Pregnant? Stuck in the deep South? You can still get an abortion… But it’s going to cost you.
To the Action Mobile!
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I have been saying for years that if anything could get liberals out into the street, and get their anger on, it would be the overturning of Roe v. Wade by the US Supreme Court. Now that’s going to happen. Yet the Democrats and liberals aren’t doing anything but complaining on social media.
DMZ America #48: Pulitzer Prize, Roe v. Wade and our Rotten Economy
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In this episode Ted, (who is suffering following his fifth Covid shot), and Scott discuss the lousy state of editorial cartooning illustrated by the horrendous winners of the Pulitzer Prize. Next, they discuss the aftermath of the leaked SCOTUS Roe v. Wade decision and the state of progressives in the United States. Lastly, the U.S. economy in free fall and the Biden administration’s stumbling response.
Five Men Have the Right to Choose
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Recent nominees to the Supreme Court of the United States, Republicans appointed by former President Donald Trump, told the United States Senate during their confirmation hearings—under oath—that they considered the landmark 1973 abortion decision Roe v. Wade to be “settled law.” But a leaked draft decision indicating that the conservative majority plans to overturn that decision belies their statements. The fix has been in for years, and desperate women will pay the price.
Better a Pretend Fight Than None at All
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A friend and I were at a bar when someone opined that France didn’t resist the German invasion in 1940. “It’s true, France lost fast,” my friend replied. “But they fought hard. They lost 90,000 troops in six weeks. It was a bloodbath. We lost 58,000 over a decade in Vietnam but we’re still whining about it.”
Every conflict ends with a winner and a loser. There is no shame in losing—only in not trying.
Democrats need to learn this lesson. Voters want their elected representatives to fight for them.
This administration is not without accomplishments: last year’s coronavirus stimulus package saved millions of Americans from bankruptcy and prevented a recession; though poorly executed, President Biden deserves praise for the withdrawal from Afghanistan; and, inflation aside, workers are benefitting from rising wages and record-low unemployment. The pandemic seems to be in our rearview mirror. Now, The New York Times reports, party bosses are trying to decide on a unified message for the midterms: “Should they pursue ambitious policies that show Democrats are fighters, or is it enough to hope for more modest victories while emphasizing all that the party has passed already?”
Democrats have been bragging about their accomplishments for months. But “Democrats deliver”—their flaccid midterm slogan—hasn’t delivered.
The news that the United States Supreme Court plans to overturn Roe v. Wade may well sweep aside the other issues that have been percolating in voters’ minds over the last few months. But conservatives are just as energized as liberals when it comes to abortion. And many progressives are asking themselves: why didn’t Democrats pass a federal abortion rights law when Obama had a 60-vote supermajority in the Senate? At other times, why didn’t they go on the record with a vote? Abortion repeal probably helps Democrats, but not as much as they think and not enough to keep control of Congress.
Before the Supreme Court leak, Joe Biden’s own pollster was repeatedly warning Democrats that disaster loomed in November. The president’s approval ratings stubbornly refuse to budge above a dismal 40%, hobbled by incredibly shrinking support among voters under age 30. Vegas bookies give the GOP three-to-one odds of recapturing the Senate and a 90% chance of taking back the House. “We haven’t sold the American people what we’ve actually done,” Biden moaned recently.
Messaging isn’t the only problem. “Allies and some voters note that polling is partially driven by anger over extraordinary events, including the war’s impact on gas prices, that the White House could not fully control,” the Times says. Of course, it was Biden’s decision to get involved in Ukraine and to impose sanctions against Russian oil and gas. Gas prices wouldn’t be soaring if Democrats hadn’t gone after Russia. It was an unforced error.
When you control Congress and the White House, and voters are angry at you because they don’t think you have done anything for them, you don’t calm them down by telling them that they are wrong and stupid and that, actually, you have done all sorts of good things for them that they have been too ignorant or ungrateful to recognize. There’s only one way to campaign: tell people that you get it, you understand their pain, and you’re going to fight like hell to make them feel better.
