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Month: June 2020

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Censoring “Gratuitous” Violence

black-and-white photograph of protestor taking photo of "White Silence is Violence" sign with phone

The video of George Floyd dying after nine long minutes by suffocation at the hands of a Minneapolis police officer is gruesome, sickening, and has prompted countless people to action. The officers responsible for his death have been arrested and charged. In response to protests, numerous state and local governments are instituting police reforms. Black people have been killed by police before. But given that this particular video of unambiguous violence perpetrated by police has been circulated so widely, is so appalling, and instigated such a fierce response, this example stands out.

From this fact, a rough argument may be sketched. Sharing videos of horrifying violence prompts positive social change, so let’s share more videos of horrifying violence. If such a video is helping to stop police violence, why not share other violent videos to help stop gang violence, war violence, and terrorist violence? In fact, why not share videos showing the effects of structural violence, videos of suicides due to social isolation and industrial accidents due to lack of regulation? Scrolling through Twitter or Facebook, one might see a video of a cute baby taking her first steps, then a video of a terrorist execution, then a video of a bunch of newborn puppies, and a video of a young man sticking a gun in his mouth and pulling the trigger. Even if you think it is good that the Floyd video was widely shared, you probably don’t support turning your morning scroll through social media into such a traumatic experience. To understand this apparent contradiction in instinct, let us consider how violent content is treated on social media today and the arguments for and against censoring it on these platforms and in general.

First, we need to consider what “violent content” is and how it is understood by social media companies. While there may be an intuitive sense that violent content only includes uses of force for the purpose of causing harm, social media companies take a more expansive view. Twitter, for example, includes under the category of “graphic violence,” accidents and any “serious physical harm.” But, these companies also tend to distinguish between what Twitter calls “graphic violence” and “gratuitous gore,” as though there is some amount of violence or gore that is not in some way “gratuitous” to our experience of the world.

While graphic violence may include “bodily fluids including blood, feces, semen,” and is only hidden behind a “sensitive media” label and blur, “gratuitous” gore, which includes dismemberment, mutilation, burned human remains, and exposed internal organs and bones, is banned completely. But what exactly is the meaningful difference between these two categories? For example, a decapitation would certainly count as gratuitous gore and would be extremely off-putting. But, the video of Floyd being killed is merely graphic violence, even though it can easily be just as off-putting, if not more so. In fact, while a decapitation may be quick and relatively painless, Floyd died slowly of suffocation. Why is one “gratuitous” and not the other? Why is one censored and not the other?

From the start, companies can have two kinds of motivations for doing anything: moral ones and amoral ones. Either they do something because it is right or thoughts of right and wrong simply don’t factor into their decision. Twitter presents a moral argument for their censorship. They say that “We prohibit gratuitous gore content because research has shown that repeated exposure to violent content online may negatively impact an individual’s wellbeing.” Twitter does not make clear what they mean by well-being but if they mean an immediate sensation of feeling good or ill, their argument is trivially true. Only a sadist really enjoys the suffering of others and has their immediate well-being improved by viewing it.

And there might be a legitimate basis for Twitter’s claim. There is some evidence that regular viewing of violence can be desensitizing, though “regular viewing” here means in excess of two hours every day and none of the science is settled. But, there is also an obvious profit motive for Twitter’s censorship—if you associate negative feelings with your use of Twitter, you are unlikely to use it as frequently, and fewer users means less ad revenue. Regardless of the morality of this censorship, Twitter is motivated to censor for the sake of profits. So then, what are the moral reasons that could support this sort of censorship?

To answer this question, let’s first consider the odd bunch of people who do seek out violent content, taboo gratuitous gore in particular, to watch. One particularly popular community of these people was the Reddit group r/watchpeople die, which had over 400,000 members before it was banned. At that size, it is difficult to chalk the membership of that group up to just sadists, sociopaths, and other such extraordinarily deviant people. In fact, the moderators and power users of this subreddit were pretty much normal people, some married, plenty having friends. They didn’t fit the stereotype of obsessive death and gore watchers.

In fact, Rule #3 of the subreddit (as shown in this Wayback Machine archive of the subreddit’s homepage on September 20, 2018, shortly before its quarantine) included this expectation, bolded by the mods to highlight it: “Be respectful of the dead! This is important. Human beings have lost their lives. This subject matter is not to be taken lightly.” The subreddit also described itself as “a community for documenting and observing the disturbing reality of death” and as “not intended to be a shock or gore subreddit.” Finally, they referenced two famous philosophical ideas: “Memento mori,” the Latin Stoic maxim to always remember one’s inevitable death, and “Maranasati,” a similar idea in Buddhism. Gratuitous gore is often referred to online as “gore porn” as the basis for viewing it is thought to come from a similar place as the animalistic urge to view other kinds of pornography. However, in light of the seemingly principled basis for this community, it is tough to say that all viewing of gratuitous gore is pornographic.

Sue Tait, a lecturer in the field of mass communications at the University of Canterbury, elaborates on this idea in her article, “Pornographies of Violence? Internet Spectatorship on Body Horror.” She considers four different ways people in these sorts of communities interact with gratuitous gore. She refers to these as four kinds of gazes viewers have:

“I identify a range of spectatorship positions [viewers] take up, including: an amoral gaze, whereby the suffering subject becomes a source of stimulation and pleasure; a vulnerable gaze, where viewers experience harm from graphic imagery; an entitled gaze, where viewers frame their looking through anti-censorship discourses; and a responsive gaze, whereby looking is a precedent to action.”

To contextualize these gazes, let’s consider some examples from before. The amoral gaze would be the one taken up by the sadists. The vulnerable gaze is the one Twitter worries about its viewers having-they worry people will associate the “hurt” they feel at viewing gratuitous gore with the site itself and stop using it. The r/watchpeopledie community’s focus on “documenting and observing the disturbing reality of death” would be an example of the entitled gaze. And last but not least, the responsive gaze would be the one taken up by those who were prompted to action by the video of Floyd’s death and any one who would be prompted to similar action by similar, but gorier, content, like many on r/watchpeopledie were.

With the idea of these different kinds of gazes in mind, we can now construct a variety of arguments for and against the censorship of violent content.

According to virtue ethics, we might support censorship of gratuitous gore if it seems that regular exposure to gratuitous gore encourages vices in viewers. For example, if conclusive research comes out showing that exposure to violent media causes people to be more aggressive, cruel, or unempathetic, that would be a reason to support censoring gratuitous gore, the most extreme form of violent media. (In particular, we might worry about how this media influences the character of children whose morals are viewed as being particularly malleable.) This would be particularly true if a community encouraged people to take up an amoral gaze.

On the other hand, we might oppose the censorship of gratuitous gore if it seems that same exposure promotes virtue, rather than vice, in the viewers. If viewers take up a responsive gaze, rather than an amoral one, people may be encouraged to be more compassionate. As Stalin is reported to have said, “If only one man dies of hunger, that is a tragedy. If millions die, that’s only statistics.” Seeing the “disturbing reality of death,” over and over again, be it by hunger or by violence, might prevent people from losing touch with the horror of various kinds of violence and actually work to take action as they did with police violence after seeing the video of Floyd’s murder.

Immanuel Kant, the father of deontology — morals based on duties — made a creative argument against the abuse of animals that could be used to justify the censorship of gratuitous gore. While Kant did not believe animals had rights, or even any kind of consciousness, he still opposed sadistic animal abuse saying, “If any acts of animals are analogous to human acts and spring from the same principles, we have duties towards the animals because thus we cultivate the corresponding duties towards human beings.” In short, we shouldn’t abuse animals pointlessly lest we become able to do the same to people. In the same way, if repeated exposure to gratuitous gore hampers the cultivation of our duties toward people (as would be the case upon taking up the amoral gaze), such as not to murder them, then censorship of gratuitous gore would be justified.

But, deontology can also be used to oppose the censorship of gratuitous gore. Those who take up an entitled gaze might argue that we have a duty to uphold free speech or that we even have a duty to “document” deaths, for various purposes. People might also have a duty to bear witness to the reality of death for some further end as according to the maxim “Memento mori.”

Finally, we can give consequentialist arguments for and against censorship. If, on the whole, the viewing of gratuitous gore leads to more people doing harm to each other, then it should be censored. If not, if, according to the responsive gaze, people’s viewing leads to great social change, then it absolutely should not be censored.

This argument is especially powerful in an affluent nation like the United States. If you are an American, and if you are just a little lucky, you will have to see only a few people die, you will only attend a handful of funerals, and those funerals you do attend will recognize the deaths of people who we think were more or less supposed to die, that is, the elderly. But, Americans are an exception and though we can hide from death for most of our lives, the world is not a happy place where only those who have lived long lives, or who get unlucky with serious diseases like cancer, have to die. All sorts of horrible causes of death, from childbirth, infectious disease, war, and industrial accidents, are still very common in the Global South. You can find a particularly horrifying intersection of all of these in the Democratic Republic of the Congo where resource conflict has led to widespread poverty, civil war, and unsafe mining operations. But, some combination of these horrors can be found in most areas of the world.

We are terribly desensitized to all these horrors as these deaths are reduced to mere numbers. Few Americans have seen the effects of poverty, war, and sickness in these far away places. And, as they say “out of sight, out of mind.” If only a small portion of people take up the responsive gaze and stand up against these atrocities, and actually manage to remedy some of them, that would be an enormous consequentialist benefit that outweighs all the temporary harm it does to the “well-being” of comfortably, relatively wealthy (on the world scale), American viewers.

Overall, a violent video is not moral or immoral in isolation. Rather, the viewing of violent videos may be moral or immoral depending on the context. The morality of censoring gratuitous gore and other violent content may also depend on human nature. If most people, most of the time take on an amoral gaze or vulnerable gaze when viewing violent media, then by most accounts, censorship is justified. But, if people are basically good, then they might mostly take on the responsive gaze and untold benefits would result from ending the censorship of violent content. While it very well may be that some or all violent content deserves censorship, we ought to examine our reasons for censoring it. We ought to consider whether that censorship has a true moral basis or whether viewing violence is just uncomfortable, forcing us to reflect on the horrors of the world in a way from which we are usually, blissfully, isolated.

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Undoing White Privilege

photograph of BLM protester with sign explaining white privilege

By now we have all seen the video of African-American man George Floyd ‘s murder under the knee of a white police officer several weeks ago on an ordinary evening in a Minneapolis street that caused huge protests across the US and worldwide. Even in a culture that normalizes violence against Black bodies, this footage is particularly shocking.

Derek Chauvin has George Floyd pinned to the ground and is kneeling on his neck. Three other officers are standing, mostly off camera, hovering in mute complicity, unwilling or unable to stop what is slowly taking place before them.

The slowness is shocking. For eight excruciating minutes Chauvin kneels on George Floyd’s neck as he struggles. George Floyd calls out for his mother, begs for his life, fights for breath, gasps “I can’t breathe.” A stream of urine flows from under the car. Chauvin slowly and unflinchingly crushes the life from the man beneath his knee.

That Chauvin does not flinch is shocking. The violence is not reactive. Chauvin isn’t in a hurry, he isn’t in a frenzy, and his facial expression suggests he knows what he is about. As he slowly crushes George Floyd’s neck, he looks into the camera.

That Chauvin looks so long into the camera is shocking. The person holding the cell phone is very close to where Chauvin has Floyd’s face pressed into the road, and Chauvin looks defiantly into the camera with no hint of shame or self-consciousness. He does not care that he is being recorded. His expression seems to dare the onlooker to film him as other bystanders can be heard in the background shouting.

What can we read from the expression on Chauvin’s face? That image has been stilled and reproduced in countless media articles. It isn’t necessarily clarified in captions that this picture is taken at the moment he is murdering George Floyd – which is something that, looking at the picture, you can’t possibly tell. As he kneels on George Floyd’s neck for eight minutes Derek Chauvin looks banally into the camera. He has his hand in his pocket.

That Chauvin has his hand in his pocket is shocking. The body language of casual dismissal becomes a most vicious form of contempt – Chauvin’s face shows no rage. His expression and his gesture, as he kneels for eight minutes on George Floyd’s neck looking into the camera with his hand in his pocket, look like boredom.

Hannah Arendt coined the phrase “the banality of evil.” The phrase refers to the trial of Nazi war criminal Adolf Eichmann, and describes his part in, and muted response to, the bureaucratic systems that required him to process Jews for transportation to the death camps during WWII and enabled him to do so without troubling his conscience.

The phrase seems nevertheless apt, because of the expression and gesture of banality Chauvin personifies; his conscience is not troubled, and his expression betrays his expectation of impunity.

In a recent PBS News special, filmmaker and activist Ava DuVernay, for whom viewing videos of police violence is routinely part of her research, reflects upon what it is about this video in particular that was, as she said, ‘bringing her to her knees’: “… I could see that white officer’s face, I could see his disdain, I could see his intention (in my view), I could see the callous disregard for human life.”

The video of Floyd’s death sparked worldwide protests and support for Black Lives Matter because it was yet another instance, another instance too many for communities at breaking point, in the long litany of racist police brutality. But also because the film itself is so powerful – so close up, so intimate, and so emblematic of the system of white supremacy that routinely and indifferently crushes Black lives.

The video of Floyd’s death exposes a truth that it is impossible to look away from, a truth already known by many and which others are coming to, finally, for the first time: that white supremacy still reigns. And in this video, it looks directly at us all.

Darren Walker, President of the Ford Foundation, told PBS that: “White America was deeply wounded and shocked by the visual of [George Floyd’s] murder over eight and a half minutes; and for White America deniability of racism in our policing, and in our nation, is no longer an option.”

Whether you already knew, or whether you are coming for the first time to this knowledge, you are witness to the sickening legacy of colonialism, slavery, and racial segregation still playing out in a world which has not reckoned with the sins and the atrocities of its past.

We may be justified in our hope that the time has arrived for that reckoning, and that it will lead to real action on racial justice. But what will real action look like?

As many have been saying, reform is not enough. In the view of author and activist Roxanne Gay it is unlikely that reform could come from inside the system – the police force cannot reform itself because the institution is corrupt: “we’re going to have to really expand our imaginations to reimagine what law enforcement might look like if racism did not underpin it.”

As Gay implies the system in which racism is inbuilt and white privilege is invisible cannot be reformed. Real, meaningful change will require the dismantling of white supremacy and white privilege.

The Black community, in the US and elsewhere, has a long and proud history of activism in the fight against racism for civil rights and justice, but it should not be up to Black activists, protestors, and communities to do this work. Allies in the white community are crucial for Black Lives Matter in the US, Australia, and elsewhere; but for such allies, walking with and in support of the Black community is not enough. White people need to dismantle the system of white supremacy and privilege, and find a way to decolonize our thinking and our institutions.

White support for Black resistance to racial injustice is often transient – because it can be, because white supporters can choose to be active or not on race issues, and the luxury of that choice is one expression of privilege. White support can also, in the experience of generations of Black activists, manifest as a burden. This is something white allies need to be aware of. When well-intentioned would-be allies go to Black communities and ask, “what can I do?” they are inadvertently placing the burden on Black communities to educate them. This has been a persistent problem for Black activists.

Ava DuVernay said to PBS, of people asking what to do, “my answer is educate yourself – there have been white allies throughout the history of America who have gotten together and come up with muscular strategies for change…’what do I do?’ is really asking for Black labor in this moment to help you think through what to do: trust me, there is something to do where you are.”

Being or becoming an ally in the struggle for racial justice is not about just walking into this space and asking “what can I do?” because this shifts the onus back onto the Black community. DuVernay says: “I invite Caucasian people to devise tactics and strategies – things only white people can do… strategies to dismantle these things [manifestations of institutional racism] actively.” That, she says, “would be a game-changer.”

It is incumbent on white people to know history, to understand the nature of racism and to find ways, big and small, to dismantle the system of white supremacy. We must educate ourselves, and we must undertake the work of learning to identify privilege and learning ways to refuse, counter, deflect, and subvert it.

