Still in Defense of Free Speech

In response to yesterday's post on the white supremacist rally in Sacramento and the resulting free speech implications, a reader of The Daily Face Palm offered a thorough critique. It is well-written and it is also reasonably fair to most of the arguments I made. Ultimately, however, I find myself unmoved for reasons that will soon become clear. I still think people's right to free speech should be protected, even when they say appalling things that I wish no one truly believed. And I still believe initiating violence against such people, whether done by individuals or the government, is not defensible.

The author of the critique is Gus Voss who keeps the This is Progress? blog. I'm sharing the critique with you so that you can make your own decision about the appropriate position on free speech.

In this piece, I won't respond to all the counterarguments offered, but several of the issues seemed worthy of comment. We'll proceed in the same order as the article.

Who Initiated Violence?
In his critique, Voss begins by taking issue with the evidence I used to assign fault to the counter-protesters for initiating violence (emphasis added):

Despite the narrative of chaotic interplay between the two opposing groups, the piece concludes that the anti-fascists initiated the violence because one organizer said she supported a militant direct action against the fascists and because one of the organizations who organized the counter protest is called "By Any Means Necessary"—which is clearly a reference to Malcolm X, who thought that violence was an appropriate means of self-defense. Militant direct action is not, per se, violent. If it were, then the DFP piece contradicts itself. Whenever white supremacists rally in public, wearing insignias of hate (and of militant white supremacists like the Nazis), it is a militant direct action. If it is the case that a mere militant direct action means you are inciting violence, then the white supremacists initiated the violence by holding a public rally.

It's true, of course, that the word "militant" technically has multiple meanings, and not all of them necessitate violence. On this much, we agree. As the word is generally understood, however, violence is absolutely part of the connotation. This is why, for example, the Obama Administration regularly uses the term militant to describe any unknown military-age male who is assassinated in a US drone strike. The purpose of this phrase is obviously to imply the victim was a violent person who deserved what they got, not just an energetic protester. Like it or not, this is how the term militant is used today.

So if one describes their own group as militant, it stands to reason they know exactly how that is going to be interpreted. In this case, one of the counter-protesters volunteered that description for their action. It does not take any serious leap to get from there to assume that a militant protest intended to use violence.

Incidentally, however, all of this is slightly beside the point. Later on in Voss's piece, he offers his own summary of the sequence of events that took place in Sacramento as he understands them:

• Fascist white supremacists rallied on/near the state house steps.

• Antifascists surrounded the protesters and began shouting insults. The white supremacists responded in kind.

• Antifascists started chucking rocks, sticks, and bits of concrete at the white supremacists.

• The white supremacists fled, attacking antifascist protesters with knives and clubs on their way out.

• Police didn't do much to stop the confrontation.

Step three in that list is the initiation of force, and it was done by the counter-protesters (antifascists). So, definitions aside, we don't disagree on the sequence of events that took place. No one is contending that the counter-protesters started it--they did--all we're debating is whether they were justified in doing so.

Inherently Violent?
Next, Voss argues that white supremacist ideology advocates for genocide of non-white people. Thus, he argues it is inherently calling for violence.

On the first point, I don't think I'd disagree with him. Whether you would catch these people explicitly advocating for such things in public is another question. It's a likely implication of the leader's [Matthew Heimbach's] remarks as he envisions a world of ethnically segregated nation-states and appears to have nothing but contempt for every non-white group (and a few groups that include white people as well). But again, having not trolled through the group's internal writings, they don't appear to explicitly call for genocidal violence.

While this could seem like a minor point, it's actually somewhat significant. It means that the government now has to be charged with inferring what a group's true intentions are in order to make a determination of whether they are in fact inherently violent. Maybe in this case, that means they get it right and use it as a basis to deny speech.

But then what's to stop the government from using the same premise on Black Lives Matter next week? Obviously, no one could make a credible case that they advocate for genocide. But I'm sure we've all seen the loop footage that Fox News dredges up for every segment it does on BLM where some random protesters chant "F--- The Police" or something about dead cops. That certainly sounds like a call for violence. And it's against police!

Now, in reality, I know BLM is not a violent group. But if we assume that government is likely to abuse its power to crackdown on minority voices, the same basic rationale for suppression advanced above (the idea of inferring violent intentions) seems like it could be readily twisted against other groups with dissimilar ideologies. The criminal justice system already acts with extraordinary deference to police concerns as it is; if it had a plausible legal tool at its disposal to block groups like BLM, we should assume at least some judges would take advantage of the opportunity.

Within this section, Voss also suggests that I have misunderstood existing jurisprudence on the topic. I'm open to the possibility I have this wrong. I'm not a lawyer and frankly, I don't have time to research case law every time I write a new post. I also think it is inappropriate to take established Supreme Court rulings as a guidepost for how our laws ought to work, which is my primary interest; it merely tells us how they work right now.

With all that said, I actually think he's wrong about this. Here's what he said in full:

The very notion that a white supremacist organization can rally without "imminent calls for violence and destruction" defies First Amendment jurisprudence and simplifies when a public assembly is lawful. White supremacy, as a political ideology, advocates for the genocide of all non-white people. Every public display of white supremacy is a call for violence and destruction. Furthermore, the actual test for whether an assembly is protected under the First Amendment is more strict than calling for imminent violence; an intent by the members of the assembly to disturb the peace is all that is required to amount to unlawful assembly and losing First Amendment protection. And, if onlookers are reasonably fearful of the breakdown of the peace, the assembly loses its legal protections.

The problem is that there is a case that is directly related to the present incident, and it was decided squarely in favor of allowing Nazi-sympathizers the right to assemble. The facts in the case were actually far more extreme than the present ones--the group wanted to march wearing swastikas through a town with numerous Holocaust survivors. And even in that case, the Supreme Court ruled that they had a right to do so. You can read a useful write-up on that episode here. And I will post an update here if Voss explains how this case was superseded to permit restrictions later.

