Category: Speech & Press
A new take on Masterpiece Cakes
Professor Steven Smith has very skillfully laid out what the Masterpiece Cakes case in the Supreme Court is really all about. It has a helpful review of he evolution of anti-discrimination laws, about which more later.
Then in his second part, Smith adds an angle from the academic literature of free speech to add a dimension that I, a very interested amateur, had not appreciated:
In a thoughtful essay entitled “Who Cares Whether Cake-Baking is Expressive?” NYU Professor Rick Hills argues that the expressive quality of Jack Phillips’s cakes should be constitutionally irrelevant. Appealing to writings of (then) Professor Elena Kagan and Yale Professor Jed Rubenfeld, Hills contends that what should matter for First Amendment purposes is “governmental purpose, not private burdens.” …
And so we have to ask: why is government (in collaboration with and on behalf of same-sex couples) going after the bakers and florists and photographers in the marriage cases?
The Centrality of Expression
The question takes us back to the argument of yesterday’s essay. We saw there that in the litigated cases, the states and the same-sex complainants have not primarily relied on the contention that a Christian merchant’s refusal to assist with a same-sex wedding has deprived the couple of any needed product, service, or opportunity. In Masterpiece Cakeshop, another baker supplied complainants with a wedding cake for free; in Arlene’s Flowers, the case of the Washington florist that is currently on appeal to the Supreme Court, the same-sex couple claimed and received $7.91 in damages for the cost of driving to another florist. That was not why the couple and the state brought the lawsuit.
So why were these suits brought? Advocates are often forthright in explaining that these cases are not mainly about material deprivations, which are likely negligible or nonexistent, but rather about the “dignitary harm” or offense suffered when a same-sex couple is in effect told that a merchant regards their marriage as morally wrong or contrary to God’s will.
That claim may be perfectly sincere. But it amounts to a complaint that the couples feel injured by the communication of a message of disapproval. The injuries, in short, are primarily or exclusively expressive in nature. And the remedies sought by the plaintiffs and granted by the courts have likewise been expressive in their content and purpose. Objecting merchants have been ordered to assist with same-sex weddings in the future—not because their services are needed, but because complainants and the states seek to compel them to participate in, to borrow language from the Colorado court, “celebrat[ing] . . . same-sex wedding[s].”
The title of part 2 is “Why the Government Shouldn’t Force Bakers—Or Anyone—to Express Support for Same-Sex Marriage,” and I agree that the government’s purpose in applying nondiscrimination laws to these baker has been, precisely (and unconstitutionally) to compel them to express a message of approval of same-sex marriage. That must not be allowed to stand.
Do read both parts, because part 1 helps to show how an early non-discrimination purpose of assuring that people are not denied needed services has morphed into assuring that people don’t hear a message of disapproval before readily getting their needed services elsewhere.
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“Liberal education is concerned with the souls of men, and therefore has little or no use for machines … [it] consists in learning to listen to still and small voices and therefore in becoming deaf to loudspeakers.” (Leo Strauss)
There is no epistemological Switzerland. (Via Mars Hill Audio Journal Volume 134)
Thursday, 10/26/17
Where fun goes to die
It’s Saturday noon. Tens Hundreds of thousands of University students are highly inebriated and on their way to watching kickoffs.
But my thoughts turned earlier to the educational enterprise.
Several years ago Robert Zimmer was asked by an audience in China why the University of Chicago was associated with so many winners of the Nobel Prize — 90 in all, counting this month’s win by the behavioral economist Richard Thaler. Zimmer, the university’s president since 2006, answered that the key was a campus culture committed to “discourse, argument and lack of deference.”
…
[F]ree speech is what makes educational excellence possible. “It is the function of speech to free men from the bondage of irrational fears,” Louis Brandeis wrote 90 years ago in his famous concurrence in Whitney v. California.
It is also the function of free speech to allow people to say foolish things so that, through a process of questioning, challenge and revision, they may in time come to say smarter things.
