Stagger onward rejoicing

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Counterman implications

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Arguing with Supreme Court opinions, as one does — in this case Counterman v. Colorado. Now, let me be quick to say that the comment I am making above is really irrelevant to the case, because almost nothing in the opinion or the dissent is about what Counterman did or didn’t do — it’s almost exclusively an in-house debate about what criteria should be used to determine whether given speech-acts are or are nor protected by the First Amendment right to freedom of speech. Basically, the judgment of the Court could be summarized thus: “Hey Colorado, you went after Counterman by claiming that he was making ‘true threats’ and further arguing that one should use a reasonable-person standard to decide what makes something a true threat, but you went about it all wrong. The guy may well be guilty of something, but the particular argument you made against him is inconsistent with First Amendment protections, so we’re going to vacate your decision and send it back to you. Please do better in the future.” So now Colorado has to decide whether to try Counterman again using a different set of standards. 

I think this decision will be really consequential in the long term. For now just a handful of thoughts: 

  1. Kagan’s opinion is poorly-reasoned and — this is really surprising, because she’s usually the Court’s most elegant stylist — poorly written. It’s a tired opinion: when she acknowledges Barrett’s dissent she claims that one argument “falls flat” without saying why it falls flat, and claims that one case Barrett invokes is a “poor analog” without saying why it’s a poor analog. 
  2. I think this may be because the opinion simply tries to do too much. (This is Sotomayor’s complaint in her partial concurrence: You could have just stopped after declaring the “recklessness” standard the proper one to apply here.) Kagan gets deep into the weeds by looking at several different standards that might be applied in different contexts to determine what forms of speech are unprotected by the First Amendment. Barrett’s dissent also gets into those weeds, but invokes different standards than the ones that Kagan prefers. After a while the Counterman case altogether disappears from view. 
  3. I don’t think the majority opinion is intended to empower stalkers, harassers, and trolls, but that’s exactly what it will do. This is certainly Barrett’s view: “The Court’s decision thus sweeps much further than it lets on.” And this will lead to more bad behavior, especially online, and future legal cases that … 
  4. … the Court’s decision here will not help to decide. The most important conclusion to be drawn from this opinion is that the Supreme Court’s free-speech jurisprudence is a total mess. Kagan clearly wants to use Counterman in order to sort through the complexity of previous cases and bring order to the jurisprudential record. But there is no order in the jurisprudential record, and in the midst of the confusion a great many bad actors are going to think themselves free to be as nasty as they want to be.  
  5. The primary losers here will therefore be women — women like Coles Whalen, whose experience of relentless harassment by Billy Counterman was the origin of this case. And for what it’s worth, I agree with Barrett that this is an unnecessary loss:

The bottom line is this: Counterman communicated true threats, which, everyone agrees, lie outside the bounds of the First Amendment’s protection.” Ante, at 4. He knew what the words meant. Those threats caused the victim to fear for her life, and they “upended her daily existence.” Ante, at 2. Nonetheless, the Court concludes that Counterman can prevail on a First Amendment defense. Nothing in the Constitution compels that result. I respectfully dissent.

Stanford Law School Dean Jenny S. Martinez

I want to set expectations clearly going forward: our commitment to diversity, equity, and inclusion is not going to take the form of having the school administration announce institutional positions on a wide range of current social and political issues, make frequent institutional statements about current news events, or exclude or condemn speakers who hold views on social and political issues with whom some or even many in our community disagree. I believe that focus on these types of actions as the hallmark of an “inclusive” environment can lead to creating and enforcing an institutional orthodoxy that is not only at odds with our core commitment to academic freedom, but also that would create an echo chamber that ill prepares students to go out into and act as effective advocates in a society that disagrees about many important issues. Some students might feel that some points should not be up for argument and therefore that they should not bear the responsibility of arguing them (or even hearing arguments about them), but however appealing that position might be in some other context, it is incompatible with the training that must be delivered in a law school. Law students are entering a profession in which their job is to make arguments on behalf of clients whose very lives may depend on their professional skill. Just as doctors in training must learn to face suffering and death and respond in their professional role, lawyers in training must learn to confront injustice or views they don’t agree with and respond as attorneys.

Law is a mediating device for difference. It therefore reflects all the heat of controversy, all the pain and suffering, and all the deeply felt moral urgency of our differences in position, power, and cherished principles. Knowing all of this, I believe we cannot function as a law school from the premise that appears to have animated the disruption of Judge Duncan’s remarks — that speakers, texts, or ideas believed by some to be harmful inflict a new impermissible harm justifying a heckler’s veto simply because they are present on this campus, raised in legally protected speech, and made an object of inquiry. Naming perceived harm, exploring it, and debating solutions with people who disagree about the nature and fact of the harm or the correct solutions are the very essence of legal work. Lively, candid, civil, and evidence-based discourse in disagreement is not just positive for our community, constituted as it is in difference, it is a professional duty. Observance of this duty matters most, not least, when we are convinced that others haven’t. 

I think Dean Martinez has navigated this mine field about as well as it could be navigated, and in the process has made some vital salient points about the nature of legal education — and of true education more generally. 

same old song

The Foundation for Individual Rights and Expression:

HB 999 [in Florida] would require faculty to censor their discussion and materials in general education courses, to the detriment of both faculty and their students. The measure would prohibit faculty teaching these courses from including material that “teaches identity politics,” which the bill defines as “Critical Race Theory” — something the bill does not define. Faculty teaching courses on history, philosophy, humanities, literature, sociology, or art would be required to guess what material administrators, political appointees, or lawmakers might label “identity politics” — no matter how pedagogically relevant the material is to the course.

HB 999 would also require that general education courses rewrite “American history,” prohibiting teaching that would suggest that America was anything other than “a new nation based on universal principles stated in the Declaration of Independence.” And faculty would be required to guess what it means — again, in the eyes of administrators and political appointees — to “suppress or distort significant historical events.”