The Genocide Rule
Voss's proposed solution for the predicament is a rule whereby the government doesn't have to grant permits for rallies to groups that advocate genocide. Seems straightforward, but is it? Here's Voss:

An arbitrary decision is that which is based upon random choice or personal whim, rather than with regard to rules or a system. By arguing that the only way for a government to limit white supremacist protections under the First Amendment is to act arbitrarily. Hmm. Perhaps the State could find a rule that would exclude this protection: the government will not grant permits to organize to organizations advocating for genocide. That's sooooooooooo arbitrary, right?

Well, we still have to clear the hurdle that at least this group, doesn't appear to explicitly call for it.

But assuming we can resolve that, we also need to have a compelling definition of genocide. I'm not actually being flippant here. We live in a society where our politicians call for violence (bombing other countries) all the time. Frequently, we also hear people calling for loosening up the rules of engagement (so more fighters--and civilians--can be killed), and we've heard at least one rhetorical flourish hint at the possibility of using nuclear weapons in the Middle East. These actions wouldn't literally kill every Arab or Alawite or Muslim. But the ongoing War in Iraq is credited with causing the deaths of more than 1 million people, so we're not dealing with small numbers.

Presumably, our politicians would have the good sense not to brand the campaign as literally genocidal--I'm sure even a nuclear launch would be justified in the name of "stability". But when the war gets large enough, I submit the end result would look pretty much the same. As another consideration, the State of Israel oppresses Palestinians all the time, and regularly engages in disproportionate violence against them, killing many people. Yet it has many ardent supporters. Does Zionism or simply support for the Israeli government now constitute advocating genocide?

I suspect a reasonably clear definition for genocide could be found (and may exist already), and it would probably exempt the items I suggested above. But that's kind of the point. People, and especially politicians in the US advocate for an unimaginable amount of violence every day. They don't do so in those terms, of course, but it is the necessary implication of their policies. Is there a compelling way to pick and choose which types of advocacy for mass murder are the acceptable ones? I, for one, would be hard-pressed to answer that in the affirmative.

Existing Limits
Voss later makes the point that there are already existing limits on the First Amendment right now. This is an appropriate counter to a rhetorical flourish I offered in the original post. As a reminder, here's what I said before:

No matter what approach we try, the downsides of restricting the First Amendment are going to outweigh any benefits. The First Amendment exists to protect minority and unpopular viewpoints, some of which will have merit and some of which will not. But it has to be an all-or-nothing decision. If the government can pick and choose between which types of speech are allowed, then free speech might as well cease to exist.

And Voss's reply:

This argument is nonsensical. The First Amendment has plenty of limits. For instance, it would be illegal for me to publish a false statement about Eric Schuler if that statement could produce any damage to Eric. The government has decided that this type of speech—false statements resulting in damages—is not allowed. According to the DFP's maxim, there is therefore no freedom of speech. That's why there is no freedom of expression in Germany, Austria, Hungary, Canada, or Mexico—because hate speech is prohibited. Right? That's the argument being made here. If a business can't advertise falsely, then all freedom of speech is thrown out the window. A philosophy of platitudes is a philosophy worth abandoning.

In part, this is the problem with mixing discussion of what the laws are and what they ought to be. That was confusing before, and he's correct to note that. The US actually has the strongest speech protections I'm aware of, incidentally.

He's referring to libel laws in the first part, but to me, these are actually a good example of a restriction that can be abused. Trump has famously promised to open up libel laws so he can sue journalists he dislikes for example--which would obviously be harmful to free expression (technically, to free press rather than free speech, but it's the same basic idea).

However, Voss's thought experiment on hate speech is more directly relevant, and sets me up well for my argument. I don't have a ready example for the countries he listed, but France, which also has hate speech laws, offers a perfect illustration of how they can be used to suppress entirely legitimate political speech. In what I hope is the most egregious case, France recently arrested a woman for wearing a shirt that said "Boycott Israeli Apartheid" because it was inciting hatred. Whether you think Israel is effectively apartheid or not, there's no denying this is political speech. It's even explicitly advocating a peaceful method for redress, namely boycotting. And yet, thanks to hate speech laws, legitimate criticism and speech gets swept up too.

Apologizing for White Supremacists?
At the end of the article, Voss accuses my piece of, in effect, lionizing the white supremacists and laments all the libertarians rushing to defend their right to free speech:

Ironically, the DFP post is playing the victim card for the white supremacists. The vast amount of attention to this topic is being spurred by a bunch of white social libertarians screaming in agony over the atrocities the antifascists subjected the white supremacists to. I didn't even pay the story any real attention until I saw a bunch of white liberals taking hours of their days to philosophize about how the state has no compelling interest in curbing hate speech in the public square.

Ironic indeed, as his thoughts mirror my own. I didn't pay much attention to this story until I noticed people (Voss himself, as it happens) explicitly defending and applauding the use of violence to suppress the rally. But I digress.

The key here is that defending someone's right to speech is not the same as defending their speech. Similarly, making observations about the likely consequences of this event (which I suggested will give the white supremacists more legitimacy than they deserve), is obviously not the same as rooting for those consequences. This should go without saying.

In truth, I defend their right to speak peacefully both because initiating aggression is wrong and because it is the only way to ensure the minority opinions I do endorse will have a chance to speak as well. If we want to ensure everyone, from antiwar groups to Black Lives Matter to the Free State Project, has a voice, we have to defend everyone's voice--even if it means we may occasionally despise the words that come forth.

