Freedom of Speech and the Long War for Constitutional Governance

Freedom of speech is at the heart of the war between the friends and enemies of liberty. The Constitution’s guarantee of freedom of speech is misunderstood. The social order that underlies liberty has been undermined by the Supreme Court’s free-speech absolutism. At the same time, the kind of speech that should be protected by the First Amendment is increasingly suppressed by the enemies of liberty, who will find succor in Justice Kennedy’s ruling in Obergefell v. Hodges.

The restoration of freedom of speech, properly understood, will take a long time and determined action by conservatives. It will require a counter-revolution against the insidious, decades-long spread of leftist doctrines by “educators” and the media.

THE SLIPPERY SLOPE AWAY FROM REASONED DISSENT

Bill Vallicella (Maverick Philosopher) characteristically asks a tough question, and answers it:

Ought flag burning come under the rubric of protected speech?  Logically prior question: Is it speech at all?  What if I make some such rude gesture in your face as ‘giving you the finger.’  Is that speech?  If it is, I would like to know what proposition it expresses.  ‘Fuck you!’ does not express a proposition.  Likewise for the corresponding gesture with the middle finger.  And if some punk burns a flag, I would like to know what proposition the punk is expressing.
The Founders were interested in protecting reasoned dissent, but the typical act of flag burning by the typical leftist punk does not rise to that level.  To have reasoned or even unreasoned dissent there has to be some proposition that one is dissenting from and some counter-proposition that one is advancing, and one’s performance has to make more or less clear what those propositions are.  I think one ought to be skeptical of arguments that try to subsume gestures and physical actions under speech.

The only reasonable objection to Vallicella’s position is that a government which can outlaw flag-burning or finger-flipping can outlaw any form of expression. The objection is a slippery-slope argument: allow X (suppression of certain forms of expression) and Y (suppression of any kind of expression, at the whim of government) is sure to follow.

What has happened, in fact, is the opposite: Forms of expression (i.e., speech and symbolic acts) that had been outlawed have been made legal by the U.S. Supreme Court. Examples are the showing of films that the authorities of a State considered obscene, the utterance or publication of statements advocating the overthrow of government, and flag-burning. The Court has developed something like an absolute position regarding freedom of speech — or, more accurately, freedom of expression.

For example, only where advocacy of and organization for an overthrow of government is deemed to be a “clear and present danger” can such advocacy or organization be curbed. Which is somewhat like waiting to shoot at an enemy armed with a long-range rifle until you are able to see the whites of his eyes. Or, perhaps more aptly in the 21st century, waiting until a terrorist strikes before acting against him. Which is too late, of course, and impossible in the usual case of suicide-cum-terror.

And therein lies the dangerous folly of free-speech absolutism. A general and compelling case against the current reign of absolutism is made by David Lowenthal in No Liberty for License: The Forgotten Logic of the First Amendment. Lowenthal’s case is summarized in Edward J. Erler’s review of the book (“The First Amendment and the Theology of Republican Government,” Interpretation, Spring 2000):

The thesis of David Lowenthal’s [book] is as bold as it is simple: “the First Amendment, intended as a bulwark of the republic, has become a prime agent of its destruction” (p. xiv). Lowenthal rightly argues that the First Amendment was adopted for a political purpose; it sought to protect only those liberties necessary for the preservation of republican government. Today, however, the focus of the First Amendment is on “individual rights” rather than the common good, at it is this “over-expansion of individual liberty” that Lowenthal believes has led to the vast decline of the “moral and political health of the republic,” a decline that undermines the very foundations of liberty itself. Indeed, the Supreme Court has “made individual freedom its god — at the expense of the moral, social, and political needs of ordered society” (p. xiv).

Lowenthal argues that this corruption in First Amendment jurisprudence was caused by the deliberate departure from the intentions of its framers: “the great impetus for movement in the direction of extreme liberty came not from within the system but from new philosophies and theories, mostly imported from abroad…. The main culprit here, according to Lowenthal, is John Stuart Mill who, in the hands of Justices Holmes and Brandeis, became the intellectual guide for a “second, hidden founding” (pp. 54, 45, 248, 250, 253, 267, 273). It was Mill who “supplied a new theoretical foundation for liberty, calling for its vast expansion in the name of freedom of thought,” and by the middle of the twentieth century, those forces set in motion by modernity, “relativism and subjectivism,” had become the dominant mode of thought informing constitutional interpretation (p. 267). Mill and his epigones replaced the founders as the source for understanding the Constitution.

