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(The following post was a comment I made on a Facebook thread that began with the poster seriously suggesting that Obama was moving toward arbitrarily imprisoning people on the Right who disagree with him, as evidenced by his referring to some Republican candidates as “extremists,” combined with the unfortunate provision for indefinite detention of “enemy combatants” in the NDAA. My comment below was a direct response to someone asserting that if I thought Obama might be right in his characterization of those Republican candidates, then I don’t know Obama well enough, implying that Obama is by definition always wrong.)
It’s not enough just to say that those you disagree with are wrong. You have to make the case. And if you’re not making the case, you’re just making noise.
There’s harmless noise, and there’s harmful noise. If you believe, for instance, that Amon-Ra requires you to hop on one foot at sunrise and sing Egyptian incantations to an arthropod, knock yourself out. No harm done. But if you were to believe, conversely, that all human beings who do not belong to your cult are possessed by demons which must be exorcised by those possessed being doused with gasoline and set on fire, and were part of a significant group of people believing this and reinforcing the belief among one another, well, that would be a lot more worrisome, because someone might start to act on that belief, and that would be a serious breach of the rights of those having their demons exorcised.
All human discursive noise falls on a continuum defined by these examples, from the most benign and harmless to the most violent and destructive. The noise your not-so-little cult makes is a lot closer to the end of that continuum defined by the latter example than the one defined by the former. In fact, the biggest act of domestic terrorism in American history was committed by a member of your cult, striking a blow against the federal government and its perceived incursions on liberty by blowing up the Murrah Federal Building in Oklahoma City, killing hundreds of innocent people, including dozens of children in the day care center housed in that building.
Granted, such an atrocity could have been committed by any fanatic of any stripe, and, as we say in statistics, an N of one is meaningless. But, in this case, we don’t just have the N of one to inform us, but also a considerable quantity of confirming evidence: A huge rise in armed citizen militias running around with grease painted faces and semi-automatic rifles, training to save this country from the dictatorship in your imaginations. Rhetoric that informs a potentially violent and consistently destructive zealotry, such as the motto “extremism in the defense of liberty is no vice.” The problem, of course, is that extremism has a life of its own, regardless of what it claims to be in defense of, and that motto is precisely the motto that would have been echoing in Timothy McVeigh’s mind, rationalizing for him the irrational and horribly destructive.
That’s not to say that there aren’t kernels of truth in some of your positions. The history of the United States has been characterized by a consistent, punctuated growth in executive power. The concentration and exercise of both governmental and corporate power in America involves several troubling tendencies, such as the indefinite detention of people labelled as enemy combatants, and the influence of corporate money in determining electoral and legislative outcomes. There are real issues to be understood and addressed as wisely and effectively and functionally as possible. But the rule of law is first and foremost a commitment to a process, to a set of procedures that are consistent with our fundamental law, and have developed in service to it. People who don’t get that are the biggest real threat to the Constitution that this country faces, because they want to replace our actual rule of law with their particular ideological presumptions of what the law should be, claiming that there is no ambiguity or possibility of disputing their positions, when very clearly there is, as all people who actually study and implement the Constitution realize.
And that brings us to the freedom of speech. Members of my fictional cult who believed in burning the demons out of those who disagree with them are on the boundary between protected speech and criminal incitement of violence. Were they to merely assert that all who disagree with them are possessed by demons and must be opposed, then they would have clearly fallen on the side of protected speech. Were they to encourage and advise followers to actually douse people with gasoline and set them on fire, inciting them to commit imminent acts of violence, then they would clearly fall on the side of criminal incitement of violence.
Your little cult clearly falls on the side of protected speech. It’s not even a close call, and no one I know of has ever suggested that it is a close call. That doesn’t mean that it isn’t destructive and potentially dangerous, it just means that part of our legal framework, a very fundamental and important part, is that we recognize that we have to allow and protect all speech that isn’t imminently inciting violence or in other limited ways crossing a line that had to be drawn (e.g., libel, maliciously igniting a panic “in a crowded theater,” etc.), because that is a real and necessary bulwark of liberty. We all get that, even us demons who, metaphorically speaking, need to be doused with gasoline and set on fire.
