Counterpoint: The case for restricting hate speech

Laura Beth Nielsen writes in the LA Times:

As s a sociologist and legal scholar, I struggle to explain the boundaries of free speech to undergraduates. Despite the 1st Amendment—I tell my students—local, state, and federal laws limit all kinds of speech. We regulate advertising, obscenity, slander, libel, and inciting lawless action to name just a few. My students nod along until we get to racist and sexist speech. Some can’t grasp why, if we restrict so many forms of speech, we don’t also restrict hate speech…

These negative physical and mental health outcomes — which embody the historical roots of race and gender oppression — mean that hate speech is not “just speech.” Hate speech is doing something. It results in tangible harms that are serious in and of themselves and that collectively amount to the harm of subordination. The harm of perpetuating discrimination. The harm of creating inequality…

But these free-speech absolutists must at least acknowledge two facts. First, the right to speak already is far from absolute. Second, they are asking disadvantaged members of our society to shoulder a heavy burden with serious consequences. Because we are “free” to be hateful, members of traditionally marginalized groups suffer.

While this is among the better counter-arguments I’ve read, it still falls short of the standard we ought to have for chipping away at a fundamental liberty like free speech.  It’s based on rickety cultural Marxist notions that categorize people into abstract groups – victims and oppressors – and then makes ‘heads-I-win-tails-you-lose’ arguments to justify double standards before the law.  The former’s dissent is speaking truth to power, the latter’s dissent must be stifled by any means necessary.

Here’s a deal:  I’ll let you ban hate speech if you let me define it.  Otherwise, if you get to both define and ban, then it’s not much more than using the force of law to silence your political opponents.  And there’s no limiting principle – the definition will expand as widely as it needs to until dissenters shut up and/or get re-educated out of their false consciousness.

Tiana Lowe points out that Speech Is Not Violence and Violence Is Not Self-Expression:

There are some extreme forms of speech — such as incitement (which is actually defined as words that directly call for imminent violence) or fighting words — that really can be blamed for the violence that follows. But the notion that passionate political discourse is violence while actual violence [e.g. antifa] can be excused is beyond Orwellian; it’s barbaric. It’s also corrupting.

David French agrees that Pressure groups on the left relentlessly argue that speech is violence:

In the never-ending battle to preserve free speech, there is always good news and bad news. There are triumphs and setbacks. The struggle for liberty always encounters the will to power, and often the will to power is cloaked in terms of “compassion,” “justice,” and “equality.”

But not even a ruling joined by Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor can persuade determined, far-left censors, and just as sure as night follows day, Laura Beth Nielsen, a research professor for the American Bar Foundation, took to the pages of the Los Angeles Times to make the case for viewpoint discrimination. I’ve seen enough pieces like this to recognize the type. They always begin with misleading statements of the law, declarations that free-speech protections aren’t absolute, and then move to the core pitch — in this case, that the state should regulate hate speech because it’s emotionally and physically harmful:

In fact, empirical data suggest that frequent verbal harassment can lead to various negative consequences. Racist hate speech has been linked to cigarette smoking, high blood pressure, anxiety, depression and post-traumatic stress disorder, and requires complex coping strategies. Exposure to racial slurs also diminishes academic performance. Women subjected to sexualized speech may develop a phenomenon of “self-objectification,” which is associated with eating disorders.

This is the very close cousin of the “speech as violence” argument sweeping campuses from coast to coast. It’s the heart of the argument for the campus speech code — that subjective listener response should dictate a speaker’s rights. The more fragile the listener, the greater the grounds for censorship

Yes, [hate speech is] painful. Yes, it has consequences. But it is far more empowering to meet bad speech with better speech than it is to appeal to the government for protection even from the worst ideas. To paraphrase Alan Charles Kors, co-founder of the Foundation for Individual Rights in Education, no class of Americans is too weak to live with freedom. Rather than indulging weakness and fear, activists left and right would do well to cultivate emotional strength and moral courage. The marketplace of ideas demands no less.

If the goal were to develop emotional strength and moral courage in people, then they’d be taught “stick and stones…”

But I suspect the goal is to fight the class struggle, move the Overton Window to the left, overturn/overrun our civil institutions so they can be replaced by… what exactly?  And in that case people must be organized as a class of victims and kept perpetually aggrieved.

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Immigration Has Changed the Progressive Movement

Jason Richwine writes that Immigration Has Changed the Progressive Movement

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Free Speech Isn’t Always a Tool of Virtue

More on free speech, this time from Jonah Goldberg in Free Speech Isn’t Always a Tool of Virtue:

There’s a tension so deep in how we think about free expression, it should rightly be called a paradox.