Bloody Protests with White Nationalists in Sacramento

A bizarre, but sadly familiar, scene occurred over the weekend in Sacramento, California as another protest ended in violence. A group calling themselves the Traditional Workers' Party (TWP) had a permit to hold a public rally near the steps of the California statehouse. A group of counter-protesters, describing themselves broadly as anti-fascists, showed up as well. According to The Sacramento Bee write-up on the event, the TWP group had roughly 30 members while the anti-fascists had about 350. Additionally, there were some 100 police officers on site to keep the protest peaceful. They were not successful.

Instead, a melee broke out and ultimately 10 people had to go to the hospital with injuries. No arrests have been made, and it was not immediately clear to which group the victims belonged. Reports suggested that at least some members of both camps suffered injuries. Fortunately, none of the injuries were reported as life-threatening.

Another interesting fact about this event is that--consistent with some of the recent Trump rallies that descended into chaos (one of which was in California, coincidentally)--the police apparently stood by and watched the melee unfold without much intervention.

The TWP identifies itself as a white nationalist organization, which is exactly what it sounds like. Thus, the story is another test of the First Amendment: A widely unpopular group who offends just about everyone wants to hold a public rally, and the question is whether they should be allowed to do so? In this case, the government nominally supported their right to hold a rally by granting a permit, but effectively failed to enforce this decision by allowing violence to interrupt it.

From a libertarian perspective, this issue is relatively straightforward. However, the case is still a very interesting one, in part because it's an issue that divides the left. On one side, there are the consistent civil liberties advocates that believe free speech must be protected for everyone, no matter how contemptible. On the other, we have the more hardcore activists who are comfortable with restrictions on freedom (and apparently violence) if they serve a desirable outcome.

Before we get to our analysis, however, it's worth getting a few salient facts out of the way.

First, the Traditional Workers' Party really is a white supremacist group, at least judging by the sentiments of its leader, Matthew Heimbach. Work from the Southern Poverty Law Center should occasionally merit skepticism, but if even 10% of the quotations assembled here are correct, then it's fair to say the white supremacist label fits well. Indeed, it might actually be too broad, as Heimbach appears to hate just about everyone: libertarians, homosexuals, Muslims, Jews, bankers, black people, Mexicans, etc. His is a very inclusive sort of hatred if you will. Basically, if you can imagine a society that is the exact opposite of libertarianism and also has no diversity whatsoever, that's his endgame. It's conceivable that the other members of the TWP and affiliated groups aren't as extreme as this, but this is who they are following. Thus, it's not really debatable what this group was all about. They really are fascists, and they support a very powerful state that would eliminate many basic freedoms we enjoy today. This might explain why they could only attract 30 people to a rally.

Another fact that's not really debatable is that the counter-protesters appear to have initiated the violence here. There are a few good reasons to believe this is the case. For starters, one of the groups involved in the counter-protest actually calls itself BAMN, By Any Means Necessary. Something tells me violence is included in those means. Indeed, you needn't take my word for it. One of the leaders of the group, Yvette Felarca, took credit for organizing what she literally called a "mass militant action...to shut them down." Without any apparent sense of irony, she also claimed the action would prevent violence.

This understanding is also confirmed by one of the other counter-protesters interviewed by The Sacramento Bee (emphasis added):

James Lee Clark, a homeless activist, said he was surprised that police allowed the anti-fascist demonstrators to engage the neo-Nazis. 

“It was weird,” he said. “They usually they don’t let us anywhere near them.” 

“We’ve protested against them (neo-Nazis) in previous years, and we’ve never been allowed on state property during the rally, and this time we were there,” he added. “We had the steps. They didn’t try to stop us … it was a pretty interesting dynamic.”

Libertarian Position
With those important facts out of the way, we can move on to discuss the appropriate reaction to such an event.

In this case, the white supremacist rally should be permitted. No matter how abhorrent their views are, the rally is still protected political speech. And unless it crosses the line to imminent calls for violence and destruction, it is not aggression. Thus, aggression should not be initiated against them by the government or anyone else. Their actions merit extreme contempt and criticism, not violence.

This is the paradox of a free society: When people are truly free, they must have the right to advocate for less freedom. It seems like a contradiction in terms, but it is not. It is simply a necessary consequence of applying the nonaggression principle seriously.

Additionally, it's worth noting that different libertarian solutions can go a long way toward minimizing the importance of this issue. This problem only arises in regards to the use of public property and public roads. If the TWP wanted to organize a white supremacist rally on privately owned property, the decision would be left exclusively up to the property owner, who would presumably deny them the privilege of doing so. It's only when we get to public spaces that the government's position on free speech is relevant. Everywhere else, private property owners have the right to suppress the speech they deem unpalatable. Thus, if there are fewer public spaces in which to hold a rally, there are fewer controversies regarding which rallies ultimately take place.

The Case for Restrictions on the First Amendment
Of course, not everyone looks at the world or even this issue through the libertarian lens. Some believe that white supremacist views are sufficiently dangerous that they should be suppressed. This in turn leads to some creative arguments to try to circumvent the speech protections guaranteed by the First Amendment. Here, I'll touch on a couple leading prospects.

Disturbing the Peace / Provoking Lawless Action
The going standard now on whether free speech is permissible is whether or not it will inspire "imminent lawless action". And there's a way in which it's easy to see how the white supremacist rally, or even Trump rallies, could be viewed as provoking the imminent lawless action. The causal links looks like this.

White supremacist group plans a rally > counter-protesters respond to rally with force to "shut it down" > violence and lawlessness ensues, just as it did in Sacramento.

This chain of events is not hard to understand, and it's true that the initial rally is the proximate cause of the lawlessness that follows. Indeed, based on this interview that Heimbach did with the Southern Poverty Law Center, it appears a confrontation was the expected outcome of the weekend's protest. Thus, one could make a case that the rally sparked imminent lawless action (or disturbed the peace) and should be banned accordingly.