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Qualified Immunity: An Unqualified Disaster?

photograph of police line with riot shields

Calls to end qualified immunity have been ongoing for years, but have intensified throughout the United States after the murder of George Floyd at the hands of then-officer Derek Chauvin of the Minneapolis Police Department. But what exactly is qualified immunity, and what is the case for eliminating it?

Qualified immunity is a doctrine inferred by the Supreme Court of the United States (SCOTUS) in light of the Third Enforcement Act of 1871. This was part of the bundle of constitutional amendments and federal law passed during the Reconstruction Era to codify and protect the rights of Black people in the southern United States. It allowed citizens to sue individuals acting as officials for any of the States when those officials violated the citizens’ constitutional rights. Prior to the Third Enforcement Act, government officials enjoyed nearly absolute immunity from civil suits for damages.  This meant state government officials acting in their official capacity couldn’t be sued at all for violating constitutional rights. The Third Enforcement Act changed that.

Eventually the SCOTUS invoked the history of government official’s civil immunity to create qualified immunity. In Pierson v. Ray (1967) the court ruled that a common law defense was available to government officials when acting in their official capacity, even when sued under 42 U.S. Code Sec. 1983 (the name under which the Third Enforcement Act now goes). So long as they were acting in good faith and on probable cause, an official was immune from civil liability even if their act did violate a constitutional right.

Numerous court cases have modified this statement of immunity, and provided rules for determining whether it applies in a given case. In Harlow v. Fitzgerald (1982) the SCOTUS reasoned that governmental officials (here, aides to the President) need their official actions to be immunized from liability in order to do their jobs effectively. A subsequent series of cases dealt with the fourth amendment and execution of search warrants by law enforcement officials. In Malley v Briggs (1986) the SCOTUS held that officers were only immune to liability from arrests made on faulty warrants if they had an objectively reasonable belief that there was probable cause for the warrant. The requirement of objective reasonability was upheld for warrantless searches in Anderson v. Creighton (1987). The test for whether an officer has qualified immunity in a given case was articulated in Saucier v. Katz (2001). There was a need for such a judicial test, reasoned the SCOTUS, because qualified immunity had to be determined before a trial could begin. Two facts had to be determined according to the Saucier test: (1) whether a constitutional right was violated and (2) whether the right in question was clearly established at the time of the conduct of the officer in question.

The second criterion has been the cause of much of the public anger concerning qualified immunity. For one it removes any consideration of the reasonability of an officer’s action, objective or subjective. Instead of probing whether that particular officer reasonably believed that their conduct was lawful, the test instead simply asks whether there was any extant, and clearly articulated, constitutional right violated by the officer’s conduct. The issue of whether there was a “clearly established right” has often been interpreted extremely narrowly by courts. Among the starkest manifestations of narrow judicial interpretation comes from Nashville, TN. Police officers sent a dog after Alexander Baxter after he had sat down on the ground and raised his hands in surrender. The dog bit Alexander. However, the officers were granted qualified immunity because the clearest previous judicial ruling on the matter only pertained to suspects who were lying down in surrender. This ruling was made by a Tennessee court and upheld by appeals courts in Tennessee and the federal court presiding in that area.

Should qualified immunity exist in the first place? And if so, how can it be pruned back from its current extent to make it acceptable? Qualified immunity is a form of affirmative defense: that is, a legal way of saying, “I admit I broke the law, but I shouldn’t be (fully) punished for it.” Self-defense is an affirmative defense against criminal prosecution for violent crimes. At trial, the defendant would assert that they did commit an illegal action (e.g., homicide) but that their illegal action was either justified, or should be excused. In general, the possibility of affirmative defenses is desirable. It should be possible to escape punishment, or receive reduced punishment, for illegal actions done under mitigating circumstances.

It is instructive to compare self-defense and qualified immunity. In their current forms, both contend that strictly illegal actions are justified — which is to say morally or pragmatically appropriate despite being illegal. We shouldn’t punish people for their justified actions, because punishing people for doing the right thing is perverse. So if someone killed or injured another person in self-defense, we think it would be wrong to punish them. Does this make sense in the case of government officials violating the rights of citizens? It might, if qualified immunity were a defense that had to be proven at trial. However, the issue of qualified immunity is settled by a summary judgment. It is determined before trial by a judge without the benefit of a full process of evidential discovery and the structured arguments of a trial held before a jury. Being a rule which was created by unelected judges and never tried by a jury of citizens, qualified immunity arguably lacks democratic legitimacy.

The pretrial nature of qualified immunity has been argued for on both practical and moral grounds. These grounds were clearly articulated by the SCOTUS in Harlow v. Fitzgerald. As a practical matter they argue that deciding qualified immunity before trial prevents frivolous litigation, saving massive amounts of time and money. From the moral point of view, they argue that it is unfair to hold government officials to the standards of statutes and judicial decisions which are either unclear or unknown to them. Setting aside the relevance of the practical considerations, the moral considerations are flimsy. After all, as a general rule, normal citizens are not allowed to invoke ignorance of the law to excuse their illegal conduct. Government officials are both better placed to know the relevant laws and have a clearer obligation to be familiar with them. It is their job to enforce, interpret, or enact them.

Numerous other objections assail qualified immunity, coming even from SCOTUS justices of diametrically opposed ideological orientations. It does not seem that the balance of reasons lies in favor of this doctrine. Government officials can invoke the same affirmative defenses as regular citizens at trial and submit them to a jury for consideration. Obliterating qualified immunity from the law will not render them unprotected from baseless lawsuits.

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“Defund the Police”: A Powerful if Ambiguous Slogan

black-and-white photgraph of protestors holding "Defund the Police" sign

During the recent protests in wake of the murder of George Floyd, many have begun calling for state and local governments to “defund the police.” However, as Matthew Yglesias at Vox aptly puts it, “A three-word slogan is not a detailed policy agenda, and not everyone using the slogan agrees on the details.” So what are these protestors calling for with this slogan? And, what are the ethical ramifications of these different proposals?

The most radical proposal represented by this slogan is in line with the traditional meaning of “defunding.” Yglesias defines “defunding” a part of the government as “reduc[ing] appropriations to zero dollars, thus eliminating it.” Under this proposal, the police would be completely abolished as an institution. While radical, this proposal is not completely without support:  In Minneapolis, where Floyd was murdered, the mayor was booed and met with chants of “shame” when he refused to commit to abolishing the police department. Police have not always been around. As activist Mariame Kaba explains in The New York Times, police in the United States arose to enforce slavery and combat labor activists. We lived without them once and could do so again.

Others using this slogan don’t literally want to wholly eliminate the police. Rather, they want the scope of police action greatly minimized. Rather than have police respond to reports of mental illness or suicide attempts, we could send “community care workers,” as Kaba suggests. Rather than have police be called for every noise complaint or traffic violation, these issues could be dealt with communally. In fact, in Dallas, something like this is already happening. Heightened police contact with the public increases the odds that people will be subject to police violence. So, they say, where we don’t need police contact, why have it? On the whole, this group cries “defund the police” mostly to shift public discourse.

This group does not just want to minimize the role of police, however. They also advocate for reallocating funding to social programs. A major proponent of the abolition of the police today is professor of sociology at Brooklyn College, Alex Vitale. As he explains in an interview with Mother Jones, many crimes can be prevented by tackling social issues head-on rather than punishing people who violate the laws.

But, you may be wondering, why should we think this? In recent history, the Clinton administration passed the Violent Crime Control and Law Enforcement Act of 1994, which “put 88,000 additional police on the streets and mandated life sentences for criminals convicted of a felony after two or more prior convictions, including drug crimes,” for seemingly good reason. Violent crime increased immensely in the late 80s and early 90s before falling drastically around the time of these reforms. Increasing law enforcement stops crime. Case closed, right? Not quite. While this is a simple and satisfying story, the causes and effects of the rise and fall of violent crime during this period are still being studied so it is difficult to make any definitive claims.

Let us, then, consider an alternate account of the relationship between crime and law enforcement. Former US Secretary of Labor and UC Berkeley professor Robert Reich presents increased law enforcement as a cheap stopgap for solving real problems of social inequity that prompt crimes in the first place. As he writes, the people in power can choose to engage in social investment or social control. Social investment serves to satisfy people so that they have no reason to go out and commit crimes. It includes funding “healthcare, education, affordable housing, jobless benefits and children.”

Social control, in contrast, takes people’s general dissatisfaction as given, assuming that people will just commit crimes and that’s the way it is. Under those assumptions, social control serves to maintain order over a population of people who are intrinsically motivated to commit crimes. There are reasons for these assumptions, if not good ones: social control is much cheaper than social investment and it maintains the present social stratification, which benefits those who are already well-off and powerful.

Defunding the police, then, is a means to increasing social investment, thus removing the dissatisfaction that prompts the need for social control in the first place. But, again you might protest: “Maybe social investment can minimize a lot of kinds of crime. People may not be intrinsically motivated to commit crimes. But aren’t there still a number of legitimate purposes for having police?” To answer these questions, we must consider the origin of modern policing. In doing so, we can see what, if any, are the legitimate purposes of police. It might also become clear that the dichotomy between falling back into a state of nature and maintaining the police as they are today is a false one. Defunding the police is not a view limited only to the most resolute of anarchists.

While people associated with the government who serve to enforce the laws have been employed since ancient times, the modern idea of a professional police force has its origin in London in the year 1829. This is very recent in historical terms and was actually a controversial move at the time. At the time, many London residents were opposed to the idea of a police force as they imagined it would function as a domestic wing of the military. The British people, though happy to occupy other people’s lands in their colonies, were, unsurprisingly unwilling to live under military occupation themselves.

Early founders of the London police force (among them, Sir Robert Peel) enumerated nine principles of good policing to inspire faith in communities that were not happy with the idea of being policed.  These principles were philosophically based. As a student of English philosopher Jeremy Bentham, founder of utilitarianism, Sir Peel justifies the police’s existence with a utilitarian argument. At the time, this utilitarian argument was fairly a progressive idea when crimes were previously punished with public executions.

He argued that if we are to maximize human pleasure and flourishing (according to utilitarianism) then it is better to prevent crimes rather than to merely punish them. Punishing a crime does not fix the harm the crime does and, in fact, the punishment, in harming the criminal, may actually lead to a net decrease in the amount of human pleasure in the world. By preventing crimes, there would be neither victims of crimes nor criminals who become victims of state punishment. Police help deter crimes merely by their presence. You’re less likely to steal a purse if a police officer is watching.

Now, the easy response to Bentham’s idea is the same as that levied against modern police: preventive policing does not resolve the problem of why people steal. If a person is starving, he may very well steal the purse anyway because he is hungry. But Bentham’s utilitarianism anticipates this objection: his principle of diminishing marginal utility states that the very rich do not derive very much pleasure from each extra dollar they get (they already have plenty) while starving people derive immense pleasure from each such dollar (for they have none). Thus, achieving the maximum happiness of the people “requires that the external instruments of felicity, whatsoever they may be, be shared by the whole number in a proportion so near to equality as is consistent with universal security.” In modern English, money and resources (“the external instruments of felicity”) must be distributed to increase equality up until that redistribution threatens to increase crime and disorder in a way opposed to utility (a state that would be inconsistent with “universal security”). Bentham thus supports resolving the root causes of crimes just as the proponents of defunding the police do. The parallel between Bentham’s view here and the view of people like Reich, Vitale, and Kaba who advocate social investment over social control is clear.

But suppose that we do redistribute wealth in this way. Won’t this solve crime? Why, again, do we need police? One might think that the social investment argument quickly runs into absurdity here since one might believe there exist certain crimes that social investment cannot prevent. In some cases, people are not driven by circumstance but by some natural flaw, be it greed, sociopathy, or irresponsibility. Given these facts, one might go on to argue that until we are able to eliminate these from the human condition, some crimes will persist and will need to be dealt with. And, attaching a personal cost, such as incarceration, to these crimes will disincentivize some people from committing them.

Now, abolitionists are not foolish or naive. An abolitionist can easily respond that many of these sorts of crimes go on with the police around anyway. If we are stuck with these crimes either way, it’s best to have them and not have police violence. They might argue like so: If social investment rids the world of most crime, if community care workers take care of most community problems without the risk of violence, and we still, time to time, have to deal with these irresoluble sorts of crimes, well, that’s a world we would be happy to live in. Here, I think, we may return to Peel and his seventh principle of good policing and see how his view of the police did not differ all that much from the abolitionists’ idea of community care workers:

“Police, at all times, should maintain a relationship with the public that gives reality to the historic tradition that the police are the public and the public are the police; the police being only members of the public who are paid to give full-time attention to duties which are incumbent on every citizen in the interests of community welfare and existence.”

It is conceivable that many of the injustices perpetrated by the police today come from a failure to uphold this normative principle. Police, it seems, do not feel a connection to the rest of the public. It is hard to see how they could and simultaneously perpetrate violence against nonviolent criminals and protestors. This principle also requires police to trust the public. Police should not be opposed to the public but, as Peel writes, they should see themselves as part of the public, differing only in being the “only members of the public who are paid to give full-time attention to duties which are incumbent on every citizen in the interests of community welfare and existence” (emphasis all mine). It is hard to see the police and the protestors of Minneapolis, or any American city, as being part of one community when they are so far opposed. And it is hard to see how tear gas and rubber bullets (among other “less-lethal” attacks on the public) promote community welfare. Protestors, like the ideal version of police, pursue community welfare. If our police recognized this, they would not be driven to view them as “other” and to attack them.

If you support the movement to “defund the police,” consider what you mean exactly by “the police” which you mean to defund. If you view racist violence and domination of the citizenry by those with a monopoly on state violence as essential properties of the police, then I have little to say against you. Defund those police. But if we take Peel’s view of the police as paid, full-time citizens who have a duty to community welfare, and if we remember the unfortunate flaws in the human condition that drive some members of the community to crime, I struggle to see how one could argue that we should entirely defund these police.

As Vitale argues, procedural reforms have failed and barely deserve the title of “reforms.” Seeking to abolish the police, given the present circumstances, is thus not an unreasonable position. But, as I hope to have shown above, it is also not obviously the best position. As a rallying cry it remains ambiguous. In the end, the choice is not between widespread social reforms to attack the root causes of crimes on one hand and having police at all on the other. As Bentham advocated, we can have a useful, publicly-approved police force alongside an equitable distribution of resources such that both prevent crime.

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Lies, Damned Lies, and Statistics

photograph of bar graph made of various colored blocks

I want to draw your attention to a truly awful misuse of statistics. Published on the Markets section of the CNBC website, it looks like this:

For context, the preamble to the introduction of the chart states that,

“The US economy added a record number of jobs in May as it appeared to bounce off the bottom of the coronavirus recession, and now the chart of jobs gains and losses is starting to look like a ‘V’.”

“V-shaped recovery,” the article explains, is “a sharp fall in economic activity followed by a dramatic rise.” And while it would be great if that’s what this chart showed, it does not. Forget for a moment that it does not say what kinds of jobs have been lost and which have been gained. What’s far more misleading is that even if the change to the number of jobs in America was an increase of 2.5 million from the previous month, that would still mean that the total number of jobs lost since the onset of the coronavirus pandemic was approximately 18.2 million. That does not sound like a dramatic rise in economic activity and, when plotted properly, looks nothing close to a “V”.

The saying “there are three kinds of lies: lies, damned lies, and statistics” comes most directly from Mark Twain (although its origin is unclear). Statistics can be a powerful and informative tool if used correctly, but they are also subject to misinterpretation and manipulation. It is unclear whether the above case was the former or the latter; perhaps most charitably we can chalk the misrepresentation of data up to an overeager hopefulness about the economy. Other recent events, however, have seemed to fall much more clearly into the third variety of Twain’s category of lies, representing cases in which statistics have been intentionally manipulated in order to promote a particular agenda.

