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If Trump’s Protestors Didn’t Exist He Would Have to Invent Them

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Since last Friday’s canceled Trump rally in Chicago, there has been quite a bit of discussion about protestors at Trump rallies — both the propriety of disrupting his events and some scolding about what a bad tactical move it was for protestors to shut down the Chicago event, as well as some sudden realization among the chattering classes that Trump really does espouse violence.

I’d like to take a different approach and look at how Trump uses protestors.

For months, Trump has made protestors an integral part of his schtick at rallies. A person of color, a woman in hijab, a woman with a walker shows up and either silently protests, perhaps holding or wearing an anti-Trump slogan, or does boo and call out. Purportedly in response to earlier disruptions, Trump instructs attendees before any disruption not to hurt the protestors, but instead to surround them, holding up Trump signs and chanting his name, until security comes to throw the protestor out. “Get him out of here!” Trump yells after his attendees have disinfected the herd. This is all part of the rhythm now of Trump’s rallies, a way to reinforce the mob mentality in a participatory way.  Supporters become more than mere voters: they get deputized into reinforcing the purity of the herd, like drone bees cleaning out a hive.

I’m agnostic about the efficacy of protestors thus treated — they serve a useful function for Trump, sure, but given that every rally he does is covered on TV, they also serve as witness to the violence and assumed nativism of the rallies (not that the chattering classes seemed to take all that much notice before last weekend). But any individual’s decision to protest is their own choice, and I fiercely admire the courage it takes to walk into one of those rallies and serve as witness.

Of course, the neat formula Trump has long relied on depends on having — or rather, maintaining the illusion of — a majority. The “Silent Majority” has really become something closer to the “Silent 30%” or even “Silent 25%,” but at Trump rallies it appears as if those no-longer silent angry people are a majority.

On Friday, Trump lost control of that illusion.

I agree with William Daley, among others, who suggests that Trump chose to create a confrontation by scheduling an event at UIC. But I also think protestors got a sufficient mass of organized protestors to the event to thwart the managed confrontation Trump was hoping for, because they deprived him of the illusion of a majority. So he canceled the event before even showing up, falsely citing Chicago Police Department warnings.

I’m agnostic here, too, about the efficacy of this protest. One thing that has been largely — though not entirely — ignored (which itself testifies to something about the efficacy of speech rights in this country) is that the protest was part of a larger effort, including the effort to oust Cook County State’s Attorney Anita Alvarez in today’s election; there were even “Bye Anita” signs at the protest. That is, the protest of Trump’s speech was part of a larger effort to fight systematic abuse of minorities, and as such had an affirmative message as well, though I admit the message reinforced afterwards — by both the protestors and press — is that they shut him down. I believe Alvarez has been leading in the polls, so we’ll see this evening whether the larger movement against her police cover-ups has achieved its goals.

But in questions of efficacy, I think it worth remembering how the Black Lives Matter protest of the Netroots Nation debate between Martin O’Malley and Bernie Sanders last July (which seems to have been entirely forgotten as people feel sorry for Trump). O’Malley basically gave up his microphone willingly; Bernie was more perturbed. A lot of attendees in the audience (the equivalent of all the Trump supporters who were deprived of their opportunity to hear him speak on Friday) were really angry; but many of those same people also wrote pieces in the weeks later talking about how important a learning opportunity being discomforted in such a way was. And that protest was undoubtedly effective, as it made the criminal and social justice issues a key focus of the Democratic primary. That’s not to say Trump protestors are as likely as Netroots Nation attendees to reflect on the privilege that attends uninterrupted speeches by white men, but sometimes protests do lead observers to rethink their own role (as, for example, mosque protestors in AZ who were invited inside only to learn about Islam in an unmediated way).

Let’s look, however, at what has happened in the days since Friday. On Saturday, Trump canceled and then uncanceled an event in Cincinnati, citing Secret Service concerns. Also on Saturday, protestor Thomas DiMassimo rushed Trump on stage (something I don’t defend, as it created real concerns about Trump’s safety; DiMassimo is lucky he wasn’t shot). Finally, in Kansas City, protestors achieved the result that Chicago protestors might have imagined: the sustained silencing of Trump, which he used to 1) claim Sanders supporters were the problem and 2) reinforce his love for the police.

