficult to see. Students realize that they are not going to get authors or texts banned by appealing to the faculty. So instead they go to their disability services counsellor and claim that they cannot attend class when certain authors are being discussed, because they feel unsafe. Staff have no particular commitment to academic freedom, and so are happy to take up the cause.
HR departments aren’t full of cultural Marxists, they’re a liberal fig leaf used to cover up these fundamentally illiberal impulses. Most HR professionals have no particular ideology, they are just extremely averse to conflict, and think that the easiest way to make a conflict go away is for the person who is saying the thing that is upsetting other people to stop saying it.
As a member of Generation X dealing with young people, I sometimes feel like a hockey player watching a soccer game, trying to figure out whether the players are completely hamming it up, or whether they actually are that delicate. The answer is probably somewhere in between. I have no doubt that many young people truly are lacking in psychological resilience, but it is important to recognize that there are also important political motives at work that encourage them to act this fragile.
It is equally important to recognize the futility of calling them “left fascists” or authoritarian. Not only do they brush off the accusation, but it encourages them to double down on the snowflake behaviour,because it’s precisely by claiming injury that they deflect the accusation of intolerance.
Joseph Heath is Professor in the Department of Philosophy at the University of Toronto.
The self-styled champion of individual liberty wants you to call government agents to punish Americans for their parenting.
Social media has so conditioned people to expect hyperbole that there’s a perverse satisfaction when a clip is truly as bad as advertised. Last night, a viral tweet claimed that Fox News’s Tucker Carlson had told his audience to harass people on the street wearing masks—and to “call the police immediately; contact child protective services” if they saw a child wearing one.
Surely, this couldn’t be a fair description; naturally, it was. Having spent the early part of the month espousing the white-supremacist “great replacement theory,” Carlson is now seeking to use the power of the state to harass and immiserate his political opponents:
Carlson delivered his rant with the combination of astonished indignation, obvious bad faith, and smug sarcasm with which he delivers everything these days, a volatile mix that makes it impossible to know when and to what extent he’s trolling. Like his fellow traveler Donald Trump, Carlson delights in making appalling statements with a straight face and then insisting he was just joking; unlike Trump, Carlson has in the past shown enough of a sense of humor that you can’t discount that possibility.
Trying to figure out Carlson’s “real” feelings is not only impossible but beside the point. Whether he’s disingenuous or delusional, many people will hear what he says and take it seriously and literally. We have several recent examples of the Fox audience being misled into believing falsehoods, including denying the reality of COVID-19 and subscribing to bogus claims about fraud in the 2020 election.
Carlson’s diatribe is a useful data point for how American conservatism has transformed, especially in the Trump era, from a movement that (at least putatively) believes in limited government to one that primarily prizes marshaling the power of the state to punish those who disagree with it. With Trump in eclipse, Carlson is the most visible face of the new conservative movement.
Although Carlson makes a lot of ridiculous claims in a short period in this clip, it is his comments about children that are most disturbing. After complaining that mask mandates imposed by the state are equivalent to living in North Korea, Carlson executes two athletic rhetorical maneuvers. First, he goes from describing mask wearing as excessive to describing it as abusive, and second, he elides the difference between a government mandate and a personal choice.
“As for forcing children to wear masks outside, that should be illegal,” Carlson sputters. “Your response when you see children wearing masks as they play should be no different from seeing someone beating a kid at Walmart: Call the police immediately; contact child protective services. Keep calling until someone arrives. What you’re looking at is abuse. It’s child abuse, and you’re morally obligated to attempt to prevent it.”
One doesn’t need a lot of imagination to game out where this is going. Some viewers will take Carlson’s possibly arch exhortations to heart. They’ll call the police and child protective services. In most cases, authorities will ignore those calls. In some cases, especially if the callers repeatedly summon police as Carlson demands, they could be charged with filing false claims; it’s a good bet that neither he nor Fox News will be there to help them if they are. In other cases, encounters will end poorly for the innocent parents involved. The news is full of examples of how police called to respond to petty or wholly imagined offenses end up gravely injuring or even killing people. (Carlson believes Derek Chauvin was wrongly convicted.)
But when government authorities fail to intervene—because, of course, no laws are being broken—Carlson’s fans may feel the moral obligation to take matters into their own hands, just like Edgar Maddison Welch, who stormed into a Washington, D.C., pizzeria heavily armed in 2016, because he wanted to prevent child abuse that he wrongly believed was occurring there. No one was hurt in that incident, though someone easily could have been. Welch spent about three years in prison.
Carlson’s argument isn’t really about masks. As he grudgingly admitted, the Biden administration had already signaled that new guidance would soon make clear that mask wearing outside is not necessary for fully vaccinated people; the CDC released that guidance this afternoon. Perhaps the change could have come faster, but conservatives have traditionally applauded the deliberate process of government, because it prevents tyranny and abuse of citizens.
Even after new guidance, some people will decide to continue wearing masks outside. Perhaps they feel more comfortable that way. People exercising sometimes extreme caution about their health is neither new or a nuisance. Perhaps they are immunocompromised, or have immunocompromised family members or friends. Ultimately, it’s none of my business or Tucker Carlson’s business why they are doing so, as long as they aren’t hurting anyone, which neither he nor anyone else has established they are.
That’s the sort of personal choice that conservatives have also traditionally defended. Though Carlson masquerades as a defender of free speech (one of several poses he’s tried on over the years), he must know that the government has no business telling citizens what they cannot wear. It is, to borrow Carlson’s analogy, like being forced to wear a Kim Il Sung pin in Pyongyang. Unlike mandates to wear masks, which stem from a public-health interest, a government rule punishing people for wearing masks during a pandemic serves no compelling interest. As for children, conservatives have long argued that families should enjoy autonomy about their parenting decisions, without undue interference from the state.
But Carlson doesn’t object to the state harassing people or exercising undue power. He delights in it, as long as the state is harassing the people he hates. The cruelty, as my colleague Adam Serwer has said, is the point. This is the lodestar of the Trump and post-Trump GOP, which values owning the libs above all—not merely rhetorically, but with the fist of government. Thus Trump asserted that he had the authority to override state and local coronavirus shutdowns (before hastily backtracking when it became clear that he had no such power). He sought to involve the federal government in decisions of colleges and universities in order to muzzle speech. And he celebrated police violence, even as he moaned that he was the victim of overzealous law enforcement.
It is tempting to read incoherence in Trump’s arguments, or in Carlson’s: How can they both be against government mandating masks, on the basis of personal liberty, and also demand that the government prevent people from wearing them? In fact, the principle is straightforward enough. Small government for me, but not for thee.