I have criticized Princeton on a number of occasions, but it deserves credit for hosting this statement on free speech and engaging contrary opinion from Cornel West and Robert George (who used to teach a class together at Princeton).
Posts tagged ‘free speech’
The term "hate speech" has become a useful tool for speech suppression, mostly from the Left side of the political aisle. The reason it is such a dangerous term for free speech is that there is no useful definition of hate speech, meaning that in practice it often comes to mean, "confrontational speech that I disagree with." I think most of us would agree that saying, "all black men should be lynched" is unambiguously hateful. But what about saying something like "African Americans need to come to terms with the high rate of black on black violence." Or even, "President Obama plays too much golf." I would call both the latter statements opinions that, even if wrong, reasonably fit within the acceptable bounds of public discourse, but both have been called hate speech and racist.
The Left's new tool for speech suppression appears to be the term "fake news." Certainly a news story that says, "American actually has 57 states" would be considered by most to be fake. We understand (or most of us outside places like the New York Times, which still seems to get fooled) that sites like the Onion are fake. But, as I suspected the very first time I heard the term, "fake news" also seems to be defined as "political sites with which I disagree." Via Reason:
But Zimdars' list is awful. It includes not just fake or parody sites; it includes sites with heavily ideological slants like Breitbart, LewRockwell.com, Liberty Unyielding, and Red State. These are not "fake news" sites. They are blogs that—much like Reason—have a mix of opinion and news content designed to advance a particular point of view. Red State has linked to pieces from Reason on multiple occasions, and years ago I wrote a guest commentary for Breitbart attempting to make a conservative case to support gay marriage recognition....
Reporting on the alleged impact of fake news on the election is itself full of problems. BuzzFeed investigated how well the top "fake" election news stories performed on Facebook compared to the top "real" election news stories. The fake stories had more "engagement" on Facebook than stories from mainstream media outlets. There's basic problems with this comparison—engagement doesn't mean that people read the stories or even believed them (I know anecdotally that when a fake news story shows up in my feed, the "engagement" is often people pointing out that the story is fake).
There's also a problem when you look at the top stories from mainstream media outlets—they tend toward ideologically supported opinion pieces as well. Tim Carney over at The Washington Examinernoted that two of the top three stories are essentially opinion pieces:
Here's the top "Real News" stories: "Trump's history of corruption is mind-boggling. So why is Clinton supposedly the corrupt one?" As the headline suggests, this is a liberal opinion piece, complaining that the media doesn't report enough on Trump's scandals.
No. 2 is "Stop Pretending You Don't Know Why People Hate Hillary Clinton." This is a rambling screed claiming that people only dislike Clinton because she is a woman.
So in an environment where "fake news" is policed by third parties that rely on expert analysis, we could see ideologically driven posts from outlets censored entirely because they're lesser known or smaller, while larger news sites get a pass on spreading heavily ideological opinion pieces. So a decision by Facebook to censor "fake news" would heavily weigh in favor of the more mainstream and "powerful" traditional media outlets.
The lack of having a voice in the media is what caused smaller online ideology-based sites to crop up in the first place. Feldman noted that he's already removed some sites that he believes have been included "unfairly" in Zimdars' list. His extension also doesn't block access to any sites in any event. It just produces a pop-up warning.
Tellingly, in a quick scan of the sites, I don't see any major sites of the Left, while I see many from the Right (though Zero Hedge is on the list and writes from both the Left and the Right). Daily Kos anyone? There are conspiracy sites on the list but none that I see peddle conspiracies (e.g. 9/11 trutherism) of the Left.
This is yet another effort to impose ideological censorship but make it feel like it is following some sort of neutral criteria.
Dear Conservatives: As you wallow around in your election-day schadenfreude, I offer you this note of caution: Except perhaps on immigration and a few miscellaneous issues like climate, Trump is not a Conservative. He has no apparent respect for the Constitution, or free speech, or any number of individual freedoms. He is a serial abuser of eminent domain and has lived off of crony rents for decades. We often compare government unfavorably to private individuals when it comes to budgeting, observing that most of us can only spend as much as we bring in, unlike a profligate Federal government -- but Trump can't control spending in his own private sphere and has run up huge amounts of debt he has had to disavow in various quests for self-aggrandizement. Do you really think he won't do the same thing with public funds?
I said this morning I would give up political prognostication, but I am fairly sure in less than 6 months we are going to see prominent Conservatives coming out publicly with buyer's remorse.
I have written before that many universities have focused on creating true diversity of skin pigments and reproductive plumbing among their students but in their primary world of ideas, have created an intellectual monoculture. If you don't believe it, check out this quote from a Yale dean in the Yale Daily News.
Despite ongoing campus discussions about free speech, Yale remains deeply unwelcoming to students with conservative political beliefs, according to a News survey distributed earlier this month.
Nearly 75 percent of 2,054 respondents who completed the survey — representing views across the political spectrum — said they believe Yale does not provide a welcoming environment for conservative students to share their opinions on political issues. Among the 11.86 percent of respondents who described themselves as either “conservative” or “very conservative,” the numbers are even starker: Nearly 95 percent said the Yale community does not welcome their opinions. About two-thirds of respondents who described themselves as “liberal” or “very liberal” said Yale is not welcoming to conservative students.
By contrast, more than 98 percent of respondents said Yale is welcoming to students with liberal beliefs. And among students who described themselves as “liberal” or “very liberal,” 85 percent said they are “comfortable” or “very comfortable” sharing their political views in campus discussions.
In an interview with the News, Yale College Dean Jonathan Holloway said the results of the survey were lamentable but unsurprising. Holloway attributed conservative students’ discomfort at sharing their views partly to the pervasiveness of social media.
“So much of your generation’s world is managed through smart phones. There’s no margin anymore for saying something stupid,” Holloway said. “People have been saying dumb things forever, but when I was your age word of mouth would take a while. Now it’s instantaneous, now context is stripped away.”
