How far should free speech go?
Floyd Abrams is the country’s leading First Amendment lawyer. I bought his book, The Soul of the First Amendment, at the recent symposium on the post-truth culture (mainly for the opportunity to shake his hand).
The book’s introduction discusses my favorite painting: Norman Rockwell’s Freedom of Speech (in his “Four Freedoms” series). If not an artistic masterpiece, it’s a gem of conveying an idea that’s very dear to me. Abrams explains that it illustrates an actual event Rockwell witnessed, at a Vermont town meeting. The speaker was a lone dissenter against a popular proposal. He’s an ordinary working class Joe. A telling detail is the paper protruding from his pocket. It suggests he’s not talking through his hat, but has gathered some information — a point of particular resonance today. And even more so is the painting’s other key feature — the respectful listening by the man’s fellow citizens. For me this painting captures America — and civilization — at its best.
Freedom of speech in America is enshrined by the First Amendment — “Congress shall make no law . . . abridging the freedom of speech or of the press . . . .” (The Fourteenth Amendment made it applicable against state governments too.) A key point of the book is how unique this actually is, not only in history, but in today’s world. In fact, no other country so exalts the inviolability of free speech. All others subject it to varying restrictions. And mostly they involve what are basically political concerns — the very sphere wherein freedom of expression is actually the most consequential.
People have been jailed in Europe for the crime of Holocaust denial. That is, advocating a certain interpretation of history. Europe also has many laws against “hate speech,” quite broadly (if vaguely) defined. Abrams cites a Belgian member of parliament prosecuted for distributing leaflets calling for a “Belgians and European First” policy, sending asylum seekers home, and opposing “Islamification.” 
His sentence included a ten year disqualification from holding office. It was upheld by the European Court of Human Rights! And such a case is not unusual in Europe. Actress Brigitte Bardot was fined 15,000 Euros for writing a letter objecting to how French Muslims ritually slaughter sheep.
America is a free speech paradise in comparison not only to such other places, but to our own past. The First Amendment actually played almost no role in our law and culture until around the mid-20th century. Abrams cites a 1907 Colorado episode. A lame-duck governor, defeated for re-election, exploited a newly passed law to pack the state supreme court with judges who thereupon ruled that he’d actually won the election. A newspaper published an editorial criticizing this ruling. The Colorado court held the editor in contempt. And that was upheld by the U.S. Supreme Court, in an opinion written by the famed Oliver Wendell Holmes.
The idea underlying all these cases is that rights are never absolute, being always subject to a balancing against the public interest. 
I myself have written that the Second Amendment’s “right to keep and bear arms” does not mean you can possess howitzers or nuclear weapons. And freedom of religion doesn’t cover human sacrifice. So it’s similarly argued that freedom of speech and press must be balanced against other public goods, and may sometimes be required to give way.
Abrams argues, however, that the First Amendment’s language, absolute on its face, reflects its authors having already performed such a balancing. The benefits to society, to the kind of polity they aspired to create, of unfettered freedom of expression were balanced against what public good might otherwise be promoted. And in that balancing, freedom of expression won out, being found the weightier. It’s more important to have a society with such freedom than, for example, one where religious sensibilities are protected from insult — or where judges are shielded from editorial criticism. That’s why we have the First Amendment, and why it actually does not permit the kind of balancing underlying that 1907 Colorado case. Justice Holmes himself came to repent his decision there, dissenting in similar future cases, and eventually the Court overturned its Colorado ruling.*
As Abrams stresses, the issues raised by the Belgian and Colorado cases go to the heart of the matter: free expression with regard to issues of public concern. This is crucial for meaningful democracy, which requires open debate and dissemination of information, with contesting advocates each subjecting the other’s views to critical scrutiny. Without that, voting itself is meaningless.
The exact same considerations were central to a case Abrams argued before the Supreme Court, which he discusses. He there contended that the government, because of the First Amendment, may not criminalize distribution of a film critical of a presidential candidate. (I quoted Abrams about it on this blog.) He won the case. And given our common understanding of free speech in America, that might seem a no-brainer.