I agree that the speech of the KKK and of American Nazis, as well as of American Communists and Socialists (groups to which exceedingly few on the Left in America belong, despite the crazed rhetoric to the contrary) and Evangelicals, all has to be protected, regardless of whether I or anyone else finds it odious, destructive, and disgusting, as long as it doesn’t cross the line to the incitement of imminent violence. I certainly agree that your speech, which, for the most part (though not always, nor by all adherents), is less odious than that of the KKK and American Nazis, is protected speech. I have no interest or desire to see force used to silence you. I prefer to see reason and goodwill used to debunk you.
We live in a country facing many real challenges, as has been the case throughout our history, and will be the case throughout all time in all places. We have established an excellent though imperfect system for addressing those challenges, which we can continue to refine, which is still firmly based on our Constitution, which has evolved around that Constitution by necessity and by design, and which real patriotism demands a complete commitment to. It is more procedural than substantive, more focused on how we arrive at our conclusions than on what those conclusions must be. That is what the rule of law really is. That is what our Constitution really stands for. And you folks, for all of your claims to be the defenders of the Constitution, are in reality it’s most fervent opponents in America today, because you claim that your particular ideological substantive conclusions should take precedence over our evolved rule of law and the procedures by which we maintain and implement it. Such people are the kind of people most likely to blow up buildings and kill innocent people, because, as you say, “extremism in defense of liberty is no vice.” But extremism in defense of anything other than reason and goodwill most certainly is a vice, because extremism in defense of anything other than reason and goodwill is too open to interpretation, too susceptible to the errors of blind ideological passions.
The value of liberty is that it serves humanity well. Those who become warriors of liberty divorced from a commitment to humanity are not serving either liberty or that which liberty itself serves, but are rather serving their own blind fanaticisms, at everyone else’s expense.
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Despite Vincent Carroll’s predictable lack of appreciation of the value of creating a civil discourse based on some common premises, such as asking ourselves how best to govern ourselves in service to the public interest (which is the same thing as service to the aggregation of our individual interests) (http://www.denverpost.com/carroll/ci_16661510), the pinnacle of free speech is not a balkanized Tower of Babel, in which each ideologue can be exposed only to echoing reinforcements of his own arbitrary views, but rather something that is both coherent and diverse, something that is based on common values but debates, with reason, the means by which to give those values their highest expression.
Some readers might recognize that the title of this post is virtually identical to the title of two others (Liberty & Interdependence, Liberty & Society). The reason for this is the repetition of the theme of the articulation of centrifugal and centripetal social forces, of binding a society together into a coordinated effort to serve mutual interests, and of freeing up its constituent individuals to serve those individual and mutual interests most robustly. Vincent Carroll is yet another spokesperson for the far-right fantasy of a one-sided coin, in which the only concern is maximizing freedom, and there is no concern for contextualizing that freedom in ways which channel it to human benefit. Carroll’s conceptualization of free speech is another incarnation of the far-right’s Hobbesian paradise of the war of all against all, each hunkered down in his own cognitive trench, lobbing ordinance and cultivating deepening, increasingly feral, rage toward those hunkered down in the trenches across the battle line.
It’s not that Jay Rockefeller’s musings, that Carroll cited, didn’t overshoot the mark a bit, or that the challenges of protecting free speech from overzealous government imposition of “coherence” is not a legitimate concern, but rather that Carroll subscribes to, and amplifies, the caricature of a government motivated solely by some nefarious desire to deprive him of his liberties, rather than a government posed with the real challenges of reining in liberties just enough to coordinate their exercise to mutual benefit rather than mutual detriment.
We all know that such reining in is necessary. We all know that we do not want to live in a society in which each is free to do physical violence to others. Most agree that libel and slander laws are okay. Few have difficulties with limiting speech that is designed to incite violence or cause a panic just for fun. Conservatives have been quickest to want to limit student speech on far weaker pretexts (see the famous Supreme Court holdings of Hazelwood v. Kuhlmeier and Bethel School District v. Fraser, for instance). Everyone, implicitly or explicitly, recognizes that there is a balance to be struck, that where the line is at which it is optimally struck is not automatically crystal clear, and that a legitimate debate must be had to determine where that line belongs.
