[ The new private enforcement laws endorse what amounts to a
civilized form of vigilantism. Recent years have seen an alarming
number of vigilante threats or acts against immigrants seeking asylum,
Black Lives Matters protesters and voting rights driv]
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WE ARE BECOMING A NATION OF VIGILANTES  
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Jon Michaels and David Noll
September 4, 2021
New York Times
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_ The new private enforcement laws endorse what amounts to a
civilized form of vigilantism. Recent years have seen an alarming
number of vigilante threats or acts against immigrants seeking asylum,
Black Lives Matters protesters and voting rights driv _

Shannon Stapleton // New York Times,

 

I

In the seemingly endless battle to deny disfavored groups equal
citizenship, Republican lawmakers around the country have repurposed
an old tool to new and cruel effect. They’ve inverted private
enforcement laws — marshaled over the years to discipline fraudulent
government contractors, racist or sexist bosses and toxic polluters
— to enable individuals to suppress the rights of their neighbors,
classmates and colleagues. Most prominent among these new laws is SB
8, Texas’s heartbeat bill. The law bans abortions six weeks into a
pregnancy, lets anyone bring a lawsuit against medical practitioners
who violate the ban and provides cash bounties of at least $10,000
(plus legal fees and costs) to encourage such litigation.

SB 8 captured the nation’s attention this week when the Supreme
Court refused to block its implementation, precisely because, as
Justice Sonia Sotomayor and the other dissenting justices noted
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it is enforced by private individuals, not the state.

Gutting Roe v. Wade,
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backdoor fashion, is a staggering blow to equality in America. And in
fact, the president of Florida’s State Senate just promised
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introduce a copycat bill in the coming legislative session. But the
subversion of private enforcement laws to restrict individual rights
goes far beyond abortion. Since the beginning of this year, Tennessee
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authorized students and teachers to sue schools that allow transgender
students to use the restrooms that match their gender
identity; Florida
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followed suit, with a law that allows students to sue schools that
permit transgender girls to play on girls’ sports teams.

Additional bills are in the works across several
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parents to sue schools if teachers or outside speakers mention the
principles of critical race theory. And there’s every reason to
expect that red states will push private enforcement further — to
election monitoring and perhaps even immigration enforcement. It’s
only a matter of time before these states decide to empower
individuals to bring suits for injunctive relief and damages against
people who engage in activities like handing out water
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minority voters waiting in hourslong lines to vote. States could
similarly deputize anyone to sue employers or landlords of
undocumented persons, pushing Dreamers who are currently protected by
DACA out of work and into the streets.

These laws don’t just tee up a lot of new and nettlesome lawsuits;
they’re part of a campaign to make us forget what rights really are.
Up until now, the law usually conferred rights on people who were
seeking to exercise personal autonomy — over their bodies, their
words or their votes. This new breed of private enforcement laws
inverts that paradigm, giving rights to people who are merely offended
by what they see, hear or imagine.

This reassignment lacks any foundation in our constitutional
traditions (except those built on theories of subordination, such as
Jim Crow). Instead, it’s the product of what might be labeled
populist outrage discourse — everything from Tucker Carlson
monologues to the irate grocery store customers
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assert their inalienable “right” to shop maskless, even if doing
so violates the wishes of the proprietor and endangers those around
them.

The financial incentives to enforce laws like SB 8 will provide
crucial support for groups who are already waging today’s culture
wars. In essence, the states are manufacturing and subsidizing a
community of grievance activists. Their work will provide headlines
for allies in the right-wing press to stoke the divisions that are
necessary for a minoritarian political party — whose only other
chief contribution is tax cuts for the ultrawealthy — to maintain an
active and enthusiastic base.

Still more troubling, the new private enforcement laws endorse what
amounts to a civilized form of vigilantism. Recent years have seen
an alarming number
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vigilante threats or acts against immigrants seeking asylum, Black
Lives Matters protesters and voting rights drives. (Meanwhile, support
for such political violence has also risen
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We don’t mean to sensationalize suits under these new laws by tying
them to disturbing incidents such as the attempted kidnapping
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Gov. Gretchen Whitmer of Michigan. But enforcement of the new laws
will require intensive and intrusive surveillance of neighbors and
colleagues.

Consider a website set up to facilitate enforcement of SB 8. Before it
was targeted by hackers, prolifewhistleblower.com invited users to
upload “evidence” that SB 8 was being violated, while guaranteeing
users anonymity — an open invitation to use the kind of guerrilla
investigative tactics
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have already been deployed against abortion providers across many
states.

It’s tempting to think that it’s better for doctors (not to
mention teachers, coaches and, in time, voters) to be dragged into
court rather than to be assaulted on the street, but this is a false
dichotomy. The new laws encourage aggressive surveillance while
functionally chilling fundamental expressions of personal autonomy.

Perhaps though, what’s good for the goose will be good for the
gander, and blue states will use these same tools to suppress
rights _they_ dislike. Massachusetts could authorize citizens to
seek damages from houses of worship that refuse to follow Covid safety
protocols; California could give citizens the right to sue neighbors
who recklessly keep guns in their homes; New York could even encourage
private lawsuits against big corporate donors who exercise
disproportionate sway over politicians.

But setting aside our own personal discomfort with using litigation to
stoke culture wars and, possibly, invite violence, let’s be real:
This intensely politicized and extremely conservative Supreme Court is
never going to allow such laws to take effect. It’s not the best use
of Democrats’ time and energy to try.

What’s more, there is something deeply undemocratic and
embarrassingly revealing about a political party that maintains power
by fomenting and subsidizing discord, whether in the streets or in the
courtroom. For Trump’s G.O.P., however, the strategy is
irresistible. In an era where fomenting — and even monetizing —
social, cultural and racial grievances is crucial to the G.O.P.’s
survival, SB 8 is just the tip of the iceberg.

_[Jon Michaels (@JonDMichaels [[link removed]]) is a professor
at UCLA. David Noll (@davidlnoll [[link removed]]) is a professor
at Rutgers. Michaels and Noll, two law professors, have been tracking
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enforcement laws like SB 8 — and their impact on equality and
democracy in America.]_

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