Consider, for instance, a recent op-ed by Heather MacDonald. In response to the ongoing protests of police violence against black Americans, MacDonald argues that the apparent problem is overblown, and that, in fact, “there’s no evidence of widespread racial bias” by police officers. In making her case she provides plenty of statistical support, making reference to The Washington Post’s police shootings database. Her reasoning goes as follows: there are an enormous number of incidents of police encounters with individuals every year, and only a minuscule percentage of them result in someone being killed. Therefore, the recent killings that have been the impetus for the protests are not “representative of the 375 million annual contacts that police officers have with civilians.”

Several news outlets have pointed out that this is bad reasoning. For one, the statistics from The Washington Post database clearly show that Black Americans are being killed by police officers at rates that are massively disproportionate, a fact that, far from debunking the view that there is widespread racial bias by police, reinforces it. Fox News opinion-stater Tucker Carlson similarly massages the data in a recent op-ed. In it, he attempts to show that the protests are overblown by appealing to the statistic that since 2015, “of the 802 shootings in which the race of the police officer and the suspect was noted, 371 of those killed were white, 236 were black.” Again, what Carlson fails to mention is that, given how many more white Americans there are, the rate in which Black Americans are killed by police is still double that of whites.

While these op-eds exemplify poor statistical reasoning, it is also difficult to interpret them charitably as honest mistakes. Carlson in particular has vocally opposed the protests, as well as the Black Lives Matter movement in general. But while it is perhaps not surprising that someone like Carlson would take the line that he takes, there is a reason why misusing statistics can be seen as one of the worst categories of lies.

There are different reasons for thinking that lies are morally wrong, but many involve a kind of disrespect of the autonomy of the person being lied to; in other words, by lying to you I impede your ability to make well-informed decisions, and in turn your ability to achieve your goals. Of course, some kinds of lies seem worse than others. Perhaps we can think of our three categories of lies in the following way. Take “lies” to be those straightforward cases in which I tell you something I take to be false, and in doing so attempt to deceive you. What Twain refers to as “damned lies” might be thought of as what some have called “bald-faced lies,” namely lies that are so obvious that they are not even intended to be deceptive. For instance, say that I have lost my favorite mug, but then catch you drinking from it in the break room. If I ask you whether you, in fact, took my mug, you may respond with a bald-faced lie, saying that you have no idea what I’m talking about while taking a sip. Here it seems that, at the very least, you have no preconceptions about getting away with lying; at worst, your lie is so transparent that you can’t be said to even be trying to deceive me.

Finally, misusing statistics seems to be a particularly egregious method of lying as one is not merely intending to deceive one’s audience, but is doing so in such a way that they purport to be expressing views that are supported by independent, objective evidence. By lying with statistics I thus attempt to shift responsibility for my claims from myself to the numbers. We can see this kind of behavior in those op-eds from Carlson: instead of taking ownership over claims that he is making, he takes himself to merely be a conduit for statistical truths, and thus if one has issues with those truths, he cannot be held accountable for them.

What is the best way to combat statistical lies? Perhaps most straightforwardly by paying attention to the context in which statistics are presented, and to take care not to mistake numbers for objectivity. Misusing statistics may be a particularly effective way of spreading misinformation because it may seem that numbers are incapable of lying. Of course, even if this is true, people who generate and present those numbers are more than capable of lying with them.

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How Words Translate to Action: The Ramifications of Trump’s Rhetoric

photograph of packed arena at Trump rally

“[The coronavirus] has more names than any disease in history,” President Donald Trump said at a campaign rally in Tulsa, Oklahoma on Saturday. “I can name kung flu. I can name 19 different versions of names.”

Saturday’s rally was not the first time Trump used racist rhetoric to divert criticisms toward his administration for its mishandling of the coronavirus crisis. Since March, the president has cast China as the “invisible enemy” and bragged about his early ban on Chinese travelers in almost every public appearance. In addition, he repeatedly used the phrase “the Chinese virus” despite concerns from public health experts, and again referred to the coronavirus as “the China virus” in a self-congratulatory tweet in May.

Critics of Trump have argued that his words have contributed to the rise of hate crimes against Asian Americans. From March to April, the New York Police Department documented 25 hate crimes against Asian Americans, marking a stark increase from a total of 3 incidents in 2019. Meanwhile, STOP AAPI HATE — a database that San Francisco State University and Asian advocacy groups created in late March — has recorded more than 1,700 incidents ranging from verbal assaults to stabbing. Still, the president has defended that his words have been anything but racist: “It’s from China. That’s why. It comes from China. I want to be accurate,” he said at a press briefing. How could have his words have translated into real hateful and discriminatory actions?

Although the president argues that he only intended to convey his disapproval of China’s pandemic response, literature on the philosophy of language elucidates the connection between Trump’s words and hateful actions. With the benefit of hindsight, we can study such language — and the phrase “the Chinese virus” in particular — and learn how to respond to similar rhetorical moves as the president escalates his attacks on China and on other minorities.

When Trump justified the phrase “the Chinese virus” in March, he took advantage of the vagueness of language. Compound nouns — like “spa water,” “arm pillow” and the “Chinese virus” — are ambiguous, because the relationship between the two nouns, like “spa” and “water,” is unclear. Although Trump claimed he meant that the disease originates from China, “the Chinese virus” could also signify ‘a virus carried by Chinese people’ or ‘a virus of Chinese people.’ The president acted as if the intention of the speaker — which he promised was not racist — controls how words are understood.

Contrary to Trump’s defense, however, many philosophers of language argue that the meaning and effect of words are also governed by how they are used in society. Of course, in regular conversations, words communicate a speaker’s transparent intent. However, should Trump’s press conferences and tweets — or any politician’s speech for that effect — considered to be in context of a typical conversation? Often in political discourse, words affirm belief systems and the communal practices in which they are embedded.

Specifically, when one uses words that have been shaped by social practices, one legitimizes the connotations and value systems attached to them. One can insist that they only meant the inside of a city when using the phrase “inner city,” but the racist ideology associated with that term persists nevertheless. “There are tools like a hammer or a screwdriver which can be used by one person; and there are tools like a steamship which require the cooperative activity of a number of persons to use,” philosopher Hilary Putnam writes in his paper the Meaning of “Meaning.” “Words have been thought too much on the model of the first sort of tool.”

Philosopher Lynne Tirrell offers a relevant example in her 2012 paper Genocidal Language Games. According to Tirrell, for years preceding the Rwandan genocide, the Hutu majority called their Tutsi counterparts “cockroaches (inyenzi)” and “snakes (inkoza).” These were mindless slurs at first, Tirrell explains, intended to insult an individual rather than to convey the ethnic inferiority of the Tutsis. But these words were said in the context of a culture where snakes are public health dangers and cutting the heads of snakes is considered a rite of passage into manhood. When the conflict between the two groups intensified, these slurs helped connect murdering the Tutsis to a celebrated act of killing snakes. In retrospect, a Hutu calling his Tutsi neighbor a “snake” or “cockroach” was participating a linguistic practice embedded in ethnic discrimination and legitimizing hatred toward the Tutsis. “What we do with our speech acts often outstrips our own mastery, and in cases in which the social functions of speech have been co-opted, we can see that participants might not see the full scope of the games that they are playing,” Tirrell explains.

Tirrell’s account of the Rwandan genocide is instructive not because Asian Americans are at the risk of getting massacred, but because it illuminates how words can activate longstanding discriminatory sentiments and help authorize actions. Like the insults hurled against the Tutsis, Trump’s attacks on China are embedded in the context of oppression against minorities. His administration’s nativist agenda has rekindled centuries of discrimination against Asian Americans, dating from the Chinese Exclusion Act of 1882.

In addition, the phrase “the Chinese virus” draws on a history of nativist attempts to scapegoat immigrants about public health. During a smallpox outbreak in 1900, the government exclusively imposed a quarantine on San Francisco’s Chinatown and called it a “laboratory of infection.” In English, metaphors are often used to compare a nation to a body — such as “head of state,” “body politic” and “arm of the government” — and Trump has frequently equated immigrants to an illness penetrating it. They bring “tremendous infectious disease,” “communicable disease” and a “tremendous medical problem coming into a country,” Trump has said.

“Like the ordinary farmer in Rwanda who did not think that calling his Tutsi neighbors ‘snakes’ and ‘cockroaches’ would help authorize the killing of his neighbors, people who repeat the phrase ‘the Chinese virus’ may not realize its pernicious impact,” Tirrell explains. “I don’t think we should assume that there is a war planned against the Chinese in America but I do think that it sows the seeds of discrimination by connecting Chinese people with the virus.”

By rebaptizing the coronavirus as “the Chinese virus” with the authority of a president and insisting on the phrase, Trump has affirmed the racist and anti-immigrant narratives behind it. Calling coronavirus “the Chinese virus” had the effect of connecting practices one would take against the spreaders of a deadly virus — such as shunning them, kicking them out and even attacking them — to those who appear Chinese. One might argue that this rhetoric convinced people to rationalize discriminatory and hateful actions against Asians as fighting the virus.

The power of words can seem mysterious and insignificant, particularly in light of a rapidly spreading disease that has taken more than a hundred thousand lives. However, literature on the philosophy of language shows that words do make things happen. Though Trump’s coronavirus rhetoric cannot — and most definitely should not — be censored, we must acknowledge and discuss the damages inflicted by his anti-Chinese narrative.

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AMC, Face Masks, and Avoiding Political Controversy

photograph of empty movie theater with lights up

American cinema giant AMC made waves on social media recently when announcing its policies regarding the wearing of face masks in its theaters. Like a lot of businesses that are planning to reopen during the easing of restrictions in the wake of the coronavirus pandemic, AMC initially stated that they would take preventative measures in spacing out patrons in movie theaters and requiring employees to wear masks. Controversy arose, however, after the CEO Adam Aron reported what the chain’s stance would be with regards to requirements on the moviegoers themselves, one he stated in an interview with Variety:

“We did not want to be drawn into a political controversy,” said Aron. “We thought it might be counterproductive if we forced mask wearing on those people who believe strongly that it is not necessary. We think that the vast majority of AMC guests will be wearing masks. When I go to an AMC feature, I will certainly be wearing a mask and leading by example.”

Soon afterwards, however, the company reversed course. In a press release, they stated that in response to “an intense and immediate outcry” from their customers, and “with the full support of our scientific advisors” that they would instead be requiring all guests to wear masks in their theatres. Indeed, as wearing masks is considered by experts to be a good way to help prevent the spread of the virus, especially in enclosed spaces like movie theatres, AMC’s update policies appear to be a step in a better direction.

While AMC’s updated policy is one that better reflects current scientific advice, it is somewhat disheartening that the outcry had to occur for them to change their policies. However, Aron stated that what motivated AMC’s initial policy decisions was not necessarily a distrust of the recommendations of scientists, but rather an attempt to avoid a “political controversy” (of course, one might also read this as “an attempt to avoid losing customers who don’t want to wear masks”).

Say that an issue is politicized if one’s stance on it is a marker of a certain social or political identity. Politicized issues are not hard to find. Consider recent discussions in the US and the UK with regards to the removal of statues of figures who engaged in the slave trade: one’s stance on whether statues should be taken down or preserved can be taken as markers of one’s position on the left- or right-wing of the political spectrum, respectively. Many scientific issues in particular have also become politicized: one’s stance on global warming, for instance, will typically cause others to categorize one as being more left-wing if they accept the scientific consensus, or right-wing if they reject it.

It is perhaps not surprising that in America the wearing of masks has become a subject of political controversy, with those who refuse to wear masks tending to be more on the conservative end of the spectrum. Motivations for refusing to wear a mask include a belief that the dangers of the virus have been overstated, and that a mandate to wear a mask is perceived to be a violation of personal rights (at least in the minimal sense that one believes one should not be required by the government to do things one does not want to do). It seems clear that when it comes to scientific matters, what one ought to do is to follow the best available advice from the scientific experts. And, of course, there are important moral concerns surrounding how a refusal to wear a mask can put others at risk of serious harm. These are all important issues that have been and will continue to be discussed for a long time. And because the issue of wearing face masks has become politicized, these discussions will inevitably be political in nature: in taking a stance on the issue one risks being affiliated with progressive or conservative views, and thus risks offending those who do not accept such views.

But let’s say that you don’t really want to take a political stance. Maybe you’re exhausted by the endless debates, and fighting, or maybe you just really don’t want to risk making anyone mad at you by taking a side. You might be sick of all the politics, and just want to sit this one out. Can’t you do that?

This is perhaps what the CEO of AMC was trying to accomplish, and as the backlash to their attempts to avoid taking a political stance indicates, the answer appears to be that remaining neutral was not an option. While it may be one’s intention to avoid taking a stance on an issue that has become politicized, in some cases refusing to take a stance will itself place one on the political spectrum. In AMC’s case, while the choice to leave it up to moviegoers to decide whether to wear masks may have been intended to be politically neutral, that one should not be mandated to wear a mask is precisely the stance associated with the political right. Additionally, while it may have again been intended to not take sides on the scientific issue of whether masks are good preventative measures, given that the current recommendations by scientific experts is that people ought to wear masks in public, letting one’s customers decide again constitutes a rejection of the scientific consensus.

You might think that it is unfair to drag someone into a politicized dispute that they did not want to be part of. To which one might respond: too bad. Consider the following analogy: say that you and I are sitting in a dark room, arguing over whether we should turn the lights on. We both get tired of arguing, and decide that, to avoid further conflict, we will both refuse to take sides. In doing so, however, we have committed to a side, whether we wanted to or not: as a result of our refusing to decide, the lights remain off.

This is obviously a simple analogy for more complex situations. But what it shows is that controversies over politicized issues are not always the kinds of the things that one can avoid. Sometimes neutral ground just doesn’t exist.

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Removing Monuments, Grappling with History

Statue of confederate general Robert E Lee with spray painted writing on plinth

In the wake of nationwide protests against racial discrimination by the police, politicians and activists in a number of American cities have called for the removal of monuments to Confederate leaders from public spaces. The U.S. military even expressed its willingness to rename military bases named after Confederate generals. Some activists took matters into their own hands, toppling statues or defacing them with red-painted slogans and symbols.

Supporters of removal argue that Confederate monuments harm people of color by conveying messages of support for white supremacy. Critics allege that there is a slippery slope from Confederate figures to the Founding Fathers or Abraham Lincoln. They also claim that removing monuments is tantamount to an Orwellian erasure of history, the sort of practice one would expect in totalitarian regimes, not democracies. So, what should we do with the statues? 

Let’s examine the arguments in greater detail. The argument that Confederate monuments harm people of color is based on a claim about what the monuments mean, or what messages they convey. The intentions of their creators are a particularly important source of their meaning, since they determine such basic facts as what and whom they represent, as well as the values they express. Most monuments to the Confederacy were erected either in the wake of Reconstruction or during the Civil Rights movement, when African-Americans in the South were agitating for greater political power and social equality, and they were intended to express opposition to these developments. Even apart from this history, monumental, idealized depictions of leaders of a state dedicated to the perpetuation of racial slavery are reasonably interpreted as endorsements of the values the Confederacy embodied. And when these monuments are sited on public land, as most are, this can be reasonably interpreted as conveying the endorsements of the public and the state.

Why does this matter? As the philosopher Jeremy Waldron points out, public art and architecture are important means by which society and government can provide assurances to members of vulnerable groups that their rights and constitutional entitlements will be respected. Such assurances are an important part of people’s sense of safety and belonging. But when the public art of a society instead conveys endorsements of subordination and discrimination, this robs members of vulnerable groups of these assurances, transforming the public world into a hostile space and encouraging withdrawal into the private sphere. Thus, vulnerable groups that are intimidated by monuments that express approval for their subordination may be less able to advance their political, social, and economic interests. Importantly, none of these baneful consequences turn on anyone’s being merely offended by racist monuments.