The efforts of Holmes and Brandeis, of course, were part of the larger Progressive movement. The explicit goal of Progressivism was to free the Constitution from its moorings of the founding, most particularly from the “static” doctrines of the Declaration of Independence and its reliance on the permanent truths of the “laws of nature and nature’s God.” Progressivism itself was only one strain of modernity, but it shared with the other strains the depreciation of both reason and revelation as sources of moral and political authority. Progressivism was phenomenally successful in it debunking of the founding and its reformist zeal appealed wholly to the passions. It sought to liberate the passions from the constraints of morality, whereas the founders appealed to the “reason … of the public” (The Federalist, No. 49 [Rossiter, ed.] p. 317) as the foundation of moral and political order. The appeal to reason will always be more difficult than the appeal to passion, especially when the appeal to passion has itself assumed a kind of “moral” authority. It should not be surprising therefore that the success of the “Holmes-Brandeis school of jurisprudence,” in Lowenthal’s estimation, “is wholly out of keeping with its intrinsic merits” (p. 61).

Progressivism was a wholly alien doctrine; it derived not from any thought of the founding, but from Continental thought, principally of Hegel. The result was moral relativism verging on nihilism. But Lowenthal rightly questions “whether any alien doctrines, any doctrines other than those of the founders and framers, written into the language of the Constitution, should be so employed” (p. 54). Lowenthal supports original intent jurisprudence because the ideas of the framers and founders “remain constitutionally, politically, and morally superior to those that have displaced them” (p. xxii). Lowenthal does not minimize the difficulty of restoring the founding to its rightful place; he believe the republic is in grave danger and the danger is more than abundantly evident in the current understanding of the First Amendment. Lowenthal’s account is not that of a mere intellectual; it is written with a verve, moral passion, and deep understanding that is almost unknown among intellectuals.

The First Amendment, in the hands of the Supreme Court, has become inimical to the civil and state institutions that enable liberty. The Court has been so busy protecting the right of the media to subvert the national defense, that it hasn’t spared the time to extend its free-speech absolutism by striking down speech codes at taxpayer-funded universities. That’s perverse because, among many things, speech codes are intended to suppress the very kind of political dissent that the First Amendment was meant to protect. It isn’t protected because it’s conservative dissent from “liberal” orthodoxy.

ENTER THE AMORPHOUS HARM PRINCIPLE

One aspect of that orthodoxy, which Lowenthal addresses, is John Stuart Mill’s harm principle:

[T]he sole end for which mankind are warranted, individually or collectively in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. [John Stuart Mill, On Liberty (1869), Chapter I, paragraph 9.]

This is empty rhetoric. Theodore Dalrymple exposes its emptiness in “The Simple Truth about J.S. Mill’s Simple Truth” (Library of Law and Liberty, July 20, 2015). Dalrymple writes about the legalization of drugs, but his indictment of the harm principle is general:

I can do as I please, and take what I like, so long as I harm no others.

One can easily sympathize with this attempt to delimit the relations between the individual and the state or other powerful authorities. Every government today is in practice vastly more oppressive than that of George III in the American colonies. Which of us does not feel an increasing weight on him of regulation, prohibition, and compulsion from on high—most of it nowadays supposedly for our own good—to help us lead a better or a longer life whether we want it or not? How are we to hold back the flood of official intrusion into our lives without a principle to distinguish legitimate from illegitimate intrusion?…

The objections to the Millian premise of the call to drug legalization are well-known. Man is a social as well as a political animal, and except for the very few who live in genuine isolation, almost all that we do affects someone else….

We may, indeed we ought to, have a bias or presumption in favor of individual liberty, and we should also have a lively appreciation of the fact that interference with liberty to prevent harm to others may actually cause more harm than it prevents. Moreover, because liberty is a good in itself, loss of liberty is a harm in itself, always to be taken into account.

None of this means that there is a very clear principle that can lay down in advance the limits of liberty, such as Mill wants (and the would-be legalizers of drugs rely upon)….

The libertarian position with regard to drugs would be more convincing if the costs of the choices of those who took them could be brought home to them alone. We know that, in practice, they are shared….

In short, there is no “very simple principle” of the kind that Mill enunciated, with an eloquence that disguised a certain hollowness, that establishes as inherently wrong the forbidding of citizens to take whatever drugs they like. By the same token, there is no very simple principle that will determine which drugs should be permitted and which banned.

If it is right to begin permitting the consumption of a heretofore banned drug, it must, therefore, be on other grounds than that “the sole end for which mankind are warranted individually or collectively in interfering with the liberty of action of any of their number is self-protection.” As Einstein said, a theory should be as simple as possible, but not simpler than possible.