Since then there have been reports of Trump finally doing what he chose not to do before (I argue, because protestors play a key function in his rallies): screening attendees of likely protestors, including profiling on race, which carries with it its own visual messaging that may even influence attendees. Yesterday, Trump retreated to his less visceral means of reinforcing the bully structure of his campaign, again referring to Rubio as “Lil Marco” and publicly humiliating Chris Christie.

Here’s the underlying point, though. Amid all the discussions of both the law and norms surrounding interrupting speech, few have accounted for the way that well-managed spectacle is a key (arguably the key) to Trump’s attraction. That spectacle relies partly on Trump’s mock frankness — his ability and willingness to say anything he wants, including repeated promises he will address presumed grievances of his supporters. But it relies, at least as much, on his ability to mobilize a mob in a certain way, including to create the illusion for that mob that they are part of a coherent pure majority. That mob gives them the illusion of power they believe they have been illegitimately stripped of. It’s an illusion, of course, but Trump is a master at managing that spectacle to prevent cracks from forming in that illusion.

And this is why the response to Trump has largely been so ineffectual. Polls in FL showed that voters were more likely to support Trump given Friday’s shutdown (so on that level, at least, the protest may have backfired). But DC pundits scolding Trump has largely the same effect, reinforcing the sense of grievance. So if the DC press want to do something about Trump’s frightening power, they might do more reflection about how they have been a willing partner in it.

The way to weaken Trump is not to continue to magnify his spectacle, as the press has done non-stop for a year. This is tough for cable news to manage, because they are in the business of spectacle.

One way to weaken him is to reveal how Trump has exacerbated the grievances motivating his supporters, never addressed them. As a reminder, one of the only times Trump has really backed down over the course of this campaign was when Bernie attacked him for wanting to lower wages, because that’s a truth that, reinforced, might sow doubt.

The other way to is to disrupt Trump’s manufactured spectacle of strength, because his supporters are only going to support him so long as they believe his bluster about always winning (which relies, in part, on the bullying he performs at his rallies). I’m not sure whether disruption of rallies does that or not. Magnifying the degree to which Trump is a fearful man would. Reporting on his many failures would. Certain kinds of reminders of his past weaknesses might (though some would reinforce the sense of grievance).

Side note, one spectacle that did not get shown by the press were the protests in Detroit in advance of the GOP debate there. So as people complain about protestors not simply standing powerfully outside, know that the press has chosen in the past to ignore that spectacle.

I suspect Marco Rubio’s advisors had it right, even though they delivered it through the absolutely wrong messenger. Trump’s reliance on guest workers (he likes to conflate skilled H1B workers, which have been a central part of GOP debates, with unskilled H2B workers he employed at Mar Lago) and his use of Chinese manufacturers for his campaign swag are both real vulnerabilities. And if someone wants to suggest Trump is operating out of some sense of inferiority because he has a small flaccid penis and small hands to match, that may well undercut the spectacle of virility that Trump has affirmatively cultivated.

I think Megyn Kelly (because she’s a woman who has succeeded in making Trump look dumb, once Fox stopped letting Trump dictate her role in coverage), and — before Trump equated protestors with Bernie Sanders (maybe still, though I don’t know) — Bernie, are two of the few people who have the ability to undercut Trump’s power on mobilizing grievances. Probably some centrist union leaders have the same ability, as well as a select few faith leaders. There are vanishingly few people who have the power position to call attention to the degree to which Trump has contributed to his followers’ grievances, rather than done anything to alleviate them, but that evidence is out there.

I’m not sure what happens from here. Demographically, there should be no way Trump wins the general election; as I noted, the Silent Majority, to the extent it existed in Nixon’s era, is a minority now. Assuming it will be a Trump – Clinton race, I don’t know that we know, because Clinton will have a harder time addressing those grievances, and because the high negatives of both candidates will make turnout really unpredictable (though I also suspect Hillary will be an acceptable crossover vote for many Republican Neocons).

But there is one other unpredictable player here: the cops. For some time, both Ted Cruz and Trump have been feeding the perceived feeling of grievances of cops that they have been unfairly targeted by activists complaining about police violence. As noted, Trump hails the cops even as he dehumanizes protestors. Both Cruz and Trump have been buttering up the cops that may one day have the ability to turn the violence that has been simmering for some time in one direction or another (with the consequent spectacle). Though there were a few reports of heavy-handedness from Chicago cops, in general they did a good job of managing the tensions on Friday. I really, really worry that Cleveland’s cops (who are getting some new war toys in advance of the GOP convention) won’t exercise the same restraint.