“People can forgive you, even if you can’t get something done,” Nina Turner, a progressive challenging an establishment Democrat for an Ohio congressional seat, argues. “What they don’t like is when you’re not fighting. And we need to see more of a fighting spirit among the Democratic Party.”
For Democrats, however, not fighting – not even going through the motions of pretending they are fighting — is longstanding procedure. House Speaker Nancy Pelosi maintains a strict policy of not putting a measure up for a vote unless she is certain that a Democratic bill will pass. Like other corporate Democrats, she believes a losing vote is a sign of weakness.
Thus the refusal to try to federally legalize abortion rights.
Refusing to hold losing votes in Congress has led to one disappointment after another for progressives. After counting votes in the Senate, President Barack Obama decided in 2010 not to hold a vote on a “public option” in the Affordable Care Act. He blamed recalcitrant Republicans. Without forcing them to oppose this wildly popular idea on the record, however, Republicans could never be held to account in attack ads. (“Congressman Jackson hates people like you. That’s why he voted against health care for your babies!”) Meanwhile, Obama took heat from the left for breaking his campaign promise.
You can argue that you secretly, in your heart of hearts, wanted something that you never put up for a vote. But who will believe you?
Obama betrayed his promise to close Guantánamo for the same reason: he didn’t think he had the votes in the Senate. No one remembers that now. Americans who care about the issue remember that Obama was unwilling to spend political capital to shut down the camp.
Joe Biden’s adherence to Democrats’ count-votes-first practice on his Build Back Better infrastructure plan was more understandable. After conservative Democratic Senator Joe Manchin announced that he wouldn’t support it, the White House pulled the $1.75 trillion bill from Senate consideration because it would have highlighted internal divisions within the party. Sometimes, however, a rogue member of your own caucus must be reined in. If Democrats wanted to show their left-leaning base voters that they were fighters, they would have disciplined Manchin by taking away his committee memberships and held the vote despite inevitable defeat. Then they could have run ads against Republican senators who opposed a giant jobs package.
Democrats have failed to hold votes on increasing the minimum wage to $15 an hour, student loan forgiveness or bold action to mitigate the effects of the climate crisis. While it is true that these ideas might go down to defeat against a united GOP and Democrats in Name Only like Manchin, young voters in particular would like to see them put up for a vote and fought for. And those “nays” could be leveraged against vulnerable Republicans.
Republicans understand the optics of appearing to fight for a cause dear to their voters even if it’s doomed—especially if it’s doomed. Knowing full well they didn’t stand a chance at succeeding, the GOP voted 70 times to repeal Obamacare. After Trump won in 2016, however, they didn’t move to repeal or truncate—because the ACA was popular. “Now that it makes a difference, there seems to not be the majority support that we need to pass legislation that we passed 50 or 60 times over five or six years,” Rep. Mo Brooks of Alabama admitted. Fighting and losing—even pretending to fight only when defeat is assured—gets more results than pointing at your supposed actual accomplishments.
It may well be that corporate Democrats are too beholden to their major donors to, say, increase the minimum wage. Unless the polling changes in a big way, Democrats will have an opportunity to virtue-signal about the minimum wage and student-loan forgiveness the same way the Republicans did on the ACA beginning early next year.
(Ted Rall (Twitter: @tedrall), the political cartoonist, columnist and graphic novelist, is the author of a new graphic novel about a journalist gone bad, “The Stringer.” Order one today. You can support Ted’s hard-hitting political cartoons and columns and see his work first by sponsoring his work on Patreon.)
DMZ America Podcast #47: US Supreme Court to Overturn Roe v. Wade
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Political cartoonists Ted Rall (left) and Scott Stantis (right) analyze the breaking news that the US Supreme Court will almost certainly overturn the landmark 1973 abortion rights decision Roe v. Wade. Ted and Scott consider the impact on the midterm election campaign and the result, predict the likelihood of a sustained campaign of protest by the left, and ponder the nature of existence itself.
Can We Make It President Breyer?
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Supreme Court Justice Stephen Breyer was pressured to retire by Democrats who are worried that Republicans would re-capture the Senate and would get to choose his replacement in the event that he were to die at the age of 83. Meanwhile, there is no pressure whatsoever to replace President Joe Biden, even though his mental and physical state are clearly not as sharp as Breyer’s.
