Although it seems like a lifetime ago, back in 2018, with the midterm elections looming, Fox News, operating in coordination twith the Trump campaign, seized on a “caravan” of poor immigrants from Central America as representing a dire threat to the American Republic. With blanket, hyperbolic coverage of this inoffensive and rather pathetic train of unarmed, men, women and children, most carrying the totality of their worldly possessions on their back, the administration hoped to frighten Americans into voting their fears rather than viewing this purported “threat” with any rational basis. House Republicans quickly jumped on the bandwagon as well, stoking public fears about the potential for invading armies of gangs and drug dealers marching through their streets.
The New York Times, reporting on the so-called “caravan” at that time, quoted Newt Gingrich who frankly admitted the manipulative nature of the GOP’s strategy-- the artificial creation of a “community safety” fear that lay at the heart of these tactics:
Republicans hope that the increased coverage of the migrants will prompt certain voter groups, like white suburban women, to veer away from Democratic candidates, especially if Mr. Trump can stoke fears about gangs and drugs, Mr. Gingrich said.
“It creates a safety factor” for those voters, he said. “If the first 7,000 to 15,000 get in, what signal does that send?”
(emphasis supplied)
It didn’t work in 2018, because (among other things) the public at large saw no immediate threat and rejected the idea that there was a threat to begin with. Voters largely ignored or disregarded the much-hyped “caravan,” and the entire subject miraculously disappeared from the GOP’s fearmongering lexicon, immediately after the 2018 midterm election polls had closed. After the ballots were finally counted, Democrats had essentially cleaned the floor with the GOP.
What Trump, the GOP and Fox News tried to do in 2018, and what they are now attempting, in the run-up to the 2020 election, is a textbook example of what personal injury lawyers call the “reptile theory” of persuasion. The term was coined by personal injury trial attorneys David Ball and Don Keenan in an article titled “Reptile: the 2009 Manual of the Plaintiffs’ Revolution,” and since that time the concepts it sets forth have dominated trial strategy for the plaintiffs’ bar in personal injury litigation. As summarized here by one law firm, the strategy relies on influencing jurors by connecting with their most elemental instinctual reactions, the so-called “reptilian” portions of their brains, in order to evoke a strong, self-protective response:
The Reptile theory asserts that you can prevail at trial by speaking to, and scaring, the primitive part of jurors' brains, the part of the brain they share with reptiles. The Reptile strategy purports to provide a blueprint to succeeding at trial by applying advanced neuroscientific techniques to pretrial discovery and trial.
The fundamental concept is that the reptile brain is conditioned to favor safety and survival. Therefore, if plaintiff's' counsel can reach the reptilian portion of the jurors' brains, they can influence their decisions; the jurors will instinctively choose to protect their families and community from danger through their verdict. Thus, the focus of the plaintiff’s case is on the conduct of the defendant, not the injuries of the plaintiff.
(emphasis supplied).
The effectiveness of “reptile theory” in influencing juries is well-understood and underscored by the sheer number of defense litigation-oriented publications advising on strategies to combat it, most of which involve extraordinary witness preparation and pretrial Motions. But the vulnerability of ordinary jurors to the subtle influence of this tactic, even in the face of logical, reasoned arguments, is a testament to its resiliency.
Fox News relies on a variation of reptile theory in its programming. As described vividly by former Fox News contributor Tobin Smith, the network deliberately stokes the same “flight or fight” impulse characteristic of the “reptilian” portions of the human brain in order to retain its viewers, by continually making them feel as if they—and their community-- are under threat. As Smith stated in the New York Times, one of the favored methods of Fox News is by spinning conspiracy theories to make the viewer feel as if he is under attack:
Every successful Fox News segment producer has the conspiracy script down cold. These segments work best when the “proof” of a conspiracy against a tribal leader — in this case the Republican president — makes the viewer feel under attack as well. It elevates the fight-or-flight juices.
But despite its failure as a strategy in 2018, the “reptile theory” is has been given a new lease on life with the Black Lives Matter protests and the reaction of both local police and federal law enforcement. The overwhelming majority of those protests have been peaceful, but enough inflammatory video involving flames and property damage has been amplified by the right-wing media for Trump to point to the protests—and implicitly the African-Americans involved in those protests— as representing a threat to Americans’ safety. Their aim is to frighten a sufficient subset of white American suburbanites susceptible to such arguments —white women in particular—to tilt the election sufficiently in Trump’s favor. Tuning only in to Fox News, one would be forgiven for believing that a few hundred protesters in Portland, Oregon, and now in Kenosha, Wisconsin (a small city which most Americans had never even heard of before last week) somehow constitute a threat to every white suburban enclave in the country.
