Right-wing media incessantly trumpet their fidelity to the U.S. Constitution while simultaneously accusing progressives of ignoring it, a position that has been abandoned in their attacks on the court decision holding New York City stop and frisk policy is unconstitutional.
On August 12, a federal district court held that while case law has long allowed police to initiate street encounters that briefly detain and investigate persons suspected of wrongdoing, there are certain Fourth and Fourteenth Amendment parameters to the practice that the New York Police Department (NYPD) violated. Specifically, Judge Shira A. Scheindlin held that the NYPD's version of stop and frisks - generally permitted by the Supreme Court in the 1968 opinion of Terry v. Ohio - unconstitutionally targeted New Yorkers of color because of their race and without reasonable suspicion.
Rather than engage the legal analysis, right-wing media are instead defending the NYPD by downplaying or ignoring its current unconstitutionality and arguing its justification lies in its purported efficacy at reducing crime rates.
On August 13, Fox News contributor Laura Ingraham appeared on Fox & Friends to dismiss the constitutional concerns over an “inconvenience” as “ludicrous” and accused the federal judge of “substitut[ing] her own view of the world, her own utopian view of how the world should be for the way the real life is, for the people who are trying to get by, not get killed, not get robbed, not get raped on the streets of New York.” The editorial board of The Wall Street Journal reiterated this concern for New Yorkers, particularly those of color, by lamenting “if the judge's ruling isn't overturned, the victims won't be in the tony precincts of liberal New York. They will be in the barrios and housing projects where stop-and-frisk has helped to protect the most vulnerable citizens, who are usually minorities.”
Fox News host Sean Hannity highlighted the alleged disproportionate criminality of African-American men in his sympathy for future victims at risk from a change in NYPD policy, arguing on his August 13 radio show “it's not racial profiling, or indirect racial profiling.” He continued, "[the disparity in stops and frisks] mirrored the disproportionate percentage of crimes committed by young minority men, that's what [the NYPD] said." Bill O'Reilly bluntly warned on the August 13 edition of The O'Reilly Factor, “if they do away with this program, that would be a disaster.”
On CNN's New Day, Newt Gingrich recycled all of these right-wing arguments and omissions, completely disregarding constitutional concerns about this “very, very useful” police practice to instead insist “what the police are trying to do...is establish a sense of order because establishing a sense of order clearly diminishes the amount of crime that occurs.” Gingrich also repeated the WSJ's concern about the disparate impact of ceasing an unconstitutional government practice on crime victims of color, a form of civil rights statistical analysis right-wing media have previously and repeatedly condemned. From the August 13 edition of New Day:
But right-wing media, particularly Fox News and the editorial board of the WSJ, previously had no problems condemning "disdain for the Constitution's checks and balances" and "contempt for the Constitution" when the defendant was President Barack Obama, as opposed to the NYPD. On August 14, a day after the WSJ belittled Scheindlin and urged her opinion's reversal, the editors lectured "[t]he professors and pundits who fret about the Imperial Presidency [who] go into hibernation when the President is a Democrat, so it is crucial that the courts reject Mr. Obama's increasing contempt for constitutional limits." Hannity perhaps had the most memorable full-throated and recent defense of constitutional rights when he completely reversed himself on government surveillance, now that it is overseen by the current president.
Beyond the hypocrisy of selectively eschewing the Constitution on stop and frisk because the ends supposedly justify the means, however, right-wing media also continue to make the statistical mistake of confusing causation with correlation. That is, just because homicides dropped at the same time stop and frisk was practiced by the NYPD doesn't necessarily mean disproportionately intercepting young men of color (nine out of ten who are completely innocent, according to NYPD records) was the reason.
In fact, not only did the crime rate sharply dip before Mayor Michael Bloomberg's NYPD policy was implemented, the recent decline in stop and frisks due to legal and public pressure has not led to a “corresponding rise in homicides.” As explained by former federal prosecutor and law professor I. Bennett Capers:
But even if these practices were constitutional, they're still a bad idea. Of course, one wouldn't know that listening to Mayor Michael R. Bloomberg and other true believers, who insist that aggressive stop-and-frisks have reduced violent crime. But they're wrong.
The most obvious reason is the brute numbers. For every 100 individuals stopped and frisked, only about 6 are arrested, often for minor offenses like marijuana possession. The success rate for finding a gun borders on the nonexistent: 1 in every 1,000 stops. In fact, purely random stops have produced better results.
For another thing, the government's reasoning is empirically suspect, and conflates correlation with causation. The homicide rate has been dropping during the time that stop-and-frisk has been policy. By its defenders' logic, stop-and-frisk works -- even though there are many other reasons for the drop in homicides. Moreover, when the number of stops dropped by 20 percent last year, there should have been a corresponding rise in homicides. There wasn't.
Ultimately, right-wing media's refusal to recognize the constitutional violations of a police practice in New York City that is conducted properly in many other jurisdictions reveals their disturbing double standard of when constitutional rights are important and when they apparently can be ignored. Indeed, there are many dubious ways of reducing crime that would meet Gingrich's criteria of “establishing a sense of order.” City neighborhoods could be put under permanent curfews. A flat-out ban on firearms could be enforced state-wide. Every computer on Wall Street could be put under 24-7 warrantless surveillance.
The real question is what is constitutional and what is not. Currently, the NYPD's stop and frisks fail that test.