However, it should be clear that this line of reasoning leads to unacceptable outcomes. In effect, it would mean that any group can be denied First Amendment assembly / speech protections if an opposition group responds with sufficient force and violence. If it ever became established law, it would actually reward groups that respond violently to ideas and speech that they oppose. That is, no matter how cordially and properly an unpopular cause tried to assemble, they could be still be denied rights based on the reaction of other groups they cannot influence. Obviously, this is not a desirable situation.

Speech is Illegitimate
Another kind of argument against allowing white supremacist rallies holds that the views hold no legitimate value. Clearly, political proposals founded on white supremacist ideology aren't going to be too solid. The question is, Who gets to decide what speech is legitimate and what speech is not?

The answer is the government. And that's also why this solution is unworkable. If the government can arbitrarily decide what speech is permissible, it's likely to crack down on dissent generally. Indeed, historically, we've seen this occur many times in America and elsewhere.

No matter what approach we try, the downsides of restricting the First Amendment are going to outweigh any benefits. The First Amendment exists to protect minority and unpopular viewpoints, some of which will have merit and some of which will not. But it has to be an all-or-nothing decision. If the government can pick and choose between which types of speech are allowed, then free speech might as well cease to exist.

Strategic Considerations
Above, we argued that cracking down on free speech is both wrong and undesirable. If you'd like to see the white supremacist movement further marginalized as I would, it's also unhelpful.

We noted before that one of the lead counter-protesters suggested that the weekend's violence will actually prevent violence in the future. That is technically possible, if the police presence proves more prepared next time around. In the meantime, however, the counter-protesters actions were deeply counterproductive. They transformed a minor local story that probably wouldn't even make the 10 o'clock news into a national story, giving more publicity to the white supremacists than they could have dreamed of.

In fact, Heimbach basically admitted that the overreaction of the left is really their objective in these rallies. From the SPLC interview (emphasis added):

This was a rally for freedom of speech both for nationalists here and around the world. The fact that our free speech rally was attacked by the supposed forces of tolerance I think indicates the importance of rallies like this. We are solidifying a political movement to be able to advocate for our faith, our family, and our folk. That’s our primary objective...

These [leftist] forces talk about tolerance. They talk about freedom of expression. They talk about all these sorts of things. But there wouldn’t have been violence if they had not attacked us. If they had simply stood behind a police barricade they could have tried to drown out our message. They could have simply ignored us and held a rally for their own political agenda, and no one would have gotten hurt. But they organized political terrorism in a premeditated fashion and brought deadly weapons to this event to try and stop our freedom of speech, to stop our freedom of assembly, our First Amendment rights, and to stop our message of nationalism. It seems to be a pretty clear-cut thing of attempted political intimidation and a violation of our civil rights.

Notice what's going on here. This is a person whose ideas would garner virtually no support or sympathy in any normal setting. But because his event just got attacked, he can actually play the victim card while pointing out the (very real) hypocrisy of his opponents. Just imagine how this story must play to regular everyday Americans on the right--most of whom are probably very sick of hearing about crazy activism stories from college campuses. Like everyone else, they probably didn't know the first thing about the TWP. Now, because of the violent reaction, this group is likely to be lumped in with other groups that got targeted by crazy leftists. That is to say, the counter-protesters' opposition to this group does more to legitimize them than almost any other force could.

There is no conceivable way this outcome should be viewed as a success by the counter-protesters.

A much better approach, speaking purely on strategic grounds, is to let the TWP have their rally and hope Mr. Heimbach makes liberal use of the microphone himself. This group's actual views are so bad that they are self-refuting. We have to believe the overwhelming majority of the American public is not going to be enthralled with a person who still condemns the "Jewry" and "usury"[charging interest] and "miscegenation"[interracial marriage], or one who has literally advocated for "re-education centers". As a bonus, his colleague also refers to people as "comrades". Yeah, I'm sure that will play real well to an American audience. (If you click that link, be forewarned. Looks like a dark place.)

Summing Up
There is absolutely no reason to use extreme tactics to prevent a group like the TWP from holding a rally. The First Amendment doesn't need to be gutted for the sake of stopping white supremacy and violence isn't the answer either. Trying to suppress hateful speech only succeeds in giving it legitimacy it does not deserve. Stop doing it.

*For example, in this link, the Southern Poverty Law Center refers offhand to Pat Buchanan as a White Nationalist. Buchanan is a conservative and a nationalist, and he is a white guy, but obviously it ought to take something more than that to justify the label. It's possible I'm simply unfamiliar with a major part of his work, but for now, this seems like a completely unwarranted slur against a man who is one of the strongest antiwar voices on the right.

Is "Trump 2016" Hate Speech?

Recently, you may have heard about a real news story that seemed to be ripped from the pages of The Onion. At a prestigious private American university, someone had the audacity to write "Trump 2016" all over the sidewalks. In response, many left-leaning activists decried the chalking as offensive and hateful, and petitioned the administration for a response. In turn, the university's president made a public statement condemning the chalking, and, incredibly, promised to initiate an investigation into who wrote the messages and punish them--either criminally for trespassing, or through the university's code of conduct violation process, if the perpetrator is a student.

Naturally, there are a lot of angles one can take on this story. But first, it's worth discussing the fundamentals. The university in question is Emory University, which is a private institution. As such, it's unlikely this should be viewed as a First Amendment issue. Emory isn't the government, so it can theoretically suppress speech anytime it pleases. And if, as appears to be the case, the chalker(s) technically did violate campus rules for chalking, however trivial, they would be guilty of trespassing.