But blind ideologues like Carroll, who, ironically, love to use the language of an intellectual superiority that they so glaringly lack (calling Rockefeller an “ignoramus,” for instance), live in a fantasy world of oversimplistic absolutes, in which the subtleties of the challenge of governing ourselves don’t exist, and in which an information-and-analysis-stripped “Political Fundamentalism”, comprised of “Constitutional Idolatry”, Liberty Idolatry, and Small Government Idolatry, is all that is required to claim to have answered all questions and won all debates.
Despite the legitimate concerns about laws that potentially constrain political speech that we don’t want government to have the power to constrain, there is also a legitimate concern with the speech-nullifying power of corporate money in political discourse, drowning out dissenting voices with the share magnitude of their own. Free speech is arguably threatened more by less financed voices being overwhelmed by the share magnitude of noise that the better financed voices can generate than by the limiting of the volume that any one voice is given. These are subtleties, and difficult questions, that those who wish to govern ourselves responsibly can’t simply pontificate our of existence.
Despite Carroll’s dismissal of Michael Bennet’s allusion to a semi-mythical era when we rallied around a common discourse, and debated within its context, there is indeed a value to creating a common discourse, to gathering around a single table and discussing issues about which we must strive to arrive at some consensus rather than merely strive to smite one another as perpetual foes. It’s emblematic of his ideological camp that he doesn’t comprehend that value, because he speaks for those who are incapable of recognizing it, who think that the highest good is blind ideological entrenchment, refusal to engage in meaningful dialogue, and complete disregard for the purpose of government and society, which is to serve as vehicles through which free people can work together for their mutual benefit.
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On This Week With Christiane Amanpour today (http://abcnews.go.com/ThisWeek/week-transcript-madeleine-albright-sen-lindsey-graham-sen/story?id=12143913&page=4), at the end of the program Christiana reported on a British Member of Parliament who was removed from office by court order because he (or his campaign staff) had lied about his opponent during the campaign, the first time an election has been nullified in the UK in 99 years (see also: http://www.telegraph.co.uk/news/newstopics/mps-expenses/8131286/It-is-right-to-protect-democracy-from-Phil-Woolass-lies.html).
The law under which Phil Woolas had been removed from office after winning the election (by a mere 103 votes) was the Representation of the People Act, under which Woolas’ opponent sued. The argument in Great Britain, naturally enough, is between the importance of avoiding any chilling of political free speech (and transfer of power from the people to the courts), versus the importance of creating and maintaining a reliable, productive, informative debate between candidates competing for elected office. It is not a trivial debate, and it should not be decided with a knee-jerk commitment to any a priori assumption. Both sides represent legitimate and significant values to be considered.
One of the simultaneous strengths and weaknesses of the American legal and political system is the quasi-sacred status accorded to our foundational document, the United States Constitution. It is a strength because it creates a bulwark in defense of rule of law, making any capricious acts of power outside the bounds of our legal structure just that much more difficult to realize. It is a weakness because it binds us to a very insightful but inevitably imprecise, imperfect, and increasingly archaic 223 year old legal document. While there are legal means for amending it, the reality is that it is exceedingly difficult to amend, and that the heightened quasi-sacred status of the Bill of Rights renders those ten amendments completely untouchable as a practical reality.
Most Americans would argue, instantly and passionately, that that is unequivocally a very good thing. While there are very good and persuasive arguments to support that conclusion, it is undeniably also affected by lifetimes of nationalistic indoctrination, starting practically in infancy, with the public school diet of the Pledge of Allegiance, military and patriot ballads, and American History still generally taught with all of the stirring patriotic mythology and imagery ladled thickly throughout. How many Americans, for instance, know that the Boston Tea Party was a response to a lowering of taxes on British tea, offending only the tea smugglers’ interests? How many know that among the grievances that the colonists cited against the British was the British commitment to protecting the civil rights of the Indians living in the newly conquered Ohio Valley, and of the French colonists in newly conquered Canada? Reality is more nuanced than the mythologies with which we displace it.
