I already said back in post #36 that it’s possible to complain about a Black person supporting policies that promote a KKK agenda (or a Jewish person doing the same for a Nazi agenda) without being racist or antisemitic about it:
When you bring up the KKK to Black people, or Nazis to Jewish people, you need to do it especially thoughtfully and sensitively. When any aspect of your message seems to be gratuitously and unnecessarily dwelling on terroristic symbolism and imagery, that really calls the good faith of your message into question. What comes across is not “I think you really need to reconsider this position because it is giving aid and comfort to notoriously evil people” but rather “Hee hee I get to insult you for your position by associating you with what you find most repulsive and intimidating.”
And yes, that applies to people who indiscriminately throw around the “Nazi” epithet about Israeli oppression of Palestinians, too.
The question is whether a person sending the email would or should have known the email is certain or substantially certain to cause trauma. That the email actually did cause trauma, as a matter of consequence, is (IMO) irrelevant when determining whether the author should be liable in court.
Note that the image sent to Delegate Walker depicts a Klansman throwing a Nazi salute, not an act of outright violence. The Nazi imagery MrDibble shared in post #15 is more comparable than a Nazi guard killing a prisoner.
If the email sent to Delegate Walker depicted outright violence such as a lynching or mutilated body, I would be on the other side of this debate.
I don’t think of the described email as certain or substantially certain to cause trauma. I don’t think of it as outrageously, intolerably indecent. I don’t think of it as a true threat. I consider myself a reasonable person. Now, you are free to dismiss my opinion or think of me as an unreasonable person, and we can leave it at that. But if you wish to continue the debate, you will have to do better than “the reasonable person standard writ large”.
When the question is asked, is an act (such as sending an email) certain to inflict emotional trauma? I see two approaches.
We assume the act will inflict emotional trauma, unless there are good reasons to think it won’t
We assume the act will not inflict emotional trauma, unless there are good reasons to think it will
Of these, I take the latter approach. I assume the email is not certain or substantially certain to inflict trauma unless I have good reasons to think otherwise. I’m pushing the burden on you with this, and that’s how it should work when a politician sues a citizen for inflicting emotional trauma. We don’t want Soviet-esque situations where a person who says “Trump is a Nazi” has the burden of proving the uncertainty of inflicting emotional trauma.
Now, I have admitted that an image of a Klansman doing a Nazi salute is shocking, especially to a Black American. However I do not think it is reasonable to expect a Black person to suffer from a panic attack upon seeing the image. Surely some Blacks are susceptible, but as far as I know this is a very small minority and it is unreasonable to assume the entire race of Black Americans can be triggered by the image of a Klansman doing a Nazi salute.
It is also possible that a person can be traumatized by a perceived threat to their life or personal safety. I think this is, potentially, what happened to Delegate Walker. But the author’s liability would then turn on whether the email was certain or substantially certain to be perceived as a threat of violence against Delegate Walker. To this I say, if it was me sending the email, I would not have expected her to take it as a threat of violence. Though at first glance an image of a Klansman may appear threatening, the context of that image - it’s captions and the email it was sent in - make for an overall message of “don’t be like the KKK.” In other words the KKK is used in a negative sense, not as a threatened enforcer to some demand. If the email had read, “This guy will make sure you change your vote”, that is going to be taken as a threat.
At the risk of just beating my head against a pole, against the advice of others and their better example, I’m going here one last time : you’re not Black.
Empathy is, IMO, a necessary condition for reasonableness in human affairs, to be able to predict the outcome of your actions on fellow human beings, and you have shown zero empathy for the situation of Black Americans here.
On what do you base this claim?
I think it’s eminently reasonable to expect a large proportion of people living as an oppressed minority under a White supremacist system to experience some form of psychic trauma on being confronted with unsolicited, unexpected, unwanted imagery of one of the worse parts of that White supremacy.
…and you base this on?