Having said that, obviously free speech is much more than a narrow legal issue. And if there's any place one should hope that free speech protections would proliferate, it would be institutions of learning--institutions like Emory University.

And when it comes to free speech, the general understanding is that political speech should be protected in all circumstances. Speech that threatens or promotes imminent violence is cause for concern, but political speech, no matter how ignorant, foolish, etc., should not be censored. Some European countries, like Germany, have formal laws against hate speech; in theory, the US does not.

In some cases, it could be hard to distinguish what exactly constitutes political speech and what is something more nefarious. For instance, if someone is denouncing American foreign policy in general, does that cross the line? What if that same person calls for resistance to America in a general way? What if that person calls for an attack on x in this city at a specific time? What if that same message is delivered in person, in America, and is asking people to commit violence immediately? At some point in that sequence, that changes from protected political speech to speech that is likely illegal. It's not always black and white.

But while some cases can be complicated, this one is not. Indeed, it's difficult to imagine more explicitly political speech than the following formula: [Candidate's name] + [Election year]. Or in other words, "Trump 2016". That someone would be offended by such speech anyway, sounds more like good satire than real life. Unfortunately, it's the latter. And the joke's on them.

Because whatever the intent, this latest action, just like the Chicago protests, is bound to give Trump more support not less.

And on that note, we'll refer you to the excellent commentary of Conor Friedersdorf on this story. Writing at The Atlantic, Friedersdorf unpacks the likely consequences of this episode, and explains in detail why, even opponents of Donald Trump, find this attempt at censorship so incredible, short-sighted, and fantastically counterproductive. Here's the link:

How Emory's Activists Are Fueling Trumpism

The Transparent Absurdity of the FBI's High School Spying

Each Presidential election seems to inspire more than its share of hyperbole and fiction. I can't remember the last election that wasn't obviously "historic" or "pivotal" or worse, a "fight for the soul of America". Indeed, there have been so many wars for America's soul that--if America's other recent wars are any guide--it's probably safe to assume there's not much left to save.

The likely salvage value of US essence notwithstanding, this too is a crucial election cycle of course. And as we discussed previously, the election of Donald Trump strikes many as the most apocalyptic possible outcome. So mass protests have ensued, and there have been a myriad of strange bedfellows sounding the call to Stop Trump--all to no apparent effect thus far.

Perhaps what's most interesting about this reaction to Trump's candidacy is what it implies about the people who are concerned. I'm not sure I can cite poll data to prove this conclusively, but most people seem to be (justifiably) concerned that his bombastic rhetoric would translate into deeply flawed policies, such as racial profiling or curtailing First Amendment protections. To be sure, this is absolutely a legitimate fear. But the only reason this should inspire such a harsh response is if we assume that these troubling policies are a radical departure from the status quo. Unfortunately, they are not. And recently, we received another awful reminder of this fact.

The FBI just revealed a plan to more systematically monitor and identify high school students for signs of "radicalization". The plan is part of the FBI's ill-advised Countering Violent Extremism (CVE) efforts, and they are trying to encourage teachers and fellow students report on suspicious behaviors. Naturally, the FBI has enough common sense not to overtly target a particular ethnic or religious minority as the most likely threat. But they don't have to. Think about American culture for all of five minutes and it's not hard to imagine which kids most students and teachers are going to suspect first.

From the educational materials, here are a few items that might be indicators of future "plans to commit violence":

• "Talking about traveling to places that sound suspicious"--I wonder if any Arabic city names would fit the bill?
• "Using code words or unusual language" -- because what self-respecting teenager uses slang unless they're a future terrorist?
• "Using several different cell phones and private messaging apps" -- burner phones aside, what teenager besides a terrorist would use messaging apps?
• "Studying or taking pictures of potential targets (like a government building)."-- and no selfies either!

Yeah, definitely none of those items is going to lead to false accusations or abuse. But then it gets worse.

The FBI's educational materials, which are conveniently available online, also highlight some common examples or themes of "violent extremist propaganda":

• Corrupt Western Nations
• We Must Fight Back
• Explicit narrative provided: "Our people are being oppressed. No one is doing anything. We must fight back."
• Superior Race
• Government Mistrust
• Environmental Destruction

This, I submit to you, is crazy. When I was in high school, I would have adamantly agreed with 2 out of 5 of those themes (1 and 4, to be precise). Indeed, I actually did my senior project on the utterly destructive and deceptive nature of US foreign policy. Hell, I even name-dropped Ron Paul in my commencement speech. But apparently, if I was in high school today, the FBI would see me as teetering on the edge of violent extremism. That's what antiwar people are known for after all--violence.

The benign nature of a few of these themes is tough to overemphasize--for instance, who in their right mind would possibly argue that the US government (or any other Western government) isn't corrupt?*

What is even more important, however, is what's not there. There's no mention of religion at all. Now perhaps someone might suggest that this is because the First Amendment would effectively prevent the FBI from stigmatizing religion. Then again, any sincere reading of the First Amendment would also nullify this entire enterprise of trying detect indications of future violent acts based on clearly political speech. Thus, it would seem Constitutional adherence is not their top priority. Note that this is also the same agency that decided "Mohammed Raghead" was an appropriate placeholder name for a would-be suspect in training materials (apparently, John Doe was taken). So something tells me political correctness isn't quite their top priority either.

Instead, perhaps it is a tacit admission of the fact that we have known for years. By and large, terrorists don't become terrorists because they just believe in Islam so hard or decided to binge-read the Qur'an over winter break. No, terrorism is motivated by political grievances--and a sense of solidarity with the victims of American and Western foreign policy. That's precisely what the "We Must Fight Back" example above is alluding to. In spite of all the hysterical posturing about our values being under attack and radical Islam, it appears that at least some members of the government actually do understand this. Hopefully, they'll spread the word to their colleagues in government sometime soon.