So the reason Conservatives have a problem at Yale, according to the Yale administration, is that Yale people don't tolerate folks who are stupid. LOL. The Dean later tried to back away from this statement, arguing that he did not mean Conservatives said stupid things, but his comments don't make any sense in any other context.
The institution is certainly hurt by this sort of narrow-mindedness. It is more of a mixed bag for students. While Conservatives are certainly frustrated they are frequently not allowed to bring speakers from their side of political issues to campus, there is potentially a silver lining. As I wrote previously in my letter to Princeton:
I suppose I should confess that this has one silver lining for my family. My son just graduated Amherst College, and as a libertarian he never had a professor who held similar views. This means that he was constantly challenged to defend his positions with faculty and students who at a minimum disagreed, and in certain cases considered him to be a pariah. In my mind, he likely got a better education than left-leaning kids who today can sail through 16 years of education without ever encountering a contrary point of view. Ironically, it is kids on the Left who are being let down the most, raised intellectually as the equivalent of gazelles in a petting zoo rather than wild on the Serengeti,.
In political science we often model political actors as having fixed interests and positions, and then we try to figure out how they do or don't get their way. But there's actually more play in the joints of politics than that. Some people -- like Ronald Reagan! -- just switch teams entirely. More broadly, as we address in the book, entire parties switch their positions. If we want to understand politics, we need some way of understanding that process.
As I grow older, and have had more time to observe, I find the shifts in party positions fascinating and oddly opaque to most folks who are in the middle of them - perhaps this is one advantage to being part of neither major party. Some of the shifts are generational -- for example both parties have moved left on things like homosexuality and narcotics legalization. Some of the shifts have to do with who controls the White House -- the party in power tends to support executive power and military interventionism, while the opposition tends to oppose these things. Some of the shifts have to do with who controls intellectual institutions like college in the media -- the group in control of these institutions tends to be more open to first amendment restrictions, while the out-of-power group become desperate defenders of free speech (look how the campus free speech movement has shifted from the Left to the Right).
I would love to see a book on this covering the last 50 years.
Republicans were rightly horrified that various government agencies, including a number of state attorneys general, were harassing private entities like Exxon-Mobil and CEI over their speech about climate change. They pointed out that even if formal charges were never brought, the intrusive and public investigatory process by powerful government actors had an inherently chilling effect on free speech.
Kudos to Republicans! They are defending the free speech of private actors from government harassment.
The chairman of the Senate Commerce Committee demanded on Tuesday that Facebook explain how it handles news articles in its “trending” list, responding to a report that staff members hadintentionally suppressed articles from conservative sources.
In a letter, the chairman, Senator John Thune, Republican of South Dakota, asked Facebook to describe the steps it was taking to investigate the claims and to provide any records about articles that its news curators had excluded or added. Mr. Thune also asked directly whether the curators had “in fact manipulated the content,” something Facebook denied in a statement on Monday.
“If there’s any level of subjectivity associated with it, or if, as reports have suggested that there might have been, an attempt to suppress conservative stories or keep them from trending and get other stories out there, I think it’s important for people to know that,” Mr. Thune told reporters on Tuesday. “That’s just a matter of transparency and honesty, and there shouldn’t be any attempt to mislead the American public.”
Ugh. What does Thune want, a revival of odious equal time rules, but now applied to the Internet? This is just stupid.
The ACLU has always been an important but imperfect organization. Historically, its biggest problem IMO has been its Stalinist origins and its resulting complete silence on, even at times hostility towards, property rights. But it was always wonderfully absolutist in protecting free speech. One of my first blog posts, which I can't seem to find, 10+ years ago was a post congratulating the ACLU to the distasteful but necesary task of defending the free speech rights of neo-Nazis.
Unfortunately, the rising opposition to free speech on the Left seems to be infecting the ACLU. Via Ronald Collins:
Wendy Kaminer is an ardent free-speech advocate; she is currently a member of the advisory board of the Foundation for Individual Rights in Education (FIRE). Ms. Kaminer Kaminer was a member of the board of the ACLU of Massachusetts from the early 1990s until June 2009. She was also a national board member of the ACLU from 1999 until her term expired in June 2006. As to the omission of any reference to protecting First Amendment free-speech freedoms in the 2016 Workplan, she stated:
I’m not at all surprised that the ACLU’s 2016 work plan doesn’t include an explicit commitment to protecting freedom of speech. At the national level, ACLU has been exercising its right to remain silent on key free speech issues for years, in apparent deference to progressive support for restricting speech deemed racist, sexist, homophobic or otherwise exclusionary. Still, while it’s unsurprising, the ACLU’s withdrawal from free speech battles that could eventually lead the U.S. to adopt a Western European approach to regulating “hate speech” is indeed alarming. As threats to free speech intensify — on campus (thanks partly to arguably unconstitutional federal mandates) and in the remarkable tendency of some liberals to blame the victims of violence for giving offense to their murderers (remember Charlie Hebdo) — the ACLU’s timidity in protecting speech looks more and more like complicity in censoring it.
Here is how Harvey A. Silverglate, co-founder of FIRE and a former member of the Board President of the ACLU of Massachusetts, replied:
Sadly, it comes as no surprise that the national ACLU Board and Staff are nowhere to be seen in the increasingly difficult battle to protect First Amendment freedom of expression rights. This is especially so in areas where the ACLU, more and more, pursues a political or social agenda where the overriding importance of the goal transcends, in the eyes of ACLU’s leadership, the needed vitality of free speech principles neutrally and apolitically applied. Fortunately, some ACLU state affiliates still carry the free speech battle flag, but they are a diminishing army in a war that is getting more and more difficult, even though more and more important, to wage.