On the one hand, regardless of ideology, artists and writers almost unanimously insist that they do what they do to change minds. But the same artistes, auteurs, and opiners recoil in horror when anyone suggests that they might be responsible for inspiring bad deeds.

Hollywood, the music industry, journalism, political ideologies, even the Confederate flag: Each takes its turn in the dock when some madman or fool does something terrible.

The arguments against free speech are stacked and waiting for these moments like weapons in a gladiatorial armory. There’s no philosophical consistency to when they get picked up and deployed, beyond the unimpeachable consistency of opportunism.

Hollywood activists blame the toxic rhetoric of right-wing talk radio or the tea party for this crime, the National Rifle Association blames Hollywood for that atrocity. Liberals decry the toxic rhetoric of the Right, conservatives blame the toxic rhetoric of the Left.

When attacked — again heedless of ideology or consistency — the gladiators instantly trade weapons.

As a matter of law, I agree with this [you can’t blame rhetoric for the behavior of mentally ill people] entirely. But as a matter of culture, it’s more complicated.

I have always thought it absurd to claim that expression cannot lead people to do bad things, precisely because it is so obvious that expression can lead people to do good things. … As Irving Kristol once put it, “If you believe that no one was ever corrupted by a book, you have also to believe that no one was ever improved by a book. You have to believe, in other words, that art is morally trivial and that education is morally irrelevant.”

But words still mattered. Art still moved people. And the law is not the full and final measure of morality. Hence the paradox: In a free society, people have a moral responsibility for what they say, while at the same time a free society requires legal responsibility only for what they actually do.

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Knocking down the ‘wall of separation’ between church & state

h/t Ian Tuttle in Bernie Sanders, Theocrat:

Between Vought and Farron, one can get a sense of the bizarre position in which many orthodox religious believers find themselves today: that of having their views dictated to them by people who do not believe those things in the first place. The BBC demands that Tim Farron not think abortion is a sin — even though virtually no one among Britain’s political and media elite believes in the idea of “sin.” Bernie Sanders demands that Russell Vought affirm that everyone is going to Heaven — even though there is no evidence that Sanders believes in any Heaven. A person of faith might justifiably ask: Why does Bernie Sanders get to decide the appropriate theology of salvation? Why do Sky News anchors get to decide what is and isn’t a sin?

There is a long and stupid tradition of believing that the American Right threatens to impose an Evangelical Christian theocracy on the United States — that every Republican lawmaker is looking to erect an official church and make women cover their ankles. In reality, it is the proudly irreligious Left that has smuggled religious debates back into our politics. It is the unabashedly secular Left that has knocked down the “wall of separation” and made the afterlife an immanent political issue.

These were precisely the sorts of issues that the Founders, recalling the conflagrations of recent centuries in Europe, sought to cabin off from political pressures. It’s not the place of earthly governments to render eternal judgments. “Render to Caesar the things that are Caesar’s, and to God the things that are God’s,” someone advised. Whether abortion should be legal is a thing for Caesar; whether it is sinful is not.

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8-0 Matal v. Tam decision

h/t David French writing at NRO:

The Court has long held that the Constitution protects all but the narrowest categories of speech. Yet time and again, governments (including colleges) have tried to regulate “offensive” speech. Time and again, SCOTUS has defended free expression. Today was no exception. Writing for a unanimous Court, Justice Alito noted that the Patent and Trademark Office was essentially arguing that “the Government has an interest in preventing speech expressing ideas that offend.” His response was decisive:

[A]s we have explained, that idea strikes at the heart of the First Amendment. 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.”

Quick, someone alert the snowflakes shouting down speeches on campus or rushing stages in New York. There is no constitutional exception for so-called “hate speech.” Indeed, governments are under an obligation to protect controversial expression. Every justice agrees.

The ruling is worth celebrating, but when law and culture diverge, culture tends to win. The law protects free speech as strongly as it ever has. The culture, however, is growing increasingly intolerant – subjecting dissenters to shout-downs, reprisals, boycotts, shame campaigns, and disruptions. Some of this conduct is legal (boycotts and public shaming), some isn’t (shout-downs, riots, and disruptions), but all of it adds up to a society that increasingly views free speech as a dangerous threat, and not as one of our constitutional republic’s most vital assets. Liberty is winning the important judicial battles, but it may well lose the all-important cultural war.

Here’s how Justice Kennedy puts it in his concurrence:

“A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all,” Justice Kennedy wrote. “The First Amendment does not entrust that power to the government’s benevolence.”