If you can’t speak freely, you’ll quickly lose the ability to think clearly. Your ideas will be built on a pile of assumptions you’ve never examined for yourself and may thus be unable to defend from radical challenges. You will be unable to test an original thought for fear that it might be labeled an offensive one …
That is the real crux of Zimmer’s case for free speech: Not that it’s necessary for democracy (strictly speaking, it isn’t), but because it’s our salvation from intellectual mediocrity and social ossification. In a speech in July, he addressed the notion that unfettered free speech could set back the cause of “inclusion” because it risked upsetting members of a community.
“Inclusion into what?” Zimmer wondered. “An inferior and less challenging education? One that fails to prepare students for the challenge of different ideas and the evaluation of their own assumptions? A world in which their feelings take precedence over other matters that need to be confronted?”
These are not earth-shattering questions. But they are the right ones, and they lay bare the extent to which the softer nostrums of higher ed today shortchange the intended beneficiaries.
(Bret Stephens, profiling University of Chicago President Robert Zimmer, emphasis added)
But I’m not sure that Zimmer’s answer to the Chinese is complete. He’s standing on the shoulders of Robert Hutchins:
After the 1939 season, Hutchins abolished football at Chicago University. And he did it during Christmas break, while the students were off campus. This decision (along with Hutchins eliminating fraternities and religious organizations from campus) caused a decrease in enrollment and financial backing.
Now to his credit, Chicago became one of the premier schools in the country ….
Well, yes, there’s that, I suppose. Where fun goes to die and future Nobel laureates go to do whatever magic it is that makes Nobel laureates.
But I was surprised to learn that the University pioneered women’s sports and is still involved in intercollegiate athletics, having been a charter member of a unique Division III conference (as once it helped found the Big Ten):
In 1987-88, Chicago became a charter member of a new and unique NCAA Division III conference, the University Athletic Association. Comprised of some of the nation’s leading research institutions, UAA members include Brandeis University, Carnegie Mellon University, Case Western Reserve University, Emory University, Johns Hopkins University, New York University, the University of Rochester, and Washington University in St. Louis.
The UAA provides its member institutions and student-athletes with some of the best athletic competition in the country, as evidenced by the fact that the UAA has sent 129 teams to NCAA postseason play and has produced 11 national champions in its 11-year history. Many student-athletes at UAA institutions are capable of competing at the NCAA Division I level, but choose the UAA experience because of the unique combination of academic, athletic, and travel opportunities the Association afford its members.
Mitch Daniels has deservedly gotten much attention for innovations to prepare Purdue for a changing environment, but I see no sign that his vision is as bold as dropping out of Division I to focus more on education.
Is it okay that I had fun poking around a bit, reminding myself that Division III isn’t incompatible with first-rate education, and writing this?
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“Liberal education is concerned with the souls of men, and therefore has little or no use for machines … [it] consists in learning to listen to still and small voices and therefore in becoming deaf to loudspeakers.” (Leo Strauss)
There is no epistemological Switzerland. (Via Mars Hill Audio Journal Volume 134)
Saturday, 10/14/17
Just shoot me
We are ruled by a bipartisan bunch of buffoons.
- President Trump calls for changing NFL tax treatment because of player protests
- Congress members threaten Twitter with regulation if it doesn’t suppress ‘racially divisive communications’ and ‘anti-American sentiments’
Tomorrow, and tomorrow, and tomorrow,
Creeps in this petty pace from day to day
To the last syllable of recorded time,
And all our yesterdays have lighted fools
The way to dusty death. Out, out, brief candle!
Life’s but a walking shadow, a poor player
That struts and frets his hour upon the stage
And then is heard no more: it is a tale
Told by an idiot, full of sound and fury,
Signifying nothing.
(Macbeth, Macbeth Act 5 Scene 5)
* * * * *
“Liberal education is concerned with the souls of men, and therefore has little or no use for machines … [it] consists in learning to listen to still and small voices and therefore in becoming deaf to loudspeakers.” (Leo Strauss)
There is no epistemological Switzerland. (Via Mars Hill Audio Journal Volume 134)
Thursday, 9/28/17
When Capitalism lost First Things …
There have been murmurs — if I could recall from where, I’d link them — that the current editors at First Things have been sounding awfully friendly to socialism — “socialism” being the knee-jerk response of people too suave and educated to call others “commies,” but too trapped in an Overton Bubble to conceive of anything other than communism, socialism and capitalism as economic categories (which pretty well makes capitalism a no-brainer, conveniently enough).