The case was Citizens United, where the movie in question had corporate funding. Abrams is unrepentant and defends the Court’s decision, which has been ferociously assailed for affirming that businesses have the same rights to free speech and public advocacy that individual citizens have, and for allowing them to spend money in such endeavors. Abrams rejects the effort to make a distinction between money and speech, arguing that no right can be meaningful without the concomitant right to spend your money in its exercise. And he insists that businesses, being part of society, must have the right to participate in public debate.
Abrams cites here a case in which Nike was accused of corporate misdeeds and sought to rebut the charges with press releases and publications. For that, the company was sued in California state court under a consumer protection law barring false advertising and the like. The real issue was whether the First Amendment protects Nike’s freedom of speech. When the case went to the U.S. Supreme Court, the New York Times submitted a brief which Abrams quotes: “businesses and their representatives have just as much a right to speak out on any public issue as do interest groups and politicians . . . .” And because issues concerning businesses “are increasingly fundamental to the world’s social and political landscape, the withdrawal of corporate voices on those issues from the media would deprive the public of vital information.” Abrams deems the newspaper’s stance there starkly at odds with the position it later took on Citizens United, where the issue was really the same. Issue advocacy, and backing candidates for office, stand on identical ground as far as the First Amendment is concerned.
For me personally, all this is not abstract, but essential to my being. Abrams discusses the landmark case of Times v. Sullivan, which particularly protects criticism of public officials. That saved my butt in 1973 when I was sued for millions by guys whose misconduct I mentioned in a book on local politics. I love the freedom to express myself like that, and in this blog. 
I’ve been called fearless but the fact is, in America, there’s nothing to fear. In most other places blogging like mine requires a courage I probably don’t have. People literally risk their lives, and some have been killed.
Abrams notes Europe’s “right to be forgotten,” with search engines being required to erase true information about people when requested, such as reports on criminal convictions. I blogged about this in 2009 (again quoting Abrams), when two convicted German murderers, Wolfgang Werle and Manfred Lauber, sued to erase their names from Wikipedia. In defiance of that affront to freedom of information, I made a point of putting their names in my blog post, and do so again here. God bless America and the First Amendment!
* Yet even this right isn’t actually absolute. The First Amendment doesn’t protect libel or slander, child pornography, or shouting “fire!” in a crowded theater (as the same Justice Holmes famously explained).
We have loosened up tremendously in matters sexual. Just letting people pick their own partners was a huge liberalization. Now we can not only pick them, but divorce them. They can be the same sex. We can even have sex, and children, without marriage. Today, it seems, anything goes.
I read an article recently about sex/marriage counselor Esther Perel whose book, Mating in Captivity, argues that it’s unreasonable to insist on 100% fidelity in a couple. That demands, she says, a standard of human perfection which people aren’t generally capable of. Perel doesn’t think marriages should break up over a little thing like adultery.
The female gives the male that pledge so he’ll stick around and help raise the kids. He wouldn’t necessarily make that investment without some confidence the kids really are his. And the woman doesn’t want his energies diverted to some other gal’s brats. All this is straightforward “selfish gene” biology — behavior manipulated by a set of genes to promote that set’s replication into the next generation (because children raised by two devoted parents are likelier to survive and reproduce themselves). This is why sexual jealousy is so powerful — it’s part of this system to maximize gene replication.
Confirmation of one’s attractiveness to others is an ego boost. It may simply be nothing deeper than novelty, fun, exciting, enlivening. So is bungee jumping, and nobody thinks bungee jumping violates a marriage bond.
But perhaps I come by that olympian perspective from a standpoint wherein the temptation doesn’t figure. Women have never thrown themselves at me. It was hard enough trying to seduce them while single that attempting it while married was never conceivable. (Likewise finding one as attractive as my wife.)
“I’ve looked at his record.” Every word in that sentence is a lie. Trump never looks at any records. He only looks at TV.
And “terrible on the border?” And “terrible on the military?” How, exactly? Trump doesn’t say. Because he can’t. There’s nothing there. He just flings out these slippery, slimy accusations. The loathsome creep spewed exactly the same pus at Arizona Senator Jeff Flake. (And he’s never retracted his idiotic lie that President Obama wiretapped him.)
