I recently came across a podcast (1) on the concept of qualified immunity. Qualified immunity, as explained by Suffolk University law professor Karen Blum, means “an official performing discretionary functions has qualified immunity from damages liability […] so long as his or her conduct conforms to what a reasonable official would have believed lawful in light of clearly established law and the information possessed by the particular official at the time of the challenged conduct“ (2).
It is a crucial doctrine in the common law judicial system of the United States which allows government officials to be released from liability, if they have violated a person’s rights while performing tasks where decision-making is imperative. In relation to the calls for police reforms, this concept is one that particularly shows the injustice and favoritism of government officials that must be fought against.
That was the topic of the podcast, in which law-practicing liberals discuss themes relating to the U.S. Supreme Court. However, I couldn’t help but notice their analysis of qualified immunity was at times drenched in anti-republican and anti-police disdain, going so far as to call police officers “pigs” and police training facilities “pig academies“. The podcast moderators also talked about a case involving an opinion of the deceased judge Antonin Scalia. The following fragment is taken from the conversation had by the podcast moderators, talking about Scalia and the case:
Speaker 1: “And he [Scalia] files a concurrence, saying ‘yeah, yeah, the majority is totally right, he deserves qualified immunity, but also, I don’t think that this qualifies as ‘deadly force’ because he was aiming at the engine block.“ This is not relevant to the case, he just thinks it’s unfair to the police to call it deadly force.[…] But also you would have to be an absolute moron to think that this guy was aiming for the engine, so it’s sort of irrelevant. And it became even more irrelevant in February 2016 when Antonin Scalia´s pillow applied deadly force to his face“
Speaker 2: “GOT. HIS. ASS!!”
Speaker 1: “Where’s his grave? We should let our listeners know at one point“
Speaker 3: “Anybody wants to relieve themselves publicly“ (laughter)
The language used by the moderators and injecting liberal propaganda with their previously mentioned disdain for authorities and conservatives indicates a problem widespread among many people of all political leanings.
I would, however, like to address my point especially to liberal-minded people. Humor and making jokes (which is what the moderators were indulging in) is of course understandable, I myself am prone to saying things that could be considered “dark humor” in private. But I wouldn’t necessarily repeat them in front of auditoriums and wouldn’t want to see such comments presented in papers.
The condescending nature of those arguments and comments guarantees unnecessary ammunition for the opponents of liberal policies and might keep liberals in the constant symbiotic loop of moral superiority in their ideas but perpetual failure in electoral votes.
Conservatives and other interested parties would love nothing more than liberals fighting their battles for them and providing them with banal and offensive statements that any pundit can quote on any media platform to build a narrative of just how insensitive, divisive and dangerous the liberals really are. It is something I wish more propagandists would consider before making outrageous statements. Plain and simple – offensive language doesn´t help the liberal cause.
The problem I have isn’t necessarily with the podcast, which describes itself as “occasionally profane“ and uses “dark humour to reveal the high court´s biases“. I imagine the moderators of the podcast don’t consider themselves – nor would they like to be – promulgators of the progressive cause on the forefront of the ideological warfare, which is understandable. But the problem noticeable in their use of speech is a widespread one, even among those, who seek to be ideologically persuasive in their statements. It is exactly those people who should not take part in such self-expressing means, if they want to be successful in their pursuits of popularizing liberal ideas.
What is achieved by discourse of this nature, is likely to be more alienation between groups and more basis for ridicule amongst the opponents and yet-to-be-decided voters. These are the people that the proponents of liberal policies should be pursuing. Instead, this rhetoric is directed towards those already in agreement and focuses on the voices already singing praise to the liberal cause. While unity amongst liberal minds is important, the way actual change in ideological leanings is to be brought about is through convincing more and more people to join the liberal path. This path should be welcoming and warm in its approach, not conceited and arrogant. Being courteous goes a long way and of course it is easier to reject polite discourse to appease the emotional knee-jerk reaction of insult necessity. However, calm and rational delivery is the most effective in terms of convincing voters appealing to people in general. Courteous behaviour and how we use our language is something we could all take into account more often. Maybe then there would be more societal pressure to consider abolishing or replacing qualified immunity.
Blum, Karen M. Indiana Law Review – Volume 26, nr 2, 1993. Pg 187-188
Joosep is a columnist for Liberal Base and undergraduate student at the University of Tartu, Estonia.