I’m basing my opinion on the evidenced reactions of not just Walker, but other African-Americans in media over the years, on receiving Klan-related imagery.
By that weasel word I bolded, I take it yo you are wanting to call her a liar, but hedging your bets?
You’re not acting as a “reasonable man” in this situation.
Note that the “reasonable man” standard is not the same thing as “the average person”.
Weasel word noted and bolded.
Big picture, smaller words. You are very much mistaken as to where in the email the actual message was. Walker saw it quite clearly.
I acknowledge that I’m not Black, and surely that plays an unconscious role in my opinion. But I can guarantee you, in the state of West Virginia, Black jurors will make up the minority of any jury, in the unlikely case that Black jurors are present at all.
I have thus far tried to avoid revealing how I empathize with Ms. Walker, but since you called me out on it directly, I may as well explain.
Large spoilers so as not to screw up thread navigation.
Emphasizing with Delegate Walker (Click to show/hide)
She says she felt personally threatened by this email, that she feared for her safety and the safety of her children, wore protective gear when that group held a rally at the statehouse the next week, and felt great emotional stress. I have every reason to believe her. If I imagine myself personally threatened, having kids and fearing for their safety as well, I can empathize with her wearing protective gear and feeling great emotional stress.
However, if I put myself in her position as she reads the email, I cannot see myself reacting the same way. There are two conclusions I could draw from my inability to empathize with her on this level. One, she is unreasonable or lying. Two, she has personal reasons to react differently that I am unaware of. I don’t want to call her unreasonable, and certainly not a liar, until the alternatives are exhausted. So in order to empathize with her I have to speculate - I have to think what would make me react in the same way she did.
So first I go back, I put myself in her place as she reads the email, and ask myself what circumstances would need to change for me to see this as a threat? There is only one element of the email that comes across as threatening and it is the image of the Klansman. Remove the image and I don’t think there are any circumstances in which I see the remaining text as a threat; remove the text however, and I can imagine myself finding the image of a Klansman threatening. If I were Black, no doubt I would have heard of the KKK’s violence against Blacks and come to recognize their robes and Nazi salutes. So the image, at least devoid of context, could convey a threat of violence.
But the image wasn’t devoid of context. It was accompanied by both captions and the text content of the email which liken the pro-choice to some kind of Black eugenics. Ms. Walker isn’t just any old Black woman, she is Delegate Walker in the West Virginia House of Delegates who is publicly supporting a pro-choice measure in that legislature. The context of the email is that of a criticism of Ms. Walker’s political position, which uses the KKK in a negative sense - as something you don’t want to be like. In that context I cannot see myself interpreting the image of a Klansman as a threat of violence. So I ask myself, is there any circumstance in which I would ignore the context? And again, the answer is yes - I can think of two circumstances.
I would ignore the context if I suffered from a panic attack at the sight of the image of a Klansman. This is not unlike a Holocaust survivor who is triggered by Nazi imagery. The Ku Klux Klan did in fact inflict terror upon Blacks, and it is reasonable to conclude that some number of people are psychologically conditioned to enter a state of extreme fear at the mere sight of the robes, or even an image of the robes. If I imagine myself as one such person, suffering from post-traumatic stress disorder triggered by an image of the KKK, I can empathize with Delegate Walker’s reaction to the email. My understanding of your (MrDibble) most recent line of argument is along this line, but I’m almost sure I misunderstand you.