What about the claim that tearing down Confederate monuments will inevitably lead to the removal of monuments to the Founders and other beloved figures? There is a kernel of truth to this argument: questioning the appropriateness of honoring Confederates likely will lead to questioning society’s attitudes towards other historical figures. But it is not clear that this should not happen. At the same time, there are morally relevant differences between some historical figures and others. For this reason, reducing the harms caused by monumental depictions of some historical figures need not always require removing them from public space. What government needs to do with respect to those monuments it wishes to keep on public display is (1) forthrightly acknowledge the problematic aspects of a historical figure’s legacy; (2) endeavor to reduce the harms that might be caused by the monument; and (3) provide an adequate justification for not removing the monument from the public space. For example, while Abraham Lincoln’s actions towards Native Americans were reprehensible on the whole, there is a good case for honoring those aspects of his legacy that continue to inspire citizens of all backgrounds. Yet the less honorable episodes of his presidency ought to be acknowledged alongside celebrations of his achievements. 

Some claim that removing monuments constitutes an erasure of history, comparing it to burning books. If “erasing history” simply means “destroying something that existed in the past,” tearing down a monument erases history in precisely the same way as tearing down an old house. But as this example suggests, there are many cases of erasing history that seem morally unobjectionable, and the mere fact that something from the past will cease to exist is not in itself a reason to preserve it. Opponents of taking down the monuments sometimes argue that they teach us important lessons about our shared history. This argument at least offers a reason why it might be desirable to preserve this particular class of objects. The trouble is that the story they tell is often distorted and misleading precisely because they were intended not to educate, but to intimidate one group of citizens and cultivate admiration for the Confederacy in another. Monuments are more like billboards than books. Museums can educate the public more effectively than monuments, and without the negative consequences described above. Indeed, in some cases, monuments have found new homes in museums, where they can be properly contextualized for public consumption. 

 As Americans continue to grapple with their history, it seems likely that monuments to the Confederacy will not be the last lapidary victims of our historical reappraisals. But at least with respect to Confederate monuments, public opinion is coming around to the fact that this is a necessary and justified concomitant of the effort to make our society more equal and more just. 

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Consent, Commodification, and Anderson Cooper’s Surrogacy Case 

Anderson Cooper standing at a podium with a woman sitting in a chair behind him

Recently, CNN anchor Anderson Cooper announced the birth of his son through surrogacy. On June 10th, Cooper and his son made an appearance on People magazine where Cooper talked about the experience of surrogacy and raising his 6 week old son. However, his decision to have a baby through surrogacy has been met with significant controversy: where some congratulated Anderson Cooper, others questioned the ethics of surrogacy. Surprisingly, surrogacy isn’t a partisan issue where even in left leaning circles, many disagree about surrogacy’s place as a way for gay or lesbian couples to have a chance to raise a child while others argue it is a commodification of women’s bodies. Anderson Cooper’s surrogacy case is now starting larger discussions about the ethics of surrogacy. 

The first question that arises is if surrogates can give informed consent. The definition of informed consent is stated as permission granted in the knowledge of the possible consequences with full knowledge of the possible risks and benefits. When a surrogate signs a contract to give all legal rights away to the connection of the child, many times, surrogates do not know the feeling of the emotional bond of mother to baby nor the experience of carrying a child. So how could a surrogate, especially a first-time mother, know the experience of having a strong emotional bond to the baby? They don’t, so to have potential surrogates sign contracts, while not knowing the experience of being mothers, means that surrogates cannot give informed consent because they cannot possibly know what it is like to give up their baby. 

However, even if a surrogate is not a first-time mother and can give full consent, one needs to consider whose choice is forgotten in this case? The baby’s choice. If you put yourself in the baby’s position, would you want to stay with your mother or a foreign family you are being sold to? Not only can some surrogate mothers not give full informed consent, but the baby’s preferred choice has not been taken into account. Many think only two parties are involved in surrogacy: the surrogate and the adopters, but the baby is the third party that has to be considered.  

Secondly, surrogates cannot provide informed consent because surrogacy disproportionally attracts women of lower income. This explains why surrogacy is especially prevalent in developing countries such as Ukraine, Russia, and India where laws are lax and many people are of lower income. Whether or not surrogates are from the US or other countries, women who are struggling through financially hard times are more vulnerable to coercion due to the mindset of scarcity when struggling through poverty. Women are often coerced into risking their health or even their lives when signing the unbreakable contract to giving away the child. Furthermore, when in circumstances of financial scarcity, potential surrogates are more likely to sign exploitative contracts where pregnancy-related medical issues during or after pregnancy are not covered or where the surrogate is not sufficiently paid. 

Another key part of surrogacy is if it pays for the baby, the service, or both. The answer yields two very different moral viewpoints; if surrogacy pays for a baby, this means a baby is being bought and sold, putting a price tag on human life. This carries enormous consequences to individual rights of the modern world because it would mean human life and value can be measured instead of being infinitely valuable. But if surrogacy only pays for the service of carrying the baby, some would say there isn’t much of a difference between a surrogate and a 24/7, nine-month-long babysitter. The debate around if surrogacy is a payment for the service or the baby depends on the situation. If the surrogate mother is artificially inseminated, some argue surrogacy pays for the baby because it uses the oocyte of the surrogate to produce the baby. If the surrogate were to carry an embryo of the biological parents, then it would be considered a service, because the surrogate is only raising the baby in the womb, not providing reproductive material. However, this reasoning leads to the assumption that new life (reproduction) starts at conception. If one believes that life starts at birth, then surrogacy implies paying for the baby because the pregnancy is part of the process of making new life. Surrogacy would only seem ethically permissible if the surrogate is carrying the “living” embryo of the two biological parents, because the embryo has already been created and now carrying it is a service. Even then, a biological reproductive service seems quite different in moral worth from an economic service like babysitting. 

However, advocates of surrogacy would argue that disallowing women to sell their reproductive services would be unequal, because men are able to sell their reproductive services. So why would we allow sperm donation but not allow surrogacy? There are two significant differences between sperm donors and surrogate mothers. Sperm donors can give implied consent because they have full knowledge of how their sperm will be used, whereas surrogates might experience unexpected effects like an emotional bond to the baby. Secondly, surrogacy requires nine months of pregnancy and the delivery of a baby, while sperm donors have no interaction with the baby; therefore, these differences cannot be held at an equal standard. Rather, egg donors seem to be the equal standard to sperm donors since both meet the same standards of consent and disconnect from offspring. In surrogacy, the moral worth of mother and baby and the ability to develop new life is inexplicably precious, but putting a monetary value on pregnancy might degrade the intrinsic value of carrying and delivering a baby. Society would no longer view pregnancy as an unbreakable bond with a baby but view it as something able to be bought and sold. 

To exemplify this concept of how money changes societal morals, consider the case of an Israeli child care center. The childcare center wanted to decrease the number of parents late to pick up their children, so it implemented a small fine for parents who arrived late for pickup. The result had the opposite effect than many predicted: more parents picked up their children late; the societal moral standard to not give the childcare workers a burden was gone. By implementing a monetary value on being late, it degraded the moral standard of being late. The childcare center reversed the decision after experiencing higher rates of late pickups, but even afterward, the childcare center continued to experience the high rates of late pickups. Once a monetary number is assigned to something, it can degrade the moral value of it. The same might happen to pregnancy if surrogacy was widespread: the intrinsic value of the bond between mother and baby would simply be defined by financial cost. The mother to child bond is something inexplicably precious. We see it when adopted children go looking for their biological mothers or mothers spend years looking for their lost child. This emotional bond is sacred; it’s something no one would put a moral utility measurement on. However, surrogacy risks breaking the mother to baby bond because something infinitely and intrinsically valued has changed to a monetary value.   

In the end, although Anderson Cooper’s case has been one of few high profile cases of celebrities taking the path of surrogacy, the surrogacy process is often used by many people who want biologically related children. On the surface, surrogacy may seem like a 9 month biological babysitter, but surrogacy brings along serious moral questions that need to be addressed. From (un)informed consent, exploitative contracts, the transaction of human beings, and the degradation of mother-baby bonds, surrogacy could have dangerous moral implications to human wellbeing and the core question of human value.

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Gorsuch, Textualism, and The Magic Lamp

Detail of the SCOTUS building that reads "equal justice under law"

If you’re wondering how a conservative justice could have sided with the liberal side of the Supreme Court and rule that the 1964 Civil Rights Act protects homosexuals and transgender persons from workplace discrimination, the best analogy to think of is when a genie from a magic lamp interprets your words so literally that you get something completely opposite of what you want. 

Neil Gorsuch, like his predecessor Antonin Scalia, is an avowed textualist–someone who thinks that we ought to interpret federal laws based on what they literally seem to say and what those literal statements logically entail. They disavow the idea that we should look to what authors of the law intended (or would have done had they foreseen the consequences of the law they’ve written). They are staunchly opposed to the tendency toward judicial activism or legislating from the bench. Instead, they are adamant that the courts should not be engines of social change, and believe that this temperance is necessary to preserve our system of checks and balances. Given the fact that judges aren’t directly accountable to the people, they believe that if the law needs to change, the legislature should be the body to enact that change. The duty of a judge, then, is simply to ensure that the laws are faithfully discharged in a manner consistent to the way they were enacted.

In this case, the law prohibits discrimination (even in part) based on sex. And in 1964, “sex” was defined in terms of one’s biological makeup at birth. So how does a textualist look at a law from 1964, which defined “sex” in terms of biology, and find a law that protects people based on their sexual orientation or gender identity? 

I asked myself the exact same question, so I looked at Gorsuch’s opinion in Bostock v. Clayton County, GA, and the answer lies in this sentence: “Because discrimination on the basis of homosexuality or transgender status requires an employee to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII.”

Think about it. You can’t label someone as homosexual without reference to their biological sex. A homosexual man is a “biological man” who is oriented toward men. A transgender woman was assigned male at birth but identifies as a woman. Because those identities essentially contain biological sex, if you disciminate against someone based on these identities, then you discriminate against them in part on the basis of their sex (as defined in 1964). 

Now, you might be thinking, “But surely when they wrote the law in 1964, if they could have seen that the consequences of that law (as written) would protect homosexuals and transgender persons, they would have written it differently.” You’re probably right. But you’re also making an argument that is decidedly not textualist.

Justices Alito and Kavanaugh disagreed with Gorsuch’s textualist logic. Alito argued that “Textualists do not read statutes as if they were messages picked up by a powerful radio telescope from a distant and utterly unknown civilization.” Kavanaugh criticized the majority for taking a “literalist” approach rather than a textualist one, suggesting that the majority chose instead to “simply split statutory phrases into their component words, look up each in a dictionary, and then mechanically put them together again.” To the dissent, the majority opinion did indeed usurp legislative power. 

In personal terms, Gorsuch’s majority opinion might not have come as a surprise: he worked as a clerk for former Justice Kennedy, who played a pivotal role in Obergefell v. Hodges, and Gorsuch’s friends have expressed that he’s supported gay friends and attended churches that welcome gay members. 

So perhaps this is why the genie analogy is a propos. Gorsuch is a textualist. He is that genie in the lamp who reads things (and their logical consequences) quite literally, and for some, these readings result in wishes that really do come true. 

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Protest Selfies and the Wrong of Grandstanding

A group of six people holding signs at a protest, gathering to be included in a selfie taken with a phone

On June 5th, Kris Schatzel posted a picture to her Instagram account showing herself holding a sign reading “Black Lives Matter” while at a protest in California. Shortly thereafter, Schatzel became the target of heavy criticism when a video surfaced showing how she staged the photo with a friend without actually participating in the march. As a so-called social media “influencer,” Schatzel has been accused of selfishly treating the crowds of people protesting the murder of George Floyd as just a scenic background for another picture to send out to her more than 240,000 followers (a charge Schatzel denied before restricting public access to her account).

But what might this story say about the hoi polloi of social media feeds? If you attend a protest, should you take a picture of yourself and post it on the internet? Or are you doing something wrong by sharing your protest selfies (even if your follower list is considerably shorter than six digits long)?

It seems like such social media posts could be defended in basically two ways: insofar as protest selfies continue to spread awareness of the protest’s mission and demonstrate your personal support for those goals, these pictures might play a role (however small) in promoting the interests of the protest in general. The importance of the internet (and, in particular, hashtags on social media) cannot be overestimated in contemporary social activism,and protest selfies fuel a significant portion of that. If one goal of public protests is to maximize visibility for a cause, then increasing the number of digital artifacts associated with a protest can indeed help to maximize outreach about the protestors’ message. Furthermore, on an individual level, personally aligning yourself publicly with a protest signals your support of the cause to your peers in a way that can serve to promote further conversations and explorations of the protestors’ message. If protest selfies are taken and posted in earnest, then they might indeed be fruitfully situated within the topography of contemporary activism (particularly when contrasted with the relatively effortless forms of “slacktivism” that now pepper the internet).

However, at least three other factors should be considered when weighing the ethics of protest selfies: the possibility of endangering protestors, the potential to objectify protestors, and the problem of moral grandstanding.

The first issue is clear-cut: though often unintentional, posting pictures and videos of any kind (selfies or not) from a protest runs the risk of exposing protestors to retaliation from employers, law enforcement, or others who would look negatively on their involvement in the protest. Even when rudimentary privacy measures (like face-blurring) are employed, digital fingerprints like picture metadata are routinely scraped by programmers of all stripes; posting your photos can contribute to coordinated efforts to expose the identities of protest participants.

More problematic, however, is the potential that your protest selfie objectifies the very people whom you might be seeking to support. Even if your picture isn’t simply staged (and you do genuinely participate in the protest) you might still be using the people around you as framing devices for a photograph that centers you more than the message that the protest is meant to amplify. Particularly when such framing is done intentionally (a practice which happens more frequently than some might think), treating other people like simple stage props is clearly morally wrong.

Which leads to a third way that protest selfies might be criticized: as examples of what has been dubbed “moral grandstanding.” As Justin Tosi and Brandon Warmke describe it, this is what happens when someone makes public declarations of moral judgments for the express purpose of drawing favorable attention to themselves; that is to say, to grandstand is “to use moral talk for self-promotion.” Such a move is sometimes referred to colloquially as “virtue signalling” and serves as a subclass of Harry Frankfurt’s notion of bullshit (where a speaker makes a claim simply to provoke a particular response in their audience): moral grandstanding co-opts ethical discourse on a topic to instead draw attention to the speaker rather than the topic itself. 

This seems like what Schatzel was guilty of (in addition to objectifying the protestors and, by suggestion, lying): by invoking the language of the Black Lives Matters protests while centering herself in her Instagram post, she certainly seems guilty of seeking positive, self-focused affirmations in the characteristic manner of the grandstander. Insofar as protest selfies perpetuate similarly dishonest projections fueled by egotistical attitudes, they can also be criticized as morally corrupt.

However, because the key difference between the grandstander and the sincere person speaking earnestly from her heart is one of motivation that is entirely inaccessible to external judges, Tosi and Warmke warn against focusing on diagnoses of others’ faults;  instead, “thinking about grandstanding is a cause for self-reflection, not a call to arms…it’s an encouragement to reassess why and how we speak to one another about moral and political issues.” If we are sharing pictures of ourselves simply to seek some form of social capital, then we might indeed have another reason to pause and think twice before tapping the “Post” button. 

But if our motives are genuinely altruistic — and we have considered the safety and dignity of those whom we might affect with our actions — then we could well be morally justified in sharing our protest selfies and continuing to promote a cause worth defending.

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The Moral Pitfalls of Color-Coded Coronavirus Warning Systems

Color-coded chart showing the risk of covid-19 in UK

As states around the country ease lockdown restrictions, some are putting into place systems advising people about threat levels. In some states, these are color-coded systems that strongly resemble the Homeland Security Advisory system, put into place by George W. Bush to inform people about the risk of threats from terrorism after the September 11th terrorist attacks. 

Utah, for example, has a four-tiered system: a red designation indicates high risk, an orange designation indicates moderate risk, a yellow designation indicates low risk, and a green designation indicates “new normal.” The color-coded systems of other states and some other countries largely follow this same model.