So let’s bracket off our patriotic certainties, and instead examine the topic with dispassionate reason. Is the long-term public interest better served by defending an absolute hands-off policy regarding political campaign messaging, leaving it up to voters to punish discovered dishonesty as they see fit, or is it better served by prohibiting outright deception, enforced with penalties serious enough to give the prohibition teeth? If the latter, should such prohibitions include overturning the choice of the electorate? Should the electorate be included in such a decision?
First of all, we should recognize that limits on free speech already exist. In any context other than a political campaign, a person whose reputation is publicly impugned by an intentional falsehood can sue under libel and slander laws. The question isn’t whether extending that legal protection into the political sphere violates an inviolable absolute right to free speech, but rather whether it violates some core principle of that right that does not exist outside of the political sphere. It is certainly true that in Free Speech jurisprudence, political speech is recognized as being the most protected kind of speech, since the first amendment was particularly intended to protect political speech.
Second of all, we need to examine honestly the assumption that voters are capable of punishing lies at the polls. We all know that American political campaigns have devolved into largely negative campaigns which stretch the truth as much as they can get away with to paint the opponent in the worst possible light. The voters can only punish this behavior by voting for no one, which undermines rather than preserves the health of the democratic system.
Furthermore, the assumption that the electorate will reward and punish candidates for good and bad behavior defies both overwhelming empirical evidence and economic theory, since rewarding and punishing such behaviors depends on being fully informed, which is rarely if ever the case. To take a market example of the dilemma, few people are such “free market” purists that they argue in favor of rescinding health and safety laws protecting consumers from toxic and dangerous ingredients in goods offered for purchase. Few say, “after a few thousand kids die from dangerous parts in toys, people will stop buying them.” In fact, such an approach ensures that small, quick-hit start-ups will in never-ending succession sell dangerous or unhealthy items that yield higher profits than attention to health and safety would, and simply switch to a new one once the consumer learning curve catches up.
Similarly, not all, or even most, of the electorate ends up informed prior to the election of deceptions incorporated into political campaign ads, becoming informed requiring both that the deception is discovered and reported upon by the press, and that the electorate affirmatively seeks information about candidates beyond the information that is targeted at them in the course of their daily lives. Also, and more problematically, even informed voters are susceptible to sophisticated psychological manipulation, meaning that well-designed deceptions can affect elections even if everyone is informed of the deception, leaving inchoate impressions that affect voting behavior independently of the quality of information.
The latter question bleeds into the very sensitive question of “how much democracy is too much democracy?” Do we want a pure democracy, in which the entire polity votes on every single public policy decision; or some kind of a representative democracy, in which we select people to govern presumably with some degree of professional expertise and information-intensive analysis? If the latter (which is what we have), do we want to preserve some kind of unfettered free-for-all process of selecting those representatives, in which any exploitation of the psychological manipulability of the electorate is fair game, or do we want to refine the process to be one in which popular decisions are made on the basis of reliable information?
While I respect the sophistication of our existing social institutions, and believe that preserving the core of our system is certainly a good idea, I am of the opinion that there is almost always room for improvement on the margins. I have always said that there are two demands that must be met in any representative system of government: 1) That the agents (our representatives) be held accountable for acting in the interests of the principal (the people), and 2) that they be enabled to do so effectively. This principle can be extended somewhat to two broader requirements of our political system: 1) That the electorate be allowed to choose its representatives according to their perceived interests, and 2) that they be enabled to do so effectively.
Whether the British law is preferable to our anything-goes system, and whether a (another?) marginal shift in power from the electorate to the courts would (continue to?) tilt the scales in an unhealthy way, is something about which I am not going to state any conclusions. But I do advocate that we engage in the debate, in the ongoing consideration of how to refine our system, and in the cautious effort to do so. Despite our patriotic mythology, there is always room for improvement. There was in 1776. There was in 1787. There was in the 1860s and 1960s. And there is today. Let’s not let national pride blind us to the need to progress. Let’s not cite those who were most famous for arguing on behalf of the need to refine social institutions as authorities whose refinements prohibit us from every refining them again.