Campus Progressives are becoming increasingly open about their opposition to unfettered free speech. As a minimum, they seem to want restrictions on (and thus punishments for) speech they feel disparages ethnic minorities, homosexuals, various flavors of trans-gendered people, etc. If pressed, many might extend these restrictions to other speech they don't like, e.g. climate skepticism or advocating for the Second Amendment.
What often confuses outsiders about these calls for speech restrictions is that they are generally asymmetrical -- eg it is OK to criticize Christians but not to criticize Muslims. You can impugn the motives of rich white males but not of blacks or Hispanics. Critics of these limitations will say, "aha, you are a hypocrite" but in fact Progressives are quite open about this asymmetry. They argue from a framework where everything comes back to the powerful vs. the powerless. In this framework, it is OK for the powerless to criticize the powerful, but the reverse is not allowed -- they call it "punching down". Thus the need for asymmetric speech limitations to protect the powerless from the powerful.
But this is where we get to a massive contradiction. Because whoever is in a position to enforce speech limitations is always going to be the person with power. By definition. The powerless don't write and succesfully enforce speech codes, or else if they do, we now have to call them powerful. And historically, people in power always use speech limitations to protect their own power. That is why the First Amendment exists, to protect minorities of any sort from the power of the majority. If historically disenfranchised people suddenly start making speech codes stick that protect them from criticism, it only means that the in-group and out-group tags have been shifted and the new in-group is acting just like all the other in-groups have in the past. That is why we don't rely on assurances of good behavior by people in power, we try to circumscribe them with Constitutional limitations.
After giving Holloway his comeuppance, they moved on to Nicholas Christakis, master of Silliman College. What was Christakis’s crime? His wife, an early childhood educator, had responded to a campus-wide email about offensive Halloween costumes by opining that it was inappropriate for the college to tell students how to dress. According to The Washington Post:
“Whose business is it to control the forms of costumes of young people? It’s not mine, I know that,” wrote Erika Christakis, an early childhood educator and the wife of Nicholas Christakis, the Silliman College master. Both later took to social media to defend the e-mail, incensing students by tying it to debates about free speech and trigger warnings. At a Wednesday night forum hosted by the Afro-American Cultural Center, Erika Christakis sought to leave the meeting during a discussion of her e-mail, further provoking student anger. …
Students grew distressed, with one shouting at Nicholas Christakis to be quiet and questioning why he took the position at the university. “You are a poor steward of this community,” the student said. “You should not sleep at night.”
I guess the question is whether colleges like Yale are preferentially choosing students with this authoritarian mindset, or whether they are training them to be authoritarian. In either case, they seem to be reaping what they sowed.
This story reminds me of two past observations I have made about universities. The first is that their diversity programs, despite Universities being intellectual institutions, focus on absolutely everything (from skin pigmentation to reproductive plumbing) except diversity of ideas. Perhaps this is because the only way to achieve "safe space" as defined by these students is either to create an intellectual mono-culture (the opposite of diversity) or to suppress speech and idea sharing so much that no intellectual discourse happens at all. Definitely your classic "reap what you sow" situation.
The second observation is that I once thought that a key goal of "diversity" was to eliminate the in-group/ out-group dynamic that has been so destructive through all of history. But I am increasingly convinced that the true objective of diversity programs as practiced on university campuses is to simply shift the "out-group" tag from one set of people to another. More horrible things are said on campus about whites, males, Asians, wealthy people, straights, frats, etc than I ever heard in my entire lifetime from anyone about, say, African Americans.
Just look at how most Ivy League schools treat Asians. The discrimination that occurs against Asian students is amazing, with Asians having to produce SAT scores hundreds of points higher than any other group to have an equal chance of admission. This is why, despite all my support over the years for my alma mater, I quit doing college interviews for Princeton -- I got tired of being a part of hosing all the hard-working Asian kids I was interviewing.
Even before the current unpleasantness, Gawker was always vile. Here is Adam Weinstein in Gawker arguing that people who disagree with him should be jailed. Incredibly, Weinstein has been held up in certain quarters as a voice of moderation and reasonableness in the current Gawker brouhaha
Those [climate] denialists should face jail. They should face fines. They should face lawsuits from the classes of people whose lives and livelihoods are most threatened by denialist tactics...
'm talking about Rush and his multi-million-dollar ilk in the disinformation business. I'm talking about Americans for Prosperity and the businesses and billionaires who back its obfuscatory propaganda. I'm talking about public persons and organizations and corporations for whom denying a fundamental scientific fact is profitable, who encourage the acceleration of an anti-environment course of unregulated consumption and production that, frankly, will screw my son and your children and whatever progeny they manage to have.
Those malcontents must be punished and stopped.
Deniers will, of course, fuss and stomp and beat their breasts and claim this is persecution, this is a violation of free speech. Of course, they already say that now, when judges force them into doing penance for comparing climate scientists to child-rapist and denial poster-boy Jerry Sandusky.
But First Amendment rights have never been absolute. You still can't yell "fire" in a crowded theater. You shouldn't be able to yell "balderdash" at 10,883 scientific journal articles a year, all saying the same thing: This is a problem, and we should take some preparations for when it becomes a bigger problem.
Incredibly, he makes this plea while arguing that it is wrong "to deny people the tools they need to inform themselves" -- which we will accomplish by throwing one side of the debate in jail? Really?
I am so sick of this "First Amendment is not absolute" bullshit. It is absolute when it comes to issues like debating the merit of a scientific conclusion or debating the political implications of scientific research. It is absolutely absolute. In sports terms, this is a pop fly hit to second base. It is no where near the foul lines. It is so far from the foul lines that people would look askance at an umpire who screamed "fair ball" when the fact was already so patently obvious.
And no: motives, funding sources, and even being demonstrably right or wrong does not affect this absolute First Amendment protection.
Which all leaves an interesting question for Gawker: Under what First Amendment theory is outing salacious sexual details of private citizens who happen to work for Gawker's competition in order to gain advertising revenue somehow protected but discussing the shortcomings and political consequences of climate forecasts is not? I think they are both protected, but the former sure looks closer to the foul line than the latter.