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Political violence

Some of the more confounding political arguments I had in grad school were with friends across the aisle who tried to argue that a major difference between the Right and Left is that the former were violent while the latter were not.

Back then a “liberal” was someone who wanted to spend more money on social programs and loosen up sexual mores a bit, but would “defend to the death” the right of speech they disagreed with.  We could use more of them today.

Michael Barone laments that “The Left thinks it’s entitled to use violence while resisting the Trump administration.”

Violence is increasingly visible from or threatened by ski-masked, hammer-armed Antifas — people employing fascist-style intimidation on those who disagree — on campuses from Berkeley to New England and in the streets of “cool cities” such as Portland. Contrary to mainstream media expectations, the violence and threats come almost entirely from the political left, not the right.

Sanders immediately issued a strong statement denouncing violence. That’s in character. He had also called for free speech on campus when Ann Coulter was barred from Berkeley, as did fellow left-wingers Elizabeth Warren and Maxine Waters. That’s in line with longtime liberal tradition yet contrary to the policies and actions of so many college and university administrators these days.

Unfortunately, it’s not hard to find left-wing tweets advocating violence against President Trump and Republicans. And the “arts” community contributes its share…

The political process provides avenues for those opposed to Trump or Republican policies. Too many Americans have convinced themselves that they are morally entitled to use violence to “resist,” as if Trump were some reincarnation of Adolf Hitler.

 

Here’s a long excerpt from Ian Tuttle’s The Roots of Left-Wing Violence:

All politics is, at some level, a vocabulary contest, and it happens that American politics is currently engaged in a fierce fight over, and about, words. The central word at issue is “fascist,” but there are others: “racist,” “sexist,” and the like. A great many people are currently involved in a turf war, aiming to stake out conceptual territory for these charged words: What is fascism? What isn’t it? …

The point is finding charged language to signify that Mac Donald ought to be persona non grata, without needing to prove the case. The outraged undergraduates of Pomona College and Antifa are different in only one regard, albeit an important one: Antifa are willing to employ muscle to achieve their ends.

The purpose of words is, the philosopher Josef Pieper suggested, “to convey reality.” But it is clear that, for Antifa, the purpose is to cloak reality. Antifa’s reason for describing something or someone as “fascist” is not that it is actually fascist (although perhaps on occasion they do stumble onto the genuine item), but that describing it that way is politically advantageous. Likewise with any number of other slurs. Antifa are in effect claiming to oppose everything that is bad — and, of course, it is Antifa who decide what is bad. Hence the organizers of the Inauguration Day protests could write, as their mission statement, that “#DisruptJ20 rejects all forms of domination and oppression.” That is a good monopoly if you can get it.

Roger Scruton, in A Political Philosophy: Arguments for Conservatism (2006), examines how the manipulation of language facilitated the Communist enterprise and its myriad evils:

Who and what am I? Who and what are you? Those are the questions that plagued the Russian romantics, and to which they produced answers that mean nothing in themselves, but which dictated the fate of those to whom they were applied: . . . bourgeoisie and proletariat; capitalist and socialist; exploiter and producer: and all with the simple and glorious meaning of them and us!

What George Orwell called “Newspeak” in his novel 1984 “occurs whenever the main purpose of language — which is to describe reality — is replaced by the rival purpose of asserting power over it.” The latter is the purpose of “anti-fascism.” Who and what are you? A fascist. Who and what am I? An anti-fascist. Them and us, tidily distinguished.

Reality shapes language, but language also shapes reality. We think by means of words. Our perceptions change as the words change, and our actions often follow. Back to the Communists: No one killed affluent peasants. The Party “liquidated kulaks.”

Using words to cloak reality makes it easier to dispose of that reality. Antifa are not satisfied with labeling people fascists; they want them to bleed on that account. …

At The Nation in January, Natasha Lennard showed how this logic works in practice. “Fascism is imbued with violence and secures itself politically through the use or threat of it,” writes Lennard, quoting from Militant Anti-Fascism: A Hundred Years of Resistance, a 2015 book written by anti-fascist blogger “Malatesta” (Errico Malatesta was an Italian anarchist committed to revolutionary violence). As a result, there can be little question of the necessity of “counter-violence” — “as in Ferguson, as in Baltimore, as in Watts, as in counter-riots against the Ku Klux Klan, as in slave revolts.” There are a great many questions ignored here — to take one obvious example, whether the riots that consumed Baltimore in late April 2015 are in any meaningful way comparable to nineteenth-century slave rebellions — but consider for now just the use of “counter-violence.” It depends entirely on accepting the premise that Donald Trump is a fascist. Since fascism is “imbued with violence,” a violent response to the Trump administration is therefore necessary.