Now, in the October 2017 issue, R.R. “Rusty” Reno, the greybeard among the editors, has burst out of the closet, throwing down gauntlets as he marches:
The recent passing of Michael Novak prompted me to take up his masterpiece once again. I first read The Spirit of Democratic Capitalism in the 1980s. At the time, I had no illusions about socialism. It was obviously a failure, economically, politically, and morally. But like so many of my peers, I assumed capitalism to be morally suspect as well. Michael’s book helped me, as it helped so many others, to see that a free market economy has distinctive moral and spiritual contributions to make to a healthy society. Rereading The Spirit of Democratic Capitalism today, however, my reaction is different. Capitalism is not a choice, as it seemed to me and many others when Michael wrote his book. It is our fate—and our problem.
… A healthy society … stands on three sturdy legs: a free economy; liberal, democratic political institutions; and a Judeo-Christian moral ecology that prizes human dignity and encourages self-discipline, social trust, and individual initiative.
This analysis is elegant. It influenced John Paul II’s important statement of Catholic social doctrine, Centesimus Annus (1991), and played an important role in the outlook of First Things. We sought to keep the three legs in balance, which meant defending economic freedom and democratic institutions, while at the same time insisting on the importance of religious and moral substance in the public square. But we overestimated the stability of the three-legged system. We could not see how much it depended upon a historical moment that is now passing away.
…
In all likelihood, Michael was right, as the rise of an authoritarian liberalism keen to squelch dissent indicates. But therein rests the problem we face. The “new birth of freedom” that Michael championed largely came to pass. And it has tended to weaken the two other legs holding up society: democratic institutions and a vital religious and moral culture. … Capitalism, now global in scope, is swallowing up more and more of civic life, so much so that in some contexts economists and policymakers present free market principles as ironclad laws about which we have no choice. Dwindling manufacturing jobs, technological displacement, global flows of labor and capital—we are told we have no alternative. This is a cruel reversal of what Michael commended as the source of freedom and openness.
… Since 1989 and the fall of the Soviet Union, the governing consensus has held that America’s interests lie in ever-greater economic globalization. We will flourish to the extent that we position ourselves at the center of the global economic system. This turns out to be true—for some, but not for all. Today, we’re seeing a growing divide in America between those who participate in the global economy and those who don’t. … [W]e underestimated the flesh-eating character of our free market economy, which now markets “community” and uses “social justice” as a way to sell products. Buy TOMS® shoes, and help someone in need! Today, large-scale global companies scramble to position themselves as agents of social change. The result is a political placebo, one that substitutes social-therapeutic gestures for genuine solidarity and civic engagement. The market is becoming the dominant mode of our social engagement, with social media leading the way. This diminishes democratic culture.
And what about the third leg, the Judeo-Christian religious and moral tradition? Here First Things has a long record of vigorous and unstinting advocacy. I can’t think of another significant journal that has been as relentless during the past generation in its warnings about the dangers of a naked public square. Yet we’ve seen setback after setback, and the corporate tsunami that recently swept through Indiana after it passed a Religious Freedom Restoration Act made clear the link between global capitalism and progressive clear-cutting of traditional religious culture and morality. There are many business leaders, entrepreneurs, investors, and others who sympathize with our mission, of course. But they know they will be punished “by the market” if they speak up. “Bigotry is bad for business,” we’re told by management consultants and corporate gurus, and “diversity” brings greater innovation and success. As we know, “diversity” does not mean a richly textured and open society. It means agreeing with progressive cultural commitments to “openness,” which in turn means accepting the authority of a rigid, punitive ideological system.
Needless to say, Michael Novak did not foresee these outcomes when he wrote The Spirit of Democratic Capitalism any more than I did when I thrilled to his insights more than three decades ago. …
In his last article for First Things (“The Future of Democratic Capitalism,” June/July 2015), Michael summed up his spiritual endorsement of capitalism: … But Michael did not give due emphasis to an equally important aspect of our humanity, which is our desire to give ourselves in loyalty to permanent things. As a man of faith, he certainly knew and affirmed this dimension: You shall love the Lord your God with all your heart, soul, and mind, and you shall love your neighbor as yourself. But in his enthusiasm for open, upward transcendence—a constant theme in his work—he lost sight of our need for anchors. As a consequence, he described the anthropology of capitalism in a one-sided way. Its fearsome dynamism speaks to part of our soul, but it neglects and even works against the part that cherishes permanence.