But perhaps the most vague restriction in HB 999 is its prohibition on the inclusion of “unproven, theoretical, or exploratory content” in general education courses. A broad range of academic content — including quite literally all scientific theories — is contested and theoretical. State officials would have unfettered discretion to determine which views are “theoretical” and banned from general education courses. A bill so vague that it allows officials the discretion to declare that professors cannot discuss new theories and ideas in a particular public university class should be rejected, flat out. 

Meanwhile, in Hungary

According to draft legislation seen by Reuters on Friday, the government would set up a National Cultural Council, headed by a minister, with the task of “setting priorities and directions to be followed in Hungarian culture.” 

The minister would also have a say in the appointment or sacking of theater directors at institutions that are jointly financed by the state and municipality.

“It is a fundamental requirement for activities belonging under the auspices of this law to actively defend the interests of the nation’s wellbeing,” the bill says. 

Because nothing says “stop woke tyranny” like imposing an alternative tyranny. Let me sing the chorus once more: EVERYTHING NOT FORBIDDEN IS COMPULSORY

Academics and artists are typically not well-equipped to resist this kind of bullying, because they have spent much of their lives seeking the approval of others. (It’s one of the hazards of pursuing a career in symbolic manipulation. If you’re a good plumber or carpenter, you don’t have to care whether people approve of your personality.) Faced with challenges to our core values, we’re more likely than not to fold like an origami bird. Thus, as Russell Jacoby reports, the minimal response to the attack on Salman Rushdie: 

An August 19 New York City rally of writers gathered in support of Rushdie reprised a 1989 demonstration against the fatwa in which Susan Sontag, Norman Mailer, Joan Didion, Christopher Hitchens, and others participated, but the later iteration “paled in comparison,” a Le Monde editorial remarked. Across social media, writers expressed concern for Rushdie’s health, but an instinctual solidarity with him and the sense — so strong at the time of the fatwa — that his fate spoke to all of us as members of a liberal society did not materialize. Even among his defenders, free speech took a back seat.

Why? One reason is fear. In 2009, the British writer Hanif Kureishi told Prospect Magazine that “nobody would have the balls today to write The Satanic Verses.” He might have added that no one would have the balls to defend it. Most writers, Kureishi continued, live quietly, and “they don’t want a bomb in the letterbox.” 

Actually, they’re probably more afraid of being dragged on Twitter than receiving the letterbox bomb. And in such a climate of fear-to-offend, this is the key paragraph in Jacoby’s essay: 

Censorship by fear can take two forms: top-down or bottom-up. From the top, a publisher or editor can stop publication over concern about a potential reaction. If the right to free expression is qualified by the condition that you not “upset someone, especially someone who is willing to resort to violence,” Rushdie noted in Joseph Anton, it is no longer a right. However, the text or cartoon still exists, and might appear elsewhere (a small publisher picked up The Jewel of Medina after Random House scrapped it). But bottom-up censorship — self-censorship — is more nefarious, more widespread, and more difficult to track. Writers shelve projects before they see the light of day. The cartoon is undrawn, the novel or the scene unwritten. “The fight against censorship is open and dangerous and thus heroic,” the Yugoslavian novelist Danilo Kiš observed in 1985, “while the battle against self-censorship is anonymous, lonely and unwitnessed.” 

And this is why it is virtually impossible for good art to be made in our place, in our moment. And also why we need to treasure and protect the works of the past that both disturb our comfortable assumptions and open to us new vistas of moral and intellectual possibility. Reading those books used to be compulsory; soon enough it will be forbidden. 

Franciska Coleman

In this paper, I undertake a qualitative exploration of how social regulation of speech works in practice on university campuses, and of the extent to which social regulation in practice affirms or undermines the stereotypes and caricatures that characterize the cancel-culture wars. I first summarize the two narratives that an- chor public debates over the social regulation of speech—consequence culture and cancel culture. I then describe the social regulation of speech and its five phases: dissemination, accusation, pillory, sanction and direct action. I explain how these five phases were reflected in the speech events under study and the extent to which their real-world features challenge or support the cancel-culture and consequence-culture narratives. I end by suggesting further research on the implications of this phases framework for efforts to balance universities’ dual commitments to free speech and inclusive community on their campuses. 

This is a very helpful framework for further discussion — in large part because it helps to get us out of the endless and fruitless debates over whether “cancel culture” “really exists.” I hope some confused and frightened university administrators read it. 

Chimamanda Ngozi Adichie comes out fighting for freedom of speech:

We are all familiar with stories of people who have said or written something and then, faced a terrible online backlash. There is a difference between valid criticism, which should be part of free expression, and this kind of backlash, ugly personal insults, putting addresses of homes and children’s schools online, trying to make people lose their jobs.

To anyone who thinks, “Well, some people who have said terrible things, deserve it,” no. Nobody deserves it. It is unconscionable barbarism. It is a virtual vigilante action whose aim is not just to silence the person who has spoken but to create a vengeful atmosphere that deters others from speaking. There is something honest about an authoritarianism that recognises itself to be what it is. Such a system is easier to challenge because the battle lines are clear. But this new social censure demands consensus while being wilfully blind to its own tyranny. I think it portends the death of curiosity, the death of learning and the death of creativity. […] 

Literature deeply matters and I believe literature is in peril because of social censure. If nothing changes, the next generation will read us and wonder, how did they manage to stop being human? How were they so lacking in contradiction and complexity? How did they banish all their shadows?