This sort of reasoning, such as it is, gets a more extensive workout in Emmett Rensin’s “From Mother Jones to Middlebury: The Problem and Promise of Political Violence in Trump’s America,” published in Foreign Policy in March. Rensin purports to assay recent left-wing political violence, but his clear if unstated purpose is to defend it. According to him, questions of ethics — Is it right to commit violence? — or of tactics — Is it wise to commit violence? — are unhelpful; what matters is why political violence happens. The answer, he says, is “intolerable pressure” on the lives of “the poor and oppressed”; “the intolerable pressure of a hateful and fearful world is always waiting to explode.”

This romantic pabulum conceals a salient fact: The victims and perpetrators of recent violence are hardly who Rensin makes them out to be. “The poor and oppressed” are not students at Claremont McKenna College (est. 2017–18 tuition: $52,825), and Muhammad Ashraf, the Muslim immigrant who owned the limousine burnt out on Inauguration Day, is not “the company” stamping its vulgar capitalist boot upon the downtrodden. Rensin sidesteps this flaw in his analysis by offering a taxonomy of violence that, conveniently, theorizes away both leftist responsibility and non-“oppressed” victims: According to him, there is violence perpetrated by the state — e.g., drone strikes, U.S. Immigration and Customs Enforcement detention centers, and the killing of Michael Brown (generally wicked); there is violence perpetrated by right-wingers that is tacitly endorsed by the state — e.g., lynch mobs and white-supremacist murderer Dylann Roof (always wicked); and there is violence that “explodes” from among the “oppressed” (understandable, and who are we to judge, really?).

What Lennard and Rensin are saying, underneath the layers of refurbished revolutionary cant, is that Donald Trump is a grave threat that justifies abrogating our laws against arson and assault — just like all of those other grave threats, from chattel slavery to Ferguson. They are not so bold as to come right out and say it, but they are, in the final analysis, simply claiming that people who think like them should be exempt from the law’s constraints, and that people who do not think like them should not receive the law’s protections. …

Sophisticated justifications for violence were part and parcel of this [1960’s & 70’s] fever. Leftist radicals were immersed in revolutionary literature — Lenin, Mao, Che Guevara, Malcolm X’s Autobiography — and those texts were candid. In 1963, Frantz Fanon published The Wretched of the Earth, the first sentence of which read: “National liberation, national reawakening, restoration of the nation to the people or Commonwealth, whatever the name used, whatever the latest expression, decolonization is always a violent event.” He continued, inverting Christian teaching:

In its bare reality, decolonization reeks of red-hot cannonballs and bloody knives. For the last can be the first only after a murderous and decisive confrontation between the two protagonists. This determination to have the last move up to the front, to have them clamber up (too quickly, say some) the famous echelons of an organized society, can only succeed by resorting to every means, including, of course, violence.

The preface to the original edition of The Wretched of the Earth was written by French philosopher Jean-Paul Sartre, who was even more bullish about violence: “To shoot down a European is to kill two birds with one stone,” Sartre suggested. “There remain a dead man and a free man.”  …

Today’s leftists are more gun-shy than their predecessors, but the differences are a matter of degree. Under the aegis of “anti-fascism,” leftist thugs have appointed themselves adjudicators of the fates of Richard Spencer, Heather Mac Donald, the limo owner or Trump voter — anyone they “don’t like” — and in this lawless realm, whatever crimes Antifa commit are not crimes, and their victims are not victims.

One senses, too, that they enjoy the simple frisson of violence.

If the first 100 days of his administration are any indication, Donald Trump may well be a fairly conventional president, except in his personal conduct — which, even then, is likely to be more Berlusconi than Mussolini. He is, though no one left of center would dare admit it, arguably the leftmost Republican president ever elected, and his closest advisers — his daughter and son-in-law — were until a few minutes ago lifelong Democrats. But the sort of people who join Antifa are not the sort who interest themselves in such details. No fanatics are.

The impulse toward destruction is deep-seated. Kirkpatrick Sale, in his authoritative history SDS: The Rise and Development of the Students for a Democratic Society (1973), writes:

Revolution: how had it come to that? . . . There was a primary sense, begun by no more than a reading of the morning papers and developed through the new perspectives and new analyses available to the Movement now, that the evils in America were the evils of America, inextricably a part of the total system. . . . Clearly something drastic would be necessary to eradicate those evils and alter that system.

