Life After Liberalism

Bill Green – @longlooking

In his piece, “Is There Life After Liberalism?” (New York Times – January 14), Ross Douthat says “sometimes you can’t renew an order, as ours clearly needs renewal, until the political imagination becomes capable of imagining and desiring something different.” https://tinyurl.com/yckfbrtl

Douthat criticizes political theorist Patrick Deneen for shying away from such imagination in his new book Why Liberalism Failed just urging a rededication to localism and community. https://tinyurl.com/y8u25lmf

But an alternative to “liberalism”–“the liberal-democratic-capitalist matrix we all inhabit,” as Douthat after Deneen understands it–can only be imagined after greater dedication to “localism and community.” Otherwise it’s top-down thinking all over again: liberalism manqué. A true alternative takes time and cannot be defined altogether in advance. It can only grow out of civic values, interpersonal commitments, and social engagement without which it will prove groundless and aggravate the current malaise.

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Meet the women worried about #MeToo

Lionel Shriver says…

I am concerned that we are throwing knee-touching into the same basket as rape, which does a grievous disservice to mere knee-touchers and rape victims both. I am concerned that we are increasingly wont to confuse genuine abuse of power in the workplace with often distant memories of men who have made failed – ‘unwanted’ – passes. In the complicated dance of courtship, someone has to make a move, and the way one conventionally discovers if one’s attraction is returned is to brave some gentle physical contact and perhaps accept rebuff. Were I still a young woman looking for a partner, I would not wish to live in world where a man had to secure a countersigned contract in triplicate before he kissed me.

I am concerned that we are casting women as irremediably scarred by even minor, casual advances, and as incapable of competently and sensitively handling the commonplace instances in which men are drawn to them sexually and the feeling doesn’t happen to be mutual.

I am concerned that sex itself seems increasingly to be seen as dirty, and as a violation, a form of assault, so that we’re repackaging an old prudery in progressive wrapping paper. I am concerned that we are well on our way to demonising, if not criminalising, all male desire.

Turbocharged by social media, #MeToo may have gone too far. Rather than bringing the sexes together with improved mutual understanding, we are in danger of driving the sexes apart. If I were a man right now, I’d lock the door of my study with the intention of satisfying myself with internet porn for the indefinite future. Real women would not seem worth the risk of destroying my career. Is that what we want?

Lionel is an author, most recently of The Standing Chandelier, and winner of the Orange Prize for Fiction.

Christina Hoff Sommers says…

The #MeToo movement seems to be devolving into an anti-male grievance-fest. Veteran journalist Lucinda Franks now claims ‘gender degradation’ irreparably harmed her career, but it’s hard to see the impact that sexual harassment had on a decorated reporter, who was the youngest person ever to win a Pulitzer. A Glamour writer has described a ‘spectre of fear’ haunting all working women in ‘every interaction’.

Reality check: American women – especially those in the professional/managerial class – are among the freest and most self-determining human beings on the planet. They may run into the occasional troglodyte, but overall, they are not merely doing as well as men – they are starting to surpass them. According to a recent survey of hiring data, young women are starting to out-earn young men. Women now earn most of the advanced degrees – including doctorates. The women’s advocacy group Catalyst reports that as of 2015, ‘women held 51.5 per cent of all management, professional, and related occupations’.

Gender scholars don’t dispute these findings. But they maintain that the patriarchy, in a desperate effort to hold on to power, is acting out in lurid ways. The evidence suggests otherwise. The General Social Survey is one of the most trusted sources of data in the social sciences. In 2014, a random sample of Americans was asked a straightforward question: ‘In the last 12 months, were you sexually harassed by anyone while you were on the job?’ Only 3.6 per cent of women said yes. That is down from 6.1 per cent in 2002. The patriarchy is well past its prime.

Powerful men are falling left and right – but not because women are second-class citizens. Just the opposite. Girl Power is real. Instead of carrying on about how frightened and degraded we are, maybe it’s time to acknowledge the truth: in 2017, we can destroy almost any man by a single accusation.

With power comes responsibilities. As Wesley Yang said, in the best article yet on the #MeToo frenzy: ‘Feminists should remember something they know well from their own experiences with men: nobody is so dangerous, to themselves and others, as a person or collectivity that wields power without acknowledging it.’

Christina is an author, resident scholar at the American Enterprise Institute and host of The Factual Feminist.

Nathalie Rothschild says…

Why is the #Metoo campaign worrying? It is hard to know where to begin.