FYI, Le Guin’s A Wizard of Earthsea tells you what happens when you banish your shadow. 

cancel it

Ken White’s post on the problems with defining “cancel culture” — or maybe it’s better to say, the problems with declining to define it — put me in mind of something I wrote a few years back on “exhausted languages”

Often when I’m grading essays, or talking to my students about their essays, I notice that a certain set of terms are functioning axiomatically for them in ways that impede actual thought. When that happens I will sometimes ask, “How would you describe your position if you couldn’t use that word?” And I try to force the same discipline on myself on those occasions (too rare of course) when I realize that I am allowing a certain set of terms to become an intellectual crutch.

My recommendation: Never, ever use the term “cancel culture.” Speak instead about the specific behavior you either want to reject or endorse. 

Tom Stoppard in 2013:

Half the point I want to make is that I have had a charmed life. I was whisked out of the way of the Nazis, bundled out of the way of the Japanese army, and, after a safe and happy four years in India, found myself in England instead of returning to Czechoslovakia in good time to grow up under communism. But I haven’t made my point even yet. I wasn’t merely safe, I was in the land of tolerance, fair play and autonomous liberty, of habeas corpus, of the mother of parliaments, of freedom of speech, worship and assembly, of the English language. I didn’t make this list when I was eight, but by 18 I would have added the best and freest newspapers, forged in the crucible of modern liberty, and the best theatre. When I was 19 there occurred the Hungarian revolution, and my first interest was in how the story was being covered. On my 23rd birthday I panicked because I’d written nothing except journalism, and wrote a derivative play. When I was 31, Russian tanks rolled into Prague, and my wife got angry with me because I was acting English and not Czech. She was right. I didn’t feel Czech. I had no memory of Czechoslovakia. I condemned the invasion from the viewpoint of everything I had inherited at the age of eight, including my name. During all that time, I had never been without a bed, or clothes to put on, or food on the table, or without medicine when I was sick, or a school desk to sit at. As I grew up I never had to put on a uniform except as a boy scout. As a journalist and writer I had never been censored or told what to write. As a citizen I never had to fear the knock at the door. The second half of the point I want to make is that if politics is not about giving everybody a life as charmed as mine, it’s not about anything much.

just for the record

Matt Taibbi has posted a newsletter edition in which he complains about what he calls a “just-released On the Media episode” about free speech — but I think the episode, which you can find here, merely re-posts an episode from two years ago. (Probably? I don’t have time to do a comparative listening.) I only want to make a brief comment, in two points.

One: Marantz thinks that Richard Rorty, whom he admires, was an “analytical philosopher” until the 1990s, but Rorty made his definitive break with analytic philosophy in his 1979 book Philosophy and the Mirror of Nature. Marantz’s fuzzy sense of the shape of Rorty’s career is matched by his cringe-makingly fuzzy sense of what Rorty meant by “contingency” and what he was arguing in his late and explicitly political work. If you want to get a sense of what Rorty actually thought, from someone whose politics are probably pretty close to Marantz’s, read this 2012 essay by Charles Marsh. (Charles and I were grad students at UVA together, he in Religion and me in English, when Rorty joined the faculty. I got to know Rorty a little bit; Charles knew him much better.) Rorty is definitely an important, though not an infallible, thinker for our moment, and it’s worth approaching him via a reliable guide. Of course, best of all would be to read him directly! — but please don’t focus only on the decontextualized passages that went viral when Trump was elected.

Two: — and this is a more important point, for me anyway — Marantz has no idea what Mill argued in On Liberty. For instance, Marantz says, “In his book, On Liberty, John Stuart Mill argues for one simple principle — the harm principle. It amounts to this: the state, my neighbors and everyone else should let me get on with my life as long as I don’t harm anyone in the process. One way of thinking of this is my freedom to swing my fist, ends at the tip of your nose. Mill favors free speech too, up to the point where it inflames violence. But merely causing offence, he thinks, is no grounds for intervention. Because in his view, that is not a harm.” Nope. Nopenopenope.

Throughout On Liberty, Mill has very little — almost nothing — to say about physical harm. He is much more interested in (real or potential) moral harm. Being a serious thinker, he makes a series of distinctions. For instance, he distinguishes between the kinds of actions that deserve legal punishment from those that deserve social opprobrium. You would never know it from Marantz, but Mill thinks there are circumstances in which a person who hasn’t violated any laws should still suffer “moral reprobation” and even a kind of social punishment:

What I contend for is, that the inconveniences which are strictly inseparable from the unfavourable judgment of others, are the only ones to which a person should ever be subjected for that portion of his conduct and character which concerns his own good, but which does not affect the interests of others in their relations with him. Acts injurious to others require a totally different treatment. Encroachment on their rights; infliction on them of any loss or damage not justified by his own rights; falsehood or duplicity in dealing with them; unfair or ungenerous use of advantages over them; even selfish abstinence from defending them against injury — these are fit objects of moral reprobation, and, in grave cases, of moral retribution and punishment.

And notice another thing about that passage: when speaking of “acts injurious to others” Mill is not thinking of fists striking noses but rather of “falsehood or duplicity” and even “selfish abstinence from defending them against injury”!

Furthermore, Mill advocates for legal limits on speech itself in terms that even the more censorious among us might approve: “An opinion that corn-dealers are starvers of the poor, or that private property is robbery, ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn-dealer, or when handed about among the same mob in the form of a placard.” (This is Mill’s version of the doctrine of “fighting words.”)

Mill is a much more sophisticated and nuanced figure that either his celebrants or enemies think. I wish people would stop using him as cudgels in their culture wars and read him with care.

goods and harms

Jonathan Zimmerman:

A few years ago, I invited Mary Beth Tinker to meet with my undergraduate class on the history of American education. Tinker herself is an important figure in that history, because she was one of the students who wore black armbands to school in Des Moines, Iowa, in 1965 to protest America’s involvement in the Vietnam War. Sent home as a punishment, she sued her school district on free-speech grounds. Tinker v. Des Moines made its way to the Supreme Court, which ruled in her favor in 1969. In a ringing decision, the Court declared that neither students nor teachers need to “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

My students loved Tinker’s story, and who doesn’t? Adorable seventh grader confronts Big Bad Authority. Adorable seventh grader wins. Cut to the credits.

