San Antonio’s Kung Fu Fighting

On its surface, it can be dismissed as little more than another performative effort by some overly self-important local politicians to show their neighbors that they won’t tolerate the nastiness, racism, the words that are wrong. After all, they could stir up feelings of anger in others and cause them to act out and harm people. But it’s happening in San Antonio, of all places, and if someone calls the cops, and the cops respond because someone called COVID-19 the Chinese Virus or Kung Fu flu, someone could very easily get hurt.

WHEREAS, COVID-19 is a public health issue, not a racial, religious or ethnic one, and the deliberate use of terms such as “Chinese virus” or “Kung Fu virus” to describe COVID-19 only encourages hate crimes and incidents against Asians and further spreads misinformation at a time when communities should be working together to get through this crisis; and

WHEREAS, the Jewish community has been targeted with blame, hate, antisemitic tropes and conspiracy theories about their creating, spreading and profiting from COVID-19; and

WHEREAS, to target and stigmatize specific communities for the COVID-19 outbreak and world- wide spread creates an inexcusable risk to all community members; and

WHEREAS, it is critical that the City of San Antonio take leadership and stand in solidarity with its Asian and Jewish communities to send a message that discriminatory and hate-motivated behavior or violence will not be tolerated; and

WHEREAS, all persons are encouraged to report any such antisemitic, discriminatory or racist incidents to the proper authorities for investigation;

Strange place, Texas. A curious mix of “rugged individuals” who will deliberately walk about with a semi-automatic on their shoulder to test whether anybody wants to take away one constitutional right, while the city council of San Antone takes away another with an officious edict.

Had they issued a declaration against discrimination, that would have not only been constitutionally acceptable, but a laudable sentiment. But they took it a few steps further, explicitly stating what words wouldn’t be tolerated and “encouraging” all persons to report it to the “proper authorities for investigation.” It’s unclear who the “proper authorities” might be. Perhaps the ACLU or social justice warriors on twitter, but the phrase is most likely to be interpreted to mean their police. What would they investigate?

Eugene Volokh takes the resolution to task, but in a curious manner.

But “Chinese virus” or the less precise “Chinese flu” seem to me to be quite legitimate political spin—trying to blame China (the political entity) for its role in the spread of the virus—and of course fully protected speech. “Sinophobia” in the sense of fear of Chinese people is irrational, but “Sinophobia” in the sense of fear or dislike of the People’s Republic of China is quite sound, though, like all fear or dislike, needs to be treated sensibly.

It’s not that he doesn’t recognize that calling COVID-19 “Chinese virus” is “and of course fully protected speech,” but that he makes the effort to explain and justify it as “quite legitimate political spin.”

And while of course criminal attacks on Asians (or my own group, Jews, or any other group) are bad, that a tiny fraction of the public might react badly as a result of the label “China virus” doesn’t strike me as a reason to avoid the speech.

One of the more pervasive, and pernicious, arguments made against “hate speech” is that it encourages people to engage in acts of physical violence against the targets of the hatred. The proof cited tends to relate to the increase in hate crimes since Trump’s election, though that’s not an entirely sound metric, given the increase in seeking out offenses for the sake of blaming Trump and that many, perhaps most, are against Jews, a group that hasn’t been targeted by Trump’s rhetoric.

But what is concerning is indulging in the argument of whether fully protected speech is deserving of that protection. As the Texas Tornado, Mark Bennett, sarcastically twitted, this is an “Important question when reading the Bill of Things We Deserve.”

Does it matter whether, as Eugene discusses, it’s legitimate political spin”? The free speech scolds believe so, as they argue over the value of speech in determining its worthiness. Political speech is the most valued and hate speech the least valued, and so, they contend, speech should be judged by its place on a sliding scale of protection worthiness. Is that how it works? By engaging the discussion in this paradigm, is Eugene conceding that it’s a legitimate bar for First Amendment protection?

One of the foremost problems when the First Amendment is implicated is that people are now under the impression that they get to decide how valuable any particular word, expression, idea is, and if they decide it’s not good, they conclude it’s deserving of either lesser or no protection. The argument stems from the challenge to the notion of free speech at all: why have a First Amendment if it doesn’t serve society in a beneficial way? Certainly there is no benefit to society from uttering words that are discriminatory, mean and hateful, so if the justification for free speech is to protect valuable speech from governmental censorship, then only speech that’s worthy of protection should fall within its ambit. Right?

Of course, this is not the argument, although it’s been accepted and repeated by many over the past few years. And indeed, the effort to legitimize the contention that if one can’t justify the worthiness of speech to the satisfaction of one’s interlocutor, then it’s undeserving of the First Amendment’s protection and must not be uttered.

But then, what words, phrases, expressions and ideas are worthy of utterance doesn’t depend on the beliefs or sensibilities of others. And even those words of hate have their place in a world where we are entitled to love whom we choose and hate whom we choose, for good reasons or bad. If you call COVID-19 the Kung Fu flu, I’m going to think you’re stupid, but then, being stupid is our right as well. If you’re willing to be thought of that way, you’re entitled to use whatever dumb words you choose. Except in San Antonio, for now.

