America is hard to do . . .

“… A lot of us forget that. You know, we got in that Obama bubble bath, and we were just, Oh man, this feels good. Eight years later, you get out and you’re kind of wrinkly and weak and you’re not really prepared to fight. You’ve got to remember, democracy is hard. It’s hard work, and you can’t take any of these elections off.”

— Van Jones, CNN commentator, in Beyond the Messy TruthHow We Came Apart – How We Come Together (2017)

 

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Why We Must Still Defend Free Speech

This article will appear in the next issue of The New York Review.


Evelyn Hockstein/The Washington Post/Getty Images

White nationalists marching on the University of Virginia campus, Charlottesville, August 2017

Does the First Amendment need a rewrite in the era of Donald Trump? Should the rise of white supremacist and neo-Nazi groups lead us to cut back the protection afforded to speech that expresses hatred and advocates violence, or otherwise undermines equality? If free speech exacerbates inequality, why doesn’t equality, also protected by the Constitution, take precedence?

After the tragic violence at a white supremacist rally in Charlottesville, Virginia, on August 12, these questions take on renewed urgency. Many have asked in particular why the ACLU, of which I am national legal director, represented Jason Kessler, the organizer of the rally, in challenging Charlottesville’s last-minute effort to revoke his permit. The city proposed to move his rally a mile from its originally approved site—Emancipation Park, the location of the Robert E. Lee monument whose removal Kessler sought to protest—but offered no reason why the protest would be any easier to manage a mile away. As ACLU offices across the country have done for thousands of marchers for almost a century, the ACLU of Virginia gave Kessler legal help to preserve his permit. Should the fatal violence that followed prompt recalibration of the scope of free speech?

The future of the First Amendment may be at issue. A 2015 Pew Research Center poll reported that 40 percent of millennials think the government should be able to suppress speech deemed offensive to minority groups, as compared to only 12 percent of those born between 1928 and 1945. Young people today voice far less faith in free speech than do their grandparents. And Europe, where racist speech is not protected, has shown that democracies can reasonably differ about this issue.

People who oppose the protection of racist speech make several arguments, all ultimately resting on a claim that speech rights conflict with equality, and that equality should prevail in the balance.* They contend that the “marketplace of ideas” assumes a mythical level playing field. If some speakers drown out or silence others, the marketplace cannot function in the interests of all. They argue that the history of mob and state violence targeting African-Americans makes racist speech directed at them especially indefensible. Tolerating such speech reinforces harms that this nation has done to African-Americans from slavery through Jim Crow to today’s de facto segregation, implicit bias, and structural discrimination. And still others argue that while it might have made sense to tolerate Nazis marching in Skokie in 1978, now, when white supremacists have a friend in the president himself, the power and influence they wield justify a different approach.

There is truth in each of these propositions. The United States is a profoundly unequal society. Our nation’s historical mistreatment of African-Americans has been shameful and the scourge of racism persists to this day. Racist speech causes real harm. It can inspire violence and intimidate people from freely exercising their own rights. There is no doubt that Donald Trump’s appeals to white resentment and his reluctance to condemn white supremacists after Charlottesville have emboldened many racists. But at least in the public arena, none of these unfortunate truths supports authorizing the state to suppress speech that advocates ideas antithetical to egalitarian values.

The argument that free speech should not be protected in conditions of inequality is misguided. The right to free speech does not rest on the presumption of a level playing field. Virtually all rights—speech included—are enjoyed unequally, and can reinforce inequality. The right to property most obviously protects the billionaire more than it does the poor. Homeowners have greater privacy rights than apartment dwellers, who in turn have more privacy than the homeless. The fundamental right to choose how to educate one’s children means little to parents who cannot afford private schools, and contributes to the resilience of segregated schools and the reproduction of privilege. Criminal defendants’ rights are enjoyed much more robustly by those who can afford to hire an expensive lawyer than by those dependent on the meager resources that states dedicate to the defense of the indigent, thereby contributing to the endemic disparities that plague our criminal justice system.

Critics argue that the First Amendment is different, because if the weak are silenced while the strong speak, or if some have more to spend on speech than others, the outcomes of the “marketplace of ideas” will be skewed. But the marketplace is a metaphor; it describes not a scientific method for identifying truth but a choice among realistic options. It maintains only that it is better for the state to remain neutral than to dictate what is true and suppress the rest. One can be justifiably skeptical of a debate in which Charles Koch or George Soros has outsized advantages over everyone else, but still prefer it to one in which the Trump—or indeed Obama—administration can control what can be said. If free speech is critical to democracy and to holding our representatives accountable—and it is—we cannot allow our representatives to suppress views they think are wrong, false, or disruptive.