I think any opposition to free speech, particularly as exercised in an election, is unseemly, but Hillary Clinton's attacks on the Supreme Court's Citizens United decision are particularly so.
Why? Well to understand, we have to remember what the Citizens United case actually was. Over time, the decision has been shorthanded as the one that allows free corporate spending in elections, but this was not actually the situation at hand in the case. I could probably find a better source, but I am lazy and the Wikipedia summary is fine for my purposes:
In the case, the conservative lobbying group Citizens United wanted to air a film critical of Hillary Clinton and to advertise the film during television broadcasts in apparent violation of the 2002 Bipartisan Campaign Reform Act (commonly known as the McCain–Feingold Act or "BCRA"). Section 203 of BCRA defined an "electioneering communication" as a broadcast, cable, or satellite communication that mentioned a candidate within 60 days of a general election or 30 days of a primary, and prohibited such expenditures by corporations and unions.
Yes, the Supreme Court generalized the decision to all corporations and unions (good for them) but the narrow issue in the case was whether an independent non-profit group could air a negative film about Hillary Clinton in the run-up to an election in which she was a candidate.
So when Hillary Clinton derides the Citizens United decision, she is arguing that the government should have used its powers to suppress a film critical of her personally. She is trying to protect herself from criticism.
In the late 1970's, I guess it was OK to mock Islam because Gary Trudeau sure did it a lot in his Doonebury comic. I remember one panel where the Iranian Chief Justice was in the states for his college reunion, telling his old school mates he stayed in such great shape by "flogging" rather than jogging.
Today, though, the Left seems to feel that Islam is off-limits and even needs their protection. It's OK to mock Indiana for not forcing every photographer to work gay weddings but God forbid anyone mock countries that kill gays just for being gay. In Trudeau we have an icon of the 1960's radicals advocating for limits on free speech and for blasphemy laws. Too bizarre for words. Eugene Volokh has a good commentary on Trudeau's remarks.
Look, sometimes commentators like myself adopt a sort of feaux confusion on the actions of folks we disagree with. But I am being honest here -- I really, really don't understand this.
I will say that I think this position tends to support a pet theory of mine. Remember that I start with a belief that American Republicans and Democrats are not internally consistent on their politics, and not even consistent over time (e.g. Republicans opposed wars of choices in Kosovo under Clinton, supported them under Bush in Iraq, and then opposed them again under Obama in Libya).
So here is my theory to explain many party political positions: Consider an issue where one party is really passionate about something. The other party might tend to initially agree. But over time there is going to be pressure for the other party to take the opposite stand, whether it is consistent with some sort of party ideological framework or not. After 9/11, the Republicans staked out a position that they thought that Islam as practiced in several countries was evil and dangerous and in some cases needed to be subdued by force of arms. In my framework, this pushed Democrats into becoming defenders of modern Islam, even at the same time that domestic politics was pushing them to be critical of Christian religion as it affected social policy (i.e. abortion and later gay marriage). Apparently, the more obvious position of "yeah, we agree much of the Islamic world is illiberal and violent, but we don't think we can or should fix it by arms" is too subtle a position to win elections. I fear we have gotten to a point where if either party is for something, they have to be in favor of mandating it, and if they are against something, they have to be in favor of using the full force of government to purge it from this Earth. And the other party will default to the opposite position.
The counter-veiling argument to this is two words: "drug war". This seems to be a bipartisan disaster that is generally supported by both parties. So my framework needs some work.
The Supremes are going to discuss whether displaying a confederate battle flag on your custom license plate is protected by free speech.
In 1980 when I went up north to school I had a Confederate battle flag on my wall. I keep calling it the battle flag because in fact the flag you are thinking about (the one on the Dukes of Hazard's car) is not actually the flag of the Confederate nation. Most folks could not describe the original Confederate flag under torture (here it is).
So the flag you are thinking about, and the Supremes are considering, was actually based on the battle flags of certain state militias, like that of Virginia and Tennessee. It was also used by the Confederate Navy, and was incorporated into a redesign of the official Confederate flag late in the war.
Anyway, there were a couple of reasons a young Texan might put up this flag in his northern dorm room. First, it is awesome looking. There are a lot of bad flags in the world, but this is a great-looking flag. Second, at the time it represented the southern pride of a lot of us who found ourselves displaced and living in that odd northeastern college culture. It never represented (at least at the time) anything racist for me. For southerners (many of us raised, without knowing it, on the Lost Cause school of Civil War historiography) it represented pride and pluck and scrappy determination.
Anyway, I don't remember getting any pushback on the flag at the time. Over the years, though, I came to recognize that the flag was seen by many as a symbol of racism. Part of that was my increasing awareness but a large part was shifts in society and its perceptions -- remember the Dukes of Hazard was a real, popular network show that could likely never get made today. I suppose I could have retained the flag as a symbol of what I thought it was a symbol for, and just ignored other peoples' opinion. But at some point, I realized that other peoples' good opinion of me had value and that I needed to acknowledge how they saw the flag and put it away in a box.
Which brings me back to license plates. If a state is going to create a license plate program where people can make statements with their license plates, then people should be able to make the statement they want to make. I know there are folks in the south who honestly still cling to the symbolism I used to attach to the Confederate battle flag. But let's leave those folks aside. Let's assume for a moment that everyone who wants to display this symbol on their car is a racist. Shouldn't we be thrilled if they want to do so? Here would be a program where racists would voluntarily self-identify to all as a racist (they would even pay extra to do so!) What would be a greater public service?
I make this same argument when people want to ban speakers from campus. If people are willing to come forward with evil thoughts and intentions and announce them publicly, why wouldn't we let them? It's is fine to want to eliminate evil from the Earth, but
shilling banning hateful speech doesn't do this -- it only drives evil underground.
