Are we becoming indifferent to freedom and democracy?

Originally posted December 19, 2015. Reposting. More relevant than ever.

I know, I know: That title sounds ridiculously click-baity. But if you'll look at my blog, you'll see that I don't really go in for click-bait titles.

Unfortunately, I mean it quite literally. It's an enormous problem that we aren't talking about enough. And I want to propose that one reason for it is a massive failure of civics education.

Support for democracy is declining. First, let's talk a bit about support for democracy—yes, democracy itself, as in voting for your leaders and representatives and holding them accountable in the arena of public debate. Only one in five Millennials aged 18 through 29 cast a ballot in the 2014 elections—the lowest youth voter turnout in 40 years, says the Atlantic.

As Vox recently asked, "Are Americans losing faith in democracy?" The article makes a series of points illustrating that Americans, especially younger Americans, are ignorant of and aren't engaging in American political life. The article's main source is a forthcoming paper by Roberto Foa and Yascha Mounk titled "The Democratic Disconnect," together with the World Values Survey. The writers summarized their own work in the New York Times last September.

Asked how much interest they have in politics (as Vox reports), Americans born in the 1930s said "very interested" or "somewhat interested" almost 80% of the time; for those born in the 1970s, the figure dropped to about 50%, and for those born in the 1980s, it was continuing to drop just as precipitously.

More sobering is the survey question about how essential it is to live in a democracy, rated from 1 to 10. The percentage of Americans responding "10," essential, has dropped from the 70% range for those born in 1930 down to the 30% range for those born in the 1980s. A 40% drop in support for democracy itself is a momentous generational change.

In case you think that's a mistake, compare that to a question asking whether "having a democratic political system" was a "bad" or "very bad" way to run the U.S.: while the percentage for those born in the 1950s and 60s hovered around 13%, for those born after 1970, in the surveys since 1995, the percentage rose from about 16% to over 20%.

Even openness to army rule—something we associate with banana republics—has climbed from 7% to 16% of all Americans.

Support for free speech in America is declining. This is incredibly important: the Pew Research Center found that 40% of American Millennials are OK with limiting speech offensive to minorities (up from 12% for seniors aged 70-87). A stunning 51% of Democrats want to make "hate speech" a criminal offense, and 37% of Republicans. If you have even a passing familiarity with First Amendment law, you'll know that these things are contrary to the First Amendment.

That is how it is possible—and not implausible—that 50 Yale students could sign a petition within an hour to repeal the First Amendment, as this video of Yalies showed:

What the video shows notwithstanding, Yalies are very smart. They can compare their attitudes toward offensive and hate speech with what they learned in their elite civics and history classes about the First Amendment, and infer that they're opposed to the First Amendment. If they're reasonably intelligent, self-aware, and honest with themselves, as some Yalies are, they'll recognize that their intolerance to certain kinds of speech commits them to an opposition to free speech.

The increasing hostility toward free speech among many of our future leaders at elite colleges like Yale has been frightening to many of us, and has sparked a national conversation—an example is here, summarizing some recent episodes and calling academe to return to free speech.

Here's a possible reason why: Civics education has been weak for years and recently declining even further. I don't pretend to know why support for democracy and free speech have been declining, but if our students for some generations have simply not been well educated about basic American civics, that must be part of the explanation.

In the National Assessment of Educational Progress—the "Nation's Report Card"—for 2014, only 23% of 8th graders scored at or above proficient in civics. While 39 states do require a course in American government or civics, only two states require students to pass a test in American government/civics to graduate from high school. As the Civics Education Initiative reports,

[T]he Civics Education Initiative...requires high school students, as a condition of graduation, take and pass a test based on questions from the United States Customs and Immigrations Services (USCIS) citizenship civics exam – the same test all new immigrants must take to become U.S. citizens.

To date, six states...have passed legislation implementing the Civics Education Initiative, with a goal of passage in all 50 states by September 17, 2017 – the 230th anniversary of the signing of the Constitution.

But, you wonder, if new immigrants have to pass this citizenship civics exam to get in the country, wouldn't American high schoolers be able to pass it? No. In studies, only 4% of high schoolers in Oklahoma and Arizona passed it.

The National Council for the Social Studies published a position statement summarizing the sobering truth: "Sadly, the narrowing of the curriculum that has occurred over the past several years combined with the scarce attention to civic learning in a number of state standards and assessment measures has had a devastating effect on schools' ability to provide high quality civic education to all students."

According to a 2011 study by the Intercollegiate Studies Institute, ignorance was not rectified at the college level:

beyond mere voting, a college degree does not encourage graduates to become actively engaged in more consequential aspects of the political process. Said another way, among persons with equal civic knowledge, those having earned a bachelors degree do not demonstrate any systematic and added political engagement beyond voting. ... A college degree appears to have the same negligible participatory impact as frequently listening to music, watching prime-time television, utilizing social networking sites, and emailing.

Knowledge of basic political facts among the general public is shockingly low. For example, only 40% of Americans surveyed in a recent survey by Pew knew which party controlled each house of Congress, and only about a third of Americans could even name the three branches of government.

Civics isn't easy, and political philosophy is even harder. But both are necessary. If this purported decline of commitment to the basic American system is real, and if it's rooted in poor civics education, it doesn't seem surprising to me.

For all the emphasis on reading and the massive, feature-rich language arts textbooks, American public school students don't have to read many books, period. Most of them are not prepared to read and comprehend the Constitution, much less the complex historical works such as The Federalist Papers, Common Sense, and Democracy in America that explain and defend the American system.

Education matters. It is likely that we will face more battles in higher education and, increasingly, in the public sphere over the necessity and advisability of maintaining robust democratic institutions and adherence to free speech. I fear that as we answer more and more attacks, reference to the Constitution and American political principles will not be sufficient. Part of the problem can be laid at Jefferson's doorstep, when he wrote, "We hold these truths to be self-evident." The fact is that they aren't self-evident, that philosophers have argued for and against them quite a bit, and in the years ahead, the better the pro-freedom side acquaints itself with those arguments, the better chance we'll have.


There are no NPCs

International travel drives home that insight that, contrary to a put-down used by immature people, and consistent with Jordan Peterson's frequent observation that our biographies are all fascinating, there are no NPCs in the world: the variety of human experience is stunning.

Yesterday I was delayed (here in Tokyo) by a long, long queue of pretty young Japanese women, all dressed exactly alike (black skirt, white blouse). I was told they had been interviewing for jobs. When I asked why they dressed all alike, I was told simply "Japanese culture." I instantly imagined someone watching the parade of future businesswomen and thinking of them as interchangeable drones, or movie extras, or "NPCs." But I am incapable of viewing them that way.

These ladies were not "NPCs." Each had her own story; the perspective of each would, upon sufficient examination, be fascinating. The fact that they were dressed alike, while perhaps odd to Westerners like myself, is meaningless when it comes to their real individuality.

If the error of racism is dehumanization, its opposite is to look past apparent, reductive commonalities to what is unique, contextualized, and valuable in each of us. And that ultimately comes down to our minds—to how we think things through. I don't mean just our thought processes, but also the many products thereof, including our culture: philosophy, religion, musical tastes, how we conduct ourselves, our fundamental values. These things you must be capable of considering and tolerating, not necessarily supporting. I mean conversation of the sort that friends have, in which, while there might be some give and take and even occasional harshness, there is both sympathy, if not for position, then for common humanity, and a sincere desire to comprehend a point of view.