… We are told that we are not required to think or live in any particular way—except that we can’t think or live in ways that constrain, compromise, or even throw doubt on anyone else’s free decision to think or live differently. Taken to its logical extreme—everything is permitted as long as it permits everything—this becomes a paradoxical totalitarian toleration that is all the more dangerous because it deludes those who promote it into thinking that when they drive all dissent from the public square, they are “including.”
All of this dovetails frighteningly well with the dynamism and openness of capitalism, which is also presented as obligatory. And its partial anthropological resonance means that a part of our soul—the dimension that, taken in isolation, thrills to today’s gnosticism and its promise of freedom from all constraints, even those imposed by nature and our bodies—is given great encouragement. This antinomianism—which, again, is presented as “history’s” obligatory verdict—casts a dark shadow on the West in the twenty-first century, not the Soviet Union or older forms of centralized, totalitarian control.
Retro figures such as Bernie Sanders and Jeremy Corbyn gain traction, not because voters believe in socialism, but because they intuit that they cannot live in a world of pure dynamism and openness. We are drowning in freedom. …
Retro-socialism is a dead end. But in the absence of alternatives that promise stability and relief from the existential exhaustion of perpetual dynamism, Sanders, Corbyn, and others on the left are likely to garner support. The same can be said for populist sentiments that endorse nationalist economic policies of protectionism and subsidies that fly in the face of free market principles.
…
It is time, therefore, to set aside the notion that the problems we face in the West can be solved by stiffer doses of economic freedom. In parts of Asia, Africa, and other areas of the world, this prescription has merit. But here it’s pure homeopathy. What we need is quite different.
… What Michael Novak failed to recognize—what we must acknowledge—is that the dynamism of free market capitalism invades, overturns, refashions, and sometimes destroys these places of rest.
It is inhumane to forsake the dynamism of capitalism. But it is also inhumane to think that quality sufficient. In 2017, we need to think about how to direct economic freedom toward service of the common good.
(All emphases added)
I may have more to say about Reno’s essay later — I’ll be surprised if I don’t. I just encountered it this afternoon (I’d heard rumors that he’d done something big in this issue). For now, just a few things:
- Capitalism is an enemy of traditional life and religious freedom. The Battle of Indianapolis just made that obvious, but I have studied the history, and this antipathy goes back at least 120 years.
- True conservatism therefor must be at best uneasy with capitalism.
- When Capitalism has lost the full-throated support of First Things, it just might be in trouble.
- Communism, Socialism and Capitalism are not the only polities. Smash the Overton Window! Resist!
* * * * *
“Liberal education is concerned with the souls of men, and therefore has little or no use for machines … [it] consists in learning to listen to still and small voices and therefore in becoming deaf to loudspeakers.” (Leo Strauss)
There is no epistemological Switzerland. (Via Mars Hill Audio Journal Volume 134)
Saturday, 9/23/17
Friday, 9/22/17
It is good to live in the United States, where we still have a sort of free speech. Germany’s free speech isn’t so robust. (All dubious spellings and phrasings are original; would that I could write any foreign language as well as Colin Cortbus writes English):
Far rather, it weaponises Germany‘s already wildly overbroad and repressive anti-insult and criminal libel laws, which have been previously highlighted on this website. Under these pre-existing, but often ineffectively or inconsistently enforced laws, truth is no absolute defence and even criticism of long-deceased historical figures can be criminalised.
Pursuant to the Network Enforcement Act, social media companies now face substantial fines of up to 50 million Euros if they fail to delete content that is “obviously illegal“ under these laws within 24 hours of recieving a complaint. The same fines apply if not-so-obviously illegal content is not deleted within one week. Moreover, social media companies are also obliged to respond to requests (possibly for data about allegedly criminal users) from state prosecutors within 48 hours – a fraction of the time it would take a good lawyer to write a letter disputing or refusing any mala fide requests.