(See also: “Toleration Extremism: Notes on John Stuart Mill“, Maverick Philosopher, January 14, 2015.)

THE SUBVERSION OF SOCIAL NORMS IS THE SUBVERSION OF LIBERTY

Harm must be defined. And its definition must arise from voluntarily evolved social norms. Such norms evince and sustain the mutual trust, respect, forbearance, and voluntary aid that — taken together — foster willing, peaceful coexistence and beneficially cooperative behavior. And what is liberty but willing, peaceful coexistence and beneficially cooperative behavior?

Behavior is shaped by social norms. Those norms once were rooted in the Ten Commandments and time-tested codes of behavior. They weren’t nullified willy-nilly in accordance with the wishes of “activists,” as amplified through the megaphone of the mass media, and made law by the Supreme Court. What were those norms? Here are some of the most important ones:

Marriage is a union of one man and one woman. Nothing else is marriage, despite legislative, executive, and judicial decrees that substitute brute force for the wisdom of the ages.

Marriage comes before children. This is not because people are pure at heart, but because it is the responsible way to start life together and to ensure that one’s children enjoy a stable, nurturing home life.

Marriage is until “death do us part.” Divorce is a recourse of last resort, not an easy way out of marital and familial responsibilities or the first recourse when one spouse disappoints or angers the other.

Children are disciplined — sometimes spanked — when they do wrong. They aren’t given long, boring, incomprehensible lectures about why they’re doing wrong. Why not? Because they usually know they’re doing wrong and are just trying to see what they can get away with.

Drugs are taken for the treatment of actual illnesses, not for recreational purposes.

Income is earned, not “distributed.” Persons who earn a lot of money are to be respected. If you envy them to the point of wanting to take their money, you’re a pinko-commie-socialist (no joke).

People should work, save, and pay for their own housing. The prospect of owning one’s own home, by dint of one’s own labor, is an incentive to work hard and to advance oneself through the acquisition of marketable skills.

Welfare is a gift that one accepts as a last resort, it is not a right or an entitlement, and it is not bestowed on persons with convenient disabilities.

Sexism (though it isn’t called that) is nothing more than the understanding — shared by men and women — that women are members of a different sex (the only different one); are usually weaker than men; are endowed with different brain chemistry and physical skills than men (still a fact); and enjoy discreet admiration (flirting) if they’re passably good-looking, or better. Women who reject those propositions — and who try to enforce modes of behavior that assume differently — are embittered and twisted.

A mother who devotes time and effort to the making of a good home and the proper rearing of her children is a pillar of civilized society. Her life is to be celebrated, not condemned as “a waste.”

Homosexuality is a rare, aberrant kind of behavior. (And that was before AIDS proved it to be aberrant.) It’s certainly not a “lifestyle” to be celebrated and shoved down the throats of all who object to it.

Privacy is a constrained right. It doesn’t trump moral obligations, among which are the obligations to refrain from spreading a deadly disease and to preserve innocent life.

Addiction isn’t a disease; it’s a surmountable failing.

Justice is for victims. Victims are persons to whom actual harm has been done by way of fraud, theft, bodily harm, murder, and suchlike. A person with a serious disease or handicap isn’t a victim, nor is a person with a drinking or drug problem.

Justice is a dish best served hot, so that would-be criminals can connect the dots between crime and punishment. Swift and sure punishment is the best deterrent of crime. Capital punishment is the ultimate deterrent because an executed killer can’t kill again.

Peace is the result of preparedness for war; lack of preparedness invites war.

The list isn’t exhaustive, but it’s certainly representative. The themes are few and simple: respect others, respect tradition, restrict government to the defense of society from predators foreign and domestic. The result is liberty: A regime of mutually beneficial coexistence based on mutual trust and respect. That’s all it takes — not big government bent on dictating new norms just because it can.

But by pecking away at social norms that underlie mutual trust and respect, “liberals” have sundered the fabric of civilization. There is among Americans the greatest degree of mutual enmity (dressed up as political polarization) since the Civil War.

The mutual enmity isn’t just political. It’s also racial, and it shows up as crime. Heather Mac Donald says “Yes, the Ferguson Effect Is Real,” and Paul Mirengoff shows that “Violent Crime Jumped in 2015.” I got to the root of the problem in “Crime Revisited,” to which I’ve added “Amen to That” and “Double Amen.” What is the root of the problem? A certain, violence-prone racial minority, of course, and also under-incarceration (see “Crime Revisited”).

