Friday, August 17, 2018


Freedom of choice
Is what you got
Freedom from choice
Is what you want
--Devo "Freedom of Choice"

How the left reads the first amendment
Multiple recent events have bombarded us recently which are almost violently challenging basis American assumptions about rights and liberty.  For centuries, the USA has been founded on some very basic principles of rights and freedoms.  The founding documents of the United States were very strong on the concepts of liberty, laying out foundational principles about what freedoms and privileges all humans enjoy, and the American government is legally ordered to defend.

There have always been those who opposed liberty because of moral or cultural concerns; there were those who said rock and roll music was evil and bad for kids, so it should be silence, there were those who said that blacks could not be allowed in public pools, and so on.  And today that continues with those who say that Alex Jones must not be allowed to speak in public.

The common theme has always been the same, those in power, the establishment, oppose voices and ideas which challenge their power and dominance.  The people who protested for unlimited freedom of expression in Berkeley grew up to oppose freedom of expression today: what changed is that back then, they were the rebels and today, they are The Man.

And each time, the debate rages over what is freedom of speech, how much the first amendment protects, and what freedoms mean.  The debates are usually confusing and confused, with few people on either side who really comprehend the topic very well.

What is at stake here are two sometimes conflicting principles, both stated in the first amendment: the freedom of expression and the freedom of association.  Does my freedom of speech trump your ability to choose who you associate with?  Does you freedom of association compel me to engage in certain expressions or suppress others?

This sounds terribly theoretical, but it comes up regularly in the news.  Can you compel me to bake you a cake?  Do you have to allow me to post on your social media site?  Can you fire me for what I've said in the past on social media?  If you protest, can I stop your protest because I find you offensive and evil?  Is speech violence?

The more proper way of  stating this is "freedom of expression" since the idea is that "speech" can take various different forms.  This doesn't just protect words, but art, music, and a host of other expressions which can contain controversial or political import.

Its important to remember that there are two versions of this concept which are used in public life, but often confused or interchanged.

The first amendment contains the requirement by the people that the federal government protect and not attack free expression insofar as it does not materially damage other rights.  That is the legal, constitutional version and it only applies to government, not any other.  You cannot condemn a private business for violating the first amendment: it is not limiting their actions, only the government's.

The second concept, however is broader. Freedom of expression ("speech," the press, assembly etc) is an innate, God-given, inalienable right all human beings share simply by being human. We all have the right to freedom of expression merely by being human, although that right's expression can be suppressed (you can be silenced, you just still have the right to speech).

Why is this important?  As a society, we agree to an informal and unwritten contract: we will give up certain non-critical freedoms in order to gain greater safety and expression of our overall rights. I have the right to express myself however I wish even if it is lying and damaging to people, but we have agreed that it is illegal to slander or libel someone. I have the right to yell "fire" in a crowded theater (as the saying goes) but have agreed that it ought to be illegal to create chaos and riot that may harm people or businesses.

In other words, while the constitutional protection of free expression only applies to the federal government, the right of free expression is universal and should be protected in all peoples in all situations.  There is no legal compulsion and ought be no governmental penalty, but the social contract hinges on the defense of human rights and our willingness to tolerate and however reluctantly defend the rights of others.

This is also in the first amendment (along with freedom of the press, freedom of religion, and the right to petition the government if over violations of rights, although that last one is pretty well forgotten).  It is written in the form of "peaceably assemble" but is again broader than that simple concept.  People have the right to associate with who they please -- or do not please -- and the government may not compel them to either.

This means that you can choose who you will work with or play with, who you will hang with or not, who you will allow into your circle of friends or private club or not.  Government may not tell anyone that they must associate with -- work with, work for, or otherwise be with -- or must not.

However like all rights, such as freedom of expression, there are societally-agreed limits.  No right's free expression may legally violate another person's human rights.  You may not use your freedom of association to ban Mexicans from your business: they have freedom of association, too.

Now remember, the key thing here is that you have the right to do these things, but you do not have the legal freedom to do so.  In other words, you can do them, but will face punishment.  