But when our class discussion turned to the present, the mood changed. Students insisted that schools and universities should prohibit hate speech, which hurts innocent people. Mary Beth Tinker was fighting the good fight, against the war in Vietnam. But racists and sexists and homophobes and transphobes are different, my students said. They cause harm, offense, and even trauma in their victims. We need to shut them down.

Tinker wasn’t having it. At her middle school in Des Moines, she said, there were students who had fathers, uncles, and brothers who were fighting in Southeast Asia. Don’t you think they were offended and hurt by a snot-nosed kid whose armband suggested that their loved ones were risking their lives for a lie?

Of course they were. Speech hurts, which is why censors across time have tried to stamp it out. So if you’re going to bar speech that hurts someone, well, forget about Tinker’s armband. Forget about free speech, period.

My students took this in, and then they tried another tack. Wasn’t free speech really just a tool of the powerful? That’s why white men like it so much, of course. It lets them have their say while it harms (there’s that word again) people with less status and influence in society.

Mary Beth Tinker wasn’t having that, either. In 1965, she told the class, she was a 13-year-old girl. Free speech was the only power she had! Take that away, and she would have nothing at all.

Welcome, folks, to the world of competing, irreconcilable goods. Also a reminder of why the harm principle will never solve these problems: an unconstrained use of the harm principle can silence anything and everything, because a claim to internal psychological harm can never be assessed independently.  


There’s a great story about the famous wit Sydney Smith. He was walking with a friend through one of the narrow “closes” of Edinburgh, and looked up to see two women, one leaning from a window on the left side of the close and one leaning from a window on the right side, screaming wrathfully at each other. “Those women will never agree,” Smith remarked to his friend. “They are arguing from different premises.” 

I have a new post up at the Hedgehog Review on the contours of some of our current disagreements and the places at which our premises converge, or might be seen to converge. The most famous advocates of free speech are rarely, if ever, absolutists; people who deny that “cancel culture“ exists often acknowledge that the rush to judgment and rage for punishment can get out of control. Twitter and that minor adjunct of Twitter that some people still call “journalism” like to portray all disagreement as stemming from radically “different premises”; but what if we occupy similar and contiguous premises and simply differ on the most prudent and useful way to negotiate them? Our condition then might not be as bad as I sometimes fear and as the more hateful among us often hope. There are useful conversations to be had if we want them. 

free speech under technocracy

In a recent post I commented that Amazon’s deleting of Ryan Anderson’s recent book is not a free-speech issue. What I meant by that is that free speech is something guaranteed by the First Amendment of the Constitution of the United States and is relevant only to government action. “Congress shall make no law … abridging the freedom of speech” etc. Non-governmental entities are, generally speaking and within certain limits, free to make their own decisions in these matters. When Amazon says, “We don’t sell certain content including … material we deem inappropriate or offensive,” the company is giving itself nearly absolute latitude to decide what it does and doesn’t want to sell — and is almost certainly within its legal rights to do so. 

However, as Glenn Greenwald recently noted, several of the biggest and most influential companies in America are tightly linked, in their ethos and increasingly their behavior, with one of the two major American political parties, in such a way that it is increasingly accurate to see the Democratic Party as the political wing of Big Tech, in much the same way that Sinn Féin used to be the political wing of the Irish Republican Army. Greenwald: 

The power to control the flow of information and the boundaries of permissible speech is a hallmark of an authoritarian regime. It is a power as intoxicating as it is menacing. When it comes to the internet, our primary means of communicating with one another, that power nominally rests in the hands of private corporations in Silicon Valley.

But increasingly, the Democratic-controlled government and their allies in the corporate media are realizing that they can indirectly and through coercion seize and wield that power for themselves. The First Amendment is implicated by these coercive actions as much as if Congress enacted laws explicitly mandating censorship of their political opponents. 

In other words, Congress need make no law abridging the freedom of speech if the companies that control the flow of information agree to do the abridging for the dominant party in Congress. And clearly they have, generally speaking, so agreed. 

As marriages of convenience go, it’s certainly effective — but may be more fragile than the wedding party believes. A great many people think that the GOP is finished, and Lord knows it looks to be in shambles. But remember this: the party was certainly in shambles when Richard Nixon resigned in 1974. And then, only six years later, Ronald Reagan was elected President, ushering in twelve consecutive years of Republican occupancy of the White House and twenty of twenty-eight. If Republicans can find just one politician capable of creating a coalition, the leaders of the big tech companies may find themselves devoting more time to testifying in Washington than to running their companies, and the decorous marriage of the Democrats and Big Tech may end up in a shotgun divorce. 

dog whistles

A friend kindly explained to me that this post was quite badly written, so I have fixed it. Sort of. 

Perhaps the most tiresome — not the worst, probably, but the most tiresome — feature of journalistic/social-media discourse today is its fervent belief in the near-universality of dog whistles. Consider, for example, the convulsive and dyspeptic responses to the letter on justice and open debate recently posted by Harper’s. No reasonable person could object to the letter’s actual statements, and so those who pretend to be reasonable don’t even try. They ignore what the letter says in order to focus on what it really and secretly means, its inner and essential nastiness and cruelty so carefully concealed by a thin veneer of decent common sense. As Sam Kriss says, this kind of exercise in the hermeneutics of suspicion is “a virulent form of paranoid signification.”

You adopt the ugliest possible interpretation of something, and then you convince yourself that it’s true. In fact, it’s not just true, it’s so shiningly, obviously true that anyone who doesn’t have your particular psychotic read on events is immediately suspect. Don’t believe Corbyn was activating secret Nazi programming implanted in people’s brains? Well, then you’re probably an antisemite yourself. Bad-faith positions are never cautious or provisional. You scream them loud to drown out the doubt inside your own head. And because the other side is screaming too, you have to pump up your agony to match their pitch. The thing spirals faster with every improvement in our communications infrastructure.

