Frank’s Case Book

It was perhaps too much to hope for. With the election of the first American black president who began his term with a near 70% approval rating, it could be argued that Americans had largely overcome their original sin of racism. No one would ever argue that racism has disappeared, but we could hope that we would only have to suffer under residual remnants in isolated pockets.However, 18 months into the Obama presidency, it appears that race has once again bedeviled us. There have always been voices like Janeane Garofalo who seems to believe that any opposition to President Barack Obama must be rooted in latent racism, as if no legitimate criticism is possible. This argument can be easily refuted by considering a thought experiment. If President Barack Obama were white and the current political and economic conditions were identical would the opposition be as great?

It would probaby be more intense, not restrained by fear of charges of racism. Indeed, one could argue that with Obama’s approval at about 50%,  with a 9-plus percent unemployment rate extending over many months, and with severe public anxiety about record deficits, Obama enjoys unprecedented goodwill. By contrast, President Ronald Reagan’s approval rating during the recession of his first two years fell to the mid-40’s.

It was perhaps too much to hope for. With the election of the first American black president who began his term with a near 70% approval rating, it could be argued that Americans had largely overcome their original sin of racism. No one would ever argue that racism has disappeared, but we could hope that we would only have to suffer under residual remnants in isolated pockets.

However, 18 months into the Obama presidency, it appears that race has once again bedeviled us. There have always been voices like Janeane Garofalo who seems to believe that any opposition to President Barack Obama must be rooted in latent racism, as if no legitimate criticism is possible. This argument can be easily refuted by considering a thought experiment. If President Barack Obama were white and the current political and economic conditions were identical would the opposition be as great? It would probaby be more intense, not restrained by fear of charges of racism. Indeed, one could argue that with Obama’s approval at about 50%,  with a 9-plus percent unemployment rate extending over many months, and with severe public anxiety about record deficits, Obama enjoys unprecedented goodwill. By contrast, President Ronald Reagan’s approval rating during the recession of his first two years fell to the mid-40’s.

Race as a policitcal argument in the recent context has largely been introduced by the Left. Congressional black leaders claim derogatory racial references were made as they walked by Tea Party activists to cast a health care vote. Despite the presence of press cameras, ubiquitous cell phones, and a reward for a video or other recording demonstrating such language, no evidence has surfaced.In response to charges of racism, Tea Party activist Andrew Breitbart dug up a video of Obama Agricultural Department employee, Shirley Sherrod. She  suggested in a portion of the the video that she she treated a white farmer differently than black farmers. The complete story revealed by the entire recording was that Sherrod had overcome this feeling decades ago. While Sherrod was treated unfairly when the Obama Administration initially fired Sherrod, the NAACP audience in the video seemed amused by the thought of a white farmer being treated dismissively. While such comeupance might be understandable given centuries of similar treatment at the hands of whites, it is surely not the act of well-meaning  people ostensibly devoted with racial reconciliation.

This issue could spiral out of control and make the legacy of Obama with regard to race divisive. Obama needs to exercise leadership that only he can. He needs to calm the roughned waters of racial feelings before they grow to destructive waves of anger. Obama needs to restrain his supporters from using racial allegations. If he shows such leadership, any racial divisiveness by those who oppose him will be more conspicuous and more easily dismissed.

There can sometimes be a fine difference between Constitutionally protected free speech and criminal threats. Criminal intimidation may involve speech, but such speech does not fall under the shield of the First Amendment. Cross burning provides a compelling example. While ugly speech expressing racial hatred is permitted, those same sentiments expressed by cross burning are not. The reason is that cross burning was widely practiced by groups like the Klu Klux Klan as a direct threat against black people and others who sympathized with the plight of blacks. Hence, historical practice has caused cross burning to be unequivocally associated with a clear and direct threat of physical harm.

Protests and marches can sometimes straddle the distinction between First Amendment rights and unlawful behavior. Marching around a government building, for example, to express displeasure with a government policy is protected by the First Amendment. If such marches are meant to physically prevent the free passage of others, or if members act in ways that a reasonable person would feel physically intimated, the right of “people peaceably to assemble, and to petition the Government for a redress of grievances” degenerates into unlawful behavior. In many cases, we must rely on the judgment of local police officers to recognize the distinction. Rightly, the general rule has been to grant fairly large latitude to protestors.