It’s important to remember that there were lots of serious problems with the Homeland Security Advisory System, and it was eventually abandoned and replaced. Many of the problems had to do with the fact that color-coded systems are vague by their very nature. People have a sense that red means “stop” and green means “go.” Very few people will investigate the situation further. As a result, these systems are easily manipulated for political purposes. Color-coded systems don’t encourage careful, responsible thinking about risk. They encourage behavior motivated by sentiment rather than reason, and sentiment is easily coerced. Politicians tend to be excellent at cultivating certain kinds of common sentiments that drive political behavior and the Homeland Security Advisory System roused both fear and xenophobia. These are powerful forces and invoking them caused people to make voting decisions that they might not otherwise have made, to support wars they might otherwise have found unjustified, and to accept unprecedented privacy violations on the understanding that they were being protected from imminent harm.

Color-coded responses to coronavirus operate according to similar principles. If people want to know the current level of danger posed by coronavirus, they should be paying attention to the relevant data. How many new cases is a state discovering each day? What are the hospitalization rates? How many people are dying? These color-coded systems are not responsive to these important considerations. For example, there was recently a major outbreak of coronavirus at the JBS meatpacking plant in Hyrum, a city in Northern Utah. The outbreak was the biggest hotspot yet discovered in the state. At this point, 287 workers at the plant have tested positive for COVID-19. This meat packing plant refuses to shut down or to give employees meaningful time off to heal. 

Hyrum is in Cache County, and despite the unknown extent of the spread, Cache County remains in the yellow “low risk” zone. In fact, even in light of the outbreak, the Cache County Council voted to request that the county be moved to the green designation. As one councilperson put it, “I’m in the age group that’s most likely to die, but I’ve had a good life and I say let’s get on with it. That may sound like I’m being pretty casual about it, but that’s the way I feel.” If an area like Cache County requests a green designation on the basis of these kinds of considerations, the system is not responsive enough to actual data.

The Cache County example also illustrates the point that these vague, color-coded systems track not a set of facts, but a set of values. Many states have decided that thriving economies are more important than the lives of the vulnerable, but they haven’t exactly made this value judgment explicit so that people can evaluate it and respond accordingly. Instead, the values are obscured by color designations that look for all the world like they are based on public health considerations.

Instead of motivating people with fear, coronavirus color-coding systems encourage a different form of cognitive bias—wishful thinking. People across the country are sick of lockdown. They are exhibiting quarantine fatigue. They are sick of travel restrictions and of being prevented from engaging in their favorite consumer activities, especially during the summer. The fact that coronavirus cases have reduced dramatically in places like New York is causing the national curve to flatten. This doesn’t tell us anything encouraging about what is happening across the rest of the country. People have self-interested reasons to interpret the numbers favorably, even though there is no evidence-based justification for doing so. These warning systems also undercut good critical thinking practices in another way—they encourage people to disregard the advice of experts on infectious disease. The best available evidence we have now suggests that people should wash their hands regularly, maintain social distance from others, and wear a mask in areas where social distancing is difficult. It’s hard to get people to engage in these practices regularly anyway, and it is even more difficult to convince them that they should be doing so when their county is in a yellow or even a green risk designation.

At least in Utah, these systems do track some data, but not the data people might be inclined to believe. They are not tracking information relevant to whether people are actually safe to participate in social and consumer activities again. Instead, decisions are being made on the basis of how many hospital beds are available in a given area. The concern is not about whether people will contract the disease, but about whether health care systems will be overwhelmed if and when they do. This isn’t a metric we would stand for in other cases. Consider the following analogy. City officials are aware that the water at the local beach is infested with dangerous man-eating sharks. They are tasked with making recommendations about the safety of getting in the water. Tourism to the beach generates a lot of revenue every year, so it is in the state’s interest for the water not to be infested with man-eating sharks. Officials determine that the health care system is well equipped enough to treat people for shark bites, so they advise people that it is safe to swim in the water. Presumably, residents would think that this was an unconscionable decision and there would rightly be a degrading of trust in the public officials that were so callous with people’s lives.

The Homeland Security Advisory System was eventually replaced with the National Terror Advisory System, which was designed to “more effectively communicate information about terrorist threats by providing timely, detailed information to the American public.” Both terrorism and public health are high information issues about which it is difficult for the public to be fully informed.  Nevertheless, we should encourage people to be engaging with actual data rather than with colors that lull them into a false sense of security. 

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The Immorality of Nonhuman Police Officers

Police officer on horseback. Both horse and person are shown from behind

The number of non-human police officers currently in the United States is not known. 

Although law enforcement dogs and horses are routinely featured on departmental social media pages and in pop culture, the Bureau of Labor Statistics only tracks human employment data; this means that the 665,000 police and sheriff’s patrol officers counted in May of 2019 (and the over 423,000 additional correctional officers at that time) were all our fellow mostly-hairless bipeds. In 2010, the secretary of the North American Police Work Dog Association made a “wild guess” that more than 50,000 canines were being actively used by law enforcement officers of one kind or another; the higher costs of caring for horses means that their numbers have always been much lower by comparison, with many large cities maintaining a mounted police force numbering in the dozens, largely for reasons of pageantry and public relations.

However, to be precise, the first sentence of this article is incorrect: because only humans can be real police officers, the canine or equine law enforcement population is, technically, zero. Although police animals are often described and honored as full representatives of the organizations that own them, they are not literal members of the police force and are not obligated to carry out the duties of such an office. Dogs do not swear oaths to protect and serve their communities; horses are not licensed agents of the state. Police animals are police property, which is why their mistreatment is prohibited by the “Malicious Mischief” section of the U.S. Code that protects government-owned assets.

Although the motivation for police using non-human animals might be understandable, it poses several significant ethical questions that should be ignored.

Typically, police departments use dogs and horses in three basic ways: as shields to preserve the well-being of police officers, as devices to accomplish technical goals, and as props to bolster positive publicity. As the American Kennel Club describes, K-9 units are frequently “the first ones to put their lives on the line and go in against an armed suspect to protect their human partners;” in this way, police animals are essentially fuzzy versions of kevlar vests. In the second case, and perhaps most famously, dogs and horses are deployed as organic devices that perform tasks like detecting illicit substances or blocking pedestrian traffic; by co-opting the unique abilities of their species, police departments literally instrumentalize non-human animals as a standard operating procedure. But, most notoriously, the optics of cute and cuddly creatures are a powerful tool for manipulating public opinion about police behavior — so much so that Ray Allen Manufacturing, a leading provider of equipment for police K-9 units, explicitly discusses “public relations” as a key element of their marketing strategy.

Each of these uses is, at best, ethically dubious. Intentionally endangering the lives of innocent creatures is often taken as a paradigmatic example of immoral behavior — one that is only compounded by the fact that their training regimens make police animals place themselves in harm’s way. Regardless of the affection or honor shown to them during or after their deaths, insofar as these animals are taught to prioritize the interests of others over their own, they are subject to a kind of “bad faith” and are thereby prevented from being the sorts of creatures that they would otherwise freely be. (One might almost call them something like four-legged “serious men” in Beauvoir’s sense!) 

Moral philosophers disagree about the propriety of animal husbandry as a whole: some argue that labor-extraction from non-human animals is always, in principle wrong; others say that it is at least possible for humans to ethically benefit from animal labor under certain conditions, chief of which requires the constant protection of the animals’ welfare. Either way, it’s far from clear that what is good for a dog involves being able to identify the scent of cocaine or that a horse’s own good includes being able to march in formation in a city’s parade. 

Finally, the exploitation of public affection for non-human animals to parasitically improve popular opinions of police departments seems to be a text-book example of propaganda with all of the questionable moral baggage attached to such a practice. And even if such emotion-manipulating effects are engendered unintentionally, their real-world consequences (in matters like policy support and voting behavior) nevertheless demand our attention. 

Ultimately, it is true that many police animals enjoy their lives in the company of attentive care-takers (though a surprisingly large number of counterexamples exist), but Christine Korsgaard points out at least one more relevant difference between police officers and the animals they own: dogs and horses cannot choose to become police animals, but must always be drafted across the thin blue line. Although every single police officer currently serving does so voluntarily, the same cannot be said about any of their animal “partners.”

So, as the national conversation continues to focus on the immorality of many policing practices and the need for widespread policy change, the role of non-human animals within police departments deserves a portion of that attention as well.

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The Vigilante “True Man” Is Not a Good Man

photograph of crime scene tape with police car in background

To be a vigilante is to take upon yourself at least the role of a police officer, assuming that your goal is simply to enforce existing laws. Vigilantism can, and often does, go further, effectively assuming both legislative and judicial power as well. If a vigilante or “vigilance committee” detains people for violating laws that don’t exist, but which they believe should exist, or enacts any form of pseudo-punishment on people for either existing or imaginary laws, then they further effectively usurp legislative and judicial power respectively. Vigilantism is undesirable in the extreme, and statutes or rules that encourage it a likewise undesirable. Generally, police power should be kept out of citizens’ hands.

The dangers of laws that facilitate and encourage vigilantism can be seen clearly in the cases of both Ahmaud Arbery and Trayvon Martin. Both were killed while doing nothing wrong because they were suspected of wrongdoing by overzealous citizens who took matters into their own hands. On top of the laws themselves, racially-based inequality in the execution and adjudication of the laws further emboldens vigilantes to pursue their own “justice” against Black Americans and other vulnerable populations. 

George Zimmerman was tried for killing Trayvon Martin, but was acquitted of the charges of second-degree murder and manslaughter. The DoJ stated that Zimmerman’s actions did not rise to the level of a hate crime as defined by federal statute. Gregory McMichael, Travis McMichael, and William Bryan were all arrested on charges of felony, murder, and false imprisonment pursuant to the killing of Ahmaud Arbery. However, these arrests did not occur until more than two months after the incident. Arbery was killed on February 23, 2020 and the McMichaels weren’t arrested until May 7, 2020. William Bryan was arrested on May 21, 2020. The men charged for Arbery’s death will likely use the same affirmative defense that Zimmerman did. That is they will admit that they committed the action of killing, but assert that the action was legally excused or justified because they were defending themselves from bodily injury and death. 

Laws and rules allowing people to claim self-defense against charges of homicide are desirable. A person may not have the time or opportunity to depend on police or fellow citizens to help them. Reasonable self-defense laws allow a person to prevent death or serious bodily harm to themselves or others due to the wrongful actions of another person by use of necessary and proportional force. For example, if a person forcibly enters a home and corners you and an acquaintance in a room, both of you should be immune to both civil and criminal liability for any harm inflicted upon the assailant necessary to prevent them from harming you, necessary to cause them to flee, or necessary to subdue them until police arrive. 

The right for a person to defend their life and property, sometimes with deadly force, is deeply engrained in U.S. society. However, the free rein given to use of legal force differs from one state to another. For altercations in public spaces, as in the killings of Trayvon Martin and Ahmaud Arbery, the operative question is whether there exists a duty to retreat. If a state, either by statute or case law, imposes a duty to retreat on people, that means that they cannot claim self-defense against charges of homicide unless they were not plausibly able to flee from their assailant. Every state recognizes some form of exception to the duty to retreat when a person is in their own home or property—the so-called “Castle doctrine.” If a state does not impose a duty to retreat from altercations in public spaces, then it has some form of “Stand Your Ground” law or rule. 

Both the Castle doctrine and Stand Your Ground laws emanate from another doctrine, the so-called “true man” doctrine. This is meant to serve as a principled reason in favor of rule concerning self-defense. The idea is that a person who is doing nothing wrong, who is acting wholly within their rights, should not be obliged to give any ground to someone engaged in wrongdoing. Florida has a Stand Your Ground statute under which George Zimmerman was able to assert that he was defending himself from the aggression of Martin, even if that aggression was caused by Zimmerman’s nighttime pursuit of Martin. It is also likely that the killers of Ahmaud Arbery will also claim self-defense as Georgia also has a Stand Your Ground statute. 

The idea that a morally faultless person shouldn’t, or at least shouldn’t be required to flee is not obvious. This smacks of a sort of recklessness that is expressly disavowed by at least one central moral theory, namely Aristotelean virtue ethics. One of the central tenets of this ethical system is the doctrine of the mean, which states that every virtue—that is, every morally positive character trait—lies at a midpoint between two extremes, which are vices. On one side there is an extreme of deficiency—of doing too little. On the other side there is an extreme of excess—of doing too much. Courage is one of the central virtues that Aristotle discusses, and it is, like any other virtue, in between two extremes. Cowardice is the vice of deficiency and recklessness is the vice of excess between which lies the virtue of courage. However, the true man doctrine appears to endorse recklessness. Whereas Aristotle’s ethical sage will fear and flee from some dangers, the true man of common law will not.  

Both the Ahmaud Arbery and Trayvon Martin killings also involved citizens engaged in attempts to detain people they suspected of criminal activity. Comments from Georgia District Attorney George Barnhill suggested that Gregory and Travis McMichael were acting within their rights under Georgia’s laws concerning citizen’s arrest. However, the need for citizen’s arrest originally stemmed from the lack of professional police forces—a need that has long since disappeared. Moreover, as the standards of evidence for criminal conviction have become more complex and the protections for people being placed under arrest have become more extensive, the plausibility of a citizen making a legitimate arrest has become more ludicrous. As a matter of bare law, most state statutes require that an arresting citizen have direct or immediate knowledge that the person they are arresting has committed a crime. Whether a given arrest meets such a standard is a legal question most citizens are not equipped to determine. 

Just Stand Your Ground laws abet and endorse a kind of physical recklessness, as do citizen’s arrest laws that abet and endorse a kind of epistemic recklessness. Even the sporadic acts of vigilantism they spawn swamp any civic value they might create. People’s right to defend themselves, their property, and others can be upheld by better means. 

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Hydroxychloroquine and the Ethical Pitfalls of Private Science

A box of hydroxychloroquine sulphate tablets held by a hand with coronavirus written in background

Last week, news broke that a significant study into the effects of hydroxychloroquine for treating COVID-19 relied on data that has now been called into question. The effects of this study, and other studies that relied on data from the same source, were profound, leading to changes in planned studies and in treatments for COVID-19 being prescribed to patients. The fact that this data comes from an unaudited source highlights the ethical concerns that stem from having an increased corporate role in science.

In late May, a study published in the elite medical journal The Lancet suggested that COVID-19 patients taking chloroquine or hydroxychloroquine were more likely to die. The study included over 96,000 patients, relying on electronic health data from the company Surgisphere run by Dr. Sepan Desai, who was also included as a co-author of the article. It found that at 671 hospitals where COVID-19 patients had been prescribed hydroxychloroquine, the risk of death was over twice as great as patients who were not prescribed the drug. An additional study using data from Surgisphere investigated the uses of blood pressure medication and was published in a paper for The New England Journal of Medicine. A third paper using Surgisphere data was available as a preprint which suggested that ivermectin significantly reduced mortality in COVID-19 patients. All three papers have been retracted.

The retractions occurred after discrepancies were noticed in the data. The reported doses of hydroxychloroquine for American patients was higher than FDA guidelines and the number of Australian deaths were higher than official statistics. There was also a discrepancy between the small number of hospitals included and the vast number of patient records. Following this, independent auditors were asked to review the data provided by Surgisphere; however, the company refused to provide the data, citing confidentiality requirements with the hospitals. Yet investigations found that no hospitals located in the US admitted to participating with Surgisphere. 

Surgisphere itself is also a suspect source. The company was founded in 2007 but has little online presence. Their website does not list partner hospitals or identify its scientific advisory board. It claims that the company has 11 employees. Their enormous database doesn’t seem to have been used by peer reviewed studies until May. Desai himself also has a colorful history, including a record of three outstanding medical malpractice suits against him. 