No one can claim to be enlightened (or "woke") on issues of race, gender, etc., if they are capable of dismissing whole classes of other people. The problem of prejudice has as its root an inability to consider others as individuals. And you can't claim to be tolerant if you are incapable of enjoying, without disgust, a conversation with a very different person, even a person with features you dislike or disagree with. (Of course you can't expect to like everything about everyone.)

So let me ask some hard questions.

  • Democrats: are you capable of having such a conversation with Republicans? Republicans, can you talk seriously with Democrats without giving up in disgust?
  • Committed feminists and men's rights activists, could you talk to each other without quitting in horror? I don't mean you have to tolerate abuse (I don't); but if they're just saying stuff you dislike, but politely, can you handle it?
  • Socialists, could you have a beer with a libertarian? Libertarians, will the thought that the person you're boozing with would love for you to be taxed at 70% (or whatever) permanently turn you off?

Etc., etc.

Even better, can you look past your disagreements and see lovely things about the other person?

You are intolerant, you are bigoted, if you are incapable of these sorts of conversations. Sorry to be harsh, but it's an important truth a lot of people seem not to realize, and they need to start doing so.

I doubt anybody really disagrees with me, too. I'd be fascinated to hear if anybody did. Many of us just need to grow a little more, and get off our high horses, and our social and political discourse could be radically improved.

How about it?


Gay activists and Hollywood liberals vs. traditional Muslims vs. free speech liberals

Here's a richly ironic slice of our strange, sad old world in 2019.

Ellen Degeneres is (quite rightly) protesting the Sultan of Brunei for introducing the death penalty (stoning to death) for gay sex. He's also executing people for adultery, but Ellen doesn't mention that:

https://twitter.com/TheEllenShow/status/1113177461276082177

To this, a reply was posted by an account, "Jihyo" (apparently, the name of a Kpop singer), who claims to be a Demi Lovato fan and medical student, and who writes various pro-Muslim comments. The reply was:

This is a Sharia law in Islam. And lgbt is never okay. I am an educated person & a medical student. In gynecology, urology & dermatology departments, we often get gay patients with terrible diagnoses. They always come with complaints relate to their sexual activities.
(I'm not embedding this because it repeats that Ellen tweet also might well be removed anytime by Twitter. But that's just a cut-and-paste quote of what "Jihyo" wrote.)

In the ensuing war of words, which you can easily imagine if you don't look for yourself, "Jihyo" is taken to task for being "cruel and inhumane," for being not in the "21st century," an "offensive agitator" and "nasty," etc.

One person more seriously responds that "there is no religious justification for this punishment." This is an interesting formulation: does the person mean that no religions cite any justification for stoning gays to death, or that no such religious justification would succeed if attempted?

For their part, the Sultan, his people (who perhaps understandably do not criticize his policies), and this "Jihyo" clearly disagree with both interpretations, as do many other Muslim countries, including Saudi Arabia, Iran, Sudan, Afghanistan, northern Nigeria, Yemen, and others. All have the death penalty for gay sex.

So now we have the interesting spectacle of Ellen, along with reliably progressive celebrities like George Clooney and Elton John, criticizing the Sultan of Brunei for a policy that they might or might not realize is already practiced in the most devoutly Muslim countries of the world.

And, interestingly, nobody is calling them "Islamophobic."

Well, why the hell not? Shouldn't they be called Islamophobic? What gives? If a conservative, or Allah forbid an alt-right conservative, were to dwell for long on the precise same facts about the modern Islamic world, if they were to call traditional Muslims "cruel and inhumane," not in the "21st century," an "offensive agitator" and "nasty," etc., then what would happen to them? Well, the U.K., Canada, Austria (probably all of the E.U.), and other countries do criminalize criticism of Islam—whether such laws should, in fairness, apply to Ellen's criticisms of Muslims seems unclear.

The weird unresolved tensions and rich ironies on display here are no doubt what caught the attention of a Paul Joseph Watson, who has worked for Alex Jones' Infowars for many years. Once, he called himself a member of the "alt right," before the term became much more clearly associated with fascism. He is, whatever else he is, an avowed foe of the left. Earlier today he posted an article on the kerfuffle titled, "LGBT vs Islam (Choose Your Fighter)," and wryly observed, "This one isn’t going to end well, is it?"

But is it only erstwhile "alt right" people like Watson, and free speech zealots like me, who observe the ironies involved here? Of course not. Old-fashioned Bill Maher could be counted on to notice the weirdness, too. He criticized Clooney for proposing a boycott of the Beverly Hills Hotel: "What about Saudi Arabia? If you really want to get back at them, stop driving or using oil."

Gay conservative Andrew Sullivan made some well-placed observations on Maher's show as well: "The nice thing about a free society is that you can have a political life and then you can have your actual life. Not everything has to be political." He added, "We shouldn't be dictating our lives by religion, according to the dictates of wokeness. It kills the vitality of a free society."

Sadly, this hullabaloo will all probably disappear in a week's time. Brunei will start executing gays, just like Saudi Arabia. Gay activists will go back to making common intersectional cause with Muslims from countries where those same gay friends would be executed. After a few years, self-righteous (but strangely unreflective) Hollywood progressives will once again start checking in at the Beverly Hills Hotel. Europeans and Canadians will keep enforcing blasphemy laws against Islamophobes who criticize Islam, even when such unwoke cretins are criticizing Islam for executing homosexuals—as long as the cretins aren't too powerful and aligned with the left, of course. Then it's OK. Then they're not Islamophobes.

Attempting to make sense of all this, the beautiful people will placidly declare that they "contain multitudes." Life will likely go on much as before.


Until this year, when I decided to lock down my cyber-life and reformed how I use social media, instead of writing the above, I would have just posted some snide remarks on Facebook or Twitter. But since I've quit Facebook and don't use Twitter except in service of media I have some control over, i.e., Everipedia and this blog, now I have to consider whether the issue is worth making a whole blog post over. In this case, I thought so.


Zuckerberg Is Wrong: Don't Regulate Our Content

Last Sunday, Mark Zuckerberg made another Facebook strategy post. (This is his second major policy post in as many months. I responded to his March 6 missive as well.) Unsurprisingly, it was a disaster.

I want to shake him by his lapels and say, "Mark! Mark! Wrong way! Stop going that way! We don't want more snooping and regulation by giant, superpowerful organizations like yours and the U.S. government! We want less!"

He says he has spent two years focused on "issues like harmful content, elections integrity and privacy." If these have been the focuses of someone who is making motions to regulate the Internet, it's a good idea to stop and think a bit about each one. They are a mixed bag, at best.

1. Zuckerberg's concerns

Concern #1: "Harmful content"

Zuckerberg's glib gloss on "harmful content" is "terrorist propaganda, hate speech and more." Applying the modifier "harmful" to "content" is something done mainly by media regulators, giant corporations like Facebook, and the social justice left. Those of us who still care about free speech—and I think that's most of us—find the phrase not a little chilling.

Let's be reasonable, though. Sure, on the one hand, we can agree that groups using social media to organize dangerously violent terrorism, or child pornography, or other literally harmful and illegal activity, for example, should be shut down. And few people would have an issue with Facebook removing "hate speech" in the sense of the KKK, Stormfront, and other openly and viciously racist outfits. That sort of thing was routinely ousted from more polite areas of the Internet long ago, and relegated to the backwaters. That's OK with me. Reasonable and intellectually tolerant moderation is nothing new.