Everyone is furious and nobody really cares. Emphasis mine. Because if you really cared you’d understand that there are differences between good-faith disagreement and malicious hatred and you’d try to read carefully enough to discern those differences. I mean, there are certainly plenty of dog-whistly statements out there — POTUS specializes in them to a perhaps unprecedented degree — but there is something perverse about people who make it their default reading stance to presume hidden malice in any old text.

Reading these people puts me in mind of a sadly funny passage in C. S. Lewis’s autobiography Surprised by Joy in which he’s describing one of the strongest features of his father’s personality:

It was axiomatic to my father (in theory) that nothing was said or done from an obvious motive. Hence he who in his real life was the most honorable and impulsive of men, and the easiest victim that any knave or imposter could hope to meet, became a positive Machiavel when he knitted his brows and applied to the behavior of people he had never seen the spectral and labyrinthine operation which he called “reading between the lines.” Once embarked upon that, he might make his landfall anywhere in the wide world: and always with unshakable conviction. “I see it all” — “I understand it perfectly” — “It’s as plain as a pikestaff,” he would say; and then, as we soon learned, he would believe till his dying day in some deadly quarrel, some slight, some secret sorrow or some immensely complex machination, which was not only improbable but impossible. Dissent on our part was attributed, with kindly laughter, to our innocence, gullibility, and general ignorance of life.

We can only hope that the Machiavels of this moment are even a fraction as honorable as Lewis’s father was. Not much hope of that, I fear. Albert Lewis’s practice of “reading between the lines” wasn’t founded on an unshakeable faith in his own perfect righteousness.

The point of the reading-between-the-lines is usually to discover the hidden bad motives of the people who hold a particular position — but once you have done that … so? Let’s suppose that you are absolutely correct, that you, with your profound insight and utter purity of soul, have peered into the hearts of the people who hold Position X and have genuinely discerned impurities there. Now what? Every good thing in this world, without exception, is commended by at least some people of impure motive and gross sin. Love is celebrated by the cruel, justice by the misogynist, kindness by the rapacious. No virtue or good deed is exempt from this taint, not free inquiry or free speech or free beer. Only a dimwit would think that the patronage of Bad People discredits justice or kindness or free beer themselves.

So even on its own terms, presuming bad faith is a useless exercise that typically disables you from reflecting on the validity, or otherwise, of stated claims. It shits down your own intellectual equipment. So as for me, I’ll keep trying to respond to what people actually say as opposed to what reading between the lines, AKA listening for the dog whistles, might lead me to suspect. I mean, probably Salman Rushdie signed that Harper’s letter because he just wants to protect his great fame and privilege, but there’s the tiniest sliver of possibility that he signed it because he prefers living in a society that responds to offensive speech by argument to living in one that responds by offering a rich bounty to anyone who murders him.

Freddie is right

Freddie deBoer:

So how can someone object to an endorsement of free speech and open debate without being opposed to those things in and of themselves? You can’t. And people are objecting to it because social justice politics are plainly opposed to free speech. That is the most obvious political fact imaginable today. Of course Yelling Woke Twitter hates free speech! Of course social justice liberals would prevent expression they disagree with if they could! How could any honest person observe out political discourse for any length of time and come to any other conclusion?

You want to argue that free speech is bad, fine. You want to adopt a dominance politics that (you imagine) will result in you being the censor, fine. But just do that. Own that. Can we stop with this charade? Can we stop pretending? Can we just proceed by acknowledging what literally everyone quietly knows, which is that the dominant majority of progressive people simply don’t believe in the value of free speech anymore? Please. Let’s grow up and speak plainly, please. Let’s just grow up.

Fish on freedom

Stanley Fish’s new book The First consists largely of repackagings of ideas Fish has already developed: he’s covered free speech in There’s No Such Thing As Free Speech and It’s a Good Thing Too, academic freedom and academic culture in Save the World On Your Own Time and in many essays, religious freedom in a handful of essays, including a brilliant one called “Vicki Frost Objects” that’s far better than anything here. But Fish writes as sharply as ever, and The First could be a nice introduction to his writings on the issues emanating from the First Amendment. 

But I want to question something that he writes about academic freedom. His argument here centers on a single crucial distinction, which he develops in response to the Chicago Statement on academic freedom:

My challenge to that popular view (the Chicago statement has been endorsed by a number of other universities) depends on a distinction between freedom of speech and freedom of inquiry. Freedom of speech is a democratic value. It says that in a democracy government should neither anoint nor stigmatize particular forms of speech but act as an honest broker providing a framework and a forum for the competition of ideas and policies. In this vision, every voice has a right to be heard, at least theoretically. (In fact, differences in resources will almost always translate into differences in the size of the audience one can reach.) In the academy, on the other hand, free inquiry, not free speech, is the reigning ethic, and academic inquiry is engaged in only by those who have been certified as competent; not every voice gets to be heard. The right to speak in the scholarly conversation does not come with membership; it is granted only to those who have survived a series of vettings and are left standing after countless others have been sent out of the room.

I think Fish knows that this might not be comforting to people worried about professors and administrators who exclude the ideas they don’t like, so he clarifies:

Academic inquiry, then, is not free in the First Amendment sense; it is free only in a very special sense: the path of inquiry is open and should not be blocked either by putting the stamp of approval on particular points of view in advance or by dismissing other points of view before they are heard and evaluated.

But why not? Why shouldn’t those who ”are left standing after countless others have been sent out of the room,” those ”who have been certified as competent,” decide that some points of view actually may (perhaps must) be dismissed before being heard and evaluated?

