Colorado Confluence

Let’s talk about Freedom of Speech, Freedom of Religion, and Freedom of Press.

Freedom of speech is not freedom from criticism or consequence for what you say. It’s not freedom from people deciding they don’t like your speech. It’s not freedom from people expressing that they are offended by your speech. It’s not freedom from being held socially accountable for using speech to bully others. Legally, it’s not freedom from accountability for slander, or inciting violence. Morally, it’s not freedom from paying a social or economic price for being a jackass.

Humor is not a specially protected form of speech. Claiming that something was “just a joke” does not exempt it from social norms regarding what kinds of speech people find harmful to others. Humor is conventionally allotted a little extra latitude, because humor often functions, in part, by violating taboos in revealing ways, with neither the intention nor result of violating the underlying purpose of those taboos. But far from all violations of social taboos couched as jokes meet that criterion. A racist or misogynistic joke is still racist or misogynistic, regardless of it having been a joke.

There are some gray areas we have to grapple with: For instance: To what extent and under what circumstances is it okay for an employer to punish the speech of an employee? At one extreme, it’s clearly okay for an employer to fire a customer service representative who is in the habit of rudely berating customers when they call for assistance. At the other extreme, it clearly would violate the spirit of the First Amendment if corporations routinely punished employees in non-sensitive positions for expressing any political view at any time or anywhere other than that of the employer or of the employer’s clientele. There is a large and varied range of possibilities between those two, some areas of which are open to debate.

But, in public discourse, when people respond to criticism of their positions with a proclamation that that criticism is a violation of their right to free speech, they are engaging in a particularly convenient and hypocritical notion of what free speech is, for the person criticizing them has as much right to speak as they do, and to insist that their criticism be withheld in deference to your right to say what you like without being criticized for it is to insist that you but not they should be able to enjoy the right to speak freely.

A similar phenomenon occurs with freedom of religion. Christianity is the dominant religion in America, numerically and institutionally. Freedom of religion protects the right of people of all religions, including but not exclusively Christianity, to be able to practice their religion without governmental interference and to be able not to have any other religion imposed on them in any way through governmental agency. But fundamentalist Christians have come to interpret “freedom of religion” to mean their freedom to continue to have an exclusive right to impose the symbolism of their religion on others through governmental agency, and to be free from seeing anyone else ever celebrating any religion other than theirs in public.

Finally, and most recently, the pattern has reached freedom of the press. There is now an authoritarian populist demagogue in power, supported by an authoritarian populist base, that wants to redefine freedom of the press to mean “freedom of the press if we like what the press says,” reserving to themselves the right to declare what they consider to be true or false (independently of actual empirical evidence) and to use the power of government anything that they decree to be false, even if it is by all conventional methodologies clearly true.

All three of these misconceptions –the one that insists that freedom of speech means one’s own freedom to say what they like without any chance of reprisal or criticism from others but not other’s right to say what those others like if they disagree with it, the one that insists that freedom of religion means one’s own freedom to exercise their religion in public and expect exclusive governmental endorsement of it but no one else’s right to do the same, and the one that insists that the press is free to report and editorialize as they like, but that if they do so in a manner that a populist faction in power disagrees with, the government supported by that populist faction should have the power to silence them– are tyrannical interpretations of these fundamental freedoms.

Tyranny rarely announces itself by name. Frequently, particularly in the modern era, tyranny uses the language of liberty while exercising the substance of oppression and political thuggery. Please feel free to use this post, in part or in its entirety, whenever you come across these phenomena in public discourse. These freedoms exist because sunlight is the best disinfectant, and this post is designed to shed some sunlight on a horribly infected portion of our shared cognitive landscape.

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The following is a response to a Facebook commenter who insisted that legislators are no longer obeying the dictates of the Constitution:

First, we have to start with a clearer understanding of the real nature and purpose of the US Constitution.