We submit here that the Service Employees International Union (SEIU) crossed the line in the protest at the home of Greg Baer, counsel the Bank of America. About 500 members of the  SEIU and National Political Action another Progressive group (out of Chicago) assembled on the front lawn of Greg Baer. They were there ostensibly to protest foreclosures by the banks on delinquent mortgages. The group actually occupied the home’s porch with bullhorns blasting chants. The activities were sufficiently disconcerting that Baer’s teenage son, the only one home, took refuge in a locked bathroom in the house. The fact that the young man was afraid does not alone provide proof that the SEIU and its allies were a threatening crowd. However, other facts suggest that the purpose of the group was intimidation.

1.  Usually protestors notify any major media groups that will listen in the hopes that the presence of media will amplify whatever message they are trying to send. The only media present was a sympathetic reporter for the Huffington Post.  This was clearly not a message meant for the public, but at an individual.
2. Protests are usually conducted at places of business or other public places. A protest at a private residence directed against a particular individual more closely resembles the mob scene in Frankenstein that it does arm-in-arm parades of the Civil Rights movement.
3. When the local, Montgomery County Maryland police were called in, the hapless officers who responded were intimated. Nina Easton, the next door neighbor of Baer and Bureau Chief of Fortune Magazine, reported that the officers were afraid that the attempts to clear the property of protesters would “incite” trespassing protesters. While the discretion of the officers may have been wise, it does suggest that the mood of the crowd was not congenial.

The ease with which SEIU was able to execute this threatening assembly and the fact that it has been essentially uncovered in the major press is frightening. Indeed, the ombudsman of the Washington Post was also concerned by the lack of coverage. One Washington Post reader suggested that if a group of Tea Party protestors assembled on the lawn of a Congressman and frightened his family, the story would have been above the fold on the front page.

Every president should probably be excused one inept White House Press Secretary. President George W. Bush endured the dear-in-the-headlights Scott McClellan, who embarrassed the Bush Administration both before and after his tenure. McClellan was followed by one of the most articulate and press-savvy press secretaries ever, Tony Snow. Poor President Barack Obama presently endures Robert Gibbs.

Recently, Gibbs radically mischaracterized a criticism by the former FEMA Director Michael Brown on the Obama Administration response to the massive oil spill in the Gulf of Mexico caused by the explosion of a BP oil platform. This issue should have been a softball for Gibbs. Brown had been roundly criticized for his handling of Katrina in the Bush Administration. Brown has not earned much credibility on how to handle a catastrophe. Gibbs squandered the rhetorical opportunity by wrongly asserting that Brown had charged that the oil spill was deliberately planned by the Obama Administration. Brown had really charged that the Obama Administration had not been as quick in response as they should have been to reduce public support for offshore oil drilling. Brown’s charge was extraordinary and without proof, but Gibbs made Brown a sympathetic figure by his gross exaggeration.

Gibbs’s most egregious recent blunder also had to deal with BP. Gibbs was trying to say that the Obama Administration would hold BP accountable for the cost of the oil spill cleanup. What he actually said was that, “We will keep our … boot on the throat of BP to ensure that they’re doing all that is necessary while we do all that is humanly possible to deal with this incident.” Such a statement from a high Administration official is more than little creepy and unfortunately suggestive of the tactics of totalitarian thugs. One could imagine the hand-wringing and rightful angry reaction if a Bush press secretary had suggested that `We will keep our boot on the throat of Islamic states to ensure that they’re doing all that is necessary to help  capture terrorists.” The foot-on-the-throat metaphor is inappropriate as a general matter.

What is amazing is that Gibbs felt free to suggest such action as long as it was against an oil company. Will there be similar promises against other companies that err or cross the Administration?  Perhaps less unexpected is that the Left seemed less phased by this unfortunate metaphor in  a serious context than by a joke by President Obama.

At a White House Correspondents Dinner, a occasion where humor is the theme, President Obama joked:

“Jonas Brothers are here, they’re out there somewhere. Sasha and Malia are huge fans, but boys, don’t get any ideas. Two words for you: predator drones. You will never see it coming. You think I’m joking?’

Adam Serwer, of the Left-wing American Prospect,  worried that the joke displayed a lack of sympathy for those innocents accidentally killed by weapons launched by predator drones.

The Left has no sense of humor and does not seem to be able to recognize a humorous remark delivered in a light context (President Obama’s joke) and a inappropriate metaphor (Gibb’s use of boot-on-the-throat threat) delivered seriously in a formal context. The reaction by the Left to these incidents reveals more about the Left than it does about Gibbs or Obama.