Fish argues that a scholar like Charles Murray should be treated differently than a provocateur like Ann Coulter, should be given a hearing in venues where she should not, but what if the certified-competent decline that distinction and treat Murray and Coulter identically? I don’t think Fish can offer them any reasons why they shouldn’t. His longstanding belief that academic life is to be regulated only internally, by people engaged professionally in the practices of that life, provides no means by which academic life can be prevented from growing narrower and narrower and narrower. 

I’ve been reading Fish pretty carefully for a long time now, and I think he would reply that no such means could be provided — that you cannot write rules and guidelines in such a way that people in power will be unable to abuse them, twist the rules to their purposes, as long as their power is uncontested. (Note that when power is to some degree distributed, rules can be effective: thus the ability of the American judiciary to constrain some of Donald Trump’s impulses.) If this is indeed his view, he may well be correct. For instance, conservative and religious voices — N.B.: those are not the same thing — may alike be so tenuously present in academia that they can do nothing to soften the tyranny of the certified-competent. Certain ”paths of inquiry” are closed and on Fish’s account of the academy must remain closed, despite his lip service to the phrase. 

If so, do we simply accept that state of affairs? Or do we look for broad social forces or institutions to which academic institutions might legitimately be held accountable? 

China syndrome follow-up

Adam Silver is standing by NBA employees’ free speech rights, though he doesn’t sound happy about it. “Daryl Morey, as general manager of the Houston Rockets, enjoys that right [to speak his political views] as one of our employees. What I also tried to suggest is that I understand there are consequences from his freedom of speech and we will have to live with those consequences.” He also made sure to emphasize how deeply he “sympathizes” with Chinese companies that angry.

Let’s be clear about what Silver sympathizes with. A Chinese broadcasting company replied to Silver’s statement thus: “We’re strongly dissatisfied and oppose Adam Silver’s claim to support Morey’s right to freedom of expression. We believe that any remarks that challenge national sovereignty and social stability are not within the scope of freedom of speech.” That is, people who are citizens of countries other than China, who speak while in their own countries, should be governed not by the laws of those countries but by the preferences of China. That is the view that Adam Silver sympathizes with. 

UPDATE: Ben Thompson makes a rather obvious point, though one I had neglected: The statement by Daryl Morey that so profoundly offended Chinese officials was made on Twitter — which is banned in China. Thompson continues by demonstrating how Chinese censorship works on TikTok, and near the end of the post writes, 

The government response is also critical: I already argued that CFIUS should revisit TikTok’s acquisition of Music.ly; the current skepticism around all Chinese investment in the United States should be continued if not increased. Attempts by China to leverage market access into self-censorship by U.S. companies should also be treated as trade violations that are subject to retaliation. Make no mistake, what happened to the NBA this weekend is nothing new: similar pressure has befallen multiple U.S. companies, often about content that is outside of China’s borders (Taiwan and Hong Kong, for example, being listed in drop-down menus for hotels or airlines).

Teresa Bejan on free speech

I simply don’t understand Teresa Bejan’s argument here. To wit:

While trigger warnings, safe spaces, and no-platforming grab headlines, poll after poll suggests that a more subtle, shift in mores is afoot. To a generation convinced that hateful speech is itself a form of violence or “silencing,” pleading the First Amendment is to miss the point. Most of these students do not see themselves as standing against free speech at all.

Well, no — but then, no one ever does. The universal line is, “Of course, I believe in free speech, but” — with the next line likely to be something about shouting and and fire and crowded theaters. Whether people admit to being “standing against free speech” is not the question at issue.

What they care about is the equal right to speech, and equal access to a public forum in which the historically marginalized and excluded can be heard and count equally with the privileged. This is a claim to isegoria, and once one recognizes it as such, much else becomes clear — including the contrasting appeal to parrhesia by their opponents, who sometimes seem determined to reduce “free speech” to a license to offend.

As best I can understand, the claim here is that, for instance, the students who shut down Charles Murray’s lecture at Middlebury felt that they were being denied a right to speak equal to that of Murray’s, and would have been perfectly happy to allow him to speak if their opportunity had been equal to his. If indeed that is the claim, I see absolutely no evidence that it is true. Certainly Bejan does not provide any.

Recognizing the ancient ideas at work in these modern arguments puts those of us committed to America’s parrhesiastic tradition of speaking truth to power in a better position to defend it. It suggests that to defeat the modern proponents of isegoria — and remind the modern parrhesiastes what they are fighting for — one must go beyond the First Amendment to the other, orienting principle of American democracy behind it, namely equality. After all, the genius of the First Amendment lies in bringing isegoria and parrhesia together, by securing the equal right and liberty of citizens not simply to “exercise their reason” but to speak their minds.

Indeed, but how is any of this at issue in campus protests? Is anyone saying that either Charles Murray, or Ann Coulter, or students who protest their presence on campus, are not allowed to “speak their minds” at all? Who, from the perspective of “American democracy” Bejan invokes here, is being silenced, and by whom?

In contexts where the Constitution does not apply, like a private university, this opposition to arbitrariness is a matter of culture, not law, but it is no less pressing and important for that.

I haver no idea what the phrase “opposition to arbitrariness” means. What is “arbitrariness” in this context? (Earlier Bejan writes of “Diogenes the Cynic, who famously lived in a barrel, masturbated in public, and told Alexander the Great to get out of his light — all, so he said, to reveal the truth to his fellow Greeks about the arbitrariness of their customs.” But who is the equivalent of Diogenes in the current debate?) Who is opposing “arbitrariness”? Are they right or wrong to oppose it? And why?

As the evangelicals, protesters, and provocateurs who founded America’s parrhesiastic tradition knew well: When the rights of all become the privilege of a few, neither liberty nor equality can last.