The Ferguson Effect is a good example of where the slippery slope of free-speech absolutism leads. More examples are found in the violent protests in the wake of Donald Trump’s electoral victory. The right “peaceably to assemble, and to petition the Government for a redress of grievances” has become the right to assemble a mob, disrupt the lives of others, destroy the property of others, injure and kill others, and (usually) suffer no consequences for doing so — if you are a leftist or a member of one of the groups patronized by the left, that is.

THE REVERSE SLIPPERY-SLOPE

But that’s not the end of it. There’s a reverse slippery-slope effect when it comes to ideas opposed by the left. There are, for example, speech codes at government-run universities; hate-crime laws, which effectively punish speech that offends a patronized group; and penalties in some States for opposing same-sex “marriage” (a recent example is documented here).

Justice Kennedy’s egregious majority opinion in Obergefell v.Hodges lays the groundwork for more suppression. This is from Chief Justice Roberts’s dissent (references omitted):

Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for religious practice. The majority’s decision imposing same-sex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. The First Amendment guarantees, however, the freedom to “exercise” religion.Ominously, that is not a word the majority uses.

Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.

Perhaps the most discouraging aspect of today’s decision is the extent to which the majority feels compelled to sully those on the other side of the debate. The majority offers a cursory assurance that it does not intend to disparage people who, as a matter of conscience, cannot accept same-sex marriage. That disclaimer is hard to square with the very next sentence, in which the majority explains that “the necessary consequence” of laws codifying the traditional definition of marriage is to “demea[n]or stigmatiz[e]” same-sex couples. The majority reiterates such characterizations over and over. By the majority’s account, Americans who did nothing more than follow the understanding of marriage that has existed for our entire history—in particular, the tens of millions of people who voted to reaffirm their States’ enduring definition of marriage—have acted to “lock . . . out,” “disparage,”“disrespect and subordinate,” and inflict “[d]ignitary wounds” upon their gay and lesbian neighbors. These apparent assaults on the character of fairminded people will have an effect, in society and in court. Moreover, they are entirely gratuitous. It is one thing for the majority to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share the majority’s “better informed understanding” as bigoted.

Justice Alito, in his dissent, foresees that the majority opinion

will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion,the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.

Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected. We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.

I expect Roberts and Alito to be proved right unless the election of Donald Trump soon results in a conservative majority on the Court, that is, the replacement of Kennedy or one of his allies in Obergefell v. Hodges.

In sum, there is no longer such a thing as the kind of freedom of speech intended by the Framers of the Constitution. There is on the one hand license for “speech” that subverts and flouts civilizing social norms — the norms that underlie liberty. There is on the other hand a growing tendency to suppress speech that supports civilizing social norms.

A WAR BY ANY OTHER NAME

What I have just described is a key component of the left’s continuing and relentless effort to reshape the world to its liking. Leftists don’t care about the licentious consequences of free-speech absolutism because they’re insulated from those consequences (or so they believe). Their motto should be “I’m all right, Jack.”

But leftists do care about making government big and all-powerful, so that it can enact the programs and policies they favor. To that end, leftists seek to suppress political dissent and to subvert voluntary cooperative behavior, which is found not only in evolved social norms but also in free markets. The people must be brought to heel at the command of big brother, who knows best.

It is war, in other words, and more than a culture war. It’s a war between the enemies of liberty and those who want liberty, not license. The problem is that too many of those who want liberty don’t know that there is a war. For one thing, those who want liberty aren’t necessarily self-described libertarians; rather, they’re traditional conservatives (Burkean libertarians) who, by nature, are attuned to beneficial cooperation, not ideological conflict. For another thing, many of those who want liberty have been brainwashed into believing that leftists also want liberty but are misguided about how to attain it.

It may be too late to pull victory from the jaws of defeat. But while there is still freedom to challenge the enemies of liberty there is still hope for the restoration of constitutional governance.

I would return to first principles. The United States was reconstituted in 1788 when the Constitution was ratified. As stated in the preamble to the Constitution, one of the purposes for reconstituting the nation was to “secure the Blessings of Liberty to ourselves and our Posterity.”

Why, then, should the government of the United States tolerate the promulgation of anti-libertarian views? It is evident that in practice the free-speech slippery slope really leads away from liberty not toward it. I’m referring not just to riotous, licentious behavior that flouts civilizing norms and undermines them. I’m also referring to something much deeper and more subversive than that: the toleration of speech that has turned the Constitution on its head by converting the central government from a miserly, non-interfering night watchman to a partisan, micro-managing nanny with deep pockets into which almost everyone is allowed to dip.

