“Weaponizing” Essential Freedoms

I’ve now come across this posted on friends’ Facebook feeds multiple times now:

Karl Popper wrote of the tolerance paradox in 1945, in the wake of the rise and fall of Nazi Germany. Popper had just witnessed what a truly intolerant regime’s rise to power would look like, and therefore his musings in this arena need to be understood in that context.

Alas, those now spreading this meme on Facebook don’t have Nazi Germany on the mind when posting this. Well, in a sense they do, because to them everything is Nazi Germany. Unfortunately, as applied to the United States in 2018, those spreading the meme are closer in attitude to European fascists than the people they are supposedly fighting against.

The question raised by this approach is this: who gets to define intolerance? A neo-Nazi shouting about Jews and racial minorities is an obvious and easy target. Unfortunately, as has been seen time and time again across college campuses and other walks of life, almost any right-wing political opinion is deemed to reek of intolerance. Shutting down the dweeb holding a tiki torch in one hand (and usually a donut in the other) and shouting “White Power!” might be morally righteous, but when your same intolerance for intolerance causes you to shut down a pro-life speaker, then you need to fine-tune your moral senses.

In reality, memes like this, at least as applied in today’s political climate, are nothing more than excuses for self-righteous hypocrisy. Progressives grant themselves indulgences for violating long-established norms regarding free speech because, they tell themselves, they’re just refusing to grant a space for the intolerant. In reality, they’re just trying to shut down expression from people with different points of view.

This growing intolerance of free speech is a worrying trend. No, it is not confined to just the left, though I think it’s a greater problem on the left. Increasing numbers of college students and younger millennials are comfortable with the idea of placing asterisks next to the first amendment.

For years second amendment advocates mocked second amendment restrictionists for using this line of argument: “The Founding Fathers never envisioned the type of weaponry available today when they wrote the second amendment, therefore modern weaponry is not afforded constitutional protection.” The retort to this argument is that the Founders also didn’t envision the internet, smart phones, and other technologies giving megaphones to general citizens, so should those be curtailed under the first amendment as well? Sadly, the answer seems to be “Maybe, depending on who is wielding those technologies.”

The end of term decisions rendered by the Supreme Court, many relying on the First Amendment, have led to the charge that conservatives are “weaponizing” the First Amendment. This from the people who have abused, twisted, and distorted the commerce clause and the Fourteenth Amendment for generations, and who credulously accept legal jujitsu about penumbras and emanations. Now the Court has decided that First Amendment protections govern more than musty political pamphlets, and suddenly the Court has gone too far.

This New York Times opinion piece masquerading as a news article is emblematic of the trend. There’s a lot to suffer through if you decide to read the whole thing, but this cuts to the core of the issue:

Some liberals now say that free speech disproportionately protects the powerful and the status quo.

“When I was younger, I had more of the standard liberal view of civil liberties,” said Louis Michael Seidman, a law professor at Georgetown. “And I’ve gradually changed my mind about it. What I have come to see is that it’s a mistake to think of free speech as an effective means to accomplish a more just society.”

To the contrary, free speech reinforces and amplifies injustice, Catharine A. MacKinnon, a law professor at the University of Michigan, wrote in “The Free Speech Century,” a collection of essays to be published this year.

“Once a defense of the powerless, the First Amendment over the last hundred years has mainly become a weapon of the powerful,” she wrote. “Legally, what was, toward the beginning of the 20th century, a shield for radicals, artists and activists, socialists and pacifists, the excluded and the dispossessed, has become a sword for authoritarians, racists and misogynists, Nazis and Klansmen, pornographers and corporations buying elections.”

Let’s leave aside the naked stupidity of the last part of the final sentence, and interpret what this means: free speech is good until its wielded by people we don’t like the “powerful,” but then it’s problematic.

Funny, I have read almost every major piece of writing penned by Thomas Jefferson, Alexander Hamilton, and James Madison (and quite a bit more by their contemporaries), men who otherwise disagreed on much, and I don’t recall a single caveat about free speech rights being only for the less powerful. Oh, but I guess they were powerful white men, so their opinions should count for less.

What none of these supposed legal scholars seems to grasp is that the Court’s supposed turn on free speech is less of an ideological turn than a response to increasing encroachments on free speech rights. As governments increasingly attempt to dictate the terms of when and where free speech claims can be made, the Court is being thrown in the middle of more First Amendment battles. Fortunately we have a majority of justices who understand the First Amendment applies to wider applications than the printing press.

Look past Kagan’s hypocritical platitude about “black-robed rulers overriding citizens’ choices” – one imagines she won’t take such a stance if and when Roe comes up again before SCOTUS – and understand what’s happening. Progressives are re-examining the value of free speech because the counter-culture is on the right. If freedom of speech is allowed to flourish, then anti-dogmatic (at least of the new dogma) viewpoints might get a fair hearing.

It is frankly disgusting to see the upholding of free speech rights get libeled as “fascism,” but we’ve evidently entered the upside down world where freedom=slavery and where genuine constitutional and (more importantly) natural rights can be categorized as weaponized when employed by the undesirables. Progressives should think long and hard about who they want to call “fascist” in this milieu, but one can be forgiven for thinking that progressives seem incapable of thinking long and hard about much of anything these days.