The studies had significant impact world-wide. Following the report that hydroxychloroquine increased mortality rates in patients, the WHO announced a “temporary” pause into their studies of hydroxychloroquine (they have since resumed their efforts). The studies also played a role in the national conversation about the drug in the United States following President Trump’s announcement that he had been taking it to combat the virus. The preprint on ivermectin was never officially published, but it did lead to changes in treatment protocols in South America. In Bolivia, a local government planned to hand out 350,000 doses of the drug after receiving authorization from the Bolivian Ministry of Health. The drug was also cited as a potential treatment in Chile and Peru. 

This episode highlights several general moral issues. Retraction scandals at a time when the public is looking to, and relying on, medical science are dangerous. The situation is intensified by the fact that these controversies are tied to the political debate over hydroxychloroquine, as it may undermine science along partisan lines. Polls show that Democrats are far more likely than Republicans to have a great deal of confidence in scientists to act in the best interests of the public — yet such scandals further undermine public trust and make science seem more partisan. 

The matter also raises ethical issues within the sciences. According to Ivan Oransky from Retraction Watch, the case represents larger systematic issues within the sciences, noting that even leading journalists rely too heavily on an honor system. For example, the pandemic has led to warning signs about the use of preprints in journals, which have moved away from getting feedback while studies are being finalized to sharing “breaking data” as fast as possible, despite the lack of peer review.  

The Surgisphere episode highlights the ethical pitfalls of science relying on private sector companies for research. Since the twentieth century, the private sector has been an increasing source of scientific funding. In the United States, private funding accounts for 65% of research and development spending in 2013. There are good reasons for private sector investments and corporate-university level partnerships. The public sector has shown less willingness to supply the needed funding. As Ashtosh Jogalekar points out in an article for Scientific American, investments by private interests have allowed for many projects to be funded which might not be funded otherwise. He notes, “For these billionaires a few millions of dollars is not too much, but for a single scientific project hinging on the vicissitudes of government funding it can be a true lifeline.” It has also been noted that private funding can ensure cost-effective replication studies are possible, especially important since efforts to produce reproducibility were only successful in 40% of experiments published in peer-reviewed journals. 

On the other hand, according to Sheldon Krimsky, the author of Science in the Private Interest: Has the Lure of Profits Corrupted Biomedical Research?, numerous problems can occur when scientists partner with private corporations. Krimsky finds that publication practices have been influenced by commercial interests: the commercialization of science has led to a decline in the notion that scientists should work in the public interest, and sharing data becomes more problematic given the use of paywalls and intellectual property protection. This makes it more difficult to verify the data.

There are many ways corporations can complicate data-sharing. By choosing not to release unflattering findings or claiming data as exclusive intellectual property, companies can make it difficult for others to use research (consider Diamond v Chakrabarty which began the precedent for allowing genetically modified organisms to be patentable). And, of course, the Surgisphere episode is an example of university-level researchers working in collaboration with a private company where the company retains sole control of the data. Such cases allow for fraud and suffer from a lack of oversight. 

One proposed solutions is to move towards “open science,” making publications, data, and other information open and accessible to everyone. Such a move would allow for both increased transparency and accountability as well as more rigorous peer-review. Under such a system, falsified data would be more difficult to provide and more easy to detect. 

While many of these issues have been brewing for years, it is not every day that a single published study can have the kind of global impact that came with investigations into the effectiveness of hydroxychloroquine, even while other independent studies have also demonstrated its ineffectiveness. The ethical fallout from this scandal is thus far more obvious given public interest in the disease. Indeed, there have already been calls to stop private speculation into COVID-19 research; part of this call includes the position that all intellectual property should be made available for free to the international scientific community for fighting the pandemic. The question now is what specific reforms should be implemented to prevent scandals like this from happening again?

 

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Black Lives Matter: Australia

Protest in Australia; two signs are visible: one reads "lest we forget the frontier wars, black lives, white lies" and one shows a black and red image of Australia with the word "genocide" written on it

Our public discourse [is] full of blak [sic] bodies but curiously empty of people who put them there. Alison Whittaker

This weekend protestors for Black Lives Matter in Australia took to the streets in contravention of Covid-19 health warnings to join worldwide protests sparked by the murder of George Floyd to highlight police violence against people of color and to once again raise the issue of Aboriginal deaths in custody.

The statistics and the stories of Black deaths in custody is a vexed issue in Australia, and a national disgrace. In the 30 years since a royal commission was conducted, successive governments have failed to implement many of its key recommendations; and in that time 432 Aboriginal Australians have died in police custody. Despite the manifest violence, negligence, and displays of overt racism around these deaths, charges against police are rarely brought, and there has never been a conviction for an Aboriginal death in custody in Australia. 

Indigenous activists and families of victims have been trying, with only incremental and limited success, to elevate the issue in the wider Australian public. Most of the names and stories of these people are not known to most Australians. 

In a piece for The Conversation, Alison Whittacker, law scholar, poet and Australian Indigenous activist, writes,

“Do you know about David Dungay Jr? He was a Dunghutti man, an uncle. He had a talent for poetry that made his family endlessly proud. He was held down by six corrections officers in a prone position until he died and twice injected with sedatives because he ate rice crackers in his cell. Dungay’s last words were also “I can’t breathe”. An officer replied ‘If you can talk, you can breathe.'”

The statistics for Aboriginal incarceration in Australia are mind-blowing. In some areas in the country, Aboriginal people are the most incarcerated people on earth; They make up roughly 3.3% of the overall population but account for 28% of the prison population. Aboriginal women represent 34% of the overall national female prison population.

The 460 deaths in custody since 1990 is a terrible number, and to each belongs a story – a life, and then a death of indignity, of violence, of neglect. As in the US, in Australia it belongs to an historical legacy of rapacious, brutal colonial expansion. 

May 27 to June 3 is Australia’s National Reconciliation Week. These dates mark two significant milestones for Aboriginal people. One is the 1967 referendum, which for the first time recognized Aboriginal Australians as citizens. The other is the High Court native title decision known as Mabo, which overturned the legal doctrine of ‘terra nullius’ – the principle by which the Crown acquired sovereignty of the continent in 1788, on the basis that the lands were lands ‘belonging to no one.’ 

But there is still a long way to go for Australians to come to terms with the history of frontier wars, which morphed into state maintained forms of oppression and violence, and then into official government policy of forced removal of Aboriginal children from their families. This history is not visible enough to, nor unflinchingly acknowledged by, wider Australia. Nor are the tendrils visible which reach through that history into the present, holding Aboriginal people in all sorts of disadvantage. Disadvantage that is reflected in the statistics. As the Uluru Statement from the Heart says:

“Proportionally, we are the most incarcerated people on the planet. We are not an innately criminal people. Our children are aliened from their families at unprecedented rates. This cannot be because we have no love for them. And our youth languish in detention in obscene numbers. They should be our hope for the future. These dimensions of our crisis tell plainly the structural nature of our problem. This is the torment of our powerlessness.” 

What, at this time, now, can be said and done about the work of reconciliation? In 2000, 300,000 people walked across Sydney Harbour Bridge to show their support for reconciliation. This year, then, marks the twentieth anniversary of ‘the bridge walk’. Yet material change has been frustratingly slow, and in some indicators, things are going backwards. 

The 2018 Close the Gap report on Indigenous health and education targets and outcomes found child mortality at twice the rate for Aboriginal children, school attendance rates declining, and a persistent life-expectancy gap of almost a decade between Indigenous and non-Indigenous people. 

Perhaps reconciliation has had its moment. It was maybe only the first word Australians have learned in the lexicon of change and of justice. Recognition of the nation’s shameful history is a starting point on the long road to equality and justice. But perhaps it has become a platitude, a way for white Australians to settle the ledger of their guilt, a way to paper over deep-seated systemic injustice that is thwarting real progress for Aboriginal lives and that continues to create privilege for settler Australians.  

The problem, as many voices have been saying (for a long time but) especially in the weeks since the BLM protests broke out in the US following the murder of George Floyd, is that white and settler oppression of Black and Indigenous people is thoroughly baked in to the system; baked into the system of colonial expansion– which included slavery and dispossession under terra nullius (both mechanisms used to dehumanize people for the purpose of wealth creation) – and it is baked into its neoliberal iterations. 

Perhaps the problem, rather, is that we have been reconciled to these things, to the reality of Indigenous disadvantage and risk of police violence and incarceration, for too long. 

How, then, can we reimagine and re-engage the concept, the work of reconciliation, or do we need to move beyond it to another stage? The national conversation in Australia has been painfully slow to get going. 

National Sorry Day is marked on May 26th, began in 2007 when the Australian Government, following the release of the Bringing Them Home report, formally apologized to Aboriginal people who were forcibly removed as children from their parents in a government assimilation policy. 

Australian philosopher Raimond Gaita writes that the findings of the report “[were] a source of deep shame for many Australians, and for some a source of guilt” ( A Common Humanity, 1999, pg. 87). While, as Gaita observes, many people feel shame and guilt, many also resisted such feelings, and felt that they were being asked to take responsibility for past wrongs they felt no part of. 

The refusal of shame sometimes takes the form of national pride, in which being proud of one’s nation is mutually exclusive with acknowledging its brutal history and recognizing the remnants of that history. 

Those who hold this conception of national pride take the view that history in which racial injustice is afforded a more central place in our story and our journey to self-understanding is overly bleak. It is known by its detractors as the ‘black armband view of history’ and they argue that we should be focusing on trying to fix the current inequalities rather than looking backwards into a troubled past. This obviously ignores the fact that these current inequalities, created by that past, are able to continue because it has never been reckoned with. 

Therefore the corrupted, shallow conception of national pride can never do anything other than let the deep national wounds fester. To be authentic in our attempts to reconcile, we should not contrast our national truth telling with our national interest, and reconciliation cannot be about ‘moving on’ until the appalling statistical gaps between white and black Australia are well and truly closed. 

But the injustice is not just expressed in the material conditions (by these gaps), or even the systemic problems. Simply moving forward means that there is no proper acknowledgement that those who suffered —  and continue to suffer these injustices — are wronged, and that to be wronged, is itself a distinctive and irreducible form of harm. 

Jacqueline Rose, on the 2018 conference on ‘Recognition, Reparation and Reconciliation’ in Stellenbosch, South Africa, wrote: “thinking was not enough. Not that ‘feeling’ will do it either, in a context where expressions of empathy – ‘I feel your pain’ – are so often a pretext for doing nothing.”

Guilt and shame are part of a pained acknowledgement of wrongs we have committed or in which we are in other ways implicated. But they must also be part of what forces us to change the system and ourselves. 

As protests in response to George Floyd’s murder and in support of the Black Lives Matter movement against systemic racialized violence and oppression raged across the US last week, a Sydney police officer was filmed handcuffing and then sweeping the legs out from under a sixteen-year-old Aboriginal boy who had just issued a vulgar verbal threat; the officer slammed the boy’s face into the pavement. 

Shortly afterwards the New South Wales police minister defended the officer, saying he was provoked and threatened. The minister, in public remarks, expressed far more outrage at the verbal abuse from the teenager than at the officer’s brutal response. 

How can reconciliation occur if such blatant power differentials cannot even be recognized, if the historical weight of wrongs done to a people and the humiliation and disadvantage they continue to suffer is totally invisible? Nothing, then, has been reckoned with. 

The worst thing about this story from Sydney is the grim, horrific moral equivalence being drawn between a lippy teenager and an officer of the law, whose duty is to ‘protect and serve’ using brutal and retributive force.  

When a teenager can be face-slammed for giving a mouthful of foul language to a police officer and this act can be defended by his superiors as a response to a threat, we are nowhere. 

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When We Forget Our Dignity

Young person sitting on cement wearing a mask and holding a sign, turned away from camera. More people also sitting and holding signs are visible in the background.

The death of George Floyd should not have happened. An independent autopsy requested by the family concluded that Floyd died of asphyxiation from sustained pressure, disputing the Hennepin County medical examiner’s conclusion that he died from the combined effects of being restrained, underlying conditions, and possible intoxication. Based on footage now widely circulated, it is clear that Derek Chauvin unnecessarily knelt on the neck of a nonviolent offender who used a counterfeit $20 bill at a convenience store. According to the criminal complaint against Chauvin, the sustained pressure continued for 3 minutes after Floyd stopped moving and 2 minutes after another officer failed to find a pulse. 

Chauvin has been arrested and was charged with 3rd-degree murder and 2nd-degree manslaughter, which has now been elevated to 2nd-degree murder. Protests ensued soon after Floyd’s death, engulfing many American cities. Many protesters are not simply mourning the wrongful death of George Floyd but are also targeting their demonstrations against the systemic racial injustice that permits regular police brutality against people of color. 

“The protests are not necessarily about Floyd’s killing in particular, but about the savagery and carnage that his death represents,” Charles M. Blow writes. “It is an anger over feeling powerless, stalked and hunted, degraded and dehumanized.”

This anger over this degradation and dehumanization has manifested in peaceful protests, destructive riots, and reciprocal violence. As a video revealed Derek Chauvin’s neglect for Floyd’s pleas for air and his sustained pressure on the unconscious man, other disturbing clips posted on social media reveal violence by police against demonstrators and by demonstrators against other civilians and police officers. Viral clips are prone to misinterpretation because they exclude proper context and limit the complexity that often accompanies the captured event. Opinions can be formed on erroneous or partial recording of events. Even so, one thing is clear: the violence captured by these videos display violations of human dignity. 

Such an observation may seem so banal, so obvious that it is not worth even mentioning. But at a moment when protesters are lashing out against racial injustice and violence is increasingly justified as an appropriate response, the assumption of human dignity is no longer obvious. Therefore, it is worth contemplating what respect for human dignity entails, how it is violated, and how it can be protected.

Human dignity is defined as “the recognition that human beings possess a special value intrinsic to their humanity and as such are worthy of respect simply because they are human beings.” It is thought to be inherent, indivisible, and inviolable. The dignity of each human being is a basic foundation of Christian social thinking and enjoys broad consensus in many cultures and philosophical traditions. While the term “dignity” as used is thought to be a product of the Enlightenment, the notion the term conveys predates the Enlightenment by many centuries. Other philosophers such as Thomas Aquinas and Cicero imply the inherent value of human beings in their writings on natural law. 

It is this assumption of the inherent value of human beings that underpins human rights as a part of international law; dignity transcends state boundaries and is the fountain from which other rights flow. The concept features in the preamble of the Charter of the United Nations: “We the people of the United Nations determined […] to affirm the faith in fundamental human rights, in the dignity and worth of human persons, in the equal rights of men and women”. Human dignity is the first article of European Union Charter of Fundamental Rights: “Human dignity is inviolable. It must be respected and protected.” Countless constitutions of various countries contain some reference to dignity. Of course, simple observation demonstrates that mere codification of this ethical concept does not ensure its protection. 

“[T]hat same human dignity is frequently, and deliberately violated all over the world,” Professor Paul van Tongeren observes. “When people are murdered, tortured, oppressed, or traded it is indeed a flagrant violation of their dignity”. Other violations are argued to include humiliation, instrumentalization, degradation, and dehumanization. 

In response to the death of George Floyd and the resulting demonstrations, Robert P. George, an American legal scholar who has written about human dignity, wrote the following in a statement released on behalf of Princeton’s James Madison Program: “What unites us—what makes us ‘out of many, one’—is our shared commitment to principles we believe to be essential to the full flourishing of human beings, the principles of the Declaration and the Constitution. If we were to distill those principles to a core idea, it is, in my opinion, this: the profound, inherent, and equal dignity of each and every member of the human family. When we truly embrace that idea, we know that racism and racial injustice are unacceptable and must be resolutely opposed.”

Racism and racial injustice could then be understood as one of the many abhorrent effects of a failure to embrace the core idea of human dignity. The degradation and dehumanization of people of color observed by Charles M. Blow is another. Unjust murder is another. So, what can be done?