Postscript: I actually started thinking about this driving down I-40 from Knoxville to Nashville yesterday. In a bend in the road, on a hill, there is a large home. Their land goes right out to the bend in the highway, and on that bend they have put up a huge flag pole with a big Confederate battle flag. You can see it from miles in each direction. I didn't get a picture but there are plenty on the web. From searching for it, there are apparently similar installations on private land in other states. As I drove, having nothing else to do, I thought a lot about what message they were trying to send. Was it just southern pride? Were they really racists? If they weren't racists, did they know that many would think them as such? And if so, did they even care -- was this in fact just a giant FU?
Update: Fixed the typo in the last line. Did I mean chilling? Not even sure. Banning is what I meant.
I am a big absolutist on allowing campaign donations as an essential part of free speech largely without restriction. However, I have always wondered why we treat campaign donations after the election is over, made to the winning candidate, as anything but an outright bribe. I guess in theory one can argue that the candidate does not get access to it personally (it used to be that retiring public officials could personally keep the remnants of their campaign funds when they retire; the elimination of this rule spurred one of the last big incumbent turnovers in Congress as our elected officials rushed to beat the deadline and personally bank those leftover contributions.) However, many candidates lend money to their own campaigns or borrow money with their personal guarantee, and so money paying off these loans does indeed benefit the candidate directly. And candidates have numerous ways to shift campaign cash to benefit friends and family.
Much of the Conservative pushback on the torture report today has been to argue that the torture was actually much more useful in terms of information gathering than the Senate report concludes. Who gives a cr*p? Are these really the same folks who lecture me about morality for wanting to allow gay men to marry, but are A-OK with torture?
In the rape discussion, those who show skepticism about false stories of rape are considered, unfairly, rape apologists. But these folks I am hearing today are truly torture apologists. It is sickening. If Conservatives were truly just in a Bismarkian blood and iron mode, I guess at least they would be internally consistent. But many of these guys are neo-Conservatives, who are essentially advocating torture as a means to spreading our positive values around the world.
Conservatives, correctly I think, criticized the Obama Administration for blaming the Libyan embassy attack on YouTube video. They argued that he should have been standing up in front of the world and explaining free speech and educating the world on why we don't punish folks for its exercise, even when we disagree with them. All fine, except how does advocating for torture play into this bully pulpit theme?
John Hinderaker says that Democrats have been unsuccessful in their anti-Koch brother campaign because only 25% of Americans have a negative opinion of the Kochs and that has not changed much in 6 months.
But that strikes me as missing the point. The Democrats have raised tens of millions of dollars from those 25% inflaming them with anti-Koch rhetoric. They will outspend Republicans this year largely on the back of a campaign that, for example, never failed to mention the Kochs in almost every email sent out. Further, they have succesfully turned the words "Koch Brothers" into some sort of boogeyman. The media even here in Red state Arizona breathlessly discusses every contact a Republican candidate has with Koch Brothers-funded organizations while never ever mentioning any large backers on the Democratic side. Despite the fact that Democrats have raised more so-called "dark money" than Republicans, nearly 100% of the media stories on dark money are about Republicans. Further, by successfully (and asymmetrically) making public life a living hell for prominent Republican supporters, the Democrats are doing important battle space preparation for future elections, giving second thoughts to future potential Republican donors.
That, in my mind, is a political success.
(Of course, it is a disaster for liberty, and demonstrates EXACTLY why anonymous speech and donations have to remain legal. The campaign waged right from the floor of the Senate by Democrats like Harry Reid to vilify private citizens who have been out-front and transparent about exercising their free speech is an insult to liberty).
The US Justice Department is using decades-old anti-discrimination law to stop poor black families from escaping crappy schools via a school choice program. The awesome Clint Bolick of Goldwater has the details:
Despite reports of compromise or capitulation, the U.S. Justice Department is continuing its legal assault on the Louisiana school-voucher program—wielding a 40-year-old court order against racial discrimination to stymie the aspirations of black parents to get their children the best education.
The Louisiana Scholarship Program began in 2012. It provides full-tuition scholarships to children from families with incomes below 250% of the poverty level, whose children were assigned to public schools rated C, D or F by the state, or who were enrolling in kindergarten. In the current year, 12,000 children applied for scholarships and nearly 5,000 are using them to attend private schools. Roughly 90% are used by black children.
Parental satisfaction is off the charts. A 2013 survey by the Louisiana chapter of the Black Alliance for Educational Options, a national school-choice organization, found that 93.6% of scholarship families are pleased with their children's academic progress and 99.3% believe the schools are safe—a far cry from the dismal public schools to which the children were previously consigned.
But last August, the Justice Department filed a motion to enjoin the program in dozens of school districts that still have desegregation orders from generations ago. It claimed that any change in racial composition would violate the orders. After a tremendous public backlash, Justice withdrew its motion for an injunction, insisting it did not intend to remove kids from the program....
In fact, the children are very much in danger of losing their opportunities. The Justice Department is demanding detailed annual information, including the racial composition of the public schools the voucher students are leaving and the private and parochial schools the students are selecting. If it objects to the award of individual vouchers based on those statistics, the department will challenge them.
If I had to make a list of the top 10 things we could do to actually help African-American families (as opposed to the garbage programs in place now to supposedly help them), #1 would be decriminalization of narcotics and in general stopping the incarceration of black youth for non-violent victim-less offenses. But #2 would be school choice programs like the one in Louisiana.
PS- I am thinking about what the rest of the top 10 list would be. #3 would likely be putting real teeth in police department accountability programs, as I think that police departments tend to be the last bastions of true institutionalized racial discrimination. #4 might be some sort of starter wage program that gives a lower minimum wage for long-term unemployed. If I weren't a pacifist and committed to free speech and association, I might say #5 was shutting down half the supposed advocacy groups that claim to be working for the benefit of African-Americans but instead merely lock them into dependency.