On the other hand, while all of that can perhaps be called "harmful content," the problem is how vague the phrase is. How far beyond such categories of more uncontroversially "harmful" content might it extend? It does a tiny bit of harm if someone tells a small lie; is that "harmful content"? Who knows? What if someone shares a conservative meme? That's sure to seem harmful to a large minority of the population. Is that a target? Why not progressive memes, then? Tech thought leaders like Kara Swisher would ban Ben Shapiro from YouTube, if she could; no doubt she finds Shapiro deeply harmful. Is he fair game? How about "hateful" atheist criticisms of Christianity—surely that's OK? But how about similarly "hateful" atheist criticisms of Islam? Is the one, but not the other, "harmful content"?

This isn't just a throwaway rhetorical point. It's deeply important to think about and get right, if we're going to use such loaded phrases as "harmful content" seriously, unironically, and especially if there is policymaking involved.

The problem is that the sorts of people who use phrases like "harmful content" constantly dodge these important questions. We can't trust them. We don't know how far they would go, if given a chance. Indeed, anyone with much experience debating can recognize instantly that the reason someone would use this sort of squishy phraseology is precisely because it is vague. Its vagueness enables the motte-and-bailey strategy: there's an easily-defended "motte" (tower keep) of literally harmful, illegal speech, on the one hand, but the partisans using this strategy really want to do their fighting in the "bailey" (courtyard) which is riskier but offers potential gains. Calling them both "harmful content" enables them to dishonestly advance repressive policies under a false cover.

"Hate speech" functions in a similar way. Here the motte is appallingly, strongly, openly bigoted speech, which virtually everyone would agree is awful. But we've heard more and more about hate speech in recent years because of the speech in the bailey that is under attack: traditional conservative and libertarian positions and speakers that enfuriate progressives. Radicals call them "racists" and their speech "hate speech," but without any substantiation.

It immediately raises a red flag when one of the most powerful men in the world blithely uses such phraseology without so much as a nod to its vagueness. Indeed, it is unacceptably vague.

Concern #2: Elections integrity

The reason we are supposed to be concerned about "elections integrity," as one has heard ad nauseam from mainstream media sources in the last couple years, is that Russia caused Trump to be elected by manipulating social media. This always struck me as being a bizarre claim. It is a widely-accepted fact that some Russians thought it was a good use of a few million dollars to inject even more noise (not all of it in Trump's favor) into the 2016 election by starting political groups and spreading political memes. I never found this particularly alarming, because I know how the Internet works: everybody is trying to persuade everybody, and a few million dollars from cash-strapped Russians is really obviously no more than shouting in the wind. What is the serious, fair-minded case that it even could have had any effect on the election? Are they so diabolically effective at propaganda to influence elections that, with a small budget, they can actually throw it one way or another? And if so, don't you think that people with similar magically effective knowhow would be on the payroll of the two most powerful political parties in the world?

Concern #3: Privacy

As to privacy—one of my hobby horses of late—Zuckerberg's concern is mainly one of self-preservation. After all, this is the guy who admitted that he called you and me, who trusted him with so much of our personal information, "dumb f--ks" for doing so. This is a guy who has built his business by selling your privacy to the highest bidder, without proposing any new business model. (Maybe they can make enough through kickbacks from the NSA, which must appreciate how Facebook acts as an unencrypted mass surveillance arm.)

Mark Zuckerberg has absolutely no credibility on this issue, even when describing his company's own plans.

He came out last month with what he doubtless wanted to appear to be a "come-to-Jesus moment" about privacy, saying that Facebook will develop the ultimate privacy app: secret, secured private chatting! Oh, joy! Just what I was missing (um?) and always wanted! But even that little bit (which is a very little bit) was too much to hope for: he said that maybe Facebook wouldn't allow total, strong, end-to-end encryption, because that would mean they couldn't "work with law enforcement."

The fact, as we'll see, that he wants the government to set privacy rules means that he still doesn't care about your privacy, for all his protestations.

Zuckerberg's declared motives are dodgy-to-laughable. But given his recommendation—that the government start systematically regulating the Internet—you shouldn't have expected anything different.

2. Mark Zuckerberg wants the government to censor you, so he doesn't have to.

Zuckerberg wants to regulate the Internet

In his previous missive, Zuckerberg gave some lame, half-hearted ideas about what Facebook itself would do to shore up Facebook's poor reputation for information privacy and security. Not so this time. This time, he wants government to take action: "I believe we need a more active role for governments and regulators." But remember, American law strives for fairness, so these wouldn't be special regulations just for Facebook. They would be regulations for the entire Internet.

"From what I've learned," Zuckerberg declares, "I believe we need new regulation in four areas: harmful content, election integrity, privacy and data portability."

When Zuckerberg calls for regulation of the Internet, he doesn't discuss hardware—servers and routers and fiber-optic cables, etc. He means content on the Internet. When it comes to "harmful content and election integrity," he clearly means some harmful and spurious content that has appeared on, e.g., Facebook. When he talks about "privacy and data portability," he means the privacy and portability of your content.

So let's not mince words: to regulate the Internet in these four areas is tantamount to regulating content, i.e., expression of ideas. That suggests, of course, that we should be on our guard against First Amendment violations. It is one thing for Facebook to remove (just for example) videos from conservative commentators like black female Trump supporters Diamond and Silk, which Facebook moderators called "unsafe." It's quite another thing for the federal government to do such a thing.

Zuckerberg wants actual government censorship

Now, before you accuse me of misrepresenting Zuckerberg, look at what his article says. It says, "I believe we need a more active role for governments and regulators," and in "four areas" in particular. The first-listed area is "harmful content." So Zuckerberg isn't saying, here, that it is Facebook that needs to shore up its defenses against harmful content. Rather, he is saying, here, that governments and regulators need to take action on harmful content. "That means deciding what counts as terrorist propaganda, hate speech and more." And more.

He even brags that Facebook is "working with governments, including French officials, on ensuring the effectiveness of content review systems." Oh, no doubt government officials will be only too happy to "ensure" that "content review systems" are "effective."

Now, in the United States, terrorist propaganda is already arguably against the law, although some regret that free speech concerns are keeping us from going far enough. Even there, we are right to move slowly and carefully, because a too-broad definition of "terrorist propaganda" might well put principled, honest, and nonviolent left- and right-wing opinionizing in the crosshairs of politically-motivated prosecutors.

But "deciding what counts as...hate speech" is a matter for U.S. law? Perhaps Zuckerberg should have finished his degree at Harvard, because he seems not to have learned that hate speech is unregulated under U.S. law, because of a little thing called the First Amendment to the U.S. Constitution. As recently as 2017, the Supreme Court unanimously struck down a "disparagement clause" in patent law which had said that trademarks may not "disparage...or bring...into contemp[t] or disrepute" any "persons, living or dead." This is widely regarded as demonstrating that there is no hate speech exception to the First Amendment. As the opinion says,

Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.” 

The trouble with the phrase "hate speech" lies in both the ambiguity and the vagueness of the word "hate" itself. "Hate speech" in its core sense (this is the motte) is speech that is motivated by the speaker's own bigoted hatred, but in an ancillary sense (this is the bailey), it means speech that we hate, because in our possibly incorrect opinion we think it is motivated by bigotry (but maybe it isn't). The phrase "hate speech" is also vague and useless because hate comes in degrees, with shifting objects. If I am irritated by Albanians and very mildly diss them, am I guilty of hate speech? Maybe. Jews? Almost certainly. What about white male southerners? Well, what's the answer there? And what if I really strongly hate a group that it is popular to hate, e.g., rapists?

There's much more to be said about this phrase, but here's the point. If government and regulators took Zuckerberg's call for hate speech legislation to heart, what rules would they use? Wouldn't they, quite naturally, shift according to political and religious sentiments? Wouldn't such regulations become a dangerous political football? Would there be any way to ensure it applies fairly across groups—bearing in mind that there is also a Fourteenth Amendment that legally requires such fairness? Surely we don't want the U.S. legal system subject to the same sort of spectacle that besets Canada and the U.K., in which people are prosecuted for criticizing some groups, while very similar criticism of other, unprotected groups goes unpunished?