I may sound like a broken record, but this is so important that every fresh travesty compels my bearing witness. This — like a computer program that’s corrupted and scrambles information — corrupts the public discourse and debate vital to democracy. They fundamentally depend upon a concept of what a fact is. Upon words themselves having meaning. In Trump’s mouth they do not; the concept of “fact” has no meaning.
There’s a lot of flag waving these days. Often with no clue what it really means.
And human dignity was foremost in Khizr Khan’s mind at that sublime moment when, finally, he stepped into a court room and took the oath as an American citizen.
What Khizr Khan also considers central to America is human caring. Such ideals were instilled in his son, Humayun; Khan told of Humayun’s standing up for a bullying victim in grade school; assuring safety for female college classmates; and finally sacrificing his life in Iraq to protect fellow soldiers.
Instead, Trump badmouthed Khan and his family.
“Where there’s smoke, there’s fire.” How much Roy Moore smoke must choke Alabama before it sets off a fire alarm?
And now Al Franken. In case you haven’t seen it, here’s the photo. It’s obvious he thought he was just being funny (he was a professional comic); not taking sexual advantage, but mocking that. It was stupid and juvenile, but that’s all it was. (There was also a kiss — while rehearsing a script that included a kiss.) Franken has acknowledged behaving badly, and has apologized.
Really bad? Did Trump forget this little bagatelle: “I moved on her like a bitch. I couldn’t get there and she was married. Then all-of-a-sudden I see her, she’s now got the big phony tits and everything . . . I just start kissing them. It’s like a magnet. Just kiss. I don’t even wait. And when you’re a star they let you do it. You can do anything . . . grab them by the pussy.” 
“People in glass houses shouldn’t throw stones. The pot calling the kettle black.” Trump’s attacking Franken for sexual misbehavior shows, yet again, that he suffers from a severe psychological defect. Self-perception divorced from reality.
Asked about it, White House Press Secretary Sarah Huckabee Sanders made this remarkable statement: “Senator Franken has admitted wrongdoing and the President hasn’t. I think that’s a very clear distinction.”
Gerson is a Republican horrified by his own party’s dive to the dark side. He sees strong national majorities likewise repelled by Trump. And yet he notes a recent poll showing that a re-run of the last election would produce a tie. That the Democrats cannot clobber even so reviled a creature as Trump tells Gerson that the party is in “profound crisis.”
And if we are really stuck between Republican ethno-nationalism and Democrats’ identity-socialism, we are a nation in decline, likely to forfeit global leadership, which would undermine the whole world’s outlook.
This, and other careful analyses, reveal that actually Trump voting correlated most with cultural rather than economic preoccupations. The ugly reality is that Trump won by running against Mexicans, Muslims, and blacks. Hence, says Lexington, to win Democrats must show that they are at least in touch with those voters’ cultural anxieties. However, he thinks this will be a heavy lift because simultaneously Democrats must call out Trumpian bigotry; and economic arguments are doomed to lose to cultural ones.
The Democrat brand was made toxic to part of America by Obama, seen as culturally an alien interloper, not only (though mainly) because of his color, but also by his intellectually elitist manner and aggravated by his seeming, in some important ways, weak. Hillary Clinton was no antidote; embodying a discredited establishment; misogyny did play a role; and her ethical challenges, though nowhere near as bad as Trump’s, enabled him to demonize her preposterously. It was said during the campaign that she was the only Democrat Trump could beat*, so it’s not too surprising that even today she’d still only get a tie.
Not another party of shouting extremists — as many of its left-wing socialist Bernie-loving Torquemadas would make it. (To oppose them is why I switched my enrollment to Democrat.) But Gerson, echoing Yeats, may be right that they can’t be stopped by more moderate voices: “The best lack all conviction, while the worst are full of passionate intensity.” And if we indeed have two parties each going off its own deep end, then America itself is sunk.
I also learned how the Arctic and Antarctic got their names. Skinner said Aristotle named them, based on the Greek word for “bear.” That surprised me; could Aristotle have been aware of the poles’ existence? And how could he have known about polar bears? But when I mentioned this to my (smarter) wife, she suggested the “bear” reference was to a constellation. I checked Wikipedia and while the Greek origin is correct, there was no mention of Aristotle. And of course my wife was right.