While institutional reforms are being demanded, social crises, such as the one the U.S. is enduring, also reveal the need for something more basic, more fundamental: ethics education. But this need must contend with the decline of philosophy, the relative absence of ethical training for students in academia, and the growing irreligiosity of America. The traditional reminders of human dignity are slowly dying and their death ought to be mourned, if not reversed. The U.S. is ablaze; a man was unjustly killed; peaceful protesters are met with force, tear gas, and rubber bullets; rioters exert physical violence towards their fellow civilians; a legacy of racism endures. Because this is what happens when we forget our dignity. 

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Malum in Se: The Use of Tear Gas by Police

two police officers dressed in riot gear holding smoke grenade guns

Whenever police use tear gas against protestors and rioters, someone invariably asks, “Why, if tear gas is banned for use in war, is it allowed for use in law enforcement?” Ultimately, the justification appears to be, “Because there aren’t any better options.” However this practical excuse is undercut by some of the fundamental considerations of Just War Theory, which underpins international law governing warfare. 

In the nationwide protests against police brutality and systemic racism sparked by the killing of George Floyd by former Minneapolis police officer Derek Chauvin, tear gas has been used by the police departments of numerous US cities, including Atlanta, Minneapolis, Philadelphia, and Washington, D.C. Tear gas is a name that refers to a variety of different chemicals, including pepper spray. All tear gas compounds act by rapidly and severely irritating people’s eyes, skin, nose, mouth, throat, and lungs. This causes people’s eyes to swell and water (hence the name “tear gas” and “lachrymator agent”) and leads to difficulty breathing. Lachrymator agents are one among many “less than lethal” weapons used in riot control, alongside rubber bullets, beanbag rounds, flash-bangs, and many others. If tear gas is non-lethal, why is it forbidden for use in warfare?

Weapons that are banned for use in warfare by international law typically have one of more features which make them mala in se (i.e., evil in themselves). Means which are mala in se are morally unacceptable for use in warfare according to Just War Theory provisions concerning jus in bello, which refers to rules governing morally appropriate conduct during the course of war. What makes a weapon malum in se? Relating to tear gas, one criterion sticks out clearly. Any weapon the effects of which cannot be controlled is malum in se. Gases are inherently not controllable because to where they drift is determined by wind speed and direction, rather than user intention. Hence police using tear gas on a group of rioters in a residential area, or a non-residential area upwind from a residential area, will likely end up affecting people nearby, and in completely different areas who are complying with the law. In the context of war using weapons that fail to discriminate, or using weapons in a manner that fails to discriminate, between combatants and non-combatants is illegal. Why then is it acceptable for police to use weapons that fail to discriminate between law-breakers and law-abiders? 

Another criterion for determining whether a weapon is malum in se is its proportionality for achieving a legitimate goal. In Just War Theory, a war that has been justly entered into (jus ad bellum) allows those on the just side to use only the minimum necessary force to achieve victory by incapacitating the enemy (who is, if the war has been entered into justly, unjust by definition). Weapons and munitions that cause excessive harm to enemy combatants are prohibited in Just War Theory (and correspondingly outlawed by international accords). For example napalm and white phosphorous are both banned because they cause tremendous pain to combatants and maim them, rather than incapacitating or quickly killing them. Being exceedingly charitable to police, the use of tear gas can be seen as a proportional measure. Police, who are often outnumbered by rioters, need a method to promptly subdue rioters and restore peace without resorting to lethal means. If lethal force is the only viable alternative to weapons like tear gas, then it appears that the use of tear gas may be justified (ignoring that tear gas is malum in se because of its inherent indiscriminateness). 

While tear gas is “less than lethal,” both it and the delivery system for it can cause long-term harm to people. Even people with no underlying respiratory conditions can, with extensive exposure, suffer chronic respiratory issues. Likewise extensive exposure can lead to blindness. It is an indiscriminate chemical agent that has been banned for use in warfare. Under what circumstances, if any at all, could it be acceptable to use it? If we can imagine a group of rioters recklessly or intentionally committing serious crimes, but not doing so in a place from which the tear gas is liable to spread and affect innocent citizens, then we would have found an acceptable situation. Is there any such situation? Prison riots come close to the mark. Indeed, this is one of the situations in which the US Military reserves the right to use tear gas and in which the international laws governing chemical weapons allow militaries to deploy tear gas. However the use of tear gas by police on peaceful protestors or even on rioters in close proximity to peaceful protestors or densely populated urban areas is clearly unjust. The inherently indiscriminate nature of gaseous chemical agents makes them an evil in themselves.

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Complications in Our Picture of Looting

photograph of boarded up business in downtown LA

Not all opinions are socially acceptable. Oftentimes, there is a range of acceptable opinions and opinions outside that range are not given even the slightest consideration. In May of 2020, a Minneapolis police officer, Derek Chauvin murdered an unarmed man named George Floyd through suffocation over the course of eight minutes while several other officers held back the crowds from stopping him. In response, many people have protested, some people have rioted, and a small number of people have looted. Opinions about these actions vary but, in general, we tend to think that nonviolent protests are acceptable while violent riots are not. A few support riots, but almost no one supports looting. However, the morality of looting is not as clear-cut as public opinion might suggest.

“Looting” is distinguished from ordinary theft in a few important ways. First, the word itself has its origin in describing military forces pillaging a conquered area. Thus, looting implies a breakdown of the ordinary social order. Looters, military or otherwise do not much fear prosecution for their actions.

Second, looting is always associated with a context of destruction. Looting involves not only taking property, but also destroying or damaging the business or home where the property is found. As economist Alex Tabarrok argues here, looting may be a worse crime than ordinary theft since “Looters destroy intermediate goods and infrastructure and gain far less than owners lose.”

Third, theft is more or less universally objected to by the members of a community where it takes place while looting can have public support. Thus, looters less frequently hide their identities as compared to thieves. And, looting is often done by groups, pairs, and family units while theft is usually conducted individually. It may be hard to believe that looting would be supported by the community where it takes place, but this instinct toward disbelief can be explained by the flawed assumptions people have about the motivations looters have for their actions.

The conventional view is that looting is universally opportunistic: most people believe that looters see the opportunity presented by the chaos of protests, riots, and the breakdown of law and order and use it to steal things they want for their own gain. A few, more charitable people might say that looters have no ignoble motivation and act according to some instinct that takes over in times of great stress. Almost no one believes that reasonable, well-functioning members of society would engage in violent looting. Nonetheless, these are exactly the sort of people who engage in looting according to the evidence.

L. Quarantelli and Russell R. Dynes were the founders of disaster sociology and wrote on the nature of looting in an article titled “Property Norms and Looting: Their Patterns in Community Crises.” This article was written in 1970 and the authors focused their analysis on the riots and looting that occurred between 1964 and 1968 as part of the Civil Rights Movement. Given the cause of the present riots, this article’s subject, though long past, is analogous enough to the present situation for its findings to stand the test of time.

In contrast to popular belief, they found that those engaged in rioting and looting were not the most disaffected, alienated people. In cases where black people rioted in their communities, up to one fifth of the black population participated, including many employed people with strong social ties. These people did not loot out of economic need and they were not the sort of people one would expect to be overtaken by impulse. In fact, consistent majorities in these communities viewed the riots and looting as a form of protest.

Suffice to say, rioting and looting are not broadly believed to be legitimate forms of protest. People have numerous arguments against these extreme forms of protest. Let’s briefly consider a few of these, one utilitarian, one deontological, one based in virtue ethics, and one based on an appeal to law and order.

People oppose rioting and looting on utilitarian grounds because they believe that these forms of protest cause great harms in the form of destruction of property and loss of life and have no outweighing benefits. This view is especially obvious if you view all rioting and looting as opportunistic, as violence and theft perpetrated by people who want to steal and who enjoy the chaos. However, the foundation of the argument grows shaky if violent protests are capable of affecting large scale social change.

The deontological argument against rioting and looting stems from a belief that in participating in these actions, people fail to uphold their duty to maintain other people’s rights. If people are killed in a riot, those people’s right to life has been violated. Looting violates business owners’ property rights. This argument is only defeated if by rioting and looting people obey some higher duty that they could not obey without violating other people’s rights.

The argument from virtue ethics says that good people don’t riot and loot. People advancing this argument point to preferable protests: the nonviolent protestors today as well as the gold standard, MLK Jr. and those who protested alongside him. These people, like the utilitarians, depend on the idea that looters are inspired to action by selfishness. If rioting and looting serve some higher virtue, then the argument is defeated.

Finally, and perhaps most commonly, people merely appeal to a vague sense that it is wrong to disrupt the social order. These people are opposed to all forms of illegal protest. Even if they claim to agree to the righteousness of the cause of protest, they disagree with the means of protest. The weakness of this appeal is in the righteousness of the social order. It is hard to defend upholding a social order that is deeply unjust; this is, of course, the same argument that MLK Jr. came up against in pursuing his nonviolent, though frequently illegal, protests.

The arguments against rioting and looting might seem overwhelming, but they are not undefeatable. Each depends on some assumptions that are not obviously true. Furthermore, there are some positive arguments that rioting and looting are forgivable, arguments that they are justified, and arguments that they are necessary. By considering these, we may come to a more balanced assessment of the morality of extreme protests.

The easiest argument to make is that looting is, in many cases, forgivable. In making this argument, we don’t have to defend the morality of looting. It is still an important argument to make, though, since many people are advocating extreme violence toward those who are participating in extreme protest. President Trump tweeted that “when the looting starts, the shooting starts,” mirroring former Miami police Chief Walter Headley who used the phrase in 1967. Headley was infamous for what he called a war on “young hoodlums, from 15 to 21, who have taken advantage of the civil rights campaign. … We don’t mind being accused of police brutality.” Obviously, “hoodlum” here is a dog-whistle for young black people. And, it should be obvious that using lethal force against people who are looting, essentially committing property crimes, is disproportional and unconstitutional, equivalent to executing people without trial for crimes that are never punished with execution.

Looting and rioting may be forgivable if they are prompted by incredible rage at a criminal injustice, such as the murder of George Floyd. Though many regard this rage as being misdirected when it is applied to businesses. We tend to think that a person’s judgment being clouded by emotion is enough to diminish their legal culpability. So-called “crimes of passion” are already punished less severely than premeditated crimes. We can extend this reasoning to think rioters deserve a great deal of forgiveness.

MLK Jr. gave a speech called “The Other America” where he said that “a riot is the language of the unheard.” Rather than being an action taken out of selfishness, rioting and looting are actions taken as a cry for help, a call for reform, albeit an extremely disorganized sort of call. He went on to ask this sharp rhetorical question: “what is it that America has failed to hear?” And he answered it thus: “It has failed to hear that the plight of the Negro poor has worsened over the last few years. It has failed to hear that the promises of freedom and justice have not been met.” Given the stunning amount of racist police violence that persists to today, it’s clear his words ring just as true in 2020 as they did in 1967. So, if any crimes at all should be forgiven, looting that causes no physical harm to anyone is one of them. We can still hold that looting is a crime, and that it deserves punishment while still maintaining that it is not unforgivable and deserving of execution by cop or soldier.

Arguing that looting and rioting are justified is quite a bit harder, though still very possible. Prominently, The Daily Show host, Trevor Noah, did this very thing in a video he posted in the midst of the protests. Noah justifies the ongoing extreme protests by appealing to social contract theory and turning the question on its ahead. Instead of asking “why do people loot?” he asks “why don’t people loot?” and attempts to give an answer. Hearkening back to seventeenth century English philosopher Thomas Hobbes, he argues that people are only obliged to follow the laws because they have agreed to do so in order to enjoy the benefits of an ordered, just society that cannot exist without laws. But, as Vanity Fair transcribes him saying,

“As with most contracts, the contract is only as strong as the people who are abiding by it. If you think of being a black person in America who is living in Minneapolis or Minnesota or any place where you’re not having a good time, ask yourself this question when you watch those people: what vested interest do they have in maintaining the contract? Why don’t we all loot?”

The greatest benefit people gain from escaping the Hobbesian “state of nature” is protection of their lives and property. As black people are under constant threat of murder by the government (through the police) they cease to have any reason to obey the social contract. It’s all risk, no reward, essentially. Given that, if they can’t escape the risk, they might as well enjoy the reward of the state of nature, getting to take whatever you can by your own power.

More radically, some argue that looting is justified not because it is itself a right action, but because its rightness or wrongness pales in comparison to the institutionalized looting of the poor by the rich. Former senior adviser of the 2020 Bernie Sanders campaign David Sirota asks why “Working-class people pilfering convenience-store goods is deemed ‘looting,’” while “rich folk and corporations stealing billions of dollars during their class war is considered good and necessary ‘public policy.’” He compares the amount of value transferred unjustly from business owners to working-class people via looting (small) with the amount of value transferred unjustly from working-class people to business owners via the regressive tax cuts of the Trump administration (very large). Perhaps it is wrong to loot, but business owners still end up better off than those who loot their businesses via their “theft” of working-class wealth. Just because that latter wealth transfer occurs through official channels does not make it moral just as the former wealth transfer is not immoral merely because it is illegal.

Some even go so far as to say that rioting and looting are necessary for real social change to occur. Rather than appealing to the moral sensibilities of those in power, these people take a the political realist approach and seek to make the cost of reform less to these people than the cost of continuing the status quo. Self-interestedly, then, the powers that be will influence the political agenda to induce reform. Arguably, rioting and looting works to this end: looking again at the article from E. L. Quarantelli and Russell R. Dynes, we can see extreme protests raged after the assassination of MLK Jr. and less than a week later, major civil rights legislation was passed. Afterward, the frequency of large scale rioting and looting drastically decreased.

On the other hand, rioting and looting can backfire: the powers that be can stop the rioting and looting by enacting reform, but they can also stop it by increasing police repression of protestors and minorities. After the Civil Rights Movement and all the extreme protests that came along with it, there was backlash with the election of Richard Nixon who campaigned on “law and order,” whose administration oversaw the Kent State shooting of thirteen unarmed protestors, killing four, and whose domestic policy chief John Ehrlichman was quoted as saying “The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people.” This idea is commonly known as “the activist’s dilemma.” The evidence suggests that extreme protest actions can enact social change and diminish public support for a protest’s cause. It is paradoxical, but makes some sense if one thinks of change as being enacted by those in power, whose interests are not identical to the population at large.

Looting and rioting are extreme responses to extreme injustices. The murder of George Floyd is an unacceptable symptom of a policing system that is based on “domination” rather than the consent of the governed. It is unjust that more black people are killed than white people than would be expected given the share of each in the population. More importantly, though, it is unjust that unarmed people are being killed by police in broad daylight without trial. Something needs to be done to rectify these injustices. Ideally, change could be instituted by peacefully persuading people but given how these injustices have persisted despite decades of peaceful persuasion, there is reason to question whether more extreme protest measures are justified. At the very least, those who choose to engage in extreme protests such as by rioting and looting are forgivable. There is good reason to think that extreme protests are even justified. And, it may even be that looting and rioting are necessary for real social change. The activist’s dilemma, however, gives us reason for pause.

Ultimately, protest is a chaotic activity by nature, prompted by the rage that stems from injustice. Rather than focusing our ire on those who react imperfectly to those injustices, we ought to focus on the circumstances that prompt people to act in ways that may make things worse rather than better. No matter how many TVs are stolen, no matter how many windows are broken, it is hard to compare these property losses to the loss of human life that comes from the unjust and racist oppression of the people by the government in a country that prides itself on originating such ideas as “liberty and justice for all.”

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Black Lives Matter

photograph of Black Lives Matter demonstration

Our mission at the Prindle Institute for Ethics is to foster ethics education, dialogue, and research. We spend our days discussing questions that expand our understanding of morality, our own values, and the values of the communities we live in.

Sometimes these questions are abstract and help us clarify what sorts of values we think are most important. Would you sacrifice one person on a trolley track to save five on another track? Most of the time, though, we discuss questions raised by real-world problems. In 2020, our nation faces an overwhelming number of ethical questions.