That describes far more than just the violent fringe of 1970s leftism. It is the stated position, today, of many Antifa and Occupiers and Black Lives Matter supporters, and it is the unacknowledged assumption of many progressive Democrats who would never throw a stone. It is the expressed belief, too, of many who embrace the label “alt-right.” It is a weed that, for 50 years, has been taking root.

The natural and necessary institutions — chief among them civil society and the law — that make it possible for people to live together peacefully and prosperously require a degree of freedom. Inevitably, grifters will swindle and demagogues will charm. But those determined to subvert these institutions fail to see, or refuse to see, that the most likely alternative to the principle of equality under law is a form of “domination and oppression” worse than anything they currently oppose.

The remedy to outbursts of political turmoil is not to wantonly tear down what fragile order exists, or to impose some new, ill-conceived order by force. Power, at least in the long run, does not grow out of the barrel of a gun; Mao was wrong. Legitimate and stable political power is rooted in the healthful loyalties that temper destructive political passions. Rightly ordered affections — toward God, country, and one another — promote the civic friendship in which citizens work side by side to promote one another’s best interests, and by which inevitable disputes can be resolved with a minimum of conflict. When Lincoln urged that “we are not enemies, but friends,” he was stating a necessary condition of the American republic.

The Antifa ideology can produce only enemies.

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The Age of Unilateral Rule

Rich Lowry in The Age of Unilateral Rule

The beginning of Donald Trump’s presidency has been an extension of the past six years of the Obama administration, when Capitol Hill was largely a sideshow to the main event in the executive branch in general and the Oval Office in particular. Barack Obama and Donald Trump have almost nothing in common, except their modes of governance.

Obama was coolly cerebral and deliberative to a fault, whereas Trump is blustery, instinctual and impulsive. Yet, Obama and Trump are both, in their own ways, attention-hungry celebrities. Obama never demonstrated the patience or aptitude for real persuasion, whether LBJ-style arm-twisting or Reagan-style move-the-needle public argument. Neither has Trump. Institutionally, Obama was content to be a loner, and so is Trump.

Until further notice, this is the American model — government by and of the president. We live in the age of unilateral rule…

To his credit, Trump hasn’t pushed the constitutional envelope the way Obama did with his Clean Power Plan and his executive amnesty (both blocked in the courts) or tried anything as audacious as having midlevel bureaucrats write letters mandating sexual-assault and bathroom policies for colleges and schools nationwide.

What Trump has done is firmly within bounds and largely defensive in nature. He has either reversed Obama’s unilateral actions or used executive orders as symbolic measures to highlight certain issues.

Still, the yin and yang from Obama to Trump means that American government has become a badminton match between rival presidents with dueling executive actions

All of this back-and-forth means that our laws are mostly contested in the realm of executive decisions, agency rule-making and the courts. Arguably, in striking down Trump’s travel ban on highly dubious grounds, the 4th U.S. Circuit Court of Appeals has done more legislating this year than the United States Congress.

If Trump’s unilateral rule is an extension of what has come before, it is also an intensification.

First, there’s the timing. Ordinarily, a president loses Congress or otherwise stalls several years into his tenure and has to look to foreign affairs and executive orders for victories. Trump is already dependent on presidential unilateralism, even though his party controls both houses of Congress.

It’s not that Trump is deliberately cutting out Congress; he is desperate for it to get things done, as demonstrated by his event celebrating passage of the House health care bill, which currently languishes in the Senate. He just doesn’t have the interest or knowledge base to push anything along in Congress

The legislative branch has been kneecapping itself for decades. It has been steadily handing over authority to the administrative state, and lately has gotten out of the habit of passing almost anything except last-minute omnibus spending bills. The Senate, in particular, is debilitated by a near-automatic 60-vote threshold…

Second, there is the continued centralization of power in the White House. This has been the trend from Richard Nixon through Obama. But Trump has taken it to another level; he operates on a hub-and-spoke system, with a small group of loyalists and family members jostling for influence around him…

In the mid-1980s, the late political scientist Ted Lowi wrote a book called The Personal President. It warned of the effects of a “plebiscitary” presidency unhinged from Congress and political parties. He was onto something, although Bill Clinton and George W. Bush in subsequent decades governed fairly traditionally. It is with Obama and Trump that we have moved into a new gear.

No matter what the written rules are, any system of government is susceptible to change through habits and precedent. We may be witnessing the creation of a new norm, one that hollows out the branch of government charged with writing the nation’s laws.

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