But precisely that is, presumably, what Zuckerberg wants to happen. He doesn't want to be responsible for shutting down the likes of Diamond and Silk, or Ben Shapiro. That, he has discovered, is an extremely unpopular move; but he's deeply concerned about hate speech; so he would much rather the government do it.

If you want to say I'm not being fair to Zuckerberg or to those who want hate speech laws in the U.S., that of course you wouldn't dream of shutting down mainstream conservatives like this, I point you back to the motte and bailey. We, staunch defenders of free speech, can't trust you. We know about motte and bailey tactics. We know that, if not you, then plenty of your left-wing allies in government and media—who knows, maybe Kara Swisher—would advocate for government shutting down Ben Shapiro. That would be a win. The strategy is clear: find the edgiest thing he has said, label it "hate speech," and use it to argue that he poses a danger to others on the platform, so he should be deplatformed. Or just make an example of a few others like him. That might be enough for the much-desired chilling effect.

Even if you were to come out with an admirably clear and limited definition of "hate speech," which does not include mainstream conservatives and which would include some "hateful," extreme left-wing speech, that wouldn't help much. If the government adopted such "reasonable" regulations, it would be cold comfort. Once the cow has left the barn, once any hate speech law is passed, it's all too easy for someone to make subtle redefinitions of key terms to allow for viewpoint censorship. Then it's only a matter of time.

It's sad that it has come to this—that one of the most powerful Americans in the world suggests that we use the awesome power of law and government to regulate speech, to shut down "hate speech," a fundamentally obscure weasel word that can, ultimately, be used to shut down any speech we dislike—which after all is why the word is used. It's sad not only that this is what he has suggested, but that I have to point it out, and that it seems transgressive to, well, defend free speech. But very well then, I'll be transgressive; I'd say that those who agree with me now have an obligation to be transgressive in just this way.

We can only hope that, with Facebook executives heading for the exits and Facebook widely criticized, Zuckerberg's entirely wrongheaded call for (more) censorship will be ignored by federal and state governments. Don't count on it, though.

But maybe, censorship should be privatized

Facebook is also, Zuckerberg says, "creating an independent body so people can appeal our decisions." This is probably a legal ploy to avoid taking responsibility for censorship decisions, which would make it possible to regulate Facebook as a publisher, not just a platform. Of course, if the DMCA were replaced by some new regulatory framework, then Facebook might not have to give up control, because under the new framework, viewpoint censorship might not make them into publishers.

Of course, whether in the hands of a super-powerful central committee such as Zuckerberg is building, a giant corporation, or the government, we can expect censorship decisions to be highly politicized, to create an elite of censors and rank-and-file thought police to keep us plebs in line. Just imagine if all of the many conservative pages and individuals temporarily blocked or permanently banned by Facebook had to satisfy some third party tribunal.

One idea is for third-party bodies [i.e., not just one for Facebook] to set standards governing the distribution of harmful content and measure companies against those standards. Regulation could set baselines for what's prohibited and require companies to build systems for keeping harmful content to a bare minimum.

Facebook already publishes transparency reports on how effectively we're removing harmful content. I believe every major Internet service should do this quarterly, because it's just as important as financial reporting. Once we understand the prevalence of harmful content, we can see which companies are improving and where we should set the baselines.

There's a word for such "third-party bodies": censors.

The wording is stunning. He's concerned about "the distribution" of content and wants judged "measured" against some "standards." He wants content he disapproves of not just blocked, but kept to a "bare minimum." He wants to be "effective" in "removing harmful content." He really wants to "understand the prevalence of harmful content."

This is not the language that someone who genuinely cares about "the freedom for people to express themselves" would use.

3. The rest of the document

I'm going to cover the rest of the document much more briefly, because it's less important.

Zuckerberg favors regulations to create "common standards for verifying political actors," i.e., if you want to engage in political activity, you'll have to register with Facebook. This is all very vague, though. What behavior, exactly, is going to be caught in the net that's being weaved here? Zuckerberg worries that "divisive political issues" are the target of "attempted interference." Well, yes—well spotted there, political issues sure can be divisive! But it isn't their divisiveness that Facebook or other platforms should try to regulate; it is the "interference" by foreign government actors. What that means precisely, I really wonder.

Zuckerberg's third point is that we need a "globally harmonized framework" for "effective privacy and data protection." Well, that's music to my ears. But it's certainly rich, the very notion that the world's biggest violator of privacy, indeed the guy whose violations are perhaps the single biggest cause of widespread concern about privacy, wants privacy rights protected.

He wants privacy rights protected the way he wants free speech protected. I wouldn't believe him.

Zuckerberg's final point is another that you might think would make me happy: "regulation should guarantee the principle of data portability."

Well. No. Code should guarantee data portability. Regulation shouldn't guarantee any such thing. I don't trust governments, in the pockets of "experts" in the pay of giant corporations, to settle the rules according to which data is "portable." They might, just for instance, write the rules in such a way that gives governments a back door into what should be entirely private data.

Beware social media giants bearing gifts.

And portability, while nice, is not the point. Of course Zuckerberg is OK with the portability of data, i.e., allowing people to more easily move it from one vendor to another. But that's a technical detail of convenience. What matters, rather, is whether I own my data and serve it myself to my subscribers, according to rules that I and they mutually agree on.

But that is something that Zuckerberg specifically can't agree to, because he's already told you that he wants "hate speech and more" to be regulated. By the government or by third party censors.

You can't have it both ways, Zuckerberg. Which is it going to be: data ownership that protects unfettered free speech, or censorship that ultimately forbids data ownership?


Is Western civilization collapsing?

A perennial topic for me (and many of us) is the notion that there is a deep malaise in Western civilization. There are, it seems to me, three main camps on the question, "Is Western civilization collapsing?"

1. The conservative position. "Yes. And it's a horrible thing. For one thing, elites have basically stopped reproducing. They're inviting people from foreign cultures into their countries, and they're reproducing faster than their elites. The result will be an inevitable cultural replacement after a few generations, although probably not before we go through a period of bloody civil wars. And Western traditions are not being passed down. We are becoming less Christian every year. Our universities are teaching less and less of the classics of Western civilization. Though they spend longer in school, our graduates are more ignorant of their cultural roots. We have no desire to create beauty any longer. We have nothing, really, to live for. Our heart is simply not in it any longer; we're in the death throes of this civilization."

2. The postmodern position. "Are you really even asking this question? So you think Western civilization is 'collapsing'? Well, maybe it is. If so, good! But if we're going to be honest with ourselves, we should recognize that there is much about Western civilization that deserves to die, and the sooner the better. What will replace it? Who knows? Who cares? But you must be a racist Islamophobe if you think it will be Islamic. But probably, you're just an idiot because there is no reason to think Western civilization is 'collapsing.' It might be, however, transforming, and into something better, something more tolerant, open, and multi-cultural."

3. The optimistic position. "Oh, not this again. Haven't you read Steven Pinker's Enlightenment Now? Look, almost all the metrics look better than they've ever been. People always think we're on the brink of disaster even when things are awesome. The world is better educated than it's ever been. People in third world countries are moving into the modern world. Look at the Internet! Look at technology! Look at all the entrepreneurship and discovery that is happening every day! How on earth can you fail to recognize that, far from being in our death throes, we are ramping up a new global civilization with, perhaps, some new values, but which enjoys radically transformative changes for the better every year."


