Politics & Media
Nov 23, 2021, 06:29AM

Twelve Jurors of Christmas

If wishes were legal arguments, you’d all be found guilty.

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Reactions to Kyle Rittenhouse’s acquittal after his battle with leftist attackers in Kenosha, Wisconsin have taught me how few left/liberals would be competent jurors. I shudder to think how they’d make decisions regarding other recent or impending politically-charged legal cases, a dozen of them noted below.

I’m sure many opining liberals have an imaginary lecture ready to deliver to any conventional bigots they might encounter while being a juror—racists, sexists, real-life characters from 12 Angry Men—but the liberals themselves often reach conclusions based on sweeping cultural generalizations instead of the applicable law and the facts of the case at hand.

Disgusted (and often disgusting) liberal author Stephen King tweeted the peeved summation that “the white guy goes free” in the Rittenhouse case, which makes me wonder whether King would be competent to serve as a juror in a trial in which the defendant were white. A New York Times best-selling author I know said online of Rittenhouse, “Two men are dead. He is guilty of something.” So much for worrying about little things like who attacked whom.

So, how fairly will the following dozen cases be decided if argued before jurors as hostile as the typical amateur Rittenhouse-critic—critics who seem to decide where they stand based on how they wish the events under examination had proceeded instead of on what actually happened?

Steve Bannon’s brazen flouting of a congressional subpoena (part of the investigation into the January 6 Capitol protest) has been made to sound like a threat to the rule of law itself. One can hardly argue that he was attempting to comply or seems like a fit object of pity. However, as the Republicans routinely complained back when they were in charge of the Judiciary Committee and called people in vain with regularity, there has traditionally been no enforcement power for congressional subpoenas, or at least no interest at the Department of Justice in enforcing them. For good or ill, such subpoenas have been ignored for decades (as even CNN admits). Maybe that’s crazy, or at least anarchically sloppy, but it’s also troubling—perhaps a case of selective enforcement—if Bannon, as a Trump advisor, suddenly becomes the first congressional-subpoena-flouter to be prosecuted since the Reagan administration.

You might be delighted James O’Keefe’s apartment in New York City was raided by FBI agents keen to find out how he got a look at a shocking Biden family diary, but even the rapidly leftward-drifting ACLU (which decries the Rittenhouse verdict without even making much in the way of a legal argument about it) has called the raid a threat to press freedom. Remember, there was a time when we expected and accepted the fact that the ACLU, like the law itself, must protect people we dislike. Given that The New York Times just lost its appeal in a case against O’Keefe’s Project Veritas group, after the Times argued it should be able to publish pilfered communications between Veritas and its lawyers, we must consider the possibility Veritas knows the law on these matters better than much of the establishment does.

Alex Jones found liable for the emotional distress experienced by people associated with the Sandy Hook school shooting incident, which Jones said in several broadcasts he thought might have been faked, might look like an easier case of an exploitative villain doing evil (Think of the dead children! Think of the distressed families!), but what will be left of broadcasting if pundits are not legally allowed to be mistaken, even disastrously wrong, on hot-button topics? Are you sure Jones can be held liable if he inspires an army of crazier people to take up a cause? Will that standard be applied to every left-wing broadcaster who urges listeners to “make some noise” or “put some pressure on them”? Is it the degree of purported empirical error that makes Jones especially liable? If someone commits vandalism to draw attention to, say, theories about ancient Atlantis, are the people who wrote books about Atlantis on the hook for damages in addition to the vandal? And don’t assume the establishment knows which theories are false: Chris Hayes smugly mocks Jones for claiming chemicals might turn frogs gay, but Al Gore was widely praised for popularizing the same “endocrine-disruptor” theories in the environmentalist book Our Stolen Future in the 1990s. 

If you’re so terrified about irrational people being on the loose, regardless of whether they initiate violence (which ought to be the legally decisive thing), do you want Britney Spears back under the complete legal control of her dad? Maybe institutionalized against her will?

Should Kyle Rittenhouse have been kept locked up just to punish gun use even though he was the one attacked, his living victim admitting on the witness stand that Rittenhouse only shot that victim after the victim leveled his gun at Rittenhouse? Would you have found Rittenhouse guilty in order to punish “racism” and “white supremacism” even though he’s Hispanic (and possibly anarcho-capitalist) and his career-criminal left-wing attackers were white? Will you continue to insist he was hoping to cause mayhem despite him being the one trying to prevent the leftist mob doing things like blowing up a gas station? (Are you furrowing your brow even now trying to think of a way to blame this week’s fatal truck attack during a Wisconsin parade on white supremacism instead of the more obvious ongoing scourge of nihilistic left-wing violence? You’ll have help online if so—I’ve seen at least one tweet somehow blaming Tucker Carlson for the parade incident.)

I don’t know if anything more than negligence was happening on the set of the movie Rust when Alec Baldwin shot and killed his director of photography, and if it was all just a terrible accident he has my pity, but I hope you don’t share his perfectly left-liberal conclusion about how to handle such matters in the future: Instead of just amping up the personal responsibility and common sense (never aim at anything you’re unwilling to destroy), Baldwin now thinks there should be police on every film set making sure no live guns are lying around. That’s the regulatory mindset—and anti-gun mindset—in a nutshell: Regulate (or disarm) everyone, at great expense, instead of punishing or reforming a few stupid individuals like yourself. Use government to drag us all down to your level instead of admitting the problem was uniquely you. (Naturally, Baldwin has long despised the NRA. What a pro-safety hero.) Whatever judgment you think he deserves, please don’t use the police to treat a whole industry as accomplices to Baldwin.