..is when people attribute differences of opinion on policy issues to the other side "not caring."
I could cite a million examples a day but the one I will grab today is from Daniel Drezner and Kevin Drum. They argue that people with establishment jobs just don't care about jobs for the little people. Specifically Drum writes:
Dan Drezner points out today that in the latest poll from the Council on Foreign Relations, the opinions of foreign policy elites have converged quite a bit with the opinions of the general public. But among the top five items in the poll, there's still one big difference that sticks out like a fire alarm: ordinary people care about American jobs and elites don't. Funny how that works, isn't it?
Here are the specific poll results he sites. Not that this is a foreign policy survey
The first thing to note is that respondents are being asked about top priorities, not what issues are important. So it is possible, even likely, the people surveyed thought that domestic employment issues were important but not a priority for our foreign policy efforts. Respondents would likely also have said that (say) protecting domestic free speech rights was not a foreign policy priority, but I bet they would still think that free speech was an important thing they care about. The best analogy I can think of is if someone criticized a Phoenix mayoral candidate for not making Supreme Court Justice selection one of her top priorities. Certainly the candidate might consider the identity of SCOTUS judges to be important, but she could reasonably argue that the Phoenix mayor doesn't have much leverage on that process and so it should not be a job-focus priority.
But the second thing to note is that there is an implied policy bias involved here. The Left tends to take as a bedrock principle that activist and restrictive trade policy is sometimes (even often) necessary to protect American jobs. On the other hand many folks, including me and perhaps a plurality of economists, believe that protectionist trade policy actually reduces total American employment and wealth, benefiting a few politically connected and visible industries at the expense of consumers and consumer industries (Bastiat's "unseen"). Because of the word "protecting", which pretty clearly seems to imply protectionist trade policy, many folks answering this survey who might consider employment and economic growth to be valid foreign policy priorities might still have ranked this one low because they don't agree with the protectionist / restrictionist trade theory. Had the question said instead, say, "Improving American Economic Well-Being" my guess would be the survey results would have been higher.
Whichever the case, there is absolutely no basis for using this study to try to create yet another ad hominem attack out there in the political space. People who disagree with you generally do not have evil motives, they likely have different assumptions about the nature of the problem and relevant policy solutions. Treating them as bad-intentioned is the #1 tendency that drags down political discourse today.
Postscript: This is not an isolated problem of the Left, I just happened to see this one when I was thinking about the issue. There likely is a Conservative site out there taking the drug policy number at the bottom and blogging something like "Obama state department doesn't care about kids dying of drug overdoses." This of course would share all the same problems as Drum's statement, attributing the survey results to bad motives rather than a sincere policy difference (e.g. those of us who understand that drugs can be destructive but see the war on drugs and drug trafficking to be even more destructive).
Walter Olson writes (emphasis added)
Elane Photography LLC v. Vanessa Willock is the case in which an Albuquerque, NM woman has (thus farsuccessfully) sued husband-and-wife photographers under New Mexico’s “public accommodations” discrimination law for their reluctance to shoot photos of her commitment ceremony to a female partner. One of the most dismaying elements of the case is that the American Civil Liberties Union has taken the anti-liberty side. Adam Liptak in the NYT:
I asked Louise Melling, a lawyer at the American Civil Liberties Union, which has a distinguished history of championing free speech, how the group had evaluated the case.
Ms. Melling said the evaluation had required difficult choices. Photography is expression protected by the Constitution, she said, and Ms. [Elane] Huguenin acted from “heartfelt convictions.”
But the equal treatment of gay couples is more important than the free speech rights of commercial photographers, she said, explaining why the A.C.L.U. filed a brief in the New Mexico Supreme Court supporting the couple.
Earlier, Olson made the useful point that large organizations like the ACLU are not monolithic -- they have internal conflicts on issues like this. But based on my interactions with the ACLU, I believe the key word is in bold: "commercial". For many at the ACLU, the fact that an activity is commercial or for money voids or cancels out any rights one has. Property rights or rights exercised in the conduct of commerce tend to always come last (if at all) at the ACLU. Which is why I donate every year to the IJ, the organization the ACLU should have been if they had not been founded by
Stalinists. Update: That is unfair. It's like criticizing someone because of what his father did or believed. Many organizations move beyond their original founder's legacy. But it is never-the-less undeniable that -- at best -- the ACLU has no interest in property rights or commercial freedoms.
Well, the silver lining of this story is that the press, who until now have generally yawned at libertarian concerns about warrantless searches and national security letters, particularly since that power has been held by a Democrat rather than a Republican, will now likely go nuts.
You have probably seen it by now, but here is the basic story
The Justice Department secretly obtained two months of telephone records of reporters and editors for The Associated Press in what the news cooperative's top executive called a "massive and unprecedented intrusion" into how news organizations gather the news.
The records obtained by the Justice Department listed incoming and outgoing calls, and the duration of each call, for the work and personal phone numbers of individual reporters, general AP office numbers in New York, Washington and Hartford, Conn., and the main number for AP reporters in the House of Representatives press gallery, according to attorneys for the AP.
In all, the government seized those records for more than 20 separate telephone lines assigned to AP and its journalists in April and May of 2012. The exact number of journalists who used the phone lines during that period is unknown but more than 100 journalists work in the offices whose phone records were targeted on a wide array of stories about government and other matters.
The AP believes this is an investigation into sources of a story on May 7, 2012 about a foiled terror attack. This bit was interesting to me for two reasons:
The May 7, 2012, AP story that disclosed details of the CIA operation in Yemen to stop an airliner bomb plot occurred around the one-year anniversary of the May 2, 2011, killing of Osama bin Laden.
The plot was significant because the White House had told the public it had "no credible information that terrorist organizations, including al-Qaida, are plotting attacks in the U.S. to coincide with the (May 2) anniversary of bin Laden's death."