Here are a few notes to put these into perspective. The conservative position is a position about the health of traditional Western values and culture. It takes the view that these values and culture should be preserved, that they aren't being preserved, and that Westerners therefore are living increasingly meaningless lives.

The postmodern position is a primarily a reaction to the conservative position. It denies that there is a problem worth solving because Western values and culture are better off dead and buried.

The optimistic position certainly appears to be about another topic altogether, i.e., not about the health of traditional Western values and culture, although it pretends to be responding to conservative worry. It equates "civilization" not so much with Western traditions and values, precisely, as with the sort of globalist system of capitalist economies and the largely Western-derived education and culture that has sprouted and flowered in the 20th and especially the 21st centuries. You can see it in most of the big cities of the world. The success of this civilization is not to be evaluated (on this view) by some subjective measures of morality, or religion of course, or using sociological metrics that go proxy for these, but instead by more objective measures of well-being such as GDP, literacy rates, and longevity rates.


These positions interact in interesting ways.

  • A very strong case can be made that it is precisely certain Western traditions (democracy, industrialism, free enterprise, science, etc.) that have enabled the global success celebrated by the optimistic position.
  • The postmodern position is, too, absolutely rooted in some Western values (such as cultural tolerance and Christian charity).
  • And the optimistic position is widely (and in my opinion rightly) regarded as too optimistic; almost all of us detect some manner of deep moral malaise in Western civilization (such as dangerous populist racism, on the one hand, or the dangerous weakening of Christian values, on the other), even if we don't necessarily think of it as threatening civilization itself, and the happy talk does not do this justice.
  • And the postmodern position is surely right to suggest that Western civilization has undergone and is likely to continue to undergo radical transformations that have made the Western roots of American and European societies look positively foreign. But does that mean the collapse of civilization, or its transformation?
  • And if it is transforming and not collapsing, is that unequivocally a good thing?
  • Are important values, that conservatives perhaps talk about more than progressives, being lost? Put aside your political differences and ask yourself: might that be important? And what consequences might that have for the new global order?
  • Is it true that there must be some transcendent purpose and deep values that undergird our lives, or else (as conservatives suggest) civilization, that will cause not merely its transformation but its wholesale replacement with some other civilization that does celebrate some transcendent purpose? And if that's true, what values would replace Western ones?
  • Could something like progressivism itself constitute a global value system?
  • We already know that any such progressive value system largely conflict with traditional Christianity and some other Western values, but doesn't it also conflict with Islam?

I don't suggest any conclusion now. I just thought that contextualizing the debate would be interesting.


I joined a homeschooling legal defense association

Actually, I joined the Homeschooling Legal Defense Association (as a rank-and-file paying member). Authoritarianism is on the march, and while homeschooling has enjoyed a golden age in the last couple decades, having achieved both acceptance (even a measure of prestige) and legal freedom, I'm worried that that might be changing. It isn't any particular event, just the steady, low drumbeat of left-wing concern that people might be doing something with children that isn't closely monitored and controlled by the state. "How dare citizens educate their children independently?" they think. "Surely, the experts in our government-run education establishments know best. Why can't we be more like Germany and Sweden, which have superior public schools, while homeschooling is illegal?"

If people are becoming so ignorant or unsupportive of basic American civil rights and freedoms such as freedom of speech, the right to bear arms, Fourth Amendment privacy rights, and basic due process—depressing, isn't it?—then we can predict that, within the next five or ten years, a major push to control or even eliminate homeschooling will get under way in countries where it is still legal (such as the U.S., Canada, U.K., Russia (!), Poland, South Africa, and Australia).


I am informed; you are misinformed; and the government should do something about this problem

Poynter, the famous journalism thinktank, has published "A guide to anti-misinformation actions around the world." This sort of thing is mostly interesting not just for the particular facts it gathers but also for the assumptions and categories it takes for granted. The word "misinformation" is thrown around, as are "hate speech" and "fake news." The European Commission, it seems, published a report on "misinformation" (the report itself says "disinformation") in order to "help the European Union figure out what to do about fake news." Not only does this trade on a ridiculously broad definition of "disinformation," it assumes that disinformation is somehow a newly pronounced or important problem, that it is the role of a supernational body (the E.U.) to figure out what to do about this problem, and that it is also the role of that body to "do something." Mind you, there might be some government "actions" that strike me as being possibly defensible; but the majority that I reviewed looked awful.

For example, look at what Italy has done:

A little more than a month before the general election, the Italian government announced Jan. 18 that it had set up an online portal where citizens could report fake news to the police.

The service, which prompts users for their email addresses, a link to the fake news and any social media networks they saw it on, ferries reports to the Polizia Postale, a unit of the state police that investigates cyber crime. The department will fact-check them and — if laws were broken — pursue legal action. At the very least, the service will draw upon official sources to deny false or misleading information.

That plan came amid a national frenzy over fake news leading into the March 4 election and suffered from the same vagueness as the ones in Brazil, Croatia and France: a lacking definition of what constitutes "fake news."

Poynter, which I think it's safe to say is an Establishment thinktank, mostly just dutifully reports on these developments. In their introduction, they do eventually (in the fourth paragraph) get around to pointing out some minor problems with these government efforts: the difficulty of defining "fake news" and, of course, that pesky free speech thing.

That different countries are suddenly engaging in press censorship is only part of the news. The other part is that Poynter, representing the journalistic Establishment, apparently does not find it greatly alarming about "governments" that are "taking action." Well, I do. Just consider the EU report's definition of "disinformation":

Disinformation as defined in this Report includes all forms of false, inaccurate, or misleading information designed, presented and promoted to intentionally cause public harm or for profit.

This implies that if in the opinion of some government authority, some claim is merely false and, like most professional publishing operations it is published for profit, then it counts as disinformation. This means that (with an exception made for non-profit publishers, apparently) the E.U. considers anything false to be an item of disinformation, and thus presumably ripe for some sort of regulation or sanction.

Well, of course this sounds ridiculous, but I am just reading. It's not my fault if that's what the report says. I mean, I'm sorry, but it certainly does look as if the E.U. wants to determine what's false and to then to ban it (or something). Of course, the definition does first say that disinformation is designed to intentionally cause public harm, but anybody who reads legalistic texts needs to bear in mind that, as far as the law is concerned, the parts that come after "or" and "and" are just as important as the parts that come before. The text does say "or for profit." Is that because in the E.U., seeking profit is as suspect as intentionally causing public harm?

The difficulty about texts like this, aside from the fact that they are insufferably dull, is that they are so completely chock-full of bad writing, bad reasoning, false assumptions, and so forth, that it would take several volumes to say everything that needs saying about the E.U. report and Poynter's run-down of government actions. What about all the important issues associated with what looks like a worldwide crackdown on free speech? They have been solved, apparently.

Poynter at least has the good sense to acknowledge difficulties, as they do at the end of the discussion of Italy's regulatory scheme. The government positions are appalling, as if they were saying: "We know what fake news and disinformation and misinformation are, more or less. Sure, there's a small intellectual matter of defining them, but no big deal there. It's just a matter of deciding what needs to be done. Free speech, well, that's just another factor to be weighed."

Just imagine reading this page just twenty years ago. It would have been regarded as an implausible horrorshow. I imagine how someone might have responded to a glimpse 20 years into the future:

What are you saying--in 2018, countries all around the world will decide that it's time to start seriously cracking down on "misinformation" because it's too easy to publish false stuff online, and free speech and freedom of the press? That's ridiculous. It's one thing to get upset about "political incorrectness," but it's another thing altogether for the freedom-loving West, and especially for journalists (for crying out loud!) to so bemoan "hate speech" and "fake news" (really?) that they'll give up free speech and start calling on their governments to exert control. That's just...ridiculous. Do you think we'll forget everything we know about free speech and press freedom in 20 years?

