The Federalist - Monday August 8, 2016
by Daniel Payne
For quite some time the American Left has been busy turning American law into a partisan political weapon. Various progressive factions have undertaken a disparate and uncoordinated but still ideologically homogeneous effort to criminalize dissent using the courts and statutory law.
By most traditional metrics, these efforts have been failures: the liberals have often lost, and the conservative targets have avoided jail time or crippling criminal or civil convictions or penalties. But the weaponization of our legal system should not be judged by traditional metrics. The point is not for liberals to “win” any particular lawsuit or legal enforcement so much as it is to use lawsuits and the law as the weapons in and of themselves. The process is the punishment. And in most of these cases the punishment is very severe. That’s the idea.
In large part this reflects growing liberal opposition to a pluralistic society: not merely opposition to ideas but rather opposition to ideas about ideas, a strong and deliberate enmity towards intellectual diversity and dissenting thought. Gay marriage, the “settled science” of climate change, the morality of abortion, the wisdom of allowing grown men into little girls’ restrooms—all of these things (and many other liberal ballyhoos) are assumed to be unassailable. “It’s 2016,” many on the Left will say, sneeringly. Meaning: “It is no longer appropriate or acceptable for you to say or think things with which I disagree.”
The Left’s Hatred for Dissent
It should thus come as no surprise that the victims of this “lawfare” are almost universally conservative. The liberal order is in the midst of a great ideological hardening in which its adherents view progressivism’s domestic ambitions not merely as better or even superlative but as morally sui generis: progressive ideology is seen as the singular salvific political option, and conservatism is viewed as an evil mix between Nazism and antebellum pro-slavery racism. (A few years ago some researchers at my alma mater wrote a study linking conservative beliefs to “psychotism;” that paper turned out to be fatally flawed, but the belief that conservatives are all dictators at heart persists throughout much of our political landscape.)
Yet America is, at least by the standards of the rest of the Western world, a remarkably pluralistic nation: more so than a great deal of Western Europe, anyway, where many countries’ speech codes are draconian enough to preempt a great deal of political and cultural speech altogether. (In 2010 an English preacher was arrested for claiming homosexuality is a sin; in Scotland a man was arrested for an allegedly offensive post on Facebook regarding immigrants.)
The modern liberal impulse cannot very well tolerate a society that allows for multiple viewpoints, but the American tradition of free speech—along with its damaged but still vibrant culture of conservatism and conservative political thought—means that much of our political debate is still favorable ground for conservatives. That’s the way America was designed, intentionally and with forethought: to allow for dissent, to foster it, even to encourage it.
So the Left is turning to lawfare: a systematic effort to turn the American legal system against liberalism’s political opponents. The point is to take the court system (which is supposed to be a neutral arbiter of justice) and the law itself (which in many cases is ideologically neutral) and convert both into partisan weapons for liberal political advancement. It should cause you no small measure of discomfort to know that the Left has been largely successful in these efforts. Lawfare works.
Let’s look at some of the Left’s most prominent examples of lawfare to get an idea of how it works: how the law is used to squelch dissent, silence conservative voices, and punish incorrect opinions.
David Daleiden and Planned Parenthood
Daleiden is the founder of the Center for Medical Progress and the undercover investigator who exposed Planned Parenthood’s program to chop up aborted babies and sell their body parts to medical technology companies. Daleiden pretended to be a buyer interested in purchasing baby body parts from Planned Parenthood, and he secretly recorded high-ranking Planned Parenthood officials discussing the sale of dead baby organs.
Planned Parenthood was humiliated globally and implicated in countless felonies, so Daleiden had to be punished. He was charged with the purchase and sale of human organs, a misdemeanor, as well as tampering with a government record, a felony. His home was raided, with damning Planned Parenthood footage allegedly seized. Exemplifying the corrupt and partisan bias behind the charges, the prosecuting attorney general had financial ties to Planned Parenthood, and the attorney general’s office allegedly shared evidence with Planned Parenthood even though a judge had ordered them not to.
After months and months, a judge dismissed both charges against Daleiden (and one against his partner). The dismissal surely represents a great victory for the First Amendment (and for the pro-life movement). But the message was also clear: if you cross the pro-abortion Left—especially if you embarrass them in front of the whole world and expose their barbarous practices—you may face a costly, time-consuming, protracted legal battle.
Rick Perry and Travis County
A few years ago, a Texas district attorney from Travis County, Democrat Rosemary Lehmberg, was pulled over for drinking and driving with a 0.239 blood alcohol level. While in custody she repeatedly threatened to retaliate professionally in her capacity as district attorney against the police officers involved.
As a result, Rick Perry—who was governor of Texas at the time—threatened to veto funding for a Texas anticorruption unit Lehmberg herself headed. It makes sense: why would a governor want to fund a public corruption task force headed by a woman so obviously neck-deep in corruption herself?
Perry followed through on his threat to veto. Shortly thereafter, a grand jury indicted Perry on charges he had abused his power of office. Texans for Public Justice, a liberal advocacy group, had advocated for the indictment. Eighteen months later the charges were dismissed. In the meantime, Perry had been forced to deal with the indictment (and a potential 109 years in prison) while running his presidential campaign.
In fact, Perry believed the indictment was one of the reasons he performed poorly in the Republican primary. Whether or not that was the case, the damage had already been done: as punishment for exercising a legitimate and proper function as governor of Texas, Perry’s life had been ensnared in an expensive, distracting, hassling court case for a year and a half. Republican governors elsewhere were meant to take note of what happens when they draw the ire of liberals and corrupt Democratic officials.