German courts take months or years to decide whether or not certain speech counts as criminal libel or insult – and even then they often cannot agree. Social media companies cannot possibly accomplish the same in 7 days, much less 24 hours – and the Network Enforcement Law does not even attempt to define what is meant by an „obviously illegal“ posting that has to be deleted in 24 hours. As a result, social media companies will simply feel forced delete all and any disputed content, amid a flurry of malicious complaints from censorious politicians and businessmen who are keen to stifle criticism and inconvenient election campaigning. No wonder, given that experts estimate the fines and costs in case of non-compliance might set social media providers back by up to 530 million euros in total, annually.
Merkel‘s government knows all this full well. Legal experts have voiced strong criticisms of the Network Enforcement Act at parliamentary hearings.The government has been advised by its very own parliamentary research service that the law is in breach of European Union rules. Experts acting for the Organisation for Security and Cooperation in Europe, of which Germany is a member, have voiced concern that the law fails to strike an adequate balance when it comes to freedom of expression. David Kaye, the UN special rapporteur for free expression, has pointed out that the „ obligation placed upon private companies to regulate and take down content raises concern with respect to freedom of expression… A prohibition on the dissemination of information based on vague and ambiguous criteria, such as ‘insult‘ or ‘defamation‘ is incompatible with article 19 of the International Convenant on Civil and Political Rights“. Moreover, the UN special rapporteur noted that he was “also concerned at the provisions that mandate the storage and documentation of data concerning violative content and user information related to such content, especially since the judiciary can order that data be revealed. This could undermine the right [of] individuals enjoy to anonymous expression ..“.
(Colin Cortbus via Popehat) The author believes that Merkel is trying to engineer a landslide instead of a regular victory, because there’s little print opposition but quite a lot on social media.
* * *
But while we do have free speech, we also have cheap speech (a term I’d never heard before), and cheap speech is pushing the free speech envelope by breaking the paradigm many have in mind for free speech:
[A]fter a season of dangerous talk about responding to idiotic talk by abridging First Amendment protections, Americans should consider how, if at all, to respond to “cheap speech.” That phrase was coined 22 years ago by Eugene Volokh of UCLA Law School. Writing in the Yale Law Journal (“Cheap Speech and What It Will Do”) at the dawn of the Internet, he said that new information technologies were about to “dramatically reduce the costs of distributing speech,” and that this would produce a “much more democratic and diverse” social environment. Power would drain from “intermediaries” (publishers, book and music store owners, etc.) but this might take a toll on “social and cultural cohesion.”
…
Technologies that radically reduce intermediaries and other barriers to entry into society’s conversation mean that ignorance, incompetence and intellectual sociopathy are no longer obstacles. One result is a miasma of distrust of all public speech. Although Volokh leans libertarian, what he foresaw — “the demassification of the mass media” — led him to conclude: “The law of speech is premised on certain (often unspoken) assumptions about the way the speech market operates. If these assumptions aren’t valid for new technologies, the law may have to evolve to reflect the changes.” He warned about what has come about: odious groups cheaply disseminating their views to thousands of the like-minded. Nevertheless, he stressed the danger of letting “government intervene when it thinks it has found ‘market failure.’ ”
… [C]heap speech is reducing the relevance of political parties and newspapers as intermediaries between candidates and voters, which empowers demagogues. Voters are directly delivered falsehoods such as the 2016 story of Pope Francis’s endorsement of Donald Trump, which Hasen says “had 960,000 Facebook engagements.” He cites a study reporting approximately three times more pro-Trump than pro-Hillary Clinton fake news stories, with the former having four times more Facebook shares than the latter.
(George Will, emphasis added) Someone commented, and I’m surprised that I don’t seem to have blogged about it, that 2016 was the first time a Presidential candidate had essentially bypassed the political parties, using social media — specifically Twitter — to talk to willing inhabitants of a Trumpian echo chamber. This is probably the most notable example to date of cheap speech, and if the Democrats can get their minds off Russia, they might just try to “do a Merkel on it.”
* * * * *
“Liberal education is concerned with the souls of men, and therefore has little or no use for machines … [it] consists in learning to listen to still and small voices and therefore in becoming deaf to loudspeakers.” (Leo Strauss)
There is no epistemological Switzerland. (Via Mars Hill Audio Journal Volume 134)