Well, it would have been ridiculous in 1998. Twenty years later, it still should be, but apparently it isn't for so many sophisticated, morally enlightened leaders who can identify what is true and what is misinformation.

It's time to push back.


The New York Times comes out against free speech

According to a front page New York Times news (not opinion) article by Adam Liptak ("Weaponizing the First Amendment: How Free Speech Became a Conservative Cudgel"), we must adopt a stance of skepticism toward all this talk of free speech, if we wish to be sophisticated and sensitive, as all good Times readers aspire to be. Free speech? So passé. Only conservatives care about free speech anymore.

That's monumental news--the most influential newspaper in the world, the standard bearer of the Establishment, announcing that free speech is so, like, over.

Free speech is one of my hobby horses, although I don't talk about it much on this blog. In keeping with my decision to put more content on my blog and less on Twitter and Facebook, I'm going to respond to the Times article here. And my, is there a lot to say about it.

The court’s five conservative members, citing the First Amendment, had just dealt public unions a devastating blow. The day before, the same majority had used the First Amendment to reject a California law requiring religiously oriented “crisis pregnancy centers” to provide women with information about abortion.

Conservatives, said Justice Kagan, who is part of the court’s four-member liberal wing, were “weaponizing the First Amendment.”

That's a disquieting thing for a Supreme Court justice to say. Taking a hard line on the First Amendment--the same hard line that has been traditional among liberals--is not to "weaponize" it, as if fundamental principles of the American system were suddenly dangerous weapons, ripe for abuse. The court's progressives believe that a religious pregnancy counseling service is giving medical advice, so it should cover all options, and that includes abortion. But pregnancy advice is not merely medical; it is ethical, religious, political, psychiatric, and deeply personal. Such advice (which, coming from a Christian organization, might include strong pleas not to get an abortion) does not necessarily constitute medical advice at all.

It's pretty damn obvious that requiring religious organizations to share information about abortion, a practice those organizations sincerely consider to be murder, abridges not just their freedom of speech, but also their freedom to practice their religion according to their own conscience. The majority, in their wisdom, agreed with me.

The two decisions were the latest in a stunning run of victories for a conservative agenda that has increasingly been built on the foundation of free speech. Conservative groups, borrowing and building on arguments developed by liberals, have used the First Amendment to justify unlimited campaign spending, discrimination against gay couples and attacks on the regulation of tobacco, pharmaceuticals and guns. ...

There you have it. If certain recent conservative victories were "built on the foundation of free speech," then apparently the problem must be with free speech; it couldn't possibly be because left-wing lawmakers are increasingly wanting to impose their viewpoints on the populace by law. As absurd as it sounds, the Times article really does advance the view that, since those conservative victories are rooted in free speech, there must be something wrong with traditional free speech absolutism.

The article approvingly quotes a Cato Institute lawyer who rightly labels the Court's position, also, as libertarian--mind you, we're talking about a position which is now avowedly the conservative one and which used to be the liberal one:

“The libertarian position has become dominant on the right on First Amendment issues,” said Ilya Shapiro, a lawyer with the Cato Institute. “It simply means that we should be skeptical of government attempts to regulate speech. That used to be an uncontroversial and nonideological point. What’s now being called the libertarian position on speech was in the 1960s the liberal position on speech.”

Maybe it would be more appropriate to say that, for the last 50 years or so, a free speech absolutist position has been uncontroversial and nonideological, one of the areas where Democrats and Republicans could often (not always) agree. But that seems to be changing. The interesting thing about the Times article is that it says that the Republicans, or conservatives, are making free speech into a controversial issue. That doesn't hold water, though. If Republicans are simply standing by the free speech absolutism that characterized mainstream thought on both sides of the aisle for a couple of generations, then when people like Kagan find such absolutism to be a "weaponizing" of the First Amendment, they are the ones who are making free speech ideological.

But let's be precise. Free speech always was ideological; it is part of the American civil religion. But the left's commitment to its own ideological "religion" seems to be getting the upper hand.

And an increasingly conservative judiciary has been more than a little receptive to this [libertarian] argument. A new analysis prepared for The New York Times found that the Supreme Court under Chief Justice John G. Roberts Jr. has been far more likely to embrace free-speech arguments concerning conservative speech than liberal speech. That is a sharp break from earlier eras.

Again, if, rather suddenly, many more conservative-joined majority decisions are based on free speech rights, that does not necessarily mean that the "sharp break" was due to an unusual, newly radicalized conservative jurisprudence. It could be just as well understood as a reaction to a spate of speech-squelching lawmaking such as the California law forcing Christian "crisis pregnancy centers" to advertise abortion options. So why suppose that it is the conservatives who have made a "sharp break"? Ironically, the next thing the Times says is that it is thinkers on the left who have, strikingly, changed their minds about free speech:

“The left was once not just on board but leading in supporting the broadest First Amendment protections,” said Floyd Abrams, a prominent First Amendment lawyer and a supporter of broad free-speech rights. “Now the progressive community is at least skeptical and sometimes distraught at the level of First Amendment protection which is being afforded in cases brought by litigants on the right.”

Many on the left have traded an absolutist commitment to free speech for one sensitive to the harms it can inflict.

Take pornography and street protests. Liberals were once largely united in fighting to protect sexually explicit materials from government censorship. Now many on the left see pornography as an assault on women’s rights.

In 1977, many liberals supported the right of the American Nazi Party to march among Holocaust survivors in Skokie, Ill. Far fewer supported the free-speech rights of the white nationalists who marched last year in Charlottesville, Va.

This traditional support of free speech, by the way, has been perhaps the single strongest point of agreement between libertarianism in particular and progressivism. But apparently no longer. And so, just as progressives sometimes say that libertarianism is "naïve," now, all of a sudden, the Times can approvingly quote a law professor saying that traditional free speech absolutism is "naïve":

There was a certain naïveté in how liberals used to approach free speech, said Frederick Schauer, a law professor at the University of Virginia.

“Because so many free-speech claims of the 1950s and 1960s involved anti-obscenity claims, or civil rights and anti-Vietnam War protests, it was easy for the left to sympathize with the speakers or believe that speech in general was harmless,” he said. “But the claim that speech was harmless or causally inert was never true, even if it has taken recent events to convince the left of that. The question, then, is why the left ever believed otherwise.”

But this is, surely, a paradoxical thing to say. How can it be naïve to be a free speech absolutist, if that jurisprudence held sway for generations? After all, plainly, many free speech rules and policies were implemented. Just as plainly, generations of the most brilliant legal minds were free speech absolutists. It was and remains the Constitutional policy of the nation, as evidenced by the fact that the Supremes unanimously rejected hate speech laws again last year. But Prof. Schauer is pleased to call this policy "naïve" because that is how the snooty law professors who know better than the rest of us prefer to persuade the readers of the Times. All he really means, of course, is that he and his fellow snooty professors now take the cool and edgy position, that of the clearly more enlightened Europeans, that free speech is not "all that," after all.

The article next introduces some just shoddy academic theorizing, in an attempt to justify speech control and censorship:

Some liberals now say that free speech disproportionately protects the powerful and the status quo.

“When I was younger, I had more of the standard liberal view of civil liberties,” said Louis Michael Seidman, a law professor at Georgetown. “And I’ve gradually changed my mind about it. What I have come to see is that it’s a mistake to think of free speech as an effective means to accomplish a more just society.”