The second circumstance would be if I thought the rest of the email was written in bad faith. That if I were in Ms. Walker’s place, it would be reasonable to assume the accompanying text is whitewash, an excuse to provide deniability for the author’s true purpose, which is to intimidate me into withdrawing my support for abortion access via threatening me with KKK-style violence. I believe this is the consensus position held by yourself (MrDibble), Exapno_Mapcase, BigT, Broomstick, Cervaise, Slithy_Tove, stretch, iiandyiiii, pulykamell, Kimstu, Atamasama, puzzlegal, k9bfriender, and possibly Left_Hand_of_Dorkness and RitterSport. I’m just talking about putting myself in Delegate Walker’s position here, not intent. If I assume for the sake of argument that it is reasonable to interpret the rest of the email as cover for a threat of violence, then I would ignore the rest of the email and be able to empathize with Delegate Walker’s reaction. But I operate on the assumption that when someone says something, they are telling the truth unless I have a good reason to think otherwise. So here we go again, putting myself in Delegate Walker’s positions, under what circumstances do I conclude the text content of the email is mere cover for a more sinister message?
If the image had nothing to do with the rest of the message, if it was a complete non-sequitur, it would be somewhat reasonable, in the interest of safety, to ignore the text accompaniment. But the image here seems to match the rest of the message.
If the particular organization or individual behind the message has an individualized history of racial violence, or threatening racial violence, it would be prudent to assume they are at it again.
If there was a string of violence following similar emails, like a calling card, it would be reasonable to assume, in the name of safety, that this email could be either the next hit or a copycat. As far as I know there has been no such string of violence. That is the distinction I draw between this email and a burning cross across the street, or a Klansman in the living flesh.
If, over the course of my life (imagining I was a Black person), my experience with pro-lifers who demonize the pro-choice movement as racist and terroristic leads me to believe that such people are usually themselves racists and terrorists, willing to threaten and perpetrate violence, I could see myself interpreting any pro-life message alluding to racist symbolism as a threat - just to be on the safe side. Regardless of whether it is used in a negative sense. This is like a Jew who has seen enough rhetoric accusing Jews of committing genocide end up getting Jews killed in racist acts of terror, such as the Pittsburgh synagogue shooting, to conclude that an accusation of Jews committing genocide should be treated as a threat of violence. Really, in the U.S., it’s the same group of people in both situations: white supremacists prone to the “replacement” conspiracy theory. See also the El Paso shooting. GIGObuster’s post from early on in the debate approaches this line of thinking, but I am actually thinking of it from the other end - that these pro-lifers brought the KKK into the discussion at all indicates a level of crazy that could easily end up getting me & my family mobbed. After hearing so many stories, or after experiencing something personally, it becomes quite reasonable to assume anybody who espouses a certain idea poses a threat to you and your family. You put the safety of you and yours over the benefit of the doubt given to a stranger. This is very reasonable. I think this line is closest to the mark, and I don’t in any way fault Ms. Walker for taking this approach, if she did so. In a different life, I could see myself doing the same thing.
And that is the extent of my empathy towards Delegate Walker, or I guess towards your average Black American who reads her story. It doesn’t have much of a bearing on whether I think she should win the lawsuit, since in my mind that comes from a totally different compartment; but you asked about empathy, and there it is.
Regarding the lawsuit (Click to show/hide)
When I move to consideration of the lawsuit, I also need to put myself in the mind of the defendant. I think in most cases, it is only just to inflict punishment when the defendant is shown to be responsible. There are three types of responsibility: if the harm was intentional (intent), if you knew you would cause harm but didn’t care (recklessness), or if you should have known your act would cause harm (negligence).
The lowest standard is negligence, and I don’t think even that low bar is met here. As far as I know I am alone on that point (a couple other posters have gone so far as to say the author may not have intended a threat). I simply take the set of circumstances, above, under which I can empathize with Delegate Walker, put myself in the defendant’s place, and for each circumstance I ask whether I, a reasonable person, should have expected it to be present in Ms. Walker.
I should know that Delegate Walker suffers from PTSD and is triggered by images of Klansmen, so even if my intentions are good, this email will cause her great emotional distress.