I could discuss how it is normalising the kind of mob behaviour that is the most negative aspect of internet culture, and how it is eroding the presumption of innocence.

I could mention how the insistence that men are complicit in perpetuating a ‘rape culture’ characterised by a ‘continuum of abuse’ – running from lockerroom banter to gang rape – demonises half the world’s population and relativises, and therefore trivialises, sexual violence.

I could argue that it poisons relations between the sexes, turning everyday interactions into a social minefield.

I could focus on the censorious impulse behind #MeToo. ‘Outed’ celebrities and their work are denounced as ‘degenerate’ and erased, much like ‘unacceptable’ material was shoved down the memory hole in George Orwell’s Nineteen Eighty-Four.

I could discuss how #MeToo marks a return to puritanism, and revives a Victorian view of women as actual or potential victims of sexual assault and therefore in need of shielding.

But perhaps the most disturbing element of #MeToo is how it has transmogrified into a kind of confession competition. The more gruesome a woman’s testimonial is, the more sympathy she is likely to get from the online sisterhood.

The idea that the moments in our lives when we felt power was exercised upon us should be those that mark us and define us forever runs counter to the view of women as active, autonomous agents. And it is that view which ought to define the experience of being a woman in the 21st century.

Nathalie is a print and broadcast journalist based in Stockholm, Sweden.

Wendy Kaminer says…

#MeToo is the unthinking woman’s anti-harassment crusade. It commands us to ‘believe the women’ unthinkingly, without considering the seriousness or plausibility of their claims. It calls every accuser a survivor, whether she alleges a sexual assault or a single, unsolicited advance. It ignores essential differences between work-related harassment that undermines women professionally and inconsequential social annoyances, threatening to police interpersonal relations outside the workplace. It celebrates conformity and demonises dissent, as you might expect from a movement based on proclamations of ‘me too’.

Thinking people make distinctions – between a hand on your knee and a grope up your skirt, between a sexual attack by a supervisor and a pat on the butt from a guy in a bar – just as they distinguish pickpockets from home invaders. #MeTooism condemns such distinctions as reflections of rape culture. At best, when we differentiate ‘sexual assault and sexual harassment and unwanted groping, [we] are having the wrong conversation’, Democratic senator Kirsten Gillibrand asserts, while preparing to run for president as the self-appointed avenger of all self-identified female victims.

This dangerous nonsense denigrates women – we are not all traumatised by every fool who cops a feel – and questions our claim to equality.

Wendy is a lawyer, author and a former national board member of the American Civil Liberties Union.

Julia Hartley-Brewer says…

The #MeToo campaign is very worrying and will achieve the opposite of what it pretends to want. The hashtag claims to be about empowering women to speak out when actually it is turning women into perpetual victims.

Women who put up with sexual harassment and keep quiet about it for years, protecting the perpetrators, are hailed as heroines and strong, powerful feminists. Yet, bizarrely, women who speak out and deal with sexual harassment forcefully at the time, and then happily move on with their lives as I and millions of other women have done over the years, are derided as ‘victim-blamers’ or even ‘rape apologists’. It’s almost as if a woman is only ‘the right kind of woman’ if she is willing to play the victim.

This is not what feminism was supposed to be about. It was supposed to be about empowering women, not infantilising them. Any woman can now point the finger at any man and make any claim she wants about something that may – or may not – have happened to her 10 or 20 years ago. That allegation, whether there is any evidence to back it up or not, is enough to end a man’s reputation, his career or even his life. We are seeing an end to the principles of natural justice, innocence until proven guilty and fair trials.

Make no mistake – this is a witch-hunt, and to hell with any innocent men who accidentally get caught in the net of the #MeToo outrage.

Julia is a journalist, broadcaster and host at talkRADIO.

Emily Yoffe says…

We should not tolerate sexual harassment. But I am worried that, with the growing consensus that there should be ‘zero tolerance’ for sexual harassment, we will make the same mistake regarding the workplace that we’ve made with other social problems in recent decades. (The concept of zero tolerance is itself problematic – to oppose it means being accused of tolerating whatever wrongdoing is under discussion.)

When we apply zero tolerance to a problem, we enlarge what the problem is and take away the ability of those charged with passing judgement and meting out fair punishments to weigh the entirety of the circumstances and tailor a response that brings justice. Instead, too often judges and school principals, for example, have become rubber stamps who impose the harshest possible penalties. We should pause before using this model for sexual harassment.

