Civil disobedience and Godwin's law

Towards the end of a spirited discussion on my last post, occasional guest-blogger and long-time reader Don wrote:

[T]he pilot of an airline telling you to get off his plane, is nothing like allowing the state to take you from your home and gas you to death simply because of the circumstances of your birth. You can resist one, and not the other, without much moral confusion. I'm ashamed at you for suggesting an equivalence.

I've thought long and hard about this, and I've decided to stand by what I originally wrote.  But Don's point is well taken, and some clarification is in order.

First, let me point out that it was actually not me who Godwinized the discussion.  It was Sean Spicer, who wrongly claimed that Bashar al Assad was worse than Hitler because "even Hitler didn't use chemical weapons on his own people," though, of course, he did.  And that was one of the two events of the day that I was writing about.

Second, I was not actually comparing anything to Hitler or the Holocaust.  I was citing my personal experience to put my position on this issue into perspective.  In a perverse accident of history, I would not be alive but for Adolf Hitler.  My grandparents all fled Germany for what was then still Palestine in the early 1930s.  They came from different parts of the country and different walks of life.  If the Nazis had not risen to power they would all have stayed in Germany and none of them would have ever met.  So I am more intimately connected to this period of history than most people.  I grew up hearing first-hand accounts of what it was like in the early days, and some aspects of those accounts are chillingly reminiscent, at least to me, of some events happening today.  That is simply a fact.

So that's my defense against Godwinizing the conversation.  I would also like to address the substance of my disagreement with Don in some more detail.

To begin with, I have not been able to find any evidence that the pilot actually ordered David Dao off the plane.  I don't know if that would actually have made any difference in the end, but it would have put a different spin on things.  A pilot on an aircraft has authority that other crew members don't.  In particular, a pilot has the authority to throw someone off the plane on his or her own initiative.  Other members of the crew do not.

Second the people who actually removed David Dao from the plane were not Chicago PD officers.  They were airport police, employees of the Chicago Department of Aviation, a civilian agency which oversees airport operations.  They do have limited authority to detain people under certain circumstances, but they were not authorized to arrest David Dao, and all three have been suspended because of their actions that day.

Third, it has been alleged that United was required by federal law to bump David Dao and the other three passengers to make room for the "must-fly" crew members.

[T]his was a must fly, a positive space situation. In layman terms, it means that a crew must be flown to an airport to man a flight in order to avoid cancellation of said flight due to crew unavailability. This is a federal DOT regulation, not an airline one. The airlines are required to do so to avoid disruption of air traffic. In other words, if there are no willing volunteers and they need seats to get a crew somewhere to avoid disruption of aviation flow, they can, will, must by federal regulation bump people for the better good of the 1000’s. Why? Because one cancelled flight has a serious domino affect in the delicate, complicated world of connections and aviation law.

This is not true (or if it is, I have not been able to identify the alleged DOT regulation that requires it).  It is true that airlines are allowed to bump passengers involuntarily to make room for required crew, but they are not required to (AFAICT).  And in fact such a requirement would make no sense.  In retrospect it is clear that United would have been better off chartering a private jet to get its employees to Louisville.  Surely doing so would not have violated any federal regulations.

Finally, at least two law professors [1][2] have published legal analyses, and both of them agree with me that United was not authorized under the terms of its own Contract of Carriage to remove David Dao from the plane.  Even United Airlines has thrown in the towel on this and is no longer claiming that its actions were defensible in any way.  So I claim vindication on that issue, and that Don owes me a beer.

All this is easy to see with the benefit of hindsight and time to analyze the situation from the comfort of our armchairs on a Monday morning.  But if we look at the situation from the perspective of the participants at the time, can Dao's refusal to deplane still be justified?  Or is, as Don maintains, such defiance of authority the first step on the slippery slope to anarchy?

It is for this answer that I invoke my heritage and answer with an unequivocal: yes, Dao's actions were justified.  There are circumstances where defying authority is the right thing to do.  This was one of them.  It is important to remember that the Holocaust ended with Jews being marched to the gas chambers, but it didn't start that way.  It started with the Nazi party winning a majority plurality of the seats in Germany's parliament in 1932.  It took another two years before the Nuremberg laws were passed, and another six before the Nazis began killing Jews in earnest.   At every step, everything the Nazis did was perfectly legal.  In no small measure because of this, and because respect for authority was (and to some extent still is) woven deeply into German culture, there was barely any resistance, neither from Jews nor gentiles.  The Warsaw Uprising in 1944 was the only notable exception, and by then, of course, it was much, much too late.

Let me be clear: I am absolutely not advocating for civil disobedience as a matter of course.  All else being equal it is better to obey the police.  But all else is not always equal, particularly if you're not a rich white male like Don and I are.  Sometimes is can be easy to forget that not everyone lives such a privileged life.  The sad fact of the matter is that the police do discriminate against people with dark skin.  (Can you seriously imagine this happening to a rich white guy? Or this?  Or this?  Or this?  Or this?)  It is easy to advocate for compliance and sorting out the legalities later when your risk of physical injury is low and you present a credible threat of being able to afford high-powered lawyers.  But for many people, compliance is tantamount to capitulation.  This may even have been true in David Dao's case.  We will never know now, but it is possible that his non-compliance was necessary in order for him to maintain his rights under the terms United's contract of carriage.  If Dao had left the plane voluntarily then United could argue that he had no cause of action for a violation of Rule 21 because he left the plane voluntarily, thereby tacitly admitting that United had the right to remove him.  It was only by resisting -- passively and peacefully, it should be well noted -- that he could maintain his right to sue.

Accepting peaceful civil disobedience is not the first step towards anarchy.  On the contrary, it is the unquestioning acceptance of authority that is the first step towards tyranny.  The decision to employ civil disobedience should never be made lightly.  But sometimes the only way to stand up for your rights is to remain seated.