Despite right-wing claims to the contrary, it’s purpose was not primarily “to limit the federal government,” but rather to define and strengthen it. Yes, part of defining it involves limiting it, but the modern notion that that was the primary purpose is, in a sense, the exact opposite of the historical reality. The Constitutional Convention was called due to the inability of the toothless Articles of Confederation to bind the nation together and overcome internal collective action problems. The Constitution was drafted to strengthen the federal government and impose a consolidating federal rule of law that had teeth. “The Federalist Papers,” which are a series of op-ed pieces by Madison, Hamilton, and Jay arguing for ratification of the Constitution, are mostly arguments about why a strong federal government is necessary.

The drafters were not all of like mind, but were in fact sharply divided on multiple issues (slavery being the most famous one). Franklin, for instance (who was the senior statesman of the new nation and second in respect commanded among the Founding Fathers themselves only to Washington), favored very high inheritance and luxury taxes, and a redistribution of private wealth beyond that necessary to maintain oneself and one’s family in modest fashion to the public sector for use in public projects and benefits (not to the poor, a form of public redistribution Franklin didn’t particularly favor). Hamilton and Adams favored a very strong central government, with a national bank and national control of economic and fiscal policy. So the modern reduction of the Constitution, beyond its letter, to one ideological camp’s insistence of what “the intention of the founding fathers” was is a convenient fiction and not very helpful.

The drafters of the Constitution did not generally expect it to survive more than a generation or two, knowing that changing times and circumstances would increasingly challenge its relevance. The fact that it has survived 225 years is a miracle, and should be considered with an awareness of how dramatically challenged and attenuated the foresight of these brilliant but merely historical and mortal individuals really has become.

The Constitution is not a precise document. It is very short and general, intentionally, so that legislators then and in the future would have room within it to operate and respond to circumstances. Many terms are not precisely defined (such as “due process,” for instance); there is wide space for interpretation of many clauses. The jurisprudence of this nation is a function of that ambiguity and that range of possible interpretation.

Ironically, one of the least ambiguous clauses in the Constitution is one that the right is most eager to re-interpret out of existence. Article I, Section 8, clause 1 states, without qualification, that Congress is empowered to tax and spend in the general welfare. This clause clearly means that it is left to our democratic (“electoral,” if you prefer) political processes and not to the Constitution or to foundational law to determine how much and in what ways citizens are taxed (as long as it is uniform) or how much or in what ways government spends in service to the general welfare. And yet the right constantly cites taxing-and-spending as their evidence of a “tyranny” that is an affront to our Constitution. It’s one of many ideological absurdities.

Because of this ambiguity, the Constitution would have been nothing more than a political football, a Rorschach Test for each partisan or ideologue to imprint their own preference upon, and thus something the meaning of which no one ever agreed on and therefore that each party, once in power, would interpret and implement according to their own preferred –and frequently highly stretched- interpretation. In other words, without a procedural anchor for interpretation, without a “last word” (short of the public’s “last word” to amend it), there could have been no functioning Constitution at all. Thankfully, Chief Justice John Marshall, in Marbury v. Madison, at the beginning of the 19th Century, managed to institute the procedural anchor of “judicial review,” which empowered the courts, and, as a last resort, The Supreme Court, with the final authority in Constitutional interpretation. By that mechanism, we have an “unambiguous” Constitution, at least in the functional sense.

And that brings us to your error. You think that the state and federal legislatures no longer are operating within the constraints of the Constitution because your own interpretation, ideologically tinged and at times grossly distorted, does not conform to current practices. But you don’t have the final word on legal and Constitutional interpretation; the Court does. And while I disagree with many of its holdings, they are usually if not always legally defensible, and usually if not always very thoroughly reasoned and articulated. (I might endorse one more layer of oversight, in which the academy of constitutional scholars has some ability to call the Supreme Court to task on any particular holding, if it appears to be an egregiously indefensible holding, due to the possibility of a completely politicized Court, no longer committed to the faithful application of legal analysis to questions of law, and a need to be vigilant against that.)

What you prefer, that the Constitution always be interpreted as you see fit, is not a defense of our Constitution, but rather a frontal assault on it, because every ideologue of every stripe desires the same thing, though their respective interpretations are in diametrical opposition to one another. A real commitment to our Constitution, and to the rule of law that it forms the anchor of, is to also remain committed to our procedures for giving that Constitution a functional viability, the most crucial of which is judicial review.

