The Public Insult Playbook

How Abusers in Power Undermine Civil Rights Reform

Ruth Colker

• Publisher: University of California Press
• Year: 2021
• ISBN:
  9780520975187
• Edition: 1
• Topic: Law
• Subtopic: Civil Rights in Law
• Index: Law

When they go low, we learn: an examination of mudslinging in contemporary American politics—and how the left can find its footing to achieve structural reform in this mess. The rules of the public discourse game have changed, and The Public Insult Playbook argues that the political left needs to account for the power of vitriol in crafting their theories for social and political change. With this book, noted constitutional law expert and disability rights advocate Ruth Colker offers insights into how public insults have come to infect contemporary public discourse—a technique not invented by but certainly refined by Donald Trump—and, importantly, highlights lessons learned and tools for fighting back. Public insults act as a headwind and dead weight to structural reform. By showcasing the power of insults across a number of civil rights battlegrounds, The Public Insult Playbook uncovers the structural nature of personal attacks, and offers a blueprint for a legal and political strategy that anticipates the profound but poorly understood damage they can inflict to whole movements. Illustratinghow completely the tactic has been adopted and embraced by the American right wing, the book catalogues how public insults have been used against people with disabilities, immigrants, people seeking abortions, individuals who are sexually harassed, members of the LGBTQ community, and, of course, Black Americans. These examples demonstrate both the pervasiveness of the deployment of insults by the political right and the ways in which the left has been caught flat-footed by this tactic. She then uses the Black Lives Matter movement as a case study to consider how to effectively counter these insults and maintain an emphasis on structural reform.

1 Insults

A POWER TOOL FOR POWER BULLIES

INSULTS IN HISTORICAL CONTEXT

The use of public insults by politicians is nothing new.

Since the founding of our republic, politicians have engaged in vociferous, insulting behavior to attain and retain power in society. “When John Adams ran against Thomas Jefferson, [b]oth candidates suffered personal attacks; Adams, for his perceived lack of masculine virtues, Jefferson for rumors that he had fathered children with one of his slaves and, enamored with French revolutionary ideas, had plans to install a Bonaparte-like dictatorship in America. His heterodox Christianity also raised charges of atheism.”¹

In the late eighteenth and early nineteenth centuries, politicians would respond to perceived insults, such as being called “a worthless scoundrel, a poltroon and a coward”² or a “bowl of skimmed milk,”³ by seeking a duel.⁴ “Raised by an immigrant mother on a subsistence farm on the Carolina frontier,”⁵ Andrew Jackson, for example, was taught that he needed to establish and prove his status as a gentleman by dueling. “A gentleman dueled only with other gentlemen. If insulted by an underling, a gentleman responded by thrashing the upstart with a cane or horsewhip.”⁶

The deployment of and response to insults has always been class based. Upper-class society tolerates and uses it in the political sphere. In the early nineteenth century, “[e]verywhere, dueling was considered the prerogative of upper class gentlemen, who decreed that the unwashed rabble had no honor to defend and thus were ineligible to spill blood on the sacred field of honor.”⁷ The deployment of base insults was an important arsenal of the power elite to maintain their control in society, including the support of slavery. Historian Joanne Freeman documented how southern members of Congress, in particular, who were loyal to a violent code of masculine honor, often bullied and beat their northern colleagues to silence their opposition to slavery.⁸

Insults continued to play an important role in public life as the United States entered the modern era. Although the use of insults for political purposes spans social classes and political ideology, I demonstrate here that those in positions of power based on class, race, sex, gender, and disability status, whom I call “power bullies,” have been able to deploy insults to greater effect than others. The purveyors of insults include politicians, corporate lawyers, media personalities, judges, and police officials. Whether they are barring immigrants from entering the United States, engaging in sexual harassment, demeaning people with disabilities, or devaluing Black lives, actors who possess political, economic, and social advantages have relied on insults to undermine the civil rights of historically subordinated groups.