This means, at a minimum, and end to free-speech absolutism, which has become a license for two-percent tyranny and the destruction of civilizing social norms. It also means taking a hard line with respect to advocates of big, intrusive government. It will be a cold day in hell before there is a president and a Congress and a Supreme Court who consistently and concertedly take a hard line — and carry it into action. Donald Trump is preferable to Hillary Clinton, but he is a far cry from Ronald Reagan, let alone Calvin Coolidge (my favorite president). The Republican majorities in Congress are infested with special pleaders who will log-roll until the cows come home. The Supreme Court will continue to be the Kennedy Court until Trump is able to replace Kennedy or one of the leftists with whom he allies increasingly often — assuming that Trump will stay true to his word about the conservative character of his nominees.

In sum, there’s no prospect of quick or certain victory in the war to restore constitutional governance to Washington and liberty to the land.

THE LONG WAR AHEAD

Conservatives must be prepared for and committed to a long war, with the aim of changing the character of the institutions that — in addition to family — hold the most sway over the minds of future leaders and the voters who will select those leaders: public schools, universities, and the media.

The long war will be a war to transform fundamentally the prevailing ethos of a nation that has sunk gradually into decadence and despotism. (Barack Obama’s “fundamental transformation” was nothing more than the proverbial frosting on the proverbial cake.) How does one even begin to wage such a war?

I would begin by following a key maxim of war-fighting: concentration of force. Roll up one enemy unit at a time instead of attacking on a broad front. As each enemy unit falls, the rest become relatively weaker by having fewer friendly units to call on for support.

Imagine, for example, a conservative takeover of several major universities,* which might be abetted by a concentrated campaign by conservative trustees with the support of friendly forces within the universities, and a few sympathetic media outlets, all backed by a loud and sustained chorus of supportive reporting, commentary, and outright propaganda emanating from the blogosphere. University administrators, as we have seen, are especially sensitive to changes in the prevailing direction of opinion, especially if that opinion is fomented within universities. Thus, if one major university were to move sharply in a conservative direction, it would take less effort to move a second one, even less effort to move a third one, and so on.

With universities falling into line, it would be a fairly simple task to remake the face of public education. It is universities, after all, which are mainly responsible for the left-wing indoctrination that most public-school teachers and administrators have been spreading throughout most of the land for many decades. It wouldn’t take a generation for the new, conservative disposition to spread. It would spread almost like wildfire for the same reasons that it would spread rapidly among universities: the desire to be “on the right side of history,” no matter what side it is. It would become more or less permanent, however, as new waves of students leave the universities that have converted to conservatism and begin to spread its gospel in public schools.

The conversion of the media would proceed in parallel with the conversion of public schools. It would be a self-inflicted conversion, born of the desire to please an audience that is becoming more and more conservative. The act of pleasing that audience would, in turn, result in the dissemination of stories with a conservative slant, which would help to speed the conversion of the as-yet unconverted members of the audience.

As for how to arrange a conservative takeover of a major university, I would begin with those few that have shown themselves ripe for conversion. Perhaps it’s one of the 27 universities that is a rated a “green-light institution” by the Foundation for Individual Rights in Education (FIRE). The University of Chicago is a recent and prominent addition to that list.

Wherever the campaign begins, it should begin with a university whose trustees, sources of income, faculty, and current ideological balance make it ready to be pushed into the ranks of conservative institutions. Perhaps it would be a matter of electing a few more conservative trustees, with the help of a major donation from a conservative source. Perhaps a key department could be moved to the conservative side of the ledger by the hiring of a few faculty members. Perhaps the university needs only a slight push to become a leader in the refutation of speech codes, “safe spaces,” “trigger warnings,” and in the open embrace of conservative speakers and movements.

The devil is in the details, and I’m not conversant enough with the state of any university to suggest how or where to begin the campaign. But begin it must — and soon, before it’s too late to reverse the incoming tide of leftist regimentation of all aspects of our lives.
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* A takeover is better than a startup. A takeover not only means that there’s one less “enemy” to fight, but it also means that some “enemy” forces have been converted to friendly ones, which sets a precedent for more takeovers. Fox News Channel is a case in point. Its creation didn’t reduce the number of left-wing outlets. And the growth of FNC’s market share at the expense of left-wing outlets (mainly CNN) merely tapped into a ready market for a somewhat conservative outlet; it didn’t create that market. Further, FNC isn’t “serious” in the way that a university is, and so its slant is more easily dismissed as propaganda than would be the emanations from a major university.