23 thoughts on “San Antonio’s Kung Fu Fighting

  1. tk

    San Antonio ain’t exactly a backwater. I’m surprised the city attorney didn’t smack the back of their collective hands for promoting such nonsense.

    I saw that occur several times when I was a reporter many years ago. A city council, or a particular council member, would propose a resolution, and the attorney would say, “I’m not going to defend that in court.”

    1. SHG Post author

      In most local government, it’s the city attorney who puts the council’s will into words, and presumably the city attorney not only failed to tell them that this was unconstitutional, but facilitated it. Then again, it’s not as if lawyers have been the bulwark for constitutional rights they used to be.

      1. Rendall

        Given the historical ebb and flow of constitutional protections over the centuries, I’m afraid that the time when lawyers as a class were reliable bulwarks for constitutional rights must be rather mythical, sadly.

  2. Hunting Guy

    Doc Nichols.

    “And a quick note for those concerned, calling it “Wuhan Flu” is not in any way, shape or form racist. Wuhan is a place, not a race, and naming things like this after the place of notable outbreak is quite traditional. IE, Spanish Flu, German measles, Rocky Mountain Spotted Fever, Lyme Disease, etc.”

    1. SHG Post author

      This is exactly the argument that shouldn’t be made. If it was racist as hell, would it be any less protected speech?

      1. Hunting Guy

        Ana Mari Cauce.

        “Freedom of speech, even that which is hateful and repugnant, is the price we pay for democracy.”

  3. Rojas

    There is a damned good chance that San Antonio finds itself in the middle of this public health issue because China has no protections for free speech like the first amendment.

    Chris von Csefalvay
    The Price of Oppression

    “As the new year dawned, an insidious enemy was hard at work. Tiny yet resourceful, it was multiplying, diversifying—and infecting. It did so unobserved by the watchful eyes of the Chinese regime, whose attentions were consumed by an altogether different threat: Li Wenliang, a 33-year-old ophthalmologist at a Wuhan hospital. On December 30, Li had shared, via WeChat, CT scans and test results of patients who presented unusual respiratory symptoms. By January 3, the Wuhan police informed Li that he had to affix his fingerprint, in lieu of a signature, to a formal letter of admonition, promising not to spread “false rumors” of a SARS-like respiratory illness caused by a coronavirus. On January 6, he died of it.”

    1. SHG Post author

      It’s not as if it wasn’t anticipated that small minds couldn’t get past the merits of China virus, but must you make me regret waking up this morning?

  4. Anonymous Coward

    Personally I like the nickname “Winnie the Flu” which directly insults China’s Dear Leader Xi Jinping, placing blame where it squarely belongs.
    As for the San Antonio City Council they deserve a massive bench slap for content based restrictions on speech.

      1. Howl

        Unfortunately, things like work, family, home projects, etc. have an annoying tendency to interfere with the important stuff. I’ll try to do better, Admiral.
        Being Mother’s Day, I submit this as penitence for my tardiness:

          1. Howl

            Thank you, and all the best to the mother of your children, and to the memory of your mom.
            Like yours, my parents have both passed on. We are left with memories, and it is a blessing to have so many good ones.

  5. Julia

    The problem with the argument is that there is no universal consensus which speech is valuable. The way it usually works is those with power force their own definitions on the rest of the population.

  6. David Meyer-Lindenberg

    Bizarre post from Volokh, to be sure. He segues from the SQUIRREL!!! bit about how truthy it is to call it “Chinese virus” into a, to my mind, wildly inapropos analogy to Wisconsin v. Mitchell:

    [T]hat a tiny fraction of the public might react badly as a result of the label “China virus” doesn’t strike me as a reason to avoid the speech. [summary of Wisconsin v. Mitchell] The blame was rightly placed on Mitchell, not on [a movie he watched before his racially motivated assault]; likewise for talk of the “Chinese virus,” or for harsh criticisms of police officers that lead a tiny fraction of the public to react by attacking police officers (or violently resisting them during police stops).

    If Eugene had wanted to discuss the constitutionality of “hate crime” sentencing enhancements, he could have done so. If he’d wanted to talk about the vapid idea that criticism of x amounts to constitutionally unprotected incitement against x, he could have done so. Instead, he lumps these things together, giving us a comparison that’s apples-to-oranges in addition to being phrased in a way that’s deeply weird. Why should anyone care whether the potential reaction to offensive speech “strikes [him] as a reason to avoid” it? That sentiment may be fine for Miss Manners or America’s philosopher-king, but what it isn’t is interesting from a con law perspective.

    1. SHG Post author

      I struggled with Eugene’s dot connections here, and the only sense I can make of it is that he’s trying to moderate his position by wrapping it up in Mitchell so it doesn’t come off as too political in supporting the Chinese flu side. Or he’s drunk. I dunno.

      1. David Meyer-Lindenberg

        This is why Ilya’s always gonna be my fave. Takes a lot more to get him this drunk.

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