The Wisconsin John Doe Affair
A number of years ago, the Gestapo came to modern-day America. Families in Wisconsin woke up in the early morning to find veritable squadrons of police officers at their doors. Police would barge in, seize computers and other sensitive information, and order the families to keep their mouths shut. The experiences were traumatic enough that many people did not want to speak on the record about them, if at all.
What had these families done—laundered money, engaged in the drug trade, committed murder? None of the above: the families were instead guilty of being conservative. A petty, vindictive, hyperpartisan Democratic district attorney named John Chisholm had used a clever legal maneuver known as a “John Doe” investigation to harass, intimidate, and terrify conservative Wisconsonites suspected of illegal political coordination with Republican Gov. Scott Walker. Assisted by Judge Barbara Kluka, Chisholm went after anyone and everyone he could. Families were traumatized to the point that stable marriages were in danger of dissolving. Conservative advocacy groups were muzzled.
In service to a political agenda, Wisconsin Democrats turned the state into a weapon against innocent American citizens. If you were one of the targeted families or individuals—or if you simply lived next door to people, or a few streets over—you’d probably think twice about participating in the democratic process in the future, at least if your opinions are conservative.
Mark Steyn and Michael Mann
Several years ago, conservative commentator Mark Steyn, writing at National Review Online, called global warming scientist and alarmist Michael Mann’s work on climate change “fraudulent.” In response, Mann sued both Steyn and National Review. That was in 2012; the case is still dragging on in a Washington DC court. Steyn has been vocal about the astronomical cost of fighting a years-long court battle; the legal battle also led to Steyn parting ways with National Review, for which Steyn had written for many years.
This isn’t Mann’s first lawsuit: he sued Canadian scientist Tim Ball for libel five years ago when Ball suggested Mann should be in prison for his role in the Climategate controversy.
Based on the Climategate e-mails, there are actually serious questions about the scientific validity of Mann’s work; the kind of rhetoric Steyn invoked was perfectly justified in light of those concerns. But Mann isn’t interested in restoring his good name (a name that was already rather sullied to begin with); he is interested in punishing Steyn and National Review with an endless, extremely expensive court battle that will discourage them (and others) from commenting on climate change in the future.
In addition to these and other instances of lawfare, there are several troubling indications that liberals want to expand the reach of vindictive lawsuits and law enforcement.
Global Warming and RICO
After years of alarmism and hysteria, climate change activists are dismayed to find out that the general public really doesn’t care all that much about global warming. Angry and embarrassed by the failure of the climate change campaign, liberals are turning towards a new tool to help quash dissent on the subject: lawsuits.
Last year Democratic Sen. Sheldon Whitehouse proposed using the Racketeer Influenced and Corrupt Organizations Act (RICO) to prosecute fossil fuel companies for “climate denial.” Earlier this year a professor from the University of Wisconsin argued the same thing. Multiple climate scientists subsequently advocated in favor of prosecuting climate dissidents. Incredibly, the U.S. attorney general signaled an openness to the idea.
These prosecutions haven’t yet begun. But they are gaining currency on the Left, and you can be sure this idea will continue to gain traction, especially if global warming hysteria continues to be ignored and alarmists humiliated by this lack of interest.
Prosecuting Gun Manufacturers
Another public policy area in which liberals have consistently suffered humiliating defeats is that of guns. From the Supreme Court’s recent landmark Second Amendment rulings to the liberalization of gun laws at the federal, state, and local levels to continued widespread support for American gun ownership, the Left surely cannot help but feel embarrassed over firearms.
As a result, liberals have indicated a willingness to repeal a law that protects gun manufacturers from frivolous anti-gun lawsuits. The Protection of Lawful Commerce in Arms Act shields gun companies from being held liable for criminal use of the firearms they produce. This makes sense: one would not, after all, sue Ford or Chevrolet if one of their cars was used in a drunk-driving incident (like the one for which Lehmberg was arrested).
But liberals recognize the power of strategic lawsuits, so in recent years have been clamoring to repeal the PLCAA and allow people to sue gun manufacturers for crimes the manufacturers had absolutely nothing to do with. Earlier this year Democrats in Congress proposed a bill to allow just that. If liberals eventually get their way, gun ownership could be targeted not by traditional and fair democratic means but by the cynical and vindictive use of the court system. American citizens could have their rights stolen from them through crazy and indefensible lawsuits.
It is worth pointing out that it is not merely Democrats who have advocated and celebrated such noxious and underhanded tactics. The Republican nominee for president, Donald Trump, has signaled he wants to use libel laws to harass and intimidate people who criticize him. In fact, as a private citizen, he’s done it already, by his own admission: he once sued an author who criticized him, and he did it specifically “to make [the author’s] life miserable.” But of course Trump was a Democrat and a liberal for many years, so we might expect this from him.
How to Protect Americans from Legal Bullies
These efforts represent a serious threat to the American way of life. There are in fact laws in many states that are meant to prevent frivolous lawsuits; they are known as anti-SLAPP (strategic lawsuit against public participation) statutes, and they can be invaluable for avoiding these types of attacks. Congress should look into passing a federal anti-SLAPP provision. There should also be tighter oversight and policing of the kinds of statutory abuses that corrupt politicians like Chisholm engage in.
Liberalism itself has numerous structural flaws against which conservatives should argue. But this latest strain of progressive political tactic represents a new, almost existential problem: an attempt to use American law to shrivel the acceptable boundaries of American political thought. If you have the wrong opinions about climate change; if you expose the wrong sordid scandal at the wrong abortion clinic; if you support the wrong candidate, you may be a target for a crippling, frightening, stressful lawsuit or legal barrage. Your life may be derailed. You may lose your savings, your job, your health, your family.
Of course, you can avoid all of these negative consequences—by keeping your mouth shut and toeing the liberal party line. That’s always an option. And it’s the one they want you to choose.
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