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In the comments to Tina Griego’s recent favorable column on the “Occupy Denver” movement (http://www.denverpost.com/ci_19375895?source=bb), I noticed a cartoon showing how much more respectable the Tea Party participants are than the Occupy participants, various comments about how “sad” and otherwise disreputable the latter are, complaints about the “liberal media” and its fellow travelers dismissing the Tea Party as a radical fringe movement, and at least one completely gratuitous xenophobic rant blaming all of the woes of the “Occupy” participants on illegal immigrants (and illegal immigration on Tina Griego). Mere non-condemnational attention to those protesting Wall Street is enough to unleash a torrent of those simultaneously reviling them and rallying to their never-mentioned ideological counterpart. It’s clear that not only is our government caught in the gridlock of two opposing political ideologies (at least one of which is too uncompromising for any cooperative action to be achieved), but our nation and population are also caught in a tug-o-war between two diametrically opposed (but in many ways overlapping) movements.

Several commenters engaged in the remarkable contortion of simultaneously dismissing the participants of the “Occupy” movement as subhuman parasites, while bitterly complaining that liberals have dismissed the participants of the Tea Party movement in a similar fashion. This in itself almost completely captures the underlying essence of the ideology these folks are embracing (so lost in an in-group/out-group world view that identical actions are defensible when they commit them but reprehensible when their “enemy” does). But they do have a point: While their movement is almost completely saturated in this attitude, their opposition exhibits far too much of it as well. It is one thing to make unflattering but accurate observations; it is another to foam at the mouth while doing so.

So let’s transcend the debate about which movement is more irrational and belligerent, and contemplate the movements themselves. I have criticisms of both the Tea Party and the “occupy” movement, and see some legitimate points being made by each. For example, I think the “Occupy” movement errs by trying to claim that any otherwise illegal act is protected by the Constitutional right to free speech, and the Tea Party movement is correct that the exercise of power by government is problematic and difficult to control. But, taken on balance, I do indeed consider the “occupy” movement to be more on target than the Tea Party, not based on comparisons of how the respective members of the two groups dress or clean up after themselves or who is better employed or any other misdirectional irrelevancies, but rather because the content of the concerns of one is closer, in my assessment, to what is most economically and politically rational to be concerned about. In other words, my relative support of the two movements is based on their substance, not their form.

The basic divide is between those who see government as the primary threat to liberty, and those who see large corporations as the primary threat to liberty. An argument can be made for both, and both spheres of power are certainly problematic. Both are comprised of entities which exert formidable control over our lives, profoundly affecting us all in service to the welfare of some more than of others. Both also serve valuable purposes, either producing wealth or acting as a collective agent negotiating the challenges we face as a polity, respectively. Both are necessary, and both need to be subject to checks and balances such that we do our best to maximize their benefits to our welfare and minimize their costs to our welfare, all things considered.

But the emphasis on reducing the power of government is a strategy which reduces the one nexus of power which is at least somewhat controlled by a democratic process, in favor of the other major nexus of power which is not at all controlled by a democratic process. The result is to cede power to the more despotic and less democratic vehicle through which power is exercised, leading to more rather than less tyranny.

In the modern era, democratic, constitutional government is less the vehicle of tyranny than the bulwark against tyranny. It is still problematic; those who exercise power within it are still hard to rein in and control; the “agency problem” of ensuring that our agent (our government) acts in the interests of the principal (the people) rather than of the agent and its allies (the government officials themselves, and those who do the most to keep them in power) is an ever-present and very real challenge we must face. But, in the case of government, well established, long-standing, and relatively (if imperfectly) effective mechanisms exist for confronting that agency problem. In the case of corporations, only very weak and difficult to implement mechanisms (such as boycotts) exist to do so.

Government is the portal through which we, as a polity, have the opportunity to stand up to, tame, and channel the loci of power that inevitably exist, and that can serve broader or narrower interests depending on how well we continue to refine our social institutional arrangements. To relinquish that one opportunity in fear that we can’t control it after all is to relinquish our liberty completely, and surrender to power over which we have no effective control at all instead.