Tag: free speech

Quick Hit: SCOTUS Defends the First

I have a big post coming up tonight or tomorrow on empathy, partisanship and politics. In the meantime, I wanted to cheer the SCOTUS today, who delivered a series of good decisions today. In Bristol-Myers Squibb v. Superior Court of California, the Court decided that, no, trial lawyers can not randomly shop around for the friendliest court to sue in. It was an 8-1 decision. In McWilliams v. Dunn, they narrowly held that defendants in trials are, in fact, entitled to metal health experts who are available to the defense and independent. This was 5-4, with Gorsuch dissenting, so a lot of the trial protections we have still hang by a thread.

But there were two big First Amendment wins today:

In Packingham v. North Carolina, they ruled 8-0 that North Carolina could not make it a felony for sex offenders to access social media. This is a bit more controversial, but the Court argued that a blanket restriction was too broad and the states could easily enact more narrow laws that protect children on the internet without burning First Amendment rights. What’s more important though was the thought process behind the decision: the Court showed a deference to internet communication as free speech. This could be critical in the coming decades as politicians of both parties would love to restrict internet speech.

More importantly, in Matal v. Tam, the Court ruled that copyright protections can not be rescinded because the name of something (in the case, an Asian-American rock band called the Slants) offends people, with clear implications for lawsuits involving the Washington Redskins. What was encouraging was that the court decided — unanimously — against the idea that there is a hate speech exception to the First Amendment.

These two decisions are encouraging. Not only did they defend the right to Free Speech — our most critical right. But they did so unanimously and in circumstances — one involving a sex offender and one involving an offensive band name — where pundits and wags will blither endlessly about the supposed limits of free speech.

All the President’s Tweets

It’s odd that I’m finding myself defending the Administration even as they spiral down, but .. there we are.

There’s a lawsuit right now alleging that Trump’s occasional use of Twitter’s block function is a violation of the First Amendment. According to the lawsuit, people have a Constitutional right to see his tweets and respond to them on the Twitter platform.

I am very dubious of this argument for a number of reasons. First, as Eugene Volokh points out, Trump’s RealDonaldTrump account could be considered a personal account, not a government one. Second, even a blocked user can see Trump’s tweets by logging out of Twitter and going to the page. And even if that option didn’t exist, it’s not like the media never cover Trump’s tweets. Third, Twitter is a private forum, not a public one.

There’s a fourth part, too. The more substantial part of their case is that a block prevents people from addressing the President. While that’s true, I don’t believe our right to free speech and petition require politicians to stand there and listen to us. That goes double when we’re tweeting cat memes at them. More importantly, there’s nothing Twitter does that stops you from addressing the President even if you are blocked. You can tweet, “Hey, Mr. Trump, your budget sucks” until the cows come home. You just can’t tweet at the President.

Here’s a real life example: I was blocked by Howard Dean for a fairly anodyne snark. I can’t tweet at him. But I can tweet about him just fine. See:

So no I don’t think this suit has merit. Let me be clear: I would prefer that the President not block people on Twitter. I don’t think politicians should block people at all since they’re in the public sphere. And Trump’s use of the block features seems rather random than arbitrary. But there is no Constitutional right to make the President listen to you.

Coulter Cancelled

By now you’ve probably heard to the Ann Coulter Berkeley controversy. To sum up, college Republicans invited Coulter to speak at UC Berkeley, which has been a hotbed of anti-Trump protests (notably a riot when Milo Yiannopoulos spoke back in February). Berkeley cancelled the speech, citing security concerns over threatened violence. They reversed after an outcry but the effort to get her to speak broke down amidst recriminations and threats of violence.

Our blog has a long history of slamming Ann Coulter (Lee used to call her “Mann Coulter”). But this is revolting. Coulter is not a Nazi. She’s not advocating violence or making true threats. She’s simply saying things that people disagree with. I disagree with her, too, but … she has a right to say them. She definitely has a right to say them at a public university. And I would argue that while she has no “right” to say them at a private university, she should be allowed to in our effort to maintain a culture that respects free speech and open dialogue.

The editors at National Review say it better than I ever could:

For those at Berkeley celebrating what they believe to be a moral victory, consider this: As much as you may detest Ann Coulter, she has never used violence or the threat of violence to keep someone from speaking. She is a better citizen than you are, with a deeper commitment to genuinely liberal and humane values. You may call yourselves the anti-fascists, but your black-shirt routine — along with your glorification of political violence and your rejection of liberal and democratic norms — suggest that the “anti” part of that formulation is not entirely appropriate. Perhaps you are only young and ignorant, but if you had any power of introspection at all, you would see that you are the thing you believe yourselves to be fighting. You are the oppressors, the censors, the violent, the hateful, the narrow-minded, the reactionary.