Again: yes, indeed. So the obvious conclusion, to me, is that when the “few” who want to shut down speech they disagree with win, then liberty and equality (within that particular community) are alike endangered. But I don’t think that’s Bejan’s conclusion. Can anyone help me make sense of this essay?

free speech for me …

This is a really good evisceration by Jesse Singal of some recent leftist takes on free speech on campus — it is accurate, incisive, and (to me) compelling. But I don’t think it will be compelling to people who hold the views it criticizes. Here’s a passage, critiquing an article by Angus Johnston, that helps me to explain why:

Johnston is apparently uninterested in answering questions pertaining to this actual incident [At William & Mary] and how the law would view it from a free-speech perspective, so instead he swaps out a different, easier question: “Setting aside, you know, the well-defined legal aspects of this, what do I, Angus Johnston, think about it?” (For those who want to know more about the heckler’s veto, which as it turns out is a very interesting subject, Ken White has a very good explainer on his legal blog Popehat.)

And yet again, this sort of meandering shruggery leads us to a dark place: Johnston very much seems to be endorsing the view that on a given campus, whoever can muster the muscle to shut down an event gets to determine the bounds of acceptable speech. This is a pretty bad opinion. Not to beat up too much on the South, but there are many southern campuses that would benefit greatly from more pro-choice speakers and events, and in Johnston’s model, it’s fine for the Campus Crusade for Christ to march in and protest these events until they get shut down.

Here is where Singal is wrong: Johnston’s view is not that “on a given campus, whoever can muster the muscle to shut down an event gets to determine the bounds of acceptable speech”; his view is that when people whose views he endorses can muster the muscle to shut down an event, then that’s acceptable and even commendable. If a pro-life group were to use precisely the same tactics to shut down a pro-choice speaker, then Johnston would decry it as fascism and demand that the cops haul the offenders off to the hoosegow.

Remember: Error has no rights; righteousness has no boundaries.

the mystery of Google’s position

Google’s position could be:

  • All studies suggesting that men-taken-as-a-group and women-taken-as-a-group have measurably different interests or abilities are so evidently wrong that any attempt to invoke them can only be indicative of malice, bad faith, gross insensitivity, or other moral flaws so severe that the person invoking them must be fired.
  • At least some of those studies are sound, but the suggestion that such differences could even partly account for gender imbalance in tech companies like Google is so evidently wrong that any attempt to invoke them can only be etc. etc.
  • At least some of those studies are sound, and very well may help to account for gender imbalance in tech companies like Google, but saying so inflicts so much emotional harm on some employees, and creates so much internal dissension, that any attempt to invoke them can only be etc. etc.
  • We take no position on any of those studies, but fired James Damore because of other things he said.

I think those are the chief options. Sundar Pichai’s memo emphasizes emotional harm inflicted — “The memo has clearly impacted our co-workers, some of whom are hurting and feel judged based on their gender” — without ever weighing in on the validity of any of the studies Damore’s memo cites. And Pichai says that “much of what was in that memo is fair to debate, regardless of whether a vast majority of Googlers disagree with it” — but he doesn’t spell out what he thinks was fair and what unfair.

I think the third option above is the most likely, with the fourth the next-best candidate, but I seriously doubt that Google will get much more specific. Their goal will be to create a climate of maximal fear-of-offending, and that is best done by never allowing employees to know where the uncrossable lines are. That is, after all, corporate SOP.

It’s going to be really, really difficult to get reliable information about what happened here and why it happened, not just because Google will want to be evasive, and will be encouraged by its lawyers to be evasive, but also because, as Conor Friedersdorf pointed out, the misrepresentations of and straightforward lies about Damore’s memo are pervasive: “I cannot remember the last time so many outlets and observers mischaracterized so many aspects of a text everyone possessed.”

At one time, the University of Chicago might have been thought to be the one place above all others that was capable of preparing its students to acquit themselves well in difficult, valuable conversations about race, class, and violence. As my experience in seminars attests, though, Chicago is no longer fully committed to humanizing its students the old-fashioned way, through books and discussion. The left’s attacks on free speech may endanger the academic project, but the greater threat to the free exchange of ideas comes from academic corporatization. As long as that process continues unchecked, the university’s bold rhetorical defense of an art that it no longer teaches us how to practice will be nothing better than posturing.

— What U. of Chicago Activists Are Complaining About | The American Conservative. This, from a current U of C student, provides some extremely useful context for the university’s recent reaffirmation of its commitment to free speech on campus.

Charlie Hebdo’s murdered editorial director, Stéphane Charbonnier, said he aimed to “banalize” all areas of discourse that were too fraught to discuss. He maintained that generations of satire of Catholicism had made the lampooning of it — and thereby, the legitimate discussion of it — unobjectionable, and he felt that the same could be achieved with Islam and other topics.  

That the cartoons were not intentionally racist does not preclude their being experienced as racist. Cartoons can and do offend. Yet Christiane Taubira, the black French justice minister who was parodied as a monkey in a cringe-worthy cartoon, delivered a poignant elegy at the funeral of one of her supposed tormentors, Bernard Verlhac, known as Tignous, saying that “Tignous and his companions were sentinels, lookouts, those who watched over democracy,” preventing it from being lulled into complacency.  

The leading French anti-racism organization, SOS Racisme, has called Charlie Hebdo “the greatest anti-racist weekly in this country.” Its current editor, Gérard Biard, says it deplores all forms of racism. According to Le Monde, of 523 Charlie Hebdo covers published from 2005 to 2015, only seven singled out Islam for ridicule (ten were cited as mocking multiple religions); many more mocked Christianity and the racism of the French right.