Trump’s power rests on spectacle. He will not be defeated, primarily, with a rational argument or some tut-tutting about norms about violence (that, in fact, the US neither culturally nor internationally really abide by in any case), in part because there are few credible messengers of the rational argument about how Trump has contributed to grievances. If his spectacle starts to crack, however, the investment in Trump as a savior will dissolve. It won’t go away — it’ll get invested somewhere else, potentially even someone more violent (though that person is unlikely to have the soapbox Trump has). But his power depends on illusion.

DOJ’s Clear Threat to Go After Apple’s Source Code

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Oops: My post URLs crossed. Here’s where If Trump’s Protestors Didn’t Exist He Would Have to Invent Them is.

In a rather unfortunate section heading the government used in their brief responding to Apple last week, DOJ asserted “There Is No Due Process Right Not to Develop Source Code.” The heading seemed designed to make Lavabit’s point about such requests being involuntary servitude.

I’d like to elaborate on this post to look at what DOJ has to say about source code — because I think the filing was meant to be an explicit threat that DOJ can — and may well, even if Apple were to capitulate here — demand Apple’s source code.

The government’s filing mentions “source code” nine ten different times [see update]. The bulk of those mentions appear in DOJ’s rebuttal to Apple’s assertion of a First Amendment claim about having to write code that violates its own beliefs, as in these three passages (there is one more purportedly addressing First Amendment issues I discuss below).

Incidentally Requiring a Corporation to Add Functional Source Code to a Commercial Product Does Not Violate the First Amendment

Apple asserts that functional source code in a corporation’s commercial product is core protected speech, such that asking it to modify that software on one device—to permit the execution of a lawful warrant—is compelled speech in violation of the First Amendment.

[snip]
There is reason to doubt that functional programming is even entitled to traditional speech protections. See, e.g., Universal City Studios, Inc. v. Corley, 273 F.3d 429, 454 (2d Cir. 2001) (recognizing that source code’s “functional capability is not speech within the meaning of the First Amendment”).

[snip]

To the extent Apple’s software includes expressive elements—such as variable names and comments—the Order permits Apple to express whatever it wants, so long as the software functions. Cf. Karn v. United States Department of State, 925 F. Supp. 1, 9- 10 (D.D.C. 1996) (assuming, without deciding, that source code was speech because it had English comments interspersed).

Most people aside from EFF think Apple’s First Amendment claim is the weakest part of its argument. I’m not so sure that, in the hands of the guy who argued Citizens United before SCOTUS, it will end up that weak. Nevertheless, DOJ focused closely on it, especially as compared to its treatment of Apple’s Fifth Amendment argument, which is where that dumb heading came in. This is the entirety of DOJ’s response to that part of Apple’s argument.

There Is No Due Process Right Not to Develop Source Code

Apple lastly asserts that the Order violates its Fifth Amendment right to due process. Apple is currently availing itself of the considerable process our legal system provides, and it is ludicrous to describe the government’s actions here as “arbitrary.” (Opp. 34); see County of Sacramento v. Lewis, 523 U.S. 833, 846-49 (1998). If Apple is asking for a Lochner-style holding that businesses have a substantive due process right against interference with its marketing strategy or against being asked to develop source code, that claim finds no support in any precedent, let alone “in the traditions and conscience of our people,” “the concept of ordered liberty,” or “this Nation’s history.” Washington v. Glucksberg, 521 U.S. 702, 721 (1997).

Though admittedly, that’s about how much Apple included in its brief.

The Fifth Amendment’s Due Process Clause Prohibits The Government From Compelling Apple To Create The Request [sic] Code

In addition to violating the First Amendment, the government’s requested order, by conscripting a private party with an extraordinarily attenuated connection to the crime to do the government’s bidding in a way that is statutorily unauthorized, highly burdensome, and contrary to the party’s core principles, violates Apple’s substantive due process right to be free from “‘arbitrary deprivation of [its] liberty by government.’” Costanich v. Dep’t of Soc. & Health Servs., 627 F.3d 1101, 1110 (9th Cir. 2010) (citation omitted); see also, e.g., Cnty. of Sacramento v. Lewis, 523 U.S. 833, 845-46 (1998) (“We have emphasized time and again that ‘[t]he touchstone of due process is protection of the individual against arbitrary action of government,’ . . . [including] the exercise of power without any reasonable justification in the service of a legitimate governmental objective.” (citations omitted)); cf. id. at 850 (“Rules of due process are not . . . subject to mechanical application in unfamiliar territory.”).