It isn’t a rational conclusion, but as Trump and the GOP well know it doesn’t have to be rational to be effective. As demonstrated by its effectiveness in the hands of trial lawyers, an appeal to the reptilian brain can render rational, fact-based arguments raised by the defense as irrelevant. As emphasized by “Litigation Insights,” the strategy is two-pronged:
Establish Danger to Community. One of the most important concepts of the Reptile Approach is the concept of the “Safety Rule.” A safety rule is a universal principle of how people should behave (e.g., a doctor must not needlessly endanger a patient). A plaintiff attorney who is using the Reptile Approach will point out to jurors a general safety rule, get defense witnesses to agree with the rule, demonstrate to jurors how the defendant broke the safety rule and suggest that breaking the rule put the entire “community” at risk, thereby “awakening the reptile brain” in the juror.
***
Showing the danger is only the first step. The second step is convincing jurors that they have the power to reduce or eliminate the danger. In fact, another aspect of the reptile strategy is convincing jurors that they are the only ones with that power, and that they should exercise that power by finding in favor of the plaintiff and awarding a large amount of monetary damages.
In order to apply reptile tactics to the BLM protests, the GOP and Trump must keep the violence going; that is why Trump is visiting Kenosha and why he heaped praise on the white supremacist who murdered two protesters there last week. The more violence he can stoke, the more plausible the GOP’s narrative that the disorder must be put down by a “law and order” process, imposed nationwide, and that the only way to do this is by voting for Donald Trump. The violence has to be amplified enough to create the illusion that rampant protests, violence and property destruction are epidemic now across cities of the U.S., and coming to your small town. The fact that this is logically counterfactual—even ridiculous-- is beside the point. The point is to activate that center of Americans’ brains that feels “they could be next,” not coincidentally, the same sentiment classic “reptile theory” tries to evoke.
At this point the entire “theory” of Trump’s campaign (in addition to actively trying to suppress the actual number of votes cast or counted) is based not on anything he or the Republicans have done—since the disastrous results of what they’ve done are all too apparent—but on triggering the same racism and fearmongering they’ve always relied on to motivate their voters. This is why Trump and his lackeys are out in force on the airwaves and in Kenosha right now, promoting armed militias, racist Neo-Nazis and the killing of protesters.
So in light of these tactics, what should the Biden campaign strategy be to combat them? As noted above, from a lawyering perspective the defense bar relies on preparing its witnesses and setting parameters on such testimony with the Court. But none of those tactics translate into an effective political counter-strategy. Some authorities also counsel making the jury aware of how these types of tactics are being used to manipulate them, sometimes even by citing portions of Ball and Keenan’s seminal article, so the jury is aware just how they are being manipulated. While that may be an effective strategy for wavering Democratic voters who might initially be swayed by these tactics, Republicans, permanently doped by Fox News, would be largely impervious to being told they were being conned, assuming they even cared.
The best strategy to blunt this “reptile” approach, then, is to turn it against Trump and the GOP, by emphasizing that they are in fact, the actual threat that provokes a “fight or flight” response from Americans. That Trump and the GOP’s response to the violence has been to intentionally aggravate it, which constitutes an offense directly aimed at disrupting the peace, security and safety of the American people. That provoking division and destroying the relationships between Americans has been Trump’s modus operandi from the minute he took office and what we are witnessing now on the streets of Kenosha and Portland are the results of that, with consequences which will be far worse if he is re-elected. That there is a direct line between Trump’s insidious race-baiting and continued chaos and disorder, and nothing will improve until he is gone.
In pushing this theme it is important to emphasize that Americans should never be cast as enemies of one another—the only enemy here is Donald Trump, who has failed the country in every conceivable way—in combating the COVID-19 pandemic, in salvaging the economy, and in uniting Americans to face a daunting and exhausting set of existential disasters that he himself has caused. It is he who has put the entire country “at risk,” and nothing is going to change in the foreseeable future unless he is ousted. If Americans want their lives back, if they want their jobs back, if they ever want their children to go back to school, there is one and only one clear and present danger that is preventing that from happening.
And they alone have the power to eliminate it.