Those were just a few of the highlights in the FBI's new program. The interested reader is encouraged to check out the full write-up from Sarah Lazare at AlterNet. You can check out this great interview between Scott Horton and Arun Kundnani, one of the sources cited in the piece.

Today, many people are understandably fearful about what a Donald Trump Presidency would look like. Unfortunately, we don't really have to wonder. The answer is that it probably wouldn't look all that much different than Barack Obama's. The US government doesn't need to get Donald's okay to start surveilling and persecuting Muslims; it has already been hard at work on that project for some time.

*Granted, your archetypal third-world despot is going to be more corrupt. But the theme put forth by the FBI offers no nuance, so we'll take it at face value.

Missing the Point in the Trump Chicago Protests

In the aftermath of the canceled Trump Rally in Chicago, there was a dizzying array of mistaken and confusing commentary on the subject. It was a big news story, so you probably heard about it. But in case you didn't, basically Trump had scheduled a characteristically massive rally at a venue in Chicago. Many left-leaning protesters got tickets to the event, and others held rallies outside. The protesters who got tickets to the event apparently planned to continuously disrupt Trump's speech when he arrived, and their presence was significant enough that it was creating a very tense situation between protesters and supporters. In response, Trump canceled the event citing the safety concerns.

Trump claimed that he took this step on advice of law enforcement, while others have disputed that claim. Ultimately, it's not really an important detail. A big protest happened; a political rally was canceled; and some violence broke out after the cancellation anyway. These are the relevant facts.

For the sake of analyzing this story rationally, it's useful to set aside our political preferences for the moment. Perhaps surprisingly, your opinion of this event shouldn't hinge on whether you think Trump really will Make America Great Again or think he's a racist jerk. (Though for the record, we'll note that we do not support Donald Trump, and have previously argued that while he's clearly awful, he's not obviously much worse than the major party alternatives. American politics circa 2016 is just pretty depressing across the board in our view.)

Now that the disclaimers and background are out of the way, let's move on to the details.

Stop Talking About the First Amendment
A common theme in the aftermath of this event was debating the right to free speech. On the left, a common argument was that the protesters were exercising their right to protest, free speech as guaranteed by the First Amendment protections, and should be applauded for standing up to the racist rhetoric. On the right, people claimed that Donald Trump's right to free speech / First Amendment protections had been violated. Indeed, there was a delightful symmetry to it. As a bonus, neither side is actually correct--at least as far as the First Amendment is concerned.

See, the problem here is that the First Amendment, protects freedom of speech and protest from government crackdowns. It does not say anything about private actors. If you don't believe me, just read it:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The First Amendment does not guarantee protesters the right to heckle a speaker, nor does it give said speaker a right not to be heckled by private actors. It's just not a First Amendment issue. The government, in this case, wasn't suppressing anyone's speech, so the Constitutional amendment isn't really relevant.

That said, the protesters who got into the event and deliberately attempted to disrupt it would likely be guilty of trespassing. The idea here is that when they got tickets to the Trump event, they are implicitly consenting to not disrupt the event.* If they proceed to disrupt the event (and thereby violate the implicit agreement), the Trump Campaign or the venue's security would be within their rights to kick those protesters out. If the protesters refused, then at that point, they would be trespassing.

At first glance, this could seem counterintuitive, because we often talk about freedom of speech / protesting in the abstract. But in reality, most protests do violate minor laws--usually trespassing. If you get a permit to hold a rally, then you're fine. But if you just engage in spontaneous direct action--particularly if it's on private property--you're probably violating some laws. Whether it will be enforced debatable, and it might well be worth doing. The point is that civil disobedience is part and parcel of protesting. In fact, it's often a deliberate tactic to try to get more press coverage for an issue.

Similarly, the right of free speech, such as it is, is only the right to not have the government suppress your speech. If you come to my apartment and insult my cat, I can tell you to get the hell out. You don't have a right to free speech in my apartment because I set the rules there. And if you don't like it, you can leave. Coincidentally, this is also how it works on social media. Twitter recently has gotten publicity for blocking certain people that were accused of expressing intolerant or hateful views. There too, many people complained about freedom of speech violations. And certainly, Twitter's actions were irritating to libertarians that believe freedom of speech should be extended to even, and especially, those marginal we find disagreeable or downright appalling. But it was not illegal. Twitter sets the rules on its website, just like I set a rule that no one is allowed to comment on my cat's weight in my house. (She's self-conscious; back off.) And if you don't like it, you can leave.

Effects of Silencing Speech
Moving beyond these technical matters, it's true that the protests did effectively silence Trump for the evening. This was hailed as a success by many and suggested as a possible model for the future. This tweet captures the sentiment well I think:

Trump just showed he'll cancel an event if enough people protest it. Game on

— DrewCurtis (@DrewCurtis) March 12, 2016

This is mistaken for two reasons. First, on a philosophical level, this is problematic. If you believe in the merits of free speech or tolerance, you have to also tolerate things you disagree with. That's kind of fundamental to the notion of tolerance. You don't have to tolerate ideas you like, because, well, you like them. It follows that support for the idea of free speech is meaningless if you don't support free speech for those that you find most repellent. Yes, Trump says horrible nationalistic and bigoted things all the time. But if you believe in free speech--and as Americans, most of us theoretically do--you should want him to be able to express those ideas regardless.

Just as important, it's worth noting that this tactic will obviously backfire in this campaign cycle. For many disenchanted, right-leaning folks, the left is just as much the enemy as the GOP Establishment. That's why every desperate effort by think-tanks and "respected" Republican politicians to condemn Trump has only boosted his support. It's the old "enemy of my enemy is my friend" logic applied to electoral politics. The American and Republican electorate may not know much, but they appear to know enough to despise Establishment politicians like John McCain or Mitt Romney. So when these voices speak out against Trump, it only boosts his brand. At this point, this effect should be expected.