The AP delayed reporting the story at the request of government officials who said it would jeopardize national security. Once government officials said those concerns were allayed, the AP disclosed the plot because officials said it no longer endangered national security. The Obama administration, however, continued to request that the story be held until the administration could make an official announcement.
First, it seems to fit in with the White House cover-up over Benghazi, in the sense that it is another example of the Administration trying to downplay, in fact hide, acts of organized terrorism. I have criticized the Administration for throwing free speech under the bus in its Benghazi response, but I must say their reasons for doing so were never that clear to me. This story seems to create a pattern of almost irrational White House sensitivity to any admission of terrorist threats to the US.
Second, note from the last sentence that the White House is bending over backwards to investigate the AP basically for stealing its thunder before a press conference. Wow. Well if that were suddenly illegal, just about everyone in DC would be in jail.
Update: Some thoughts from Glenn Greenwald
how media reactions to civil liberties assaults are shaped almost entirely by who the victims are. For years, the Obama administration has been engaged in pervasive spying on American Muslim communities and dissident groups. It demanded a reform-free renewal of the Patriot Act and the Fisa Amendments Act of 2008, both of which codify immense powers of warrantless eavesdropping, including ones that can be used against journalists. It has prosecuted double the number of whistleblowers under espionage statutes as all previous administrations combined, threatened to criminalize WikiLeaks, and abused Bradley Manning to the point that a formal UN investigation denounced his treatment as "cruel and inhuman".
But, with a few noble exceptions, most major media outlets said little about any of this, except in those cases when they supported it. It took a direct and blatant attack on them for them to really get worked up, denounce these assaults, and acknowledge this administration's true character. That is redolent of how the general public reacted with rage over privacy invasions only when new TSA airport searches targeted not just Muslims but themselves: what they perceive as "regular Americans". Or how former Democratic Rep. Jane Harman -- once the most vocal defender of Bush's vast warrantless eavesdropping programs -- suddenly began sounding like a shrill and outraged privacy advocate once it was revealed that her own conversations with Aipac representatives were recorded by the government.
... was not the crisis management but Obama's throwing free speech under the bus.
I can live with poor crisis management. I have been a part of enough to understand that things are different in real time than they look when monday-morning quarterbacking the events. In particular, it can be very hard to get reliable data. Sure, the correct data is all likely there, and when folks look back on events, that data will be very visible and folks will argue that better choices should have been made.
A great example of this is when historians sort through data to say that FDR missed (or purposely ignored, if you are of that revisionist school) clear evidence of the Japaneses surprise attack on Pearl Harbor. Sure, the correct clues stand out like flashing lights to the historian, but to the contemporary they were buried in 10,000 ostensibly promising false leads.
In real time, good data is mixed in with a lot of bad data, and it takes some time -- or a unique individual -- to cut through the fog. Clearly neither Obama nor Clinton were this individual, but we should not be surprised as our selection process for politicians is not really configured to find such a person, except by accident.
No, the problem I have with Benghazi is that when push came to political shove, the President threw free expression under the bus to protect himself. I am a sort of city on the hill isolationist, who prefers as much as possible for the US to have influence overseas by setting a positive example spread through open communications and free trade. In this model, there is nothing more important for a US President to do than to support and explain the values of individual liberty, such as free expression, to the world.
Instead, it is increasingly clear he blamed some Youtube video, an exercise in free expression, for the tragedy. And not just in the first confused days, but five days later when he put Susan Rice on TV to parrot this narrative. And when the Feds sent a team to arrest and imprison the video maker. And days after the Rice interviews when Hillary parroted the same message at the funeral, and days after that when Obama spoke to the UN, mentioning the video 6 or 7 times. Obama took to his bully pulpit and railed against free speech in front of a group of authoritarians who love to hear that message, and whose efforts to stifle speech have historically only been slowed by America's example and pressure.
Ultra-secret national security letters that come with a gag order on the recipient are an unconstitutional impingement on free speech, a federal judge in California ruled in a decision released Friday.
U.S. District Judge Susan Illston ordered the government to stop issuing so-called NSLs across the board, in a stunning defeat for the Obama administration’s surveillance practices. She also ordered the government to cease enforcing the gag provision in any other cases. However, she stayed her order for 90 days to give the government a chance to appeal to the Ninth Circuit Court of Appeals.
“We are very pleased that the Court recognized the fatal constitutional shortcomings of the NSL statute,” said Matt Zimmerman, senior staff attorney for the Electronic Frontier Foundation, which filed a challenge to NSLs on behalf of an unknown telecom that received an NSL in 2011. “The government’s gags have truncated the public debate on these controversial surveillance tools. Our client looks forward to the day when it can publicly discuss its experience.”
The telecommunications company received the ultra-secret demand letter in 2011 from the FBI seeking information about a customer or customers. The company took the extraordinary and rare step of challenging the underlying authority of the National Security Letter, as well as the legitimacy of the gag order that came with it.
Both challenges are allowed under a federal law that governs NSLs, a power greatly expanded under the Patriot Act that allows the government to get detailed information on Americans’ finances and communications without oversight from a judge. The FBI has issued hundreds of thousands of NSLs over the years and has been reprimanded for abusing them — though almost none of the requests have been challenged by the recipients.
After the telecom challenged the NSL, the Justice Department took its own extraordinary measure and sued the company, arguing in court documents that the company was violating the law by challenging its authority.
I have debated a while whether to run this personal experience, and in the end have reached a (perhaps wimpy) compromise with myself to run it but disguise the agency involved.
As most of your know, I run a company that helps keep public parks open by privately operating them. As part of that business, it is unsurprising that I would run a specialized blog on such public-private recreation partnerships. Most of the blog is dedicated not to selling my company per se, since there are not many who do what we do, but advancing the concept. In particular, I spend a lot of time responding to objections from folks who are concerned that private operators will not serve the public well or care for public lands as well as civil servants do.