Should our nation’s shameful history of racism change the equation? There is no doubt that African-Americans have suffered unique mistreatment, and that our country has yet to reckon adequately with that fact. But to treat speech targeting African-Americans differently from speech targeting anyone else cannot be squared with the first principle of free speech: the state must be neutral with regard to speakers’ viewpoints. Moreover, what about other groups? While each group’s experiences are distinct, many have suffered grave discrimination, including Native Americans, Asian-Americans, LGBT people, women, Jews, Latinos, Muslims, and immigrants generally. Should government officials be free to censor speech that offends or targets any of these groups? If not all, which groups get special protection?

And even if we could somehow answer that question, how would we define what speech to suppress? Should the government be able to silence all arguments against affirmative action or about genetic differences between men and women, or just uneducated racist and sexist rants? It is easy to recognize inequality; it is virtually impossible to articulate a standard for suppression of speech that would not afford government officials dangerously broad discretion and invite discrimination against particular viewpoints.

But are these challenges perhaps worth taking on because Donald Trump is president, and his victory has given new voice to white supremacists? That is exactly the wrong conclusion. After all, if we were to authorize government officials to suppress speech they find contrary to American values, it would be Donald Trump—and his allies in state and local governments—who would use that power. Here is the ultimate contradiction in the argument for state suppression of speech in the name of equality: it demands protection of disadvantaged minorities’ interests, but in a democracy, the state acts in the name of the majority, not the minority. Why would disadvantaged minorities trust representatives of the majority to decide whose speech should be censored? At one time, most Americans embraced “separate but equal” for the races and separate spheres for the sexes as defining equality. It was the freedom to contest those views, safeguarded by the principle of free speech, that allowed us to reject them.

As Frederick Douglass reminded us, “Power concedes nothing without a demand. It never did and it never will.” Throughout our history, disadvantaged minority groups have effectively used the First Amendment to speak, associate, and assemble for the purpose of demanding their rights—and the ACLU has defended their right to do so. Where would the movements for racial justice, women’s rights, and LGBT equality be without a muscular First Amendment?

In some limited but important settings, equality norms do trump free speech. At schools and in the workplace, for example, antidiscrimination law forbids harassment and hostile working conditions based on race or sex, and those rules limit what people can say there. The courts have recognized that in situations involving formal hierarchy and captive audiences, speech can be limited to ensure equal access and treatment. But those exceptions do not extend to the public sphere, where ideas must be open to full and free contestation, and those who disagree can turn away or talk back.

The response to Charlottesville showed the power of talking back. When Donald Trump implied a kind of moral equivalence between the white supremacist protesters and their counter-protesters, he quickly found himself isolated. Prominent Republicans, military leaders, business executives, and conservative, moderate, and liberal commentators alike condemned the ideology of white supremacy, Trump himself, or both.

When white supremacists called a rally the following week in Boston, they mustered only a handful of supporters. They were vastly outnumbered by tens of thousands of counterprotesters who peacefully marched through the streets to condemn white supremacy, racism, and hate. Boston proved yet again that the most powerful response to speech that we hate is not suppression but more speech. Even Stephen Bannon, until recently Trump’s chief strategist and now once again executive chairman of Breitbart News, denounced white supremacists as “losers” and “a collection of clowns.” Free speech, in short, is exposing white supremacists’ ideas to the condemnation they deserve. Moral condemnation, not legal suppression, is the appropriate response to these despicable ideas.

Some white supremacists advocate not only hate but violence. They want to purge the country of nonwhites, non-Christians, and other “undesirables,” and return us to a racial caste society—and the only way to do that is through force. The First Amendment protects speech but not violence. So what possible value is there in protecting speech advocating violence? Our history illustrates that unless very narrowly constrained, the power to restrict the advocacy of violence is an invitation to punish political dissent. A. Mitchell Palmer, J. Edgar Hoover, and Joseph McCarthy all used the advocacy of violence as a justification to punish people who associated with Communists, socialists, or civil rights groups.

Those lessons led the Supreme Court, in a 1969 ACLU case involving a Ku Klux Klan rally, to rule that speech advocating violence or other criminal conduct is protected unless it is intended and likely to produce imminent lawless action, a highly speech-protective rule. In addition to incitement, thus narrowly defined, a “true threat” against specific individuals is also not protected. But aside from these instances in which speech and violence are inextricably intertwined, speech advocating violence gets full First Amendment protection.

In Charlottesville, the ACLU’s client swore under oath that he intended only a peaceful protest. The city cited general concerns about managing the crowd in seeking to move the marchers a mile from the originally approved site. But as the district court found, the city offered no reason why there wouldn’t be just as many protesters and counterprotesters at the alternative site. Violence did break out in Charlottesville, but that appears to have been at least in part because the police utterly failed to keep the protesters separated or to break up the fights.