Last week brought a Soho Forum debate between Stephan Kinsella and Richard Epstein (both brilliant libertarian lawyers) over whether intellectual property (copyrights, etc.) should continue to exist (as Epstein holds) or is a bogus concept completely unlike owning a chair or a car (as Kinsella thinks). As they say on the playground, if you have an idea and you tell it to me, now we each have the idea. Maybe that’s how ideas should remain: non-proprietary, no need to turn free-floating abstractions into tug-o-war props. Before I side fully with the Kinsella crowd, though, I think it’s worth considering that the underlying argument against treating anything, whether in meatspace or ideaspace, as property has usually been the commie notion that no good can come from removing something from the commons.

Maybe the fact that ideas can be left in common should be no more persuasive than the fact that land or anything else could be so left—with dire utilitarian consequences, we free-marketeers have long argued, in the form of inefficiency, laziness, and blurred rules of personal responsibility. Consider that Kinsella was initially opposed to cryptocurrency on the grounds that one can’t own information (roughly speaking). If he was wrong about that, maybe he’s also wrong to think you can own a sword in the real world but can’t own a sword in the Matrix and can’t own the idea for a distinctively new sword in what we might call ideaspace. Epstein’s pragmatic, incentives-based arguments might not be quite enough for us to declare an idea-thief guilty, but maybe taking ideaspace as seriously as we do land or chairs should lead to that poacher’s condemnation. Or perhaps this one still calls for a hung jury.

There was a strange moment a few years ago when I thought that the whole culture had become united in its horror at the statutory rape accusations that had bubbled up again around Ghislaine Maxwell, Prince Andrew, and their associates. Then came the strange realization that the story was getting play in part because—for a shining yet stupid moment—the media were a bit divided over whether to depict Maxwell et al primarily as Clinton associates or as Trump associates, and thus whether to hype or tamp down the story. Conspiracy theorists often seem the only people sane enough to say a pox on both houses, and I hope similarly balanced thinkers will find their way onto any hypothetical Prince or Maxwell jury.

Likewise, I hope the imminent verdict regarding Ahmaud Arbery’s killing will hinge on more fine-grained legal details than whether you prefer black people or white people, and so far the reporting on that case hasn’t been too racialized, it seems. 

Using vague racial politics isn’t much guide on the nitty-gritty of events. Are you pleased Malcolm X’s alleged killers have been “exonerated” because we’re freer now to examine old claims of a white/governmental conspiracy behind his death, or are you upset Malcolm X’s alleged killers are now in the clear just like Rittenhouse? I recommend skipping the racial calculus even in this case—but looking at the government skeptically, always.

Applied at the grandest scale possible, non-racial, property-rights-based notions of justice can be applied even to the left’s favorite ethnically-charged historical topics, I should note, and no less right-anarchist a figure than Murray Rothbard argued for taking a sort of “statute of limitations” approach to things like Native American land claims against the descendants of imperialists. Roughly, if you can trace the theft back to the original victims, perpetrators, and parcels of land, go ahead and make compensation in a court of law. Otherwise, avoid setting up a permanent ethnic grievance bureaucracy that perpetually redistributes based solely on which long-ago populations you most resemble. The former approach could yet yield belated justice and individual accountability, the latter only ongoing tribal conflict—no cause for thanks, you might say.

Finally, I suspect we all feel a bit sorry for the so-called QAnon Shaman getting a hefty 41-months prison sentence for mildly-vandalous tourism on January 6 in the U.S. Capitol. His m.o. is equal parts right-wing nutty and New Age-lefty nutty, and if his visionquest took him to the heart of democracy that day, I think even the angriest left-wing anti-Trumpers know deep in their hearts the big feathered mystic probably meant well.

In all the cases above, I urge judging the facts, not philosophical motives alone, but if we’re to go down the road of questioning political motives, consider the possibility that we should look with far graver doubt not upon a current crop of defendants but upon, say, that venture capitalist who lost $2 million to hoaxers who he thought were setting up a real CIA mission (wasn’t he seeking to get involved with a criminal operation regardless, when you think about it?), the Portland politicians who talked of “defunding” the police but then ended up increasing police funding once that leftist craze passed (and once the arson smoke became too thick in that city), or Biden’s nominee for Comptroller and his nominee for Boston-area U.S. attorney, both of whom have been arrested in the past (the former in 1995 for shoplifting and the latter several times, including for disorderly conduct).

In short, I think there are some people so politicized that they dream of sitting in (political) judgment but no longer see or react to crime in the old-fashioned sense—as something akin to predation, so barbarous that our natural first impulse should be to stop it or punish it. Those blind, hyper-political people are as dangerous in their way as the old-fashioned lunkheads who sit on a jury and think, “That guy has the face of a burglar—I say hang him!”

—Todd Seavey is the author of Libertarianism for Beginners and is on Twitter at @ToddSeavey.


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