What I mean is this: you have the right to slander people all day long, because the freedom of expression is unlimited and innate.  It cannot be taken away or limited; it is inherent, an "inalienable" (un-removable) part of being human.  But, and this is an important 'but,' your free expression of that right may be limited in some circumstances.  

You legally are not allowed to destructively lie about someone, even though you have the innate right to do so.  This concept is easier to understand in some examples than others, as we'll see.

Again, this comes down to the social contract: in order to have any semblance of culture and cohesive, orderly society, we agree to hedges on our expression of rights.  Those boundaries on our free expression of our rights are to be as limited and few as possible, but must exist for humanity to coexist.  Thus, we have libel laws, we have laws about not being able to ban someone from business.  Nobody can legally say "we don't serve your kind here" despite having the right to do so.

Now, here's where it gets a bit hazy.  That social contract varies over time.  Sometimes the limits are very few and weak, sometimes more heavy and restrictive.  Ideally, a free society has as few limits as it can possibly get away with, in order to continue to exist and prosper.  Such a society has to put up with a lot of really obnoxious and distasteful things, in the name of the greatest possible liberty.

Different times call for different measures of liberty.  During times of war, liberties are more closely curtailed, for the sake of survival and victory.  As Thomas Jefferson said:
"If we are forced into war, we must give up political differences of opinion and unite as one man to defend our country. But whether at the close of such a war, we should be as free as we are now, God knows. In fine, if war takes place, republicanism has everything to fear." 
Now, specifically we have a few examples lately of the tension between freedom of speech and freedom of association.

The first is the "de-platforming" of certain non-leftist voices such as Alex Jones and Infowars.  Alex Jones has built a media empire by saying the most outrageous and controversial things and embracing the most extreme conspiracies he can on air, ranting and raving sometimes in a manner that seems lunatic.  Its mostly an act, but in the process he's said some really stupid and awful things, such as claiming 9/11 was a government conspiracy to get us into war and that the shootings at Sandy Hook were staged, with grieving family members as "crisis actors."  

Jones also a powerful voice promoting ideas and news stories worldwide which a lot of people would rather be ignored or downplayed, particularly in Europe.  So pretty much every social media and broad platform on the internet decided all on the same day, some of them the same hour, to ban him.  LinkedIn, Instagram, YouTube, Facebook, hundreds of sites, all at once.

Now which right gets precedence here: freedom of association (I don't want him on my website) or freedom of speech (you get to say what you want, even if I don't like it)?  How do we pick through this to decide?

Or consider three opposing examples.  James Gunn was fired from his job as director and writer of the next Guardians of the Galaxy movie for some truly disgusting, horrific pedophilic and violence posts on social media in the past.  

Yet Sarah Jeong was hired to be on the editorial board of the New York Times newspaper despite her repeated and hateful tweets about men, white people, and cops, calling for violence and death to these groups.  When criticized for this, the Times called people racist and refused to budge.

And before that, Roseanne Barr, always controversial and insultingly outspoken, was fired from her show on ABC for a tweet comparing Valerie Jarrett to a character on Planet of the Apes.  ABC said it was racist, which puzzled most people (including Barr) who were unaware that Jarett was black.

Gunn has the right to say whatever he wants, but we have agreed that private businesses may choose to punish someone for their expression if they deem it too damaging to their business or public image. Youtube has the power to not carry Alex Jones' content if they choose to, because it is their business and their money to do with as they wish.

The question that society is struggling with, is whether or not freedom of speech or freedom of association is paramount here.  Which right wins if there is a conflict?  How do we decide?  The sad part is that most people decide how to come down on these issues based on what political or cultural ox is gored the most.  As Sonny Bunch recently wrote:
"Were one to compose a Venn diagram of people who supported both [the Gunn and Roseanne] firings - or opposed both firings - the resultant image would likely look like a bit like binocular lenses."
Personally I come down on the side of the business being able to decide who and how they hire or fire anyone without limitations.  Their right to property (their money, their name, their properties) is a higher priority than anyone's individual right to free expression.  That's the exchange in the social contract: in order to have business and order in a society, you give up some of your free expression in a job.