Delegate Walker will think I am trying to threaten her, and suffer great emotional distress, because
the image is a non-sequitur given the accompanying text, so she will interpret it on it's own, and the image without context is threatening; or
I (or my organization) have a history of threatening Black people with racially motivated violence, or a history of perpetrating racially motivated violence against Black people, so she will ignore the context and assume this is a thinly veiled threat; or
there was a string of violence preceded where similar emails were sent out as calling cards; or
I should know that Delegate Walker's personal experiences lead her to believe anybody who likens abortions to eugenics and racist ideology is liable to resort to violence.
Going down the list, I have no reason to assume Delegate Walker is triggered by images of Klansmen. Not even because she is Black. To the contrary I think it would be extremely racist to assume the entire race of Black Americans suffers from a mental disorder or are otherwise unable to function normally (I don’t know, triggering uncontrolled hypertension?) at the mere sight of racist imagery. If that were the case, we would not print such images in textbooks or newspapers, and we would not show them on television news - it would be taboo, such as graphic images of fresh corpses are, or at least appeared to be in the U.S. before Russia invaded Ukraine this year.
I already wrote above that I think the image matches the accompanying text.
I am not aware of this local pro-life organization having a history of racially motivated violence, or threats of racially motivated violence.
I am not aware of a serial murderer sending similar emails before attempting murder. It could be argued that the history of the KKK and lynch mobs in the South qualify, such that even an image of a Klansman translates to a threat of violence regardless of context, but I don’t think that’s a reasonable connection. If that argument held, incidental racist symbolism would be verboten in news, education, and even satire; which is, to (American) me, absurd, but I think is the actual law in Germany.
Which leaves the last point. Putting myself in the defendant’s shoes: Why should I know that Delegate Walker’s personal experiences? Has she talked about her personal experiences and how they lead her to this conclusion, and can you prove that I would know about it? No?
Perhaps another argument is raised, it should be obvious to anybody that linking abortion to eugenics is so outright crazy, so intolerably indecent, that the only people who believe it are the misguided or twisted souls who really would go out and murder people of color. I did consider this above when empathizing with Delegate Walker. I dismissed it. Here’s why: Comparing abortion to eugenics is a very common position in the pro-life movement, very common. “Abortion is Black Genocide” is something that would not be out of place at a pro-life rally. You’ll find op-eds in major outlets covering this topic because it is part of mainstream pro-life activism.
It’s been said of abortions in China during the one-child policy. It’s been said of the discrepancy in abortion rates between Whites and Blacks. We now have a significant number of states who have, just this decade, the viral '20s, banned even pre-viability abortions sought on the basis of expected race/gender/disability, and two Supreme Court Justices on the record defending those laws as safeguards against eugenics. West Virginia is currently considering passing such a law, which has a good chance of going through, unlike Delegate’s Walker’s law which was dead on arrival. “Crazy”, “outrageous”, and “indecent” are relative terms. The Overton window has long since encompassed the idea of abortions as eugenics. Comparing abortions to eugenics cannot be so insane and outrageous as to justify a restraining order and court damages when it is so commonplace. Delegate Walker, in her personal experience, may feel that it is only a radical and dangerous fringe who espouses such beliefs. That’s fine. It could be reasonable for her to feel threatened, and yet unreasonable to punish the author of the email; in my eyes, this isn’t a contradiction or a miscarriage of justice.
[I]n a previously unreported incident, Walker said she was followed by a group of white men in a pickup truck as she made her way to a Sept. 12, 2020, Black Lives Matter rally in Kingwood […]
[account of confrontation]
Though Walker did not file a police report on the four white men, she said she did file one after the rally for receiving an assassination threat. […]
Walker said her experiences — and need for security — have left her overly cautious about everyone she meets, from car mechanics to physicians to the pharmacists she talks to.
“I don’t walk my neighborhood,” Walker said. “Not every day of every hour do I want security. My body has lifetime scars from wearing that body armor.”
“I have not stopped crying since 2019, and I am not a crier. It’s the trauma. It’s the PTSD. It hurts [my family] to know that I need such strong security measures for just existing.”