What about speech and weapons? The ACLU’s executive director, Anthony Romero, explained that, in light of Charlottesville and the risk of violence at future protests, the ACLU will not represent marchers who seek to brandish weapons while protesting. (This is not a new position. In a pamphlet signed by Roger Baldwin, Arthur Garfield Hays, Morris Ernst, and others, the ACLU took a similar stance in 1934, explaining that we defended the Nazis’ right to speak, but not to march while armed.) This is a content-neutral policy; it applies to all armed marchers, regardless of their views. And it is driven by the twin concerns of avoiding violence and the impairment of many rights, speech included, that violence so often occasions. Free speech allows us to resolve our differences through public reason; violence is its antithesis. The First Amendment protects the exchange of views, not the exchange of bullets. Just as it is reasonable to exclude weapons from courthouses, airports, schools, and Fourth of July celebrations on the National Mall, so it is reasonable to exclude them from public protests.

Some ACLU staff and supporters have made a more limited argument. They don’t directly question whether the First Amendment should protect white supremacist groups. Instead, they ask why the ACLU as an organization represents them. In most cases, the protesters should be able to find lawyers elsewhere. Many ACLU staff members understandably find representing these groups repugnant; their views are directly contrary to many of the values we fight for. And representing right-wing extremists makes it more difficult for the ACLU to work with its allies on a wide range of issues, from racial justice to LGBT equality to immigrants’ rights. As a matter of resources, the ACLU spends far more on claims to equality by marginalized groups than it does on First Amendment claims. If the First Amendment work is undermining our other efforts, why do it?

These are real costs, and deserve consideration as ACLU lawyers make case-by-case decisions about how to deploy our resources. But they cannot be a bar to doing such work. The truth is that both internally and externally, it would be much easier for the ACLU to represent only those with whom we agree. But the power of our First Amendment advocacy turns on our commitment to a principle of viewpoint neutrality that requires protection for proponents and opponents of our own best view of racial justice. If we defended speech only when we agreed with it, on what ground would we ask others to tolerate speech they oppose?

In a fundamental sense, the First Amendment safeguards not only the American experiment in democratic pluralism, but everything the ACLU does. In the pursuit of liberty and justice, we associate, advocate, and petition the government. We protect the First Amendment not only because it is the lifeblood of democracy and an indispensable element of freedom, but because it is the guarantor of civil society itself. It protects the press, the academy, religion, political parties, and nonprofit associations like ours. In the era of Donald Trump, the importance of preserving these avenues for advancing justice and preserving democracy should be more evident than ever.

—August 24, 2017

  1. *The leading collection of essays advancing this critique is Mari J. Matsuda, Charles R. Lawrence III, Richard Delgado, and Kimberlé Williams Crenshaw, Words that Wound: Critical Race Theory, Assaultive Speech, and the First Amendment(Westview, 1993). For a thoughtful defense of hate speech regulation on liberal premises, see Jeremy Waldron, The Harm in Hate Speech (Harvard University Press, 2012).
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Hopeful in bad times

“To be hopeful in bad times is not just foolishly romantic. It is based on the fact that human history is a history not only of cruelty, but also of compassion, sacrifice, courage, kindness.
“What we choose to emphasize in this complex history will determine our lives. If we see only the worst, it destroys our capacity to do something. If we remember those times and places—and there are so many—where people have behaved magnificently, this gives us the energy to act, and at least the possibility of sending this spinning top of a world in a different direction.
“And if we do act, in however small a way, we don’t have to wait for some grand utopian future. The future is an infinite succession of presents, and to live now as we think human beings should live, in defiance of all that is bad around us, is itself a marvelous victory.”
–from Howard Zinn (1922-2010), American historian, playwright, and social activist
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Saving Liberalism

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The best antidote to populism is unpopularism

(personal noteLearning from Europe)

From Reuters by John Foley, 12/28/16

Like democracy and the Cold War, European populism after the financial crisis had its origins in Greece. The leftist Syriza party swept to victory in January 2015 promising to dismantle the elite, thumb its nose at European creditors and restore prosperity through radically worker-friendly policies.

Yet less than two years later Syriza has become part of the problem. It has failed to revive employment or growth: half of all young Greeks are still out of work, and GDP is expected to have flatlined in 2016. The centre-right New Democracy party, which Syriza ousted, is more than 15 percentage points ahead in the polls. Once associated with cronyism, it has reinvented itself under leader Kyriakos Mitsotakis as a pro-reform and moderate alternative. If Prime Minister Alexis Tsipras holds an election in 2017, he will probably lose.