To the contrary, free speech reinforces and amplifies injustice, Catharine A. MacKinnon, a law professor at the University of Michigan, wrote in “The Free Speech Century,” a collection of essays to be published this year.

“Once a defense of the powerless, the First Amendment over the last hundred years has mainly become a weapon of the powerful,” she wrote. “Legally, what was, toward the beginning of the 20th century, a shield for radicals, artists and activists, socialists and pacifists, the excluded and the dispossessed, has become a sword for authoritarians, racists and misogynists, Nazis and Klansmen, pornographers and corporations buying elections.”

These are strikingly bold and broad statements. You'd expect a pundit to be making them rather than college professors. It's a mistake to think that free speech contributes to a more just society? Really? It's a "weapon of the powerful"?

I'll get back to the weaponizing thing in a moment, but I'd like to point out that the Times is presenting these two campus radicals as liberals. That's ridiculous. They are both theorists of the far left, purveyors of so-called critical legal studies; MacKinnon considers herself a "post-Marxist." Such people are leftists and not liberals.

Besides, the notion that people who attack American traditions of free speech and First Amendment are liberal, of all things, is patently absurd. If you are so skeptical of free speech absolutism, then you're not a liberal for that reason alone: what is more essential to American liberalism than strong commitment to free speech?

Now let me briefly discuss this notion that free speech is a "weapon of the powerful." To be sure, the powerful have free speech rights, and like it or not, their power gives them the ability to exercise those rights more broadly and effectively than the weak. Welcome to earth; that's nothing new, it will never change, and it becomes much, much worse whenever a radical leftist regime takes over. The obvious fact the powerful enjoy free speech rights, however, does not establish that free speech is not also a deeply important right of the weak. It is, after all, the rights of minorities and of the disempowered that most need protection by the law, considering that the powerful can usually take care of themselves.

There's a striking irony in the article's own examples. They all, with the sole exception of Citizens United, feature the rights of the ordinary, weak citizen protected from the depredations of some of the most powerful governments on earth. Don't believe me?

Relatively weak religious organizations (the National Institute of Family and Life Advocates' total national expenditures for 2009: $759,259) came under attack by the enormously powerful government of California; it was the First Amendment, as interpreted by the SCOTUS majority, that protected their freedom of speech and religion. Nazis and Klansmen are surely some of the most hated and disempowered people in the country at present (and yay for that); like it or not, equality before the law means they have the same speech rights as more decent people. Principled laborers, just regular people, who do not want to support the Democratic principles of their company's unions, were supported against organized union power (and the Democratic government power enmeshed with it). And pornography? Well, to be sure, pornographers can be powerful, but only a very few of them. Most of those who produce and consume porn are not particularly rich or powerful. They're just horny little guys with rights. The free speech rights of the rich and powerful are, by contrast, well protected.

In the great First Amendment cases in the middle of the 20th century, few conservatives spoke up for the protection of political dissenters, including communists and civil rights leaders, comedians using vulgar language on the airwaves or artists exploring sexuality in novels and on film.

In 1971, Robert H. Bork, then a prominent conservative law professor and later a federal judge and Supreme Court nominee, wrote that the First Amendment should be interpreted narrowly in a law-review article that remains one of the most-cited of all time.

“Constitutional protection should be accorded only to speech that is explicitly political,” he wrote. “There is no basis for judicial intervention to protect any other form of expression, be it scientific, literary or that variety of expression we call obscene or pornographic.”

Yes, the conservatives of fifty years ago were awful on First Amendment rights, and a stalwart of that brand was rejected Supreme Court nominee Robert Bork. Bork's principle, that the First Amendment protects only political speech and not also creative works, was awful and repressive, if refreshingly honest. Bork was the sort of jurist only an arch-conservative could love. So it is amazing that a Times reporter would have the temerity to mention Bork in the context of this article, considering just how loathed he was by the liberals of yesteryear. It's just extraordinary that Bork's principle, which was no doubt considered grotesque by Times readers in the 80s and 90s, might be quoted approvingly in this context and without any comment on Bork's famous history.

I won't quote the entire section, but the article argues that Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1975) protected "commercial speech" (such as advertising), and that, though liberals helped shape this decision, it opened up a dangerous Pandora's box of uncensored corporations:

That trend has continued, with businesses mounting First Amendment challenges to gun control laws, securities regulations, country-of-origin labels, graphic cigarette warnings and limits on off-label drug marketing.

Similarly,

Liberals also played a key role in creating modern campaign finance law in Buckley v. Valeo, the 1976 decision that struck down limits on political spending by individuals and was the basis for [the deeply-hated] Citizens United, the 2010 decision that did away with similar limits for corporations and unions.

So, to be sure, the law has protected the rich and powerful. As well it should. They do have rights that, like it or not, the law is obligated to protect.

To Professor Seidman [quoted above as having outgrown commitment to free speech], cases like these were part of what he describes as a right-wing takeover of the First Amendment since the liberal victories in the years Chief Justice Earl Warren led the Supreme Court.

“With the receding of Warren court liberalism, free-speech law took a sharp right turn,” Professor Seidman wrote in a new article to be published in the Columbia Law Review. “Instead of providing a shield for the powerless, the First Amendment became a sword used by people at the apex of the American hierarchy of power. Among its victims: proponents of campaign finance reform, opponents of cigarette addiction, the L.B.G.T.Q. community, labor unions, animal rights advocates, environmentalists, targets of hate speech and abortion providers.”

The title of the article asked, “Can Free Speech Be Progressive?”

“The answer,” the article said, “is no.”

That question and answer--res ipsa loquitur! It sounds like an unfair criticism of the left that conservative culture warriors might have made in the 90s. But here is someone presented as an educated liberal who has arrived at an enlightened, cutting-edge view and worthy of special mention in the Times.

I didn't have time to read Seidman's paper all the way through, but I had a look; it argues that the First Amendment is used as a "sword" by "people at the apex of the American hierarchy of power." Free speech, he argues, is all right to the extent that it "can advance progressive goals." The problem is that the First Amendment can also undermine those same goals (even if correctly interpreted, apparently). As an argument against free speech absolutism, this is stunning. This writer, this law professor, appears to think it would be adequate grounds for an attack or defense of freedom of speech that the speech advanced or undermined progressive goals--as if there really were no more to it than that. "Just ask yourself," I imagine him saying, "is the principle convenient for our ideology?" This is clearly unscholarly and utterly risible. I can only hope that I have misunderstood the article. To me, it really did read as a parody of a party hack who has decided to try to write a law review paper. Decide for yourself. But to go on with the Times article:

The right turn has been even more pronounced under Chief Justice Roberts.

The Supreme Court has agreed to hear a larger share of First Amendment cases concerning conservative speech than earlier courts had, according to the study prepared for The Times. And it has ruled in favor of conservative speech at a higher rate than liberal speech as compared to earlier courts.

Has the Roberts court ruled more in favor of "conservative speech"? Maybe, maybe not; but surely "conservative speech" and "liberal speech" alike deserve protection. That much, I would have thought, is absolutely obvious. Yet the Times writer seems not to think so, and in this he follows Seidman, who (it seems) confuses partisanship for scholarship.

Suppose it's true that the Supremes have recently protected conservative speech more than progressive speech. That could be due to the random patterns in the data; the sample sizes (of Supreme Court free speech cases) are surely too small to show statistical significance. It could also be, once again, because conservative speech has come under attack.