This is a rare moment in which women and men of good will can work together to fashion more equitable workplaces. That project is endangered if we unreasonably expand what we mean by sexual harassment and then make any accusation of it a trigger for potential career banishment.

Emily is a journalist and contributing editor at the Atlantic.

Mary Kenny says…

No woman should be coerced into sexual relations – let alone raped – and moral codes exist for a reason. Yet sexual relations are complex. Shakespeare wrote: ‘Sometimes from her eyes I did receive fair speechless messages.’ If we are honest with ourselves, we know how many layers of complexity there can be in jest, flirtation, a look, a sigh, a word. Women have often warmed to a touch, a joke, a comment which implies interest or pursuit. That is not harassment.

Feminism should mean taking responsibility for ourselves and also standing up for ourselves. Unwanted attention should be dealt with. As Camille Paglia points out, men are often quite frightened of what women will say to them – be bold and say it. What is dismaying about current trends is the tendency to return women to delicate, Victorian damsels who reach for the smelling salts if they hear a lewd joke. What next – chaperones?

The novelist Kingsley Amis used to say: ‘Women are trouble – keep them out of all institutions.’ He was a misogynist, but such notions will revive if women portray themselves as so fragile that they can’t deal with the small change of everyday life with robust common sense.

Mary is a journalist and the author of Am I a Feminist? Are You?.

Claire Berlinski says…

The #MeToo movement has exposed allegations of very serious sexual crimes and the degree to which women are simply fed up. This is healthy, up to a point. But we are way past that point.

It has now morphed into a mass hysteria. Men have been accused of transgressions no reasonable person would define as a crime. And this crime comes with a swift and terrifying penalty, but has no clear definition and no statute of limitations. This is juridically and morally absurd. Nulla poena sine lege.

This crime, it seems, may be committed through word, deed, or even facial expression. It rests entirely on discerning what a woman feels, or will feel, even decades later. But discerning this is actually quite difficult. ‘It’s payback time for men’ is not a reasonable definition. We must now together reason this out. Nullum crimen sine lege.

The names keep coming. The heads keep rolling. A charge of creepiness is a death sentence. (De minimis non curat lex.) Once the charge is made, employers race to purge the creep lest they too be stained by his dishonour. ‘We are deeply disappointed by the reports that Mister Absolutely Unacceptable in this day and age failed to live up to our company standards’, begins the ritual. And you know damned well Mister Absolutely Unacceptable will never get his job, or his life, back. Audacter caluminiare, semper aliquid haeret.

This is not good for men. But neither is it good for women. Newton’s third law is not just about physics. There will be a reaction. And women as a professional class will find themselves figuratively screwed – not an obvious improvement in the screwing scheme of things.

Claire is a novelist and journalist. Donate towards her new book: Stitch by Stitch.

Cathy Young says…

The post-Harvey Weinstein #MeToo momentum has ended the silence surrounding sexual abuse committed by a number of wealthy and powerful men, so it’s difficult not to see a positive side. But it is also increasingly clear that this cultural moment has turned into an orgy of female victimhood and the demonisation of men.

Some alleged abusers are being punished with very little evidence; the announced resignation of Al Franken, the Democratic senator from Minnesota, has been a wake-up call for many. (One of the eight charges against Franken was squeezing a woman’s waist while posing for a photo.)

Women are being encouraged to scour their past for experiences that make them ‘survivors’ – such as a smarmy compliment or a drunken pass from a colleague. Men are being told to soul-search for past mistreatment of women. Yet the reality is that there are also male victims of sexual abuse and female abusers – and when it comes to low-level hurtful or obnoxious behaviour in the arena of sex and romance, the sexes are probably just about equal.

Telling women that their lives are a chamber of sexual horrors, and telling men that they are part of an evil oppressor class, is not the path to equality.

Cathy is a journalist and the author of Ceasefire!: Why Women and Men Must Join Forces to Achieve True Equality.

Rita Panahi says…

Due process and the presumption of innocence cannot be forgotten in our eagerness to embolden women coming forward with allegations of harassment and sexual assault. There must be a balance between believing women and ensuring that the lives of innocent people are not destroyed.

My greatest concern is that the #MeToo phenomenon creates a toxic narrative that casts every male as a potential predator and every female as a perpetual victim. This can be enormously damaging for women, particularly young girls who, despite having every advantage and legal protection in the West, grow up believing they face enormous, perhaps insurmountable, barriers.