For liberal politicians facing radical insurgents elsewhere in Europe, this tale has an encouraging silver lining. It suggests parties that make promises they cannot keep will face consequences. Continue reading

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Coming to Newark Archdiocese – A Different Kind of Cardinal

from The New York Times – 12/22/16 – Sharon Otterman

INDIANAPOLIS — For about a year, the guys at the gym just called him Joe. He lifted weights in the early mornings wearing a skull-printed do-rag. He worked out on the elliptical, wiping it down when he was done.

Then one day Shaun Yeary, a salesman at a landscape supply company, asked him in the locker room what he did for a living. “I used to be a priest,” Joe recalled telling him. “And now,” he said, his voice growing quieter so as not to scare anyone in earshot, “I’m the archbishop of Indianapolis.”

I was like, for real?” Mr. Yeary recalled. “This guy is benching two and a quarter!” — gymspeak for 225 pounds.

Joe, also known as Cardinal Joseph W. Tobin, recently became one of the 120 men in the world who will choose the next pope. But he wants to be judged by his actions, not his lofty position in the Roman Catholic Church.

Though he has led the Archdiocese of Indianapolis since 2012, a status that usually comes with perks like a driver, he drives himself around in a Chevy Tahoe and helps with the dishes after lunch meetings. He introduces himself simply as Padre José to the children at a local Catholic school. He showers and shaves at the Community Healthplex gym like any other member, and calls his workout buddies his Band of Brothers. Continue reading

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Donald Trump and Lady Gaga

Lady Gaga once talked about the doubters in an interview: “They would say, ‘This is too racy, too dance-oriented, too underground. It’s not marketable.’ And I would say, ‘My name is Lady Gaga, I’ve been on the music scene for years, and I’m telling you, this is what’s next.’ And look . . . I was right.”

Who does that sound like?

In “The Art of the Deal,” Donald Trump described what he was up to: “I play to people’s fantasies.”

Donald Trump treats the truth as only one of several props he’s willing to use to achieve an effect. Truth sits on his workbench alongside hyperbole, sentimentality, bluster and just kidding. Use as needed.

Daniel Henninger, Wall Street Journal 12/6/16

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Watch out for moral certainty

Moral certainty is always a sign of cultural inferiority. The more uncivilized the man, the surer he is that he knows precisely what is right and what is wrong. All human progress, even in morals, has been the work of men who have doubted the current moral values, not of men who have whooped them up and tried to enforce them. The truly civilized man is always skeptical and tolerant, in this field as in all others. His culture is based on “I am not too sure.” -H.L. Mencken, writer, editor, and critic

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Political Islam and Modernity

— excerpt adapted from September/October 2016 Foreign Affairs review essay · “Mosque and State” by Malise Ruthven, author Islam in the World.

https://www.foreignaffairs.com/reviews/review-essay/mosque-and-state )

The Islamic world could not follow only the European path toward Enlightenment and modernity by way of reformation. Even Christianity and, more broadly, we in the West, didn’t really follow that path–“at least as it is often portrayed.”

“The Enlightenment was the outcome not only of the Reformation but also of centuries of violent religious conflict, after which sensible people concluded that they were not improving their lots by killing one another in the name of God.

“That is the grim lesson that Muslims in the contemporary Middle East may yet find themselves learning from European history.”

What the West was not spared on the way to Enlightenment the Muslim world is not being spared. History, including our own, has lessons to teach us all. Certainly, historically, we in the West have not been superior to what the Middle East is going through.

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Led through snares and dangers

From the novel Jayber Crow, by Wendell Berry

If you could do it, I suppose it would be a good idea to live your life in a straight line – starting, say, in the Dark Wood of Error, and proceeding by logical steps through Hell and Purgatory and into Heaven. Or you could take the King’s Highway past appropriately named dangers, toils, and snares, and finally cross the River of Death and enter the Celestial City. But that is not the way I have done it so far. I am a pilgrim, but my pilgrimage has been wandering and unmarked. Often what has looked like a straight line to me has been a circle or a doubling back. I have been in the Dark Wood of Error any number of times. I have known something of Hell, Purgatory, and Heaven, but not always in that order. The names of many snares and dangers have been made known to me, but I have seen them only in looking back. Often I have not known where I was going until I was already there. I have had my share of desires and goals, but my life has come to me or I have gone to it mainly by way of mistakes and surprises. Often I have received better than I deserved. Often my fairest hopes have rested on bad mistakes. I am an ignorant pilgrim, crossing a dark valley. And yet for a long time, looking back, I have been unable to shake off the feeling that I have been led – make of that what you will.

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