In other words, both Apple and DOJ appear to have a placeholder for discussions about takings (one that Lavabit argued from a Thirteenth Amendment perspective).

Those constitutional arguments, however, all seem to pertain the contested order requiring Apple to create source code that doesn’t currently exist. Or do they?

As I noted in my earlier Lavabit post, the DOJ argument doesn’t focus entirely on writing code that doesn’t already exists. As part of its argument for necessity, DOJ pretends to take Apple at its word that the US government could not disable the features (as if that’s what they would do if they had source code!) themselves.

Without Apple’s assistance, the government cannot carry out the search of Farook’s iPhone authorized by the search warrant. Apple has ensured that its assistance is necessary by requiring its electronic signature to run any program on the iPhone. Even if the Court ordered Apple to provide the government with Apple’s cryptographic keys and source code, Apple itself has implied that the government could not disable the requisite features because it “would have insufficient knowledge of Apple’s software and design protocols to be effective.”  (Neuenschwander Decl. ¶ 23.)

Note DOJ claims to source that claim to Apple Manager of User Privacy Erik Neuenschwander’s declaration (which is included with their motion). But he wasn’t addressing whether the government would be able to reverse-engineer Apple’s source code at all. Instead, that language came from a passage where he explained why experienced engineers would have to be involved in writing the new source code.

New employees could not be hired to perform these tasks, as they would have insufficient knowledge of Apple’s software and design protocols to be effective in designing and coding the software without significant training.

So the discussion of what the government could do with if it had Apple’s source code is just as off point as the passage invoking the Lavabit case (which involved an SSL key, but not source code). Here’s that full passage:

The government has always been willing to work with Apple to attempt to reduce any burden of providing access to the evidence on Farook’s iPhone. See Mountain Bell, 616 F.2d at 1124 (noting parties’ collaboration to reduce perceived burdens). Before seeking the Order, the government requested voluntary technical assistance from Apple, and provided the details of its proposal. (Supp. Pluhar Decl. ¶ 12.) Apple refused to discuss the proposal’s feasibility and instead directed the FBI to methods of access that the FBI had already tried without success. (Compare Neuenschwander Decl. ¶¶ 54-61, with Supp. Pluhar Decl. ¶ 12.) The government turned to the Court only as a last resort and sought relief on narrow grounds meant to reduce possible burdens on Apple. The Order allows Apple flexibility in how to assist the FBI. (Order ¶ 4.) The government remains willing to seek a modification of the Order, if Apple can propose a less burdensome or more agreeable way for the FBI to access Farook’s iPhone.9

9 For the reasons discussed above, the FBI cannot itself modify the software on Farook’s iPhone without access to the source code and Apple’s private electronic signature. The government did not seek to compel Apple to turn those over because it believed such a request would be less palatable to Apple. If Apple would prefer that course, however, that may provide an alternative that requires less labor by Apple programmers. See In re Under Seal, 749 F.3d 276, 281-83 (4th Cir. 2014) (affirming contempt sanctions imposed for failure to comply with order requiring the company to assist law enforcement with effecting a pen register on encrypted e-mail content which included producing private SSL encryption key).

Effectively, having invented a discussion about whether the government would be able to use Apple’s source code out of thin air, DOJ returns to that possibility here, implying that that would be the least burdensome way of getting what it wanted and then reminding that it has succeeded in the past in demanding that a provider expose all of its users to government snooping, even at the cost of shutting down the business, even after Ladar Levison (after some complaining) had offered to provide decrypted information himself.

Significantly, the government obtained a warrant for Lavabit’s keys as a way of avoiding the question of whether the “technical assistance” language in the Pen/Trap statute extended to sharing keys, but Levison was ultimately held in contempt for all the orders served on him, including the Pen/Trap order and its language about technical assistance. The Fourth Circuit avoided ruling on whether that assistance language in Pen/Trap orders extended to encryption keys by finding that Levison had not raised it prior to appeal and that the District Court had not clearly erred, which effectively delayed consideration of the same kinds of issues at issue (though under a different set of laws) in the Apple encryption cases.