How Sarah Palin May Save Defamation Law
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How easy should it be to sue a newspaper or other news outlet for defamation? Thanks to a 1964 Supreme Court decision and the proliferation of constitutionally-dubious “anti-SLAPP” laws, it’s virtually impossible for someone who accuses a media company of lying about him to get to trial, much less win a damage award. If your local paper decides to smear you, the truth is, there’s not much you can do about it.
Sarah Palin’s lawsuit against the New York Times poses the first threat in years to the American press’ ability to print whatever it wants. Opening statements in her trial began last week; the fact that a public figure is getting her day in court against a major newspaper is a news story in and of itself.
The 1964 case New York Times v. Sullivan set a high standard for a public figure like Governor Palin, or even a “limited public figure” like an editorial cartoonist, to prevail in a libel or defamation claim. Publishing an untruth isn’t enough. Under Sullivan the printed lie must be demonstrably damaging to the victim’s reputation and must result from “actual malice.” Actual malice, the court ruled, means that the publisher either knew that the smear was false before they published it, or that they demonstrated “reckless disregard for the truth.”
It is unusual for a publication to go so far as to knowingly print a falsehood with a view toward damaging someone’s reputation, as The Los Angeles Times did to me as a favor to the LAPD in 2015, which owned the newspaper at the time, was a political ally of the then-publisher, and wanted me destroyed in retaliation for criticizing police misconduct. As with most libel cases, Palin v. New York Times comes down to the second half of the definition of actual malice.
On its face the Times’ actions against Sarah Palin seem to embody reckless disregard for the truth. In 2017 the paper published an editorial, “America’s Lethal Politics,” that pinned the blame for the shooting of a Congressman on a Palin political TV ad. “The link to political incitement was clear,” the paper claimed.
It was anything but.
As the Times put it in a correction posted several hours later, the Times editorial “incorrectly stated that a link existed between [Palin’s—though the paper didn’t mention her by name] political rhetoric and the 2011 shooting of Representative Gabby Giffords. In fact, no such link was established. The editorial also incorrectly described a map distributed by a political action committee before that shooting. It depicted electoral districts, not individual Democratic lawmakers, beneath stylized cross hairs.”
“In our view, this was an honest mistake,” Times lawyer David McCraw told the Washington Post in 2019. “It was not an exhibit of actual malice.” But James Bennet, the editorial page editor who wrote most of the editorial, ignored his own fact checker, who told him that the Times itself had already published an article debunking a link between Palin’s ad and the Gifford shooting. The Atlantic, where Bennet had previously served as an editor, had also debunked the Palin-Giffords meme. In a business where “if your mother says she loves you, check it out” is the 11th Commandment, failing to check it out is, or ought to be, the very definition of reckless disregard for the truth.
In recent years, however, most judges have been strongly biased against plaintiffs in defamation and libel cases and so have turned a blind eye to the reckless-disregard half of the “actual malice” definition under Sullivan. Newspapers and other media defendants have largely been able to get away with rhetorical murder using the “my bad” defense.
Adding to the media’s ability to wield the First Amendment as a cudgel to destroy reputations are anti-SLAPP statutes. Thirty-one states, including many of the most populous, have anti-SLAPP laws whose main effect is to make it close to impossible to sue for defamation or libel. In order to get to trial, defamation plaintiffs have to convince a judge that they would be likely to convince a jury at trial—but they aren’t allowed to subpoena evidence or depose witnesses to build their case. Many lawsuits die there.
If a plaintiff fails, which they usually do because judges routinely ignore or don’t understand the convoluted language of anti-SLAPP statutes, not only do they not get their day in court, they have to pay bloated legal expenses to the deep-pocketed corporate media defendant who libeled them. That’s what happened to me in my five-year fight against the LA Times. Anti-SLAPP laws are a nightmare but they aren’t going anywhere because they are supported by both pro-corporate conservatives and misguided liberals.