The same rule applies to the left. Just think about it. For his supporters, one major appeal of Trump this year is his complete dismissal of political correctness--and yes, that's why he says things that are more overtly bigoted than his competitors. By staging a protest against what he says--on the grounds that they are offensive--plays directly into his hands. Even though the concerns are clearly warranted, the effect is that it adds to his appeal as the anti-political correctness candidate.

Moreover, how likely is it that the average centrist American is going to look favorably on a massive protest, from mostly college kids, that shut down a popular political candidate's rally and ended in violence? It doesn't even matter who started the actual violence. It should be obvious that this narrative is likely to work in Trump's favor.

Indeed, there's already some evidence that this is the case. A new post-Chicago poll indicates that, among potential voters whose opinions were shifted by the Chicago rally, two-thirds were more likely to vote for Trump and only one-third was less likely to support him.

This outcome is so predictable that it beggars belief why the condemnations keep coming. Nobody cares. Instead, if Democrats or the GOP establishment really wanted to #StopTrump, they should be endorsing him. Have Lindsey Graham, Mitch McConnell, and Harry Reid come out in support of Trump on the same day and then see how well his poll numbers hold up. Is it really the case that no one with power has thought of this plan? Or are they just too uncomfortable with the idea of weaponizing their own unpopularity? Whatever the reason, it's clear that unless they stop helping his message, Donald Trump is quite likely to be the next US President.

*This great blog post from Paul Grad offers an expanded analysis of the libertarian / property rights angle on this story.

The Supreme Court Could Severely Damage Public Unions This Term

The Supreme Court is considering a very important case this term called Friedrichs v. California Teachers Association. In California, public employee unions like teachers unions require all government employees to contribute dues by all. Now, a teacher in California, Rebecca Friedrichs, has sued the teachers union over this. She is arguing that being compelled to support a union she disagrees with is a violation of her First Amendment rights.

On its face, this could seem like a slight stretch. What does a union have to do with free speech? Well, when that union is a public union, it turns out the answer is everything. Essentially everything a public union does is political in nature. If it's negotiating for higher wages and benefits, that might require the government to raise taxes or shift resources from other priorities. If the union is supporting certain political candidates that it perceives to be supportive of its cause, that obviously has a political agenda as well. Thus, in effect, public employees are being required to financially support these political moves regardless of whether they actually believe in them.

As an extreme example to drive the point home, imagine that a portion of your wages was automatically deducted and sent to the Clinton or Trump campaigns (or whichever candidate you love to hate right now). Obviously, that would be an infringement on your free speech. The same principle applies to the public employee union.* That's the essence of the argument being made in the Friedrichs case, and, happily, it appears to have a real chance at victory.

It's important not to think of this in the standard pro-union vs. pro-business dichotomy. For one thing, there's no business involved so it makes no sense. The question here is not whether unions should exist, whether they are a positive force on society, or whether we want public employees to make a decent living. The question at hand is whether a union should be allowed to compel an employee to give them money against their will. So if we still want to reduce public unions to a binary question, either of these might be better suited to the task:

Pro-coercion vs. Pro-worker
Pro-union vs. Anti-coercion

I mention this because we are all conditioned to have knee-jerk reactions based on whatever political tribe we happen to subscribe to. If you're a liberal, you might assume the pro-union position is correct; if you're a conservative, then you probably default to the opposite. But one of the things that's so great about this particular issue is that it mixes up all the usual messaging. Here's how the standard thinking would apply to this particular issue:

Liberals: We need to support the unions so we can protect those workers from being underpaid by those greedy bastards...in the government?

Conservatives: We need to oppose the unions to preserve freedom of contract and give the employers more latitude to innovate and create efficiency... in the government?

Both: Aw hell.

See it all works out until you get to that last part. When the employer is the government, the conventional arguments break down. This is particularly true on the pro-union side, and it's worth exploring briefly before we close.

As I understand it, the general argument in favor of strong union legislation (including mandatory membership requirements), is to protect workers from the greed of profit-seeking employers. The idea seems to be that those heartless capitalists will stop at nothing to increase their own wealth, and thus unions need to exist as a counterweight to ensure workers can get treated fairly. Regardless of how you feel about that argument, we should all agree that it doesn't apply here. In the conventional understanding, the government's leadership has no clear incentive to underpay or mistreat its workers. They're paying them with tax dollars so it's not like they stand to earn less money as a result. Arguably, they have an incentive to avoid raising taxes during their term, but that's the only plausible financial constraint facing them. (And it's readily overcome by just promising long-term pension benefits instead of pay increases that might take effect this term.) This is clearly a much different environment than a private company that is faced with competitive threats and has direct financial incentives involved for the decision makers.

Indeed, given this understanding, it's a fair question to ask why the public employee union needs to exist at all? Yes, teachers may have an interest in advocating particular policies that they think would be beneficial (to the system or themselves). And perhaps police officers may have an interest in pushing for certain policies. But they don't need a union for that, and they certainly don't need to be able to compel workers to support their agenda.

It's important to remember that being pro-union and being pro-worker aren't necessarily the same thing. And in this case, being pro-worker means you should probably support their right to keep their own money.

If you're interested in learning more about this story, I'd encourage to check out these two articles from the Foundation for Economic Education. The first offers an in-depth background on the case, and the second gives an update on how the Supreme Court appears to be leaning after hearing the case--spoiler, they appear to poised to rule against the public unions.