In making his statement against turning over the encryption keys to the Government, Levison offered only a one-sentence remark: “I have only ever objected to turning over the SSL keys because that would compromise all of the secure communications in and out of my network, including my own administrative traffic.” (J.A. 42.) This statement — which we recite here verbatim — constituted the sum total of the only objection that Lavabit ever raised to the turnover of the keys under the Pen/Trap Order. We cannot refashion this vague statement of personal preference into anything remotely close to the argument that Lavabit now raises on appeal: a statutory-text-based challenge to the district court’s fundamental authority under the Pen/Trap Statute. Levison’s statement to the district court simply reflected his personal angst over complying with the Pen/Trap Order, not his present appellate argument that questions whether the district court possessed the authority to act at all.

[snip]

The Government, however, never stopped contending that the Pen/Trap Order, in and of itself, also required Lavabit to turn over the encryption keys. For example, the Government specifically invoked the Pen/Trap Order in its written response to Lavabit’s motion to quash by noting that “four separate legal obligations” required Lavabit to provide its encryption keys, including the Pen/Trap Order and the June 28 Order.

[snip]

In view of Lavabit’s waiver of its appellate arguments by failing to raise them in the district court, and its failure to raise the issue of fundamental or plain error review, there is no cognizable basis upon which to challenge the Pen/Trap Order. The district court did not err, then, in finding Lavabit and Levison in contempt once they admittedly violated that order.

In other words, the Lavabit reference, like the invention of an Apple discussion about what the government could do with its source code (any such discussion would have been interesting in and of itself, because I’d bet Apple would be more confident FBI couldn’t do much with its source code than that NSA couldn’t), was off point. But in introducing both references, DOJ laid the groundwork for a demand for source code to be the fallback, least burdensome position.

And, as I noted, in the Lavabit case, the government justified demanding a key based on the presumption that Edward Snowden would have a more complicated password than Syed Rizwan Farook’s 4-digit numerical passcode. That is, in that case, the government tied a more intrusive demand to the difficulty of accessing a target’s communications, not to the law itself, which suggests they’d be happy to do so in the future if they were faced with an Apple phone with a passcode too complex to brute force in 26 minutes, as FBI claims it could do here.

All of which brings me to one more citation of source code in DOJ’s extended First Amendment discussion: a reference to a civil case where Apple was able to obtain the source code of a competitor.

This form of “compelled speech” runs throughout both the criminal and civil justice systems, from grand jury and trial subpoenas to interrogatories and depositions. See, e.g., Apple Inc.’s Motion to Compel in Apple Inc. v. Samsung Electronics, Docket No. 467 in Case No. 11–cv–1846–LHK, at 11 (N.D. Cal. Dec. 8, 2011) (Apple’s seeking court order compelling Samsung to produce source code to facilitate its compelled deposition of witnesses about that source code).

Note, this is not a case about Apple (or Samsung, in this case) being compelled to write new code at all. Rather, it is a case about handing over the source code a company already had. In another off point passage, then, DOJ pointed to a time when Apple itself successfully argued the provision of source code could be compelled, even in a civil case.

Through a variety of means, DOJ went well out of its way to introduce the specter of a demand for Apple’s source code into its response. They are clearly suggesting that if Apple refuses to write code that doesn’t exist, the government will happily take code that does.

Loretta Lynch claimed, under oath last week, that the government doesn’t want a back door into Apple products. That’s not what her lawyers have suggested in this brief. Not at all.

Update: Here’s how Apple treated this in its Reply:

The government also implicitly threatens that if Apple does not acquiesce, the government will seek to compel Apple to turn over its source code and private electronic signature. Opp. 22 n.9. The catastrophic security implications of that threat only highlight the government’s fundamental misunderstanding or reckless disregard of the technology at issue and the security risks implicated by its suggestion.

Also, in writing this post, I realized there’s one more reference to source code in the government’s Response, one that admits Apple’s source code is “the keys to the kingdom.”

For example, Apple currently protects (1) the source code to iOS and other core Apple software and (2) Apple’s electronic signature, which as described above allows software to be run on Apple hardware. (Hanna Decl. Ex. DD at 62-64 (code and signature are “the most confidential trade secrets [Apple] has”).) Those —which the government has not requested—are the keys to the kingdom. If Apple can guard them, it can guard this.