One such objection is around law enforcement -- parks agencies who oppose this model argue that my company cannot possibly replace them because all their rangers are law enforcement officials and mine, a certification my private employees can't match. So a while back I wrote an article discussing this issue.
I argued that parks were not some lawless Road Warrior-style criminal anarchy and simply did not need the level of law enforcement concentration they have. We run nearly 175 public parks and do so just fine relying on support from the sheriff's office, as does every other recreation business.
I argued that so many rangers were law enforcement officials because they have a financial incentive to get such certification (e.g. more pay and much better pension, plus the psychic benefits of carrying a gun and a badge) and not because of any particular demand for such services.
Finally, and perhaps most importantly, I argued that providing customer service with law enforcement officials can cause problems -- after all, McDonald's does not issue citations to their customers for parking incorrectly. To back up the last point, I linked to an article in the Frisky (of all places) and a Yelp review of a park where customers bombarded the site with one star reviews complaining about the rangers harassing them with citations and ruining their visit.
Well, one day I got a letter via email from a regional manager of the state parks agency whose park was the subject of that Yelp review I linked. I was notified that I had 48 hours to remove that blog post or I would lose all my contracts with that state. In particular, they did not like a) the fact that I linked to a negative Yelp review of one of their parks and b) that I impugned the incredibly noble idea that state parks are all operated by law enforcement officials. I found out only later that there is a very extreme law enforcement culture in this agency -- that in fact you historically could not even be promoted to higher management positions without the law enforcement badge, truly making this an agency of police officers who happen to run parks. I would normally quote the letter's text here, but it is impossible to do so and keep the agency's name confidential.
Fortunately, I was able to write the acting General Counsel of the agency that afternoon. Rather than sending something fiery as the first salvo, I sent a coy letter observing innocently that her agency seemed to believe that my contracts with the state imposed a prior restraint on my speech and I asked her to clarify the boundaries of that prior restraint so I would know what speech I was to be allowed. To her credit, she called me back about 6 minutes after having received the letter and told me that it was void and asking me to please, please pretend I had never received it. So I did, and I reward her personally for her quick and intelligent response by not naming her agency in the story.
I am reminded of all this and write it in response to this story passed on by Ken at Popehat. It is a story of free speech and petty government retribution for it. I will let you read the article to get the details, but I will repost the original speech that earned Rick Horowitz a good dollop of government harassment. As an aside, I realize in posting this how far from the law and order conservative I have come since my early twenties.
Your approach should be to try to live your life, as much as possible, without giving them one minute of your time. If they want to talk to you, you should ask, “Am I being detained, or arrested?” If they say “no,” then you walk away. If they tell you that you cannot leave, then you stay put, but don’t talk to them. Because they aren’t following the law when they detain you for no reason.
And if the government will not follow the law, there is no reason why anyone else should.
Let me repeat that:
If the government will not follow the law, there is no reason why anyone else should.
So this is the proposal I set forth:
To the government, you can start following the law, or none of us will.
To everyone else, if the government will not follow the law, you should stop pretending law means anything.
It’s time to step away from the wrong.
Start fighting over everything!
The First Amendment is nearly the last portion of the Bill of Rights that courts seem to take seriously -- treating all the others as if the Founders were just kidding. The 9th and 10th went early. The 2nd has been nibbled away at. The 4th has become a bad joke under the last several Administrations. We abandoned the 6th somewhere out in Guantanamo Bay and the 5th has fallen victim to the drug war. (The 3rd is still alive and well, though!)
But today freedom of speech is under fire by those who increasingly claim [some] people have a right not to be offended that trumps free speech. Just who has this new right and who does not (certainly white males don't seem to have it) is unclear, as well as how one can ever enforce a standard where the victim has full discretion in determining if a crime has been committed, are left unexplained.
We have seen this theory of speech gaining adherents in Universities, for example, so while its continued gains are worrisome though not entirely unexpected. The one thing I never saw coming in the increasingly secular west was how much momentum anti-blasphemy laws would gain, and how much these laws would be pushed by the Left**.
Jonathon Turley has a good article on this topic in the Washington Post, as linked by Reason
Ken at Popehat has a roundup of creeping ant-blasphemy law over the last year (it is hard for me to even write that sentence seriously, it sounds so Medieval)
**It is in fact insane that the Left has so many people coming out in favor of protecting Islam from blasphemy. I know it is not everyone, but it is just amazing that a good number of people who call themselves liberal can excuse violence by a misogynist culture that is meant to suppress speech in the name of Gods and Churches. We have actual children of the sixties arguing that threats of violence are sufficiently good reason to suppress speech and that a religion that basically enslaves women needs laws that protect it from criticism (these same children of the sixties that all protested the Christmas bombings of Cambodia are also launching drone strikes willy nilly on civilians and claiming that the President can assassinate Americans solely on his say-so, but those are different topics.)
This all goes to prove my long-time conviction that the political parties have very little foundation in any real morality, and that they tend to simply take positions opposite of the other party. Since Conservatives staked out the anti-Islam position, the Left feels the need to find some way to be pro-Islam. Weird, but I can't think of any other explanation. The only exceptions to this rule are 1) expansions of Presidential power and 2) taking the drug war to new stupid extremes. Both parties seem unified in supporting these two things, at least when their guy is in office.
I found this history from Ken at Popehat to be incredibly useful background on free speech jurisprudence from OW Holmes, particularly of the oft-abused "yelling fire in a crowded movie house."
Perhaps the worst modern threat to free speech is this notion that "hate speech" is somehow a class of speech that should be banned. Well, I would ask advocates of this position to remember that nearly every bit of political speech is hate speech to someone. Those who advocate for such a restriction generally imagine themselves defining what is hateful. Which leads me back to my #1 legal test: if one supports some sort of government-rule-making legislation, imagine the politician you like the least making the rules. If that makes you queasy, you shouldn't be supporting that legislation.