It is exceedingly difficult these days to call attention to the dull-minded policing by academics and online activists without being ridiculed in return as a frightened, ignorant old man who bemoans “political correctness.” We do not wish to be assimilated to those old duffers who wear Hawaiian shirts and do not understand why we can no longer call a dame a dame, and so we avoid worrying in public about the phenomenon. We stop ourselves even when we find that our peers have begun half-rationalizing the assassination of cartoonists on the basis of a glancing judgment that their drawings were racist, a judgment that rests only on the overt content of the images, generally without any translation of the French captions, without any consideration of context or pragmatics, and without any concern for the relationship of any individual cartoon to its creator’s body of work. In this age of visual illiteracy, of perfect tone-deafness to satire, the murders get cast as a blow not against freedom of expression, against subtlety, nuance, and laughter, but against racism. So, the thinking goes, adieu.  

Already on the eve of January 7 my peers were transforming before my eyes into grotesque descendants of Jean-Paul Sartre, who maintained his support of Stalinism despite a knowledge of its worst atrocities, and of the craven Western Stalinists who defended the U.S.S.R.’s invasion of Hungary, in 1956. How could they not see what was at stake? I became convinced that the root of the moral and political failure I was witnessing lay in the false presumption that humor is but one of the minor protectorates of freedom, when in fact humor is freedom itself, or at least freedom’s highest expression.

Justin Smith. A follow-up on Smith’s blog: “I am not a big fan of most laïcité rhetoric, and I am sensitive to how it is used for purposes of exclusion. (I am also not listening to what Salman Rushdie is saying on this topic.) This is why I’ve tried to be consistent about coupling my position on Charlie Hebdo with an equally insistent position on, e.g., the rights and dignity of regular and non-regular (‘illegal’) migrants to France. I see my position as the one that, more than that of those with whom I disagree, is most insistent that Islam must not be perceived as a monolith, that in fact there is no such thing as the Muslim community, but rather numerous disagreeing factions, by no means all of which agree with the attackers that there is something unacceptably offensive about the content of Charlie Hebdo.

Random thoughts on Charlie Hebdo

1) I don’t think the most important question about what happened is “Do we support Charlie Hebdo?” I think the most important question is, “Do we support, and are we willing to fight for, a society in which people who make things like Charlie Hebdo can work in peace and sleep in their beds each night without fear?”

2) Freddie deBoer wrote,

Peter Beinart and Ross Douthat and Jon Chait and hundreds more will take the time in the week to come to beat their chests and declare themselves firmly committed to brave ideas like “murder is bad” and “free speech is good.” None of them, if pressed, would pretend that we are at risk of abandoning our commitment against murder or in favor of free speech. None of them think that, in response to this attack, we or France or any other industrialized nation is going to pass a bill declaring criticism of Islam illegal.

That last sentence is true enough, as far as it goes. But it doesn’t go nearly far enough. The measure of freedom of speech in a society is not simply a matter of what laws are or are not passed. We must also ask which existing laws are or are not enforced; and what self-censorship people perform out of fear that their societies will not or cannot protect them. Freddie writes as though freedom of speech can be adequately evaluated only by reference to the situation de jure; but there are de facto issues that must also be considered.

3) One of the more interesting comments on this whole affair is that of Giles Fraser:

In one sense an iconoclast is someone who refuses the established view of things, who kicks out against cherished beliefs and institutions. Which sounds pretty much like Charlie Hebdo. But the word iconoclast also describes those religious people who refuse and smash representational images, especially of the divine. The second of the Ten Commandments prohibits graven images – which is why there are no pictures of God in Judaism or Islam. And theologically speaking, the reason they are deeply suspicious of divine representation is because they fear that such representations of God might get confused for the real thing. The danger, they believe, is that we might end up overinvesting in a bad copy, something that looks a lot like what we might think of as god, but which, in reality, is just a human projection. So much better then to smash all representations of the divine.

And yet this, of course, is exactly what Charlie Hebdo was doing. In the bluntest, rudest, most scatological and offensive of terms, Charlie Hebdo has been insisting that the images people worship are just human creations – bad and dangerous human creations. And in taking the piss out of such images, they actually exist in a tradition of religious iconoclasts going back as far as Abraham taking a hammer to his father’s statues. Both are attacks on representations of the divine. Which is why the terrorists, as well as being murderers, are theologically mistaken in thinking Charlie Hebdo is the enemy. For if God is fundamentally unrepresentable, then any representation of God is necessarily less than God and thus deserves to be fully and fearlessly attacked. And what better way of doing this than through satire, like scribbling a little moustache on a grand statue of God.

I would love to agree with this, but can’t quite. All iconoclasm is not alike. Reading Fraser’s essay I found myself remembering Mikhail Bakhtin’s great essay “From the Prehistory of Novelistic Discourse,” in which he compares ancient and medieval parody with its modern equivalent.

Ancient parody was free of any nihilistic denial. It was not, after all, the heroes who were parodied, nor the Trojan War and its participants; what was parodied was only its epic heroization; not Hercules and his exploits but their tragic heroization. The genre itself, the style, the language are all put in cheerfully irreverent quotation marks, and they are perceived against a backdrop of contradictory reality that cannot be confined within their narrow frames. The direct and serious word was revealed, in all its limitations and insufficiency, only after it had become the laughing image of that word — but it was by no means discredited in the process.

By contrast, “in modern times the functions of parody are narrow and unproductive. Parody has grown sickly, its place in modem literature is insignificant. We live, write and speak today in a world of free and democratized language: the complex and multi-leveled hierarchy of discourses, forms, images, styles that used to permeate the entire system of official language and linguistic consciousness was swept away by the linguistic revolution of the Renaissance.” Parody for us is too often merely iconoclastic, breaking images out of juvenile delight in breaking, not out of commitment to a reality too heteroglot (Bakhtin’s term) to fit within the confines of standardized religious practices. I think Charlie Hebdo is juvenile in this way.

But feel free agree with that judgment or not — it’s not germane. As I said, the truly vital question here is not whether the magazine’s satire is worthwhile. The truly vital question is how badly — if at all — we want to live in a society where people who make such magazines can live without fear of losing their lives.