Skinner discussed a basic statistical concept: probability. He talked about it in connection with dice as an example. This reminded me of the Tom Stoppard play, Rosencrantz and Guildenstern Are Dead, and Guildenstern’s repeated coin flips. They come up heads every time. Not statistically impossible, but increasingly unlikely as the number of flips mounts. Stoppard is jesting with the laws of probability.
However, that guy, as if to flaunt his scientific rigor, explained his procedure: on each of his 600 tosses, he methodically started with the coin in the heads-up position, and then . . . well, enough said.
However, Skinner quoted Yogi Berra: “In theory, theory and practice are the same. In practice they are not.”
But don’t rush out to a casino to try to capitalize on the Weldon/Labby deviation. Labby concluded his paper by noting that casinos use dice without concave pips and more precisely engineered, to scotch any such bias.
And now it turns out that this Ten Commandments lover also loves molesting underage girls. The woman’s account of what he did when she was 14 and he was 32 is both disgusting and thoroughly credible. It has been corroborated by testimonies from several others about their encounters with Moore in their teens. Everyone who has actually looked at the evidence finds it highly persuasive.
State Auditor Jim Ziegler says what Moore did with that 14-year-old was actually okay because similar stories are found in the Bible, like that of Joseph and Mary. And I have said that religion warps the brain.
Another fantasy is guns protecting our liberties against the government. If the constitution and courts fail, will these gun-toting clowns do the trick? As if the Feds’ firepower wouldn’t obliterate them!
That corporate tax cuts will create jobs. That the Bible is the inerrant word of a benevolent god watching over us, good people go to Heaven, and bad ones to Hell. Some of these same people also believe whites are a superior race (and victims of discrimination); that confederate statues honor history, not racism; and millions vote illegally.
Fear plays a role, tending to warp rational thought. Oliver quotes his five-year-old son: “If there’s no monster in the closet, then why am I scared?” Clinging to guns for supposed safety is similar thinking.
Anderson cites, inter alia, Mormonism, Christian Science, Scientology, quack medicines, Esalen, and P. T. Barnum (“the first great commercial blurrer of truth and make-believe, the founder of infotainment”) as well as, of course, the long-running story of protestant fundamentalism. Today, magical thinking is pitched into yet higher gear by economic insecurity, racial resentment, demonization of immigrants, and the psychic discombobulation of social and cultural change. All this turned the GOP into “the Fantasy Party,” imagining they’ll “make America great again” with a creep who’s actually making America rancid.
People with a grip on reality no longer even have a place in the Republican party. Truth-telling Senators Corker and Flake concluded they could not win renomination. Party loyalty is now defined as believing the naked emperor is resplendently clothed. (
Yet what is insanity if not divorcement from reality? Religious faith may get a pass; but when the magical thinking extends to many additional realms, the compartmentalization concept breaks down, and the inmates have taken over the asylum.
The real question: why?
Republicans — supposedly the party of fiscal conservatism — originally were supposedly aiming for a revenue-neutral reform — that is, making up the cuts by getting revenue elsewhere, like capping 401Ks. But of course taking any benefit away from anyone is political poison. So predictably, they jettisoned any notion of paying for the cuts. The budget they passed recently (with virtually no debate) permits them (due to arcane rules) to now enact a tax cut costing a whopping $1.5 trillion, over 10 years, with only 50 Senate votes, rather than an impossible 60.
After decades of Democrats caricaturing Republicans as caring only for the rich, the GOP is now shamelessly proving it. When economic inequality has been a growing concern, to propose a tax bill that will significantly aggravate that inequality is disgraceful.
A tax cut might be stimulative if it put money in the pockets of Joe Sixpack who’ll spend it. But not when most goes to the rich who’ll just save it. And corporate hiring simply has nothing to do with how much tax they pay on profits.
But finally, for Republicans, the real reason behind all this is not economic policy. It’s more like religious belief. Tax cuts are a matter of faith, comparable to belief in God for Christians. Never mind economics, reality, or sanity.
The Rational Optimist 