The First Amendment Could Break the Grip of Government Unions


Court May Free Public Employees from Compulsory Union Dues

*Note that this argument should not necessarily hold for a private employer. In theory, private employers should have the ability to place various conditions on a prospective employee; if the employee consents to them, then there's no violation. Properly understood, the First Amendment protects your freedom of speech against the government; other restrictions that are voluntarily agreed between private parties are a different matter.

The Problem with the "Fire in a Theatre" Attack on Free Speech

Today we're discussing the oft-cited but little understood quote about "fire in a theatre." If you've ever discussed free speech at any length in the American context, it's almost inevitable that someone has mentioned it. It's kind of like the free speech version of Godwin's Law.

In case some readers aren't familiar with this idea, here's the full quote from Justice Holmes: "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."

This idea is generally deployed as an argument to prove that some curtailment of free speech is acceptable--obviously, we can't allow a man to yell fire in a crowded theatre. Thus, it can change the entire nature of the free speech conversation. It's no longer a question of whether it is right and just that free speech can be punished; it is a question of how much and when. Suddenly, everything's on the table. Those antiwar protesters might be demoralizing the troops and imperiling our safety. Those civil rights protesters are clearly disturbing the peace and infringing on the rights of others. And so on.

However, it turns out the context of the "fire in a theatre" quote is very important. Writing at The Atlantic, Trevor Timm reminds us that in fact, this argument was offered as part of a case that had literally nothing to do with fires, theatres, or even yelling. Rather, it was a case in which President Woodrow Wilson's Administration was trying to prosecute an antiwar pamphleteer during World War I. And indeed, the Supreme Court agreed with the Administration, in the first of a series of damaging decisions to free speech. However, because the "fire in a theatre" quote had nothing to do with the case at hand, it did not constitute established legal precedent. It was merely the rhetorical flourish of a Justice who was trying to introduce his opinion, against free speech. In itself, the quote had no direct impact on the law at all, even at the time it was given.

Years later, its irrelevance was further cemented in Brandenburg v. Ohio, when the Supreme Court effectively overturned the earlier decision and restored free speech protections significantly. This decision was issued in 1969.

So in summary, the quote was not binding precedent when it was mentioned in an opinion in 1919, and in 1969, that entire opinion was reversed anyway. It never mattered, and it certainly does not matter today.

I confess I've always found the "fire in a theatre" argument rather annoying. On the one hand, it relies on the very lazy and unpersuasive technique of appealing to authority--in this case, the Supreme Court. Additionally, it's usually kind of beside the point. If you and I are having a theoretical (and entirely inconsequential) discussion about free speech protections, it makes no sense for you to base your argument on what is existing law. The point of the conversation would presumably be to discuss what we think the laws should be. Similarly, if we're having a debate on marijuana legalization, your main point cannot be "well, it's illegal."*

That said, since the Supreme Court is taken as the law of the land, it's inevitable that many people will weigh their judgment heavily. That is why the "fire in a theatre" argument matters, and why advocates of free speech must be prepared to discredit it.

Check out Timm's great article for more details on this:

It's Time to Stop Using the 'Fire in a Crowded Theatre' Quote

*In case you wanted one more example, I'm inclined to note that Presidential Candidate Ben Carson employed similar reasoning in the context of gun rights. We wrote about that embarrassing episode here.

Free Speech and Intolerance at Yale

Two resident faculty members at Yale University, Erika and Nicholas Christakis, are currently facing aggressive denunciations and calls to resign after challenging their students to think critically on a controversial subject. The incident occurred in the run up to Halloween, that great holiday that allows college students to wear outfits that would be entirely too offensive or revealing if worn in any other setting. Students at Yale were admonished by administrators to avoid wearing costumes that might be offensive to others. And in response to this advice, Erika Christakis, wrote an email asking her students to think about this issue from a intellectual perspective. In particular, she questioned whether Yale administrators should be involved in preventing or judging offensive costumes on Halloween, or whether it might be better for the students to decide for themselves what is appropriate and engage with each other to figure that out. A few choice quotes from her email to give you a sense of the content:

Have we lost faith in young people's capacity—in your capacity ­ to exercise self­censure, through social norming, and also in your capacity to ignore or reject things that trouble you?...

Nicholas says, if you don’t like a costume someone is wearing, look away, or tell them you are offended. Talk to each other. Free speech and the ability to tolerate offence are the hallmarks of a free and open society.

In other words: Whose business is it to control the forms of costumes of young people? It’s not mine, I know that.

The tone is thoughtful and nuanced throughout. And other than suggesting Yale administrators should not be so heavily involved, it really doesn't take a position. It certainly doesn't suggest that people should dress up in blackface, a member of the SS, a stylized version of a Native American, or any of the other various things that could obviously be offensive. It merely asks students to think about the issue intellectually and question their own assumptions--which, it seems to me, is exactly what college should do. This is what prompted a massive backlash.

To learn more about this story, two pieces are worth considering. The first is by Conor Friedersdorf at The Atlantic and offers a comprehensive breakdown of this episode. Friedersdorf also provides an excellent analysis of the mindset of students who are protesting. Here's the link to that piece:

The New Intolerance of Student Activism

The second piece strikes a slightly comic tone and is written by Bill Barlow at the Harvard Law Record. Barlow stresses the key difference between condemning someone for their views and wanting them to be punished for expressing them.

Fascism at Yale

Whether you agree with the "fascism" label or not, this episode highlights a common contradiction on the question of tolerance. Namely, many of the people that preach the virtues of tolerance are simultaneously very intolerant of ideas they dislike. Maybe the ideas they dislike are racist, anti-semitic, pro-life, homophobic, militarist, or conservative, or whatever. And we probably share their distaste for some of those things. But if tolerance means anything at all--it must include tolerating things you disagree with.