Glenn Beck, still twirling his baton in the vanguard of the wing-nut parade, while busily calling all people who disagree with his, ah, “imaginative” interpretations of U.S. History and the U.S. Constitution (which includes, I would wager, somewhere north of 99.99% of all American Historians and Constitutional Law scholars) “idiots,” demonstrated for us what a non-idiot such as himself understands: That slavery was fine until the federal government stepped in to regulate it (http://www.examiner.com/political-buzz-in-national/glenn-beck-claims-slavery-was-not-really-bad-until-government-got-involved). It’s difficult to select which aspects of this absurdity to comment on, but I’ll choose one that is not completely obvious, but is most relevant to the ideology that Beck represents: Defense of the institution of slavery (and, after abolition, of systematic institutionalized discrimination) was tightly intertwined with states rights advocacy throughout the history of this nation until at least the 1960s, when the federal government, in the culmination of a national-history-spanning evolution prioritizing the protection of individual civil liberties over states’ and private rights to violate them, passed the Civil Rights Act of 1964.
Beck got it exactly backwards: It was federal government intervention that had always both threatened to end, and eventually, against the most violent opposition yet against it, actually succeeded in ending, slavery, and ending government sponsored discrimination against African Americans. And it was this precise role of the federal government, regarding this precise topic, that always was at the heart of states’ rights advocacy, and anti-federal government fervor. Whether the Tea Party is a predominantly or implicitly racist movement today (a hotly debated topic), it is certainly heir to the anti-federal government ideology that racists depended on throughout our history to protect and perpetuate their right to institute and enforce their racism in law. Defining themselves by reference to slavery (which their ideological forebears defended and perpetuated) is just not a smart move.
Susan Greene of the Denver Post, with whom I generally agree, was, I think, slightly off mark today in her overzealous definition of how broad a range of speech is, or should be, protected by the First Amendment (http://www.denverpost.com/greene). The Supreme Court has yet to decide whether Kansas pastor Fred Phelps has the right to mar the funerals of fallen soldiers by holding demonstrations within sight of them holding placards with such endearing phrases as “Thank God for Dead Soldiers.” Without trying to decide the case on the legal merits, I will definitively state that I think it would be good public policy to outlaw such speech in such a context, nor would doing so be a clear violation of the First Amendment (the Supreme Court will decide whether it is a violation at all, by exploring the nuances of the issue).
Free Speech protections have always been limited in certain ways to protect other rights or public interests that might be violated by speech (e.g., laws against libel and inciting violence, and diminished protection of student speech in public schools). Time, place, and manner restrictions have always applied (you can’t disrupt any event or meeting in any way you please); the kind of “forum” involved, even when a government forum, affects how much freedom of speech others have. Private forums are that much more protected. Obviously, if the funeral were in an enclosed private space, Phelps would have no right whatsoever to violate that space. The lack of walls blocking the view from a cemetery is hardly a major legal distinction. Given the ways in which we have delimited freedom of speech in the past, I think that protecting mourners from the harassment of such speech at the time and place of mourning is well within the range of a reasonable exception to free speech protections.
Research suggests that people who believe in God tend to conceptualize God in one of four ways: Authoritative, Benevolent, Critical, or Distant (http://abcnews.go.com/WN/book-religion-examines-ways-americans-perceive-god/story?id=11825319). Unsurprisingly, which view of God we adhere to correlates to gender, race, socio-economic status, and educational-level, and to particular social and political orientations. The irony, of course, is that right-wingers, who claim to be the defenders of liberty, tend to believe in an authoritative God who, by divine right, sharply circumscribes what liberty we should allow ourselves and others to enjoy, whereas progressives tend to believe in a more remote God, who leaves us with the responsibility of creating our own destiny.
Freedom, once again, has less to do with how free we are from our own democratically elected government than with how free we are from our own lack of imagination (or surplus of self-shackling imagination). Freedom is not a function of crippling the primary vehicle we have developed for exercising our wills in cooperative and coordinated ways (i.e., government, at all levels, including federal), but rather a function of how able we are to imagine that we are indeed free, charged with the responsibility of wisely and compassionately confronting the challenges and opportunities that we face here on Earth.