Among some recent victims of anti-SLAPP are fitness icon Richard Simmons, who was ordered to pay $130,000 to the National Enquirer after he sued the tabloid for brazenly lying that he was transitioning to become a woman, and Stormy Daniels, who was ordered to pay Donald Trump $293,000 after she sued him for calling her a liar. In these and many similar cases, the law turned reality on its head and re-victimized the aggrieved party. But even the ACLU won’t stand up for them because the group reflexively supports anti-SLAPP, the Constitution be damned.
If a New York jury, which is likely to be overwhelmingly Democratic, overlooks its political distaste for Palin and rules against the Times, the case may head to a U.S. Supreme Court that seems more open to the possibility of scaling back Sullivan. “How do you balance free speech rights with the right to your individual reputation, and in the context of public officials who have volunteered for public service and do need to be held to account?” asks former Palin attorney Elizabeth Locke. “Redrawing that balance does not mean that we lock up journalists or that any falsehood should result in a huge jury verdict. But imposing the potential for legal liability, which is virtually nonexistent with the Sullivan standard in place, would create self-restraint.”
No one wants to strip media companies of the First Amendment protections they need in order to do their work on a day-to-day basis. But it’s also time to stop screwing defamation plaintiffs with meritorious cases, not to mention protecting lazy journalists. An artful and legally correct remedy would be for the high court to declare Sullivan (and the anti-SLAPP laws that rely upon it) unconstitutional as applied rather than throw it out entirely. To restore sanity to defamation law and start to hold out-of-control media companies accountable, lower courts should be directed to establish two common-sense propositions.
First, defamation claims should be allowed to proceed unless there isn’t the barest possibility of prevailing at trial, in which case they should be tossed during an early-stage motion for summary judgment to dismiss. That’s what anti-SLAPP case law says in states like California, where my case was litigated, but judges routinely hold defamation claims to a much higher, basically impossible, standard.
Second, the Supreme Court should clarify that, while Sullivan indemnifies a defendant from being sued over an honest mistake that is quickly corrected, ignoring basic journalistic due diligence clearly constitutes reckless disregard for the truth.
I never expected to write the following words but here goes: Good luck, Sarah Palin.
(Ted Rall (Twitter: @tedrall), the political cartoonist, columnist and graphic novelist, co-hosts the weekly DMZ America podcast with conservative fellow cartoonist Scott Stantis. You can support Ted’s hard-hitting political cartoons and columns and see his work first by sponsoring his work on Patreon.)
Clean Our Mess: Release Guantánamo Detainees in the U.S., Close the Camp
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Parents teach their children: you make a mess, you clean it up.
Twenty years ago, the United States government transformed its naval base at Guantánamo Bay into a legal, moral and foreign-policy disaster. It’s time for President Biden to fulfill his promise to complete the task his predecessors didn’t have the wisdom or desire to do: close America’s gulag.
Thirty-nine prisoners remain at Gitmo. The Pentagon has cleared 18 for release. Yet they will remain captive until the U.S. finds a country willing to accept them, and offers assurances that they’ll be surveilled to ensure they don’t present a threat to U.S. interests and allies. When possible, former detainees are sent home. Others are either denied the right of return by their home countries or would face torture or execution for domestic political reasons.
Kidnapped, tortured, held in isolation without visits from friends or family, Gitmo victims have never been charged with a crime and in many cases were innocent of anti-American activities. After they’ve been cleared for release, they enter a Kafkaesque nightmare—they’ve convinced their interrogators that they shouldn’t be there yet remain behind bars, at a cost to taxpayers of $1.3 million a year each.
Three detainees were cleared more than a decade ago, yet remain at Guantánamo. Six others should have been released early last year. “If I had to make a bet on what’s happening, this is an example of the Biden administration, distracted by the pandemic and the economy, not paying any attention to actually making transfers happen,” said Shane Kadidal, an attorney at the Center for Constitutional Rights, who represents Sufyian Barhoumi of Algeria. He was cleared six years ago.
The grand fallacy at the heart of this pseudo-legal purgatory is the assumption that ex-Gitmo detainees must go somewhere, anywhere, but the United States. Why, if like Thomas Wolfe they can’t go home again, shouldn’t they be resettled here?