The questions we face as a nation relating to police violence and use of excessive force are not abstract. They are urgent. Some of these questions raise difficult moral dilemmas for which the answers are not clear. How much power should police have? What is the role of a police force in a just society? The answers to these questions are not easy to find, and we will continue to join in the work of figuring out the moral answer for as long as it takes.

However, we also face issues that are not in question, that are not up for debate. They are deeply concerning to our Institute because the point of ethics education (and higher education generally) is to help sustain a free democracy and a just society. Those of us at the Prindle Institute and anyone working in higher education should never lose sight of that purpose, and when our country seems to fail in that purpose, we should not be silent. There are unequivocal statements of value that we can make:

Black lives matter.

American’s rights are being violated by some of the very people who are appointed to safeguard those rights. We extend our deepest condolences to the families of Mr. Arbery, Mr. Floyd and Ms. Taylor, and to the victims of unjust violence everywhere.

 

Dr. Andrew Cullison, Phyllis W. Nicholas Director of The Janet Prindle Institute for Ethics at DePauw University

 

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Coronavirus, College Board, and AP Exams

photograph of scantron exam being filled in with pencil

With the last Advanced Placement (AP) exams finished on May 22nd, it marked the end of the jam packed 2 weeks of AP testing. However, this year was no normal year for AP exams. Due to school closures from the coronavirus pandemic, AP tests could no longer be administered in schools as usual, but were instead taken at home. As tests moved online, AP tests were quickly modified in format to significantly shorten the exam. AP tests are usually quite time consuming, with a full exam lasting around 4 hours, but this year’s AP exams were shortened to just 50 minutes. Although this decision was initially praised by many students and teachers, the newly formatted online tests brought with them a number of problems. From technological issues with submitting answers to poorly formatted test questions and unfair testing environments, various issues with the new AP exam consistently arose throughout the two week testing period. Due to this, College Board is now facing a 500 million dollar lawsuit with claims against “breach of contract, gross negligence, misrepresentation and violations of the Americans With Disabilities Act.”

Of the many issues experienced by students during the AP exam, one glaring problem of the newly formatted AP tests seemed to stand out: the high randomness factor in student’s scores. To understand this, one needs to compare the original AP test to the new ones. The original AP tests consisted of a multiple choice and writing section where the multiple choice section represented a larger percentage of the final score. However, this year, the multiple choice was completely eliminated, leaving students with a significantly shortened writing portion. This created a randomness factor where students could not be tested on the full material of the course but only a small selection of the material. This type of testing can often lead to an unrepresentative score of the student’s knowledge if a student is tested on a concept in which the student is considerably weaker or stronger in. Since a small range of random concepts are tested in a shorter exam, exams could not possibly holistically measure the student’s knowledge of the course material.

A similar thing could also be said for the types of questions given. In the original AP writing sections for many exams, specifically history and English exams, a writing section consists of differently formatted questions. For example, in AP history exams, there is a document-based question, long essay question, and a short answer question. This year, however, only a modified version of the document-based question was given. Not only did exams test a small range of concepts in history out of the entire year’s worth of material, it tested students on the document-based question only, which is largely regarded to be the most difficult part of history exams. Testing only on the basis of the document-based question gives an incomplete assessment of the student’s knowledge of the year’s worth of material given different students strengths; some students do better on different question formats (multiple choice, short answer, long essay question).

To add to the randomness in exams, many exams, specifically STEM exams, were formatted in a multipart question where question 1, for example, has parts A through L. One may think that this multipart question format would be better at testing a wide range of concepts. However, there is a catch, the questions are formatted in a way so that the answers are dependent to the previous part. For example, part D of question 1 would need to use the answer from part C to find the correct answer for part D, and part C would need the answer from part B to find the correct answer for C, and so on. So if a student were to get part B wrong, then it would cause a chain reaction causing the student to miss parts B,C, and D. The student could fully understand the concept for answering C and D, but would get it wrong due to a missed answer on part B. On this year’s AP tests, this type of formatting was pushed to the extreme, where 5 following parts would be dependent on the answer for the primary part. If this were to occur on a regular AP test, a wrong answer on these types of exam questions would have a negative effect, but there would always be multiple writing questions and a large multiple choice section to balance out wrong answers to multipart questions. However, on this shortened exam, a wrong answer could lead to an extremely detrimental effect on the final test score, a score not representative of the student’s actual knowledge of the course material.

So why might all this matter? AP exams determine if a student receives college credit for the course and also plays a role in the college admissions process. In most cases, a score above a 3 or 4 (out of 5) on an AP exam will grant college credit for the course. With high stakes on the line as to whether or not a student will receive credit for a year’s worth of hard work, an exam should be randomness-minimizing and be reflective of student’s knowledge on the subject. However, with the multipart questions and a fraction of the course material tested, the exam this year provided unrepresentative exam scores for students. A student, by the chance of bad luck, could be tested on the one concept in which he or she was weak in, which could lead to an exam score that denies a year’s worth of a student’s hard work.

However, College Board’s poorly formatted exams were only the tip of the iceberg for many students. Other factors of randomness and external factors plagued the AP exams this year.

One significant issue was undoubtedly the widespread technological problems, more specifically, students encountering issues with the process of uploading and submitting exam answers. Many videos of students unable to submit exam responses were posted all over social media. Although College Board reported 1% of students were not able to submit their responses, that amounts to almost 10,000 students unable to submit their final exams. Many students, at no fault of their own, now will have to redo the AP exam in early June. Students now have to face the burden of the College Board’s mismanagement of online servers, a burden in which they had no control over.

On top of this, online AP exams were clearly unable to create a fair testing environment. Any test or exam, especially exams which determine college credit, are at minimum expected to provide a fair testing environment. However, online AP exams failed to meet this standard. Critics have argued that online AP tests disregard the fact that many students may not have access to reliable internet. Many low-income students depend on the educational resources (wifi, books, computers) provided by schools and public institutions like libraries, but without access to those resources many won’t even get a chance to take the test. With so many experiencing economic hardship due to COVID-19,  and the further obstacle of inaccessible public educational resources, AP tests cannot adequately or accurately measure students’ knowledge of the course material. The effects of this are that AP scores play a part in college admissions, so unfair AP test environments could disproportionately affect different groups of students thereby ruining our notion of meritocracy in education.

Furthermore, taking tests at home also comes with many other obstacles to creating a fair test environment due to external distractions such as siblings or even something so simple as the time in which AP exams are set. For example, many American international school students across the world are forced to take tests at inadequate times because a 2pm EST test would be a 3am test for international school students in Japan. However, the biggest factor that contributes to an unfair testing environment is the potential for collaboration on these exams. Students can easily obtain a competitive advantage through cheating without the presence of a proctor. With so many external factors complicating online testing, these online AP tests failed to provide a fair testing environment.

So why then did College Board, despite the clear problems regarding unfair testing environments, shortened test formats, and technological problems, decide to continue the AP test? Why didn’t College Board follow suit of other academic organizations such as international baccalaureate (IB) who cancelled their exams and instead used overall quality of coursework throughout the year to assess whether a student qualifies for credit? The truth is if College Board were to cancel AP exams, they would face pressures to return the money back to students. Considering College Board made over 1 billion dollars in revenue, more than 130 million dollars in profit in 2017, and the president of College Board makes over 1 million dollars a year all despite being a supposed nonprofit, it seems quite clear there are incentives in place other than the well-being of students’ education.

In the end, the purpose of AP tests is to provide a measure and representation of the student’s knowledge of the course material. When an AP test is not able to meet that purpose with this year’s online AP exam format, then the AP scores only serve as a number that cannot possibly measure the student’s knowledge of the class material. Despite this, this obsolete number will be the determinant in a student earning college credit and be a factor in the college admissions process.

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Call It What It Is: On Our Legal Language for Racialized Violence

photograph of Lady Justice figurine with shadow cast on wall behind her

This week, as seems to be the case every week in the U.S., we have seen Black people threatened with harm and killed for no other reason than their race.

I use “see” purposefully. The increased use of cameras to document the context surrounding the harassment, assault, and murder of Black people has raised awareness in recent years beyond the communities that have been experiencing this violence continuously. The incredible and outsized use of force and aggression towards non-white people is laid bare by the traumatic videos capturing these violent acts.

White supremacist violence from the past week includes the murder of George Floyd, an unarmed man, by four Minnesota police officers and the racist, false police report of Amy Cooper against Christian Cooper, a bird watcher in Central Park.

While both the police officers and Amy Cooper are no longer employed and may face further consequences, their actions form part of a much broader system of oppression and violence — a system we seem to lack sufficient moral language, or the proper legal framework, to fully capture.

Amy Cooper can face misdemeanor charges for making a false report under New York law. The penalty for such misdemeanors in the state is up to one year in jail, and a fine up to $1,000. The reasoning behind such statutes is that by making a false report you have done harm to the criminal justice system itself. The aspects of the law include a mens rea element (a state-of-mind aspect), requiring that you knew the report to be false, and an actus reas element (the behavior of the violation), which is actually reporting the crime to the relevant authorities. Cooper meets both of these elements pretty straightforwardly.

However, as this statute targets the harm done to the justice system and peace officers, it is easy to see that there is more to the moral and legal context of her behavior than simply tying up police resources.1 As is clear in the video Christian Cooper recorded, Amy Cooper focused on Christian Cooper’s race both in her threats to him personally off the call, and by heightening her vocalization of distress while describing him as “African American” to the operator. She thus put Cooper at significant risk, harnessing her power as a white woman and targeting him as a Black man, by directing police attention on him. The shared understanding of the danger that Christian Cooper experiences in the world is necessary for her threats to land and her harassment to be effective. As Christian Cooper said when explaining his filming of her harassment, “We live in an age of Ahmaud Arbery, where Black men are gunned down because of assumptions people make about Black men, Black people, and I’m just not going to participate in that.”

In order to capture the racist motivations behind Amy Cooper’s behavior, we could look to the legal category of hate crimes. These crimes involve specifically targeting members of specific groups. Those specific identities protected by hate crime legislation include race, gender, religion, age, disability, sexual orientation, as well as others. “Reckless endangerment,” for example, is one of the crimes that can be classified as a hate crime when targeting an individual based on their race. To include Amy Cooper’s behavior under this category would be expanding the current understanding of reckless endangerment, but it could be a route to adequately identifying the power being wielded and the threat being made.

This crime possesses both mens rea and actus reas elements; Cooper shows disregard for the foreseeable consequences of her action, and her behavior imposes a substantial risk of serious physical injury to another person. Note that the accused person is not required to intend (aim explicitly at) the resulting or potential harm in order to qualify as reckless endangerment. If, however, a case could be made that Amy Cooper was, in fact, intending for Christian Cooper to be harmed by her actions, the crime would qualify as some degree of attempted assault. Regardless, the distinction that is important here is that Amy Cooper is aware of the risk of harm she is placing Christian Cooper in by drawing police attention to him, but she is either disregarding that risk or marshaling that risk (bringing us into the realm of intentionality).

It’s not hard to imagine a potential objection claiming that Amy Cooper can’t know the danger her phone call places Christian Cooper in, and therefore can’t be held responsible for the harm that might ensue. But that would suggest at least culpable negligence, given the many recorded and shared instances of police violence towards Black people and the fact that Amy Cooper pointedly racializes the interaction.

To appeal to negligence, Amy Cooper would have to claim to not have recognized that her actions drawing police attention to Christian Cooper in Central Park would create a substantial risk of physical injury — she would be claiming to be unaware of the systemic violence that she is wielding.

To paraphrase Christian Cooper, we live in the world of Ahmaud Arbery, whose death again showed that assumptions made about Black men mean that even jogging while Black can be a serious risk. We also know that relaxing in the comfort of one’s own home can put Black people at risk of serious threat when confronted by police (#BreonnaTaylor, #BothemSean and #AtatianaJefferson). So can asking for help after being in a car crash (#JonathanFerrell and #RenishaMcBride), having a cellphone (#StephonClark), playing loud music (#JordanDavis), cashing a check (#YvonneSmallwood), or merely taking out a wallet (#AmadouDiallo).

We have also seen that the assumptions made by white people put Black people at risk of death when they sell CD’s (#AltonSterling), sleep (#AiyanaJones), walk from the corner store (#MikeBrown), play cops and robbers (#TamirRice), go to church (#Charleston9), or walk home with Skittles (#TrayvonMartin).

It is dangerous for a Black person to be at his own bachelor party (#SeanBell), to party on New Year’s (#OscarGrant), to decorate for a party (#ClaudeReese) or simply leave one to get away (#JordanEdwards), to lawfully carry a weapon (#PhilandoCastile), to shop at Walmart (#JohnCrawford), and to be a 10yr old walking with his grandfather (#CliffordGlover).

When police confront Black people, they are at serious risk to their life when they have a car break down on a public road or have a disabled vehicle (#CoreyJones and #TerrenceCrutcher), get a normal traffic ticket  (#SandraBland), or if they read a book in their own car (#KeithScott).

Police officers use excessive and lethal force when confronted with Black men that run (#WalterScott), ask a cop a question (#RandyEvans), or are in custody (#FreddieGray) or breathe (#EricGarner).

The list goes on. And it should feel overwhelming. The extent of the violence, and the context of the activities that put these individuals at risk, make any claim Amy Cooper has to being unaware of the danger she was placing Christian Cooper in dismissable.

In response to public outcry, Amy Cooper claims to have been scared, not motivated by race and not to have intended any harm come to Christian Cooper. However, both in our moral and legal evaluations of actions, whether or not someone intended the harm or potential harm is not the only standard we have.

Consider the following set of examples. Imagine I have friends over for a bonfire and am excited to use a new purchase “Rainbow Fire.” These packets, when added to a fire, make the flames appear in multiple colors — very exciting. However, because the packets involve chemicals in order to achieve the colorful result, they end up causing harm to those in close proximity to the fire. In effect, my adding the packets to the fire have caused harm to come to my friends. Our moral (and, roughly, legal) evaluation of my behavior is more nuanced than a simple judgment as to whether I intended to cause them harm or not.

Even if I wasn’t harming intentionally, I still was engaging in behavior that DID cause harm. It was a risk I should have been aware of. Packets that make fires colorful, after all, are pretty likely to be full of chemicals, and if I didn’t check the packets, I neglected dangers I should have attended to, and my friends have every right to be upset that I failed to take precautions and appreciate risks.

A step up from this kind of negligence is being aware of risks, but choosing to disregard them. If I read the packet but decided to proceed anyway, I behave “recklessly.” My friends will have moral (and legal) grounds to blame me.

But if I know that the packets will harm you (it’s a guarantee, not just a degree of likelihood), this goes beyond assessing risk or being ignorant of them. Acting knowingly is just short of intentionally, because though I might not be plotting your lung damage and was aiming at something else, I was aware that the lung damage was going to be a result of my behavior, not merely a risk disregarded. This is a level of mental engagement that we take more seriously, morally and legally.

So, even if we take seriously Amy Cooper’s denial of intentionally causing harm, we still have moral and legal concepts with which to evaluate her responsibility. She put Christian Cooper at risk, which is morally and legally problematic no matter what her mental state. And, unlike in my fire example above, she has weaponized race in a way we should hope to be able to acknowledge in our legal framework somehow. We need a means of capturing the unique abuse of power and the violence Amy Cooper threatened Christian Cooper with on the 25th of May.

I hope to have at least offered suggestions of standards that could be used. The mental state, behavior, and power structure that harnesses the racial targeting are all relevant to the legal evaluation of Amy Cooper’s actions. These considerations can give us further tools to establish the particular features of the racist harms in other violent behaviors being recorded every week.

 

1 We can note that often with false report violations, there can be civil suits filed. Civil suits, in contrast to criminal suits, are between citizens instead of between a citizen and the state. They focus on the damage one citizen caused another, rather than crimes (such as assault, theft, trespassing) that the state has determined its own authority to be justified. Civil cases include emotional distress, defamation, etc., and a successful result is typically financial restitution. Civil cases treat potential harms and exposure to risk differently, and so aren’t apt for this scenario.