Insults have been power tools for power bullies. These insults need to be understood not merely as a personal attack on a discrete individual or group of individuals but as a tool that helps undermine the attainment of structural, progressive policies. As Owen Fiss has argued, “[s]tructural reform is premised on the notion that the quality of social life is affected in important ways by the operation of large-scale organizations, not just by individuals acting either beyond or within these organizations.”⁹ Thus, this book captures three important ways that public insults can be effective: (1) by deflecting attention away from the erosion of or need for structural reform, (2) by acting as a headwind to impede attempts to attain structural reform, and (3) by acting as a dead weight to impede people from exercising their statutory or constitutional rights.

Deflection

A well-known example of deflection was the public response to the shooting of Michael Brown in Ferguson, Missouri, on August 9, 2014. Even though witnesses claimed that Michael Brown had his hands up when approached by police, conservative news sources immediately emphasized Brown’s purported criminal record for minor shoplifting.¹⁰ Officer Darren Wilson, who was charged with the shooting, was not indicted; the issue of whether Michael Brown was a “good person” should have been irrelevant to the issue of whether the shooting was justified. As Ezra Klein has said: “But this is a sick conversation. The Good Ones don’t deserve to be shot when they’re surrendering. But neither does anyone else. It doesn’t matter that Michael Brown was starting college on Monday. And it doesn’t matter if he was involved in a robbery on Saturday. What matters is the precise circumstance in which Officer Darren Wilson shot Brown.”¹¹ Office Wilson was never indicted; the power bullies succeeded in their campaign of insults.

But the murder of George Floyd shows us how public protests can challenge this power bully deflection strategy. Predictably, after Floyd’s murder on May 25, 2020, the power bullies started posting that Floyd had a criminal history and was accused of passing counterfeit bills. President Donald Trump called the Minneapolis protesters “thugs,” raged against the media for “doing everything within their power to foment hatred and anarchy,” and criticized Democratic officials for letting the protests spin out of control. He quoted a 1960s southern sheriff’s threat to shoot looters in Black neighborhoods and threatened to bring in the army if “liberal governors and mayors” don’t get tougher on demonstrators.¹² Trump’s strongest tactic of deflection was to pose for a photo in front of a Catholic Church, holding a Bible, in defiance of the protesters.

The national and international protests that followed the murder of Floyd, however, served to control the narrative. British newspapers proclaimed that Trump’s response “inflames America’s injustice.” The largest German newspaper announced: “Trump declares War on America.” India’s second-largest English daily wrote that Trump’s tactics, if conducted by the Indian government, would have caused “the U.S. State Department . . . [to] condemn[] the government, and call[] for respecting human rights.” The Chinese Communist Party’s flagship newspaper published a cartoon featuring a police officer’s uniform beneath the cracked façade of the Statue of Liberty with the tagline “Beneath human rights.” Pakistan’s paper of record ran the headline “Trump on the Warpath.” One of Mexico’s leading daily newspapers proclaimed that the United States “seems to be on the edge of an abyss with incalculable consequences for its own population, but also for the rest of the world.”¹³ The attempts to insult George Floyd and the protesters were drowned out by the worldwide protesters who spoke out against police brutality.

It took many years of murders of Black people for Black Lives Matter to begin to control the narrative. After each senseless killing, as I discuss further in chapter 8, the police spun out a fabric of lies to make it look like the murder was justified. But the shooting and murder of unarmed Laquan McDonald, a Black male, in the back as he was moving away from the numerous officers who surrounded him was so outrageous that even white America could no longer look the other way. Multiracial crowds began to fill US streets, and streets around the world, with radical calls to “defund police.” Their success shows both that deflection is penetrable and the high cost in deaths that must occur before those deflections can be beaten back. Further, as I discuss in chapter 8, it provides us with an example of how to control the narrative to seek structural change rather than merely justice for one family of a murder victim.

Deflection with Headwinds

Deflections often occur with headwinds. That combination can be seen in the well-known example of candidate Donald Trump mocking reporter Serge Kovaleski. In November 2015, Trump mocked reporter Kovaleski at a campaign rally by flapping his arms to imitate Kovaleski’s congenital joint condition, arthrogryposis.¹⁴ Trump’s behavior led to public discussion about whether his campaign could survive such boorish behavior.¹⁵