The detainees are part of a mess that we created. Providing them with a home and whatever else they need to lead productive lives—education, job training, psychological treatment—is the least we can do to make amends for the cruelty and injustice they’ve endured.
Set aside the psychic smear of the national trauma Americans suffered after 9/11, and it becomes clear under U.S. law and legal culture that these men are as “innocent until proven guilty” as it is possible to be. They were never indicted, much less convicted, of anything, yet they’ve languished under miserable conditions for years. The Defense Department has determined that they don’t present any threat. These men should be treated the same as a U.S. citizen wrongly convicted for a crime he didn’t commit; they should receive financial compensation for their years of false imprisonment and ample resources to help them settle wherever they want to go.
Might a former Gitmo prisoner, radicalized and shattered by his experience, commit a violent crime or an act of terrorism on U.S. soil after being released? It’s possible. A dozen former detainees returned to Afghanistan and fought against U.S. occupation forces.
Yet if we have integrity that’s a chance we have to take. We release innocent men and women from prison despite the possibility that years of incarceration have hardened them, exposed them to criminals and may have left them with hatred and resentment of the society that wrongfully convicted them. We don’t try to foist off innocent ex-convicts on some other country on the grounds that they are too damaged to live here. There are, moreover, means of mitigating the risk that a former detainee might pose a danger to Americans: validating their experience by issuing them a public formal apology, ideally by the president himself on national television, prosecuting their military and CIA torturers and allowing victims to testify against them, work permits, entry visas for family members, financial compensation and, of course, surveillance by local authorities.
These moves would also boost our international reputation.
The Bush Administration relied on the fiction that Guantánamo was a netherworld under U.S. control yet not subject to U.S. legal protections such as the right to a speedy and fair trial, or representation by an attorney, when it chose this imperialist relic of the Spanish-American War to warehouse and torture hundreds of Muslim men whose involvement in jihad ranged from Khalid Sheikh Mohammed’s role in planning the 9/11 attacks to Osama bin Laden’s chauffeur to regional opponents of the regime in Yemen to nothing whatsoever. In 2008, however, the Supreme Court ruled in Boumediene v. Bush that Guantánamo inmates were in fact entitled to constitutional protections including the right to file a writ of habeas corpus in American courts. Legally, therefore, they’re already in the United States.
Congress passed a law preventing the use of taxpayer money to transfer Guantánamo detainees to the United States. But they’re already here. So there’s no transfer. Besides, the law is almost certainly an unconstitutional violation of the president’s prerogative as commander-in-chief. But why wait for a lengthy court challenge? We’re talking about just over three dozen men. Financing the airfare from Cuba to the lower 48 states could be taken care of by a GoFundMe. Count me in.
Notice, I did say over three dozen. That’s because all 39 Guantánamo victims are legally innocent under American law, including Khalid Sheikh Mohammed. None of them have ever faced trial in an actual civilian courtroom and never will because their testimony was extracted under duress. KSM, for example, was infamously waterboarded 182 times. If the rule of law and due process mean anything, all 39 prisoners — not just those who have been cleared to leave — should not be transferred to maximum-security prisons on the American mainland, as liberals generally suggest. They should all be released in the United States and given every possible resource to live out their lives peacefully and successfully.
(Ted Rall (Twitter: @tedrall), the political cartoonist, columnist and graphic novelist, co-hosts the weekly DMZ America podcast with conservative fellow cartoonist Scott Stantis. You can support Ted’s hard-hitting political cartoons and columns and see his work first by sponsoring his work on Patreon.)
Freaking out about Trump, Letting Bush off the Hook
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Democrats are still completely wound up over the fact that Donald Trump falsely claims that he won the 2020 presidential election, and the Jan. 6 Capitol Hill riot. Yet Democrats quickly forgot about something far worse than lying about losing and a failed coup: the 2000 presidential election actually was stolen, in part due to a violent coup, and as a result more than 1 million people in Iraq and Afghanistan died. Democrats forgot so thoroughly that they now treat Bush like an elder statesman to be respected rather than thrown into prison for the rest of his life as he deserves.