But even if the Supremes have recently been unfairly favoring conservative speech, even if they have given conservatives prerogatives not given to progressives, it still does not follow,  and it obviously does not follow--an inference the article writer didn't notice he was making--that, somehow, free speech absolutism is now suddenly only a "conservative" position. Our journalist draws the inference anyway:

The court led by Chief Justice Earl Warren from 1953 to 1969 was almost exclusively concerned with cases concerning liberal speech. Of its 60 free-expression cases, only five, or about 8 percent, challenged the suppression of conservative speech.

The proportion of challenges to restrictions on conservative speech has steadily increased. It rose to 22 percent in the court led by Chief Justice Warren E. Burger from 1969 to 1986; to 42 percent in the court led by Chief Justice William H. Rehnquist from 1986 to 2005; and to 65 percent in the Roberts court.

Even putting aside my earlier points, this argument is bizarre. Cases protecting conservative speech have risen, from 1969 until today, from 22%, to 42%, to 65% today. The latter number is supposed to establish that freedom of speech is now a "conservative" issue? Consider that in 1969, the number was 22%. Would it have been reasonable, at that time, to conclude that conservatives shouldn't shouldn't have cared at all about free speech, that they were justified in being soft on free speech rights? That's absurd.

Speaking as a former academic--a teacher of logic and critical thinking as well as philosophy of law--I have to say the quality of argumentation here is just depressing. Refuting this sort of thing isn't even fun. And this is the New York frickin' Times. It's impossible to believe that even Justice Kagan would support the partisan hackery on display in the Times article and the law review article.

Indeed, the Supremes are more interesting. You gotta love Supreme Court opinions; they're often well argued, even if they're wrong, and they're so earnest (as they should be!):

On Wednesday, in announcing the decision on public unions, Justice Samuel A. Alito Jr. said the court was applying settled and neutral First Amendment principles to protect workers from being forced to say things at odds with their beliefs. He suggested that the decision on public unions should have been unanimous.

“Compelling individuals to mouth support for views they find objectionable violates that cardinal constitutional command, and in most contexts, any such effort would be universally condemned,” he wrote. “Suppose, for example, that the State of Illinois required all residents to sign a document expressing support for a particular set of positions on controversial public issues — say, the platform of one of the major political parties. No one, we trust, would seriously argue that the First Amendment permits this.”

Alito's argument makes a great deal of sense to me, for what it's worth. That's a cogent analogical argument. To be sure, it's just an outline of an argument; see the opinion for the details.

In response, Justice Kagan said the court’s conservatives had found a dangerous tool, “turning the First Amendment into a sword.” The United States, she said, should brace itself.

“Speech is everywhere — a part of every human activity (employment, health care, securities trading, you name it),” she wrote. “For that reason, almost all economic and regulatory policy affects or touches speech. So the majority’s road runs long. And at every stop are black-robed rulers overriding citizens’ choices.”

Speech is everywhere, Kagan rightly observes, and with a few traditional exceptions, every bit of it is protected by the First Amendment. The First Amendment's influence does indeed run long, and so it should.

That final sentence, though--well, it's preposterous. "Black-robed rulers" are doing what fearsome thing? By God, they're "overriding citizens' choices"! How dare they! But those "choices" are the laws and regulations passed by powerful government officials, i.e., they are the exercise of government power to censor or even--as in the case of the pregnancy centers--to compel speech. Good God, these black-robed rulers are curtailing the exercise of government power! Somebody stop them!

Anyway, that's the article. It's no big surprise to me that the Times has come out against free speech absolutism, declaring it to be a conservative position, something good progressives ought to resist. But it's dismaying to see it there in black and white. Our world has changed.

By the way, there is almost no mention of hate speech in the article. This is probably it's harder to make the legal case for restrictions on hate speech. The Supreme Court agreed just last year--unanimously--that hate speech is protected, that "ideas that offend" are protected by the First Amendment. You gotta love old liberals. But since the left, especially the young left, is becoming increasingly radical on the issue, I'm still quite apprehensive. After all, the Times has all but declared censorship and compelled speech to be progressive.

So I fully expect there to be growing calls for laws against hate speech in the United States. Support on the American left for such laws is already huge. According to a Cato Institute survey, while "just" 40% of Americans favor banning hate speech--that's actually a lot considering we're talking about doing away with the First Amendment--fully 52% of Democrats (i.e., most of them) support such laws. The number goes up to 61% of Democrats, if we specify that the laws protect black Americans against hate speech. Maybe more troubling is that 66% of Democrats believe hate speech is "violent"; if you believe that, then of course it's a short step to conclude that speech should be banned (as we ban other forms of violence). Interestingly, Cato also asked for Americans' views on the relevant constitutional question; it turns out that 56% of Americans believe that banning hate speech is consistent with the First Amendment. Good thing they aren't on the Supreme Court.

Free speech on campus has increasingly come under attack recently. One of the most telling numbers from the Cato survey was that 68% of students support a confidential "bias reporting system," i.e., they complacently imagine that it's a good idea that there be campus speech monitors, assisted by student informants. Almost as stunning is the fact that 48% of all Americans support such a totalitarian system as well. That's incredibly depressing.

Even if the Supremes remain free speech absolutists for another generation, the left's intensified attack on free speech is deeply consequential. The next presidents might very well include socialists who replace Ginsberg, Breyer, Thomas, and Alito with radical free speech skeptics. It's easy to imagine Kagan and Sotomayor moving more and more in the direction of free speech skepticism.

Besides, not everything depends on the Court. Formerly mainstream Democrats are showing themselves to be increasingly willing to take extreme action. It's not that hard to imagine an independent California with hate speech laws stronger than any in Europe.

Due to its central role in protecting popular sovereignty in a republic, free speech is as important as it gets. The fact that the left is repudiating its former free speech absolutism is much more important than its decision to push for gay marriage. It's probably more important even than immigration or gun control. It's fundamental; it goes to the root of our system.

Free speech skepticism could easily become de rigueur on the left, as gay marriage rights have become. That is actually what I would expect, because if there is one thing that animates progressives today, it is contempt, even utter hatred, for anything they perceive as racist, sexist, homophobic, or anti-immigrant. So powerful is this animus that "reasonable" restrictions of hate speech can be easily sold to them as just good sense. To make matters worse, progressive judgment about what is bigoted in these ways is sometimes inaccurate. "Racist" and "sexist," often used as cudgels in debate, would be "weaponized" indeed by hate speech laws.

So what's a free speech absolutist to do? Well, if you support free speech, push back as effectively as you can when you see your friends and acquaintances moving in the direction of free speech skepticism. This is still a battle for hearts and minds. The Supreme Court frequently follows popular opinion, and there's sadly no reason to think that a future Court might not dismantle many current First Amendment protections.

Learn the arguments; the case for free speech is very strong. There is no intellectually respectable case to be made for censorship. Even from the point of view of cost-benefit analysis, the benefits of tolerating "hate speech" and eschewing compelled speech are substantial, and the downsides are minimal; the risks of censorship and compelled speech are enormous (totalitarianism, the decline of free inquiry). It is, in short, obscene to treat free speech as a mere "tool" that is "weaponized," when censorship and compelled speech throughout history have been very real weapons that have shored up authoritarian and totalitarian regimes.


Why do smart people say such stupid things about politics?

Hey to all my friends who are smart people. (And if you wonder whether this "who" is restrictive or nonrestrictive, you may be one of my smart friends.)

When Thoreau said, "Simplify," he was not talking about your political positions. The truth is complex. You know this. You are capable of doing professional work (programming, philosophizing, writing, business, whatever) at the highest level. So why is it that we seem to turn off our brains and speak in simplistic, black-and-white, unnuanced and frequently obviously false terms when we talk about politics?