But not many can recall why Trump was mocking Kovaleski. When I have talked about this book’s thesis, few audience members have indicated that they remember why Trump mocked the reporter. So let me remind the reader of the sequence of events that led to Trump mocking him. On November 21, 2015, Trump made a false claim that Arab Americans cheered the 9/11 attacks from rooftops in New Jersey. At a campaign rally in Birmingham, Alabama, Trump said: “I watched when the World Trade Center came tumbling down. . . . And I watched in Jersey City, N.J., where thousands and thousands of people were cheering as that building was coming down. Thousands of people were cheering.”¹⁶ He made that claim to support his campaign position that the United States needed to curtail Muslim immigration and reverse the immigration reform that had occurred under President Barack Obama.¹⁷ When his claim was challenged, he repeated: “People over in New Jersey that were watching it, a heavy Arab population, that were cheering as the buildings came down.”¹⁸ A couple of days later, Trump defended his false claim by citing a 2001 Washington Post article by Kovaleski.¹⁹ Trump wanted to curtail Muslim immigration into the United States; he was inventing a false narrative to justify that step.

When Kovaleski heard that Trump was citing his news reporting to support this false claim about people cheering the 9/11 attacks, he responded to correct the record. Rather than respond to Kovaleski with facts, Trump responded with ridicule. He mocked and imitated Kovaleski’s arm gestures.²⁰ Trump then doubled down on this insult by saying that he was “showing that the reporter was groveling when he totally changed a 16 year old story that he had written in order to make me look bad. Just more very dishonest media!”²¹

What did this insult accomplish? It deflected attention from the inaccuracy of Trump’s original assertion that people in New Jersey were cheering the 9/11 attacks. It allowed Trump to continue his anti-Muslim vendetta, which arguably helped him win the presidential election. A deflecting insult was a tool to undermine some immigration reforms that had been achieved during the Obama presidency.

Notice the dynamic of the insults. A wealthy, celebrity, political candidate made an unsubstantiated and insulting claim. It was part of his anti-immigrant rhetoric to support banning Muslims from entering the United States and curtail immigration from Mexico.²² The purpose of those proposals was to undermine the immigration reform that had occurred under President Obama. Trump’s ten-point immigration plan included terminating “President Obama’s two illegal executive amnesties.”²³ Within three days of Trump making this false claim, which itself was deeply insulting to Muslims and Arabs, the media turned its attention to whether Trump had mocked Kovaleski. Trump supported this diversion by saying that Kovaleski was “groveling.”²⁴

By the time Meryl Streep, during her Golden Globes speech, repeated the allegation that Trump had insulted Kovaleski, the New York Times reported that Trump had “appeared”²⁵ to mock Kovaleski and made no mention of the underlying anti-immigrant stance of Trump that spurred the insulting behavior. The insult helped transform the immigration debate from whether American Muslims had actually cheered the 9/11 attack to whether Trump had insulted Kovaleski.²⁶ Trump’s ten-point immigration plan included the following: “Immediately terminate President Obama’s two illegal executive amnesties (Deferred Action for Parents of Americans and Lawful Permanent Residents and Deferred Action for Childhood Arrivals). All immigration laws will be enforced—we will triple the number of ICE agents. Anyone who enters the U.S. illegally is subject to deportation. That is what it means to have laws and to have a country.”²⁷ The details of that immigration plan received little public discussion while people dissected Trump’s gestures and words in mocking Koveleski. The eventual implementation of that immigration plan had a devastating impact on the progressive change that was attained during the Obama administration.

As this example reveals, insults can be highly effective against disadvantaged individuals and groups in society to deflect public attention from harmful public policies and act as a headwind to undermine existing civil rights reform. In this example, the insult was directed at a person with a disability; the reform was in the area of immigration law. But diversionary insults are not limited to deflecting public attention away from the need for immigration reform. In fact, one should understand public insults to be an important tool of the financial and political power elite to undermine or overturn nearly all areas of civil rights reform.

Another interactive example comes from the area of LGBT rights.

As discussed further in chapter 5, the LGBT^* community has faced decades and decades of horrible public insults. Lesbians were characterized as man-haters. Gay men were considered to be pedophiles. Transgender people were largely invisible, but when they began to be more public, they faced horrific slander and violence. Until the Supreme Court decision in Lawrence v. Texas in 2003, many states still had enforceable laws that made gay men and lesbians face long prison sentences if they were convicted of engaging in sodomy. It is difficult to think of a g...