Thus, you're free to say what you want, how you want, but the business is also free to fire you or limit how you do so while on the job.  You can kneel in some meaningless and uncertain protest in your sportsball game but you can also be fired or penalized for doing so on the job.

But what does "on the job" mean?  And how much does your behavior impact a company?  Gunn wasn't even working at Disney when he posted most of that horrendous stuff.  Roseann Barr was tweeting on her personal account.  Jeong hadn't even been hired at the New York Times yet.

Does what we've done publicly in the past impact the business we work for?  Do the things we do privately justify response from business?  And complicating matters even more is social media: is that private at any level?  

Businesses have a reputation to consider like any individual person.  The higher profile you have, and the more money at stake, the more that reputation matters.  What I can do without concern, a celebrity or politician must be very cautious with.  Sarah Jeong's hateful and racist tweets were not a matter of much import until she was inexplicably tapped to take over editorial management duties at the nation's most prestigious newspaper.

Further, a business has to consider how the public will react to someone who works for them, even if its things in the past.  If you hire a CEO for your business and it comes out the guy was a Klan leader 10 years ago, that's going to severely damage your business even though it happened in the past, and technically its legal to be a Klansman.

Now I oppose firing people for dumb crap they've said in the past on social media or we all would be, but I also understand a business has to manage its public image, particularly one largely associated with children's entertainment like Disney.   For me, the main problem is consistency and hypocrisy, rather than the content of each case.  I don't like someone being fired for racism in one case and hired despite it in the other.

All of this stuff has to be taken into consideration, its not as simple as we do/do not have free speech.  There are other rights and liberties to understand and consider.  And the biggest concern for me is the push on one side to silence news organizations because they oppose a politician, or individual citizens because they support him.  I strongly oppose the idea of the president being able to shut down news organizations that lie about him or publish nonsense, just as I oppose the idea of "deplatforming" people from allegedly neutral public sites.

As the very concept of liberty is under assault because of "larger social justice issues" is deeply disturbing to me, representing not a change of interpretation but an outright rejection of the constitution and principles of liberty the nation is founded upon.  In the past, people would embrace the constitution and the ideals of rights, but claim they weren't applicable in this situation or were trumped by larger rights (or concerns about The Children).  Today, the very idea we even have inalienable rights or that we should heed the Constitution are under assault.

Again, Sonny Bunch writes:
"For now, the First Amendment will likely hold off any serious efforts to compel association (or allow the executive to unilaterally shut down a printing press). But I fear that our changing norms will render it a temporary bulwark. Given the fact that reputable legal minds writing in reputable publications are comfortable arguing that we have too much freedom under the First Amendment, and given changing attitudes about free speech on liberal college campuses and free association in the conservative movement, radical changes are coming sooner than we might like."
Compare that to what James Madison, primary author of the US constitution and the first ten amendments to it wrote about the constitutional protections:
Will it be sufficient to mark, with precision, the boundaries of these departments, in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power? 
A barrier made of parchment is, shall we say, lacking in durability.  The Founding Fathers -- not just Madison, but all of them -- knew that a law, a document, would only protect our rights and establish liberty as long as the people kept honoring and protecting those rights.  As soon as the people, or their representatives, stopped doing so, they would be crushed and thrown aside.  And always, for what are presented as good causes and for the betterment of us all, usually to protect us from Bad People.

Madison goes on in the above quote to note that already even before the final US Constitution is finished, the legislature had begun to encroach on liberty and reach out like a spreading pool of blood to grasp more and more power at the expense of the rights and freedoms of the people.  And we stand at the edge of a precipice where young people are not just of the opinion, but openly taught that safety and ending hurt feelings matters more than liberty.

Where we go from here, I do not know. I'd like to believe we've reached the high tide of leftist extremism, but I am not in any way confident.  I continue to believe that America as a constitutional republic is over, but whether we can recover that or how long the tattered remnants of our republic carry us through before a tyrant takes over, we will see.

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