In Australia, women have outnumbered men at university for the past three decades. But instead of this fact being celebrated, many in the media continue to portray empowered women as lifelong victims. As institutionalised forms of discrimination are eliminated, the obsession with supposed entrenched misogyny deepens – despite all evidence to the contrary.

Meanwhile, modern feminism all but ignores the plight of the most oppressed women around the world who are subjugated from the cradle to the grave.

Rita is a journalist and columnist for the Herald Sun, in Australia.

Joanna Williams says…

‘Sorry, I nearly touched your elbow. I forgot we can’t do that any more’, he said. ‘You have to ask my permission first’, I replied. We both laughed.

A social event at the university and, for once, I wasn’t counting the minutes until I could leave. I was talking to a professor I’d not met before and it turned out we shared the same views on academia, free speech and mutual colleagues. I relaxed.

And then the elbow non-incident happened, and an exchange among equals became a conversation between a woman and an older, more senior, male colleague. Even laughing about new rules of etiquette prompted self-consciousness.

One of the worst things about the #MeToo panic is the impact it has on informal workplace relations. Yes, people still socialise in mixed groups and colleagues still share confidences behind closed doors. But, at the same time, a new wariness has taken hold. A voice in our heads asks how our interactions might be interpreted by others. Is it best to leave the office door open? Invite a third party along to the lunch meeting? Under what circumstances can you hug a colleague? Or touch their elbow?

This self-consciousness robs workplaces of the spontaneous human warmth that makes having a job bearable. Worse, as colleagues are made suspicious of each other, we risk turning the clock back on hard-won sexual equality.

Joanna is spiked’s education editor and author of Women vs Feminism: Why We All Need Liberating from the Gender Wars.

Claire Fox says…

#MeToo has morphed into a campaign that brooks no dissent. Raise qualms and watch the insults roll. Critics are told they are suffering from internalised misogyny, are in denial, or are too old to understand the horrors of leering bosses.

One campaigning commentator, Rosamund Unwin, writes in the Evening Standard that reactions to harassment post-Weinstein have ‘exposed a generational divide’. Maybe she is right – I am one of those ‘older female journalists’ who is concerned at the YouGov survey revealing that two-thirds of women aged 18 to 24 view wolf-whistling as ‘always or usually’ being a form of sexual harassment. Twenty-eight per cent see winking in the same way. Yes, WINKING.

Unwin concludes that my failure ‘to cheer that our sex finally feels able to speak out’ is due to a ‘lack of empathy’ among the over-40s. She speculates that such indifference is because ‘some women perhaps feel they owe part of their success to being the female in the room who wasn’t difficult, who laughed at the boys’ “jokes”’.

These sorts of accusations are galling, especially for those of us who have spent years metaphorically kicking sex pests in the balls and fighting for women to be treated as equals in the workplace. I shouldn’t have to resort to personal anecdotes. However, as #MeToo confers credibility on those who declare themselves victims, I have felt pressure to reveal my own slew of nasty sexual experiences, as evidence that I’m not some traitor to the cause.

How ironic that #MeToo is fuelling its own bullying climate: women are told to conform, or else. This climate is a greater threat to real freedom than any pathetic groper.

Claire is author of I Find That Offensive and director of the Institute of Ideas.

Ella Whelan says…

#MeToo has been hailed as a revelatory moment. But the truth is, there’s little new about this obsession with phantom sexual-harassment epidemics. #MeToo might have been spurred on by news of a fat old perv in Hollywood, but the feminist narrative of victimised women has been around for a long time.

And screw it – I won’t say that there’s anything good about #MeToo. You don’t need to celebrate a hashtag to understand that sexual abuse and rape are wrong. Neither do you need a social-media movement to have the guts to stand up to any guy who crosses the line. I’m sick of women feeling that they have to caveat every political criticism of this victim culture with the line: ‘Of course I believe that rape and sexual assault is bad, but…’

#MeToo is a craven attack on women’s liberation, spurred on by middle-class journos, fame-hungry politicians and virtue-signalling celebrities. Normal, working-class women don’t get a look-in. We’re the wrong kind of women, you see, because we refuse to be patronised by such fainting-couch nonsense – and because most of us will know that being a ‘survivor’ takes more than having your knee touched.

I want to live in a world where women feel empowered to take life by the balls. So no, I won’t join in the #MeToo choir. This patronising, illiberal assault on sexual freedom is #NotMe.

Ella is assistant editor at spiked and author of What Women Want: Fun, Freedom, and an End to Feminism 

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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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