I’ll give credit where it’s due. There are a number of liberals — Glenn Greenwald, Elizabeth Warren, Bernie Sanders, Bill Maher, Christ Mathews — who have lept to Coulter’s defense. They have made it clear that while they consider her ideas repulsive, the use of violence to shut down speakers is even more repulsive. Challenge, debate, protest — these are all good. But shutting down smacks of censorship.

It’s also worthing noting, as many have, how fast we’ve gotten to the point where threatening violence against Ann Coulter is now acceptable. The anti-free-speech sentiment has, of course, been building for years with campus activists claiming that speech can constitute violence and therefore violence in response is justified. We’ve seen hints of thuggish censorship in such things as the Missouri incident and the UCSB professor who seized and tore up anti-abortion signs. But the Trump presidency seems to have accelerated this awful trend, with speech suppression and violence supposedly justified by Trump’s awfulness and a tiny but particularly loathsome subset of his supporters.

The big alarm bell was a couple of months ago. Richard Spencer — a white supremacist and Trump supporter — got sucker-punched during an interview. Many liberals cheered for this. People like me — while finding Spencer and his views repulsive — objected to the use of violence against a non-violent speaker. And that’s when the Nazi argument was unfurled. We were told, “Hey, he’s a Nazi! He doesn’t respect our right to free speech!” Ken White absolutely demolishes that argument:

First, the argument relies on a false premise: that we don’t, or shouldn’t, extend rights to people who wouldn’t extend those rights to us. This is childish nonsense, and a common argument for tyranny. We criminal defense lawyers know it very well: why should this guy get a trial? He didn’t give his victim a trial. Why should she be shown any mercy? She didn’t show her victims mercy. Why does he get due process? He didn’t give his victims due process. The argument is particularly popular since 9/11. You hear it a lot whenever anyone suggests that maybe people accused of being terrorists — or of being someone who might plausibly grow up to be a terrorist, or might take up terrorism as soon as this wedding is over — perhaps should be treated as having some sort of right not to be killed or tortured or indefinitely detained. Nonsense, is the response. They wouldn’t give you any rights. The constitution isn’t a suicide pact! It’s also popular in matters of modern religious liberty. How can you argue that Muslims should have the freedom to worship here when Muslim countries deny Christians and Jews that right? In this manner, the student Left represented by the quotes below shares an ethos with the authoritarian and racist wings of the Right. A common taste for authoritarianism makes strange bedfellows.1

In fact, we extend rights to everyone, regardless of whether they support those rights or not. That’s the deal, it’s the way rights work. Rights arise from our status as humans, not from our adherence to ideology. If they didn’t, I could very plausibly say this: Pomona College, Wellesley College, and Berkeley should expel the students quoted above, because people actively advocating to limit free speech rights can’t expect any free speech rights themselves.

White’s equally salient point is that once you’ve said it’s OK to silence Nazis with violence, it’s a slippery slope to silencing everybody with violence. When this argument was raised after the Spencer punch, liberals said we were being hysterical. But the Coulter mess — along with a dozen other incidents — has proven our concerns ominously justified. In just a few months, we’ve gone from “it’s OK to punch a Nazi” to “it’s OK to beat up someone who invited Charles Murray to speak” to “it’s OK to silence Heather McDonald” to “it’s OK to threaten violence if mainstream Republicans march in non-political parade”.

(The Murray one is especially interesting because Murray was planning to talk about the growing disconnect between coastal elites and rural voters. Academics who read the speech, not knowing the identity of the author, thought it was very reasonable. But Murray once wrote a book about race and intelligence so, apparently, everything he does is contaminated).

To be fair, I suspect these thought-suppressers are a vocal minority. CNN interviewed many Berkeley students who support Coulter’s right to speak. But … that’s kind of the problem. Students who support free speech have been cowed by a vocal, violent minority into compliance. And worse, we have college professors and administrators defending these actions, establishing a campus norm that censorship is acceptable, even admirable.

I don’t want to give the impression that censorship is a one-sided affair. We’ve certainly seen the Right erupt over “unacceptable speech”, including a thoroughly misguided effort to punish campus protesters. But there is little doubt that the censorship efforts on campuses — which should be more free and more open to debate — are being led by the Left.

What’s especially ironic is that these protests are taking place in the University of California system. We’ve recently found out that the UC system is burning money like no one’s business.

The University of California hid a stash of $175 million in secret funds while its leaders requested more money from the state, an audit released on Tuesday said.

The San Francisco Chronicle reported that the audit found that the secret fund ballooned due to UC Office of the President overestimating how much is needed to run the school system that includes 10 campuses in the state. Janet Napolitano, the former Department of Homeland Security chief, is in charge of the school system.

Napolitano denied the audit’s claim. She reportedly said the money was held for any unexpected expenses. Her office also denied the amount in the fund.

Elaine Howle, the state auditor who came up with the report, found that from 2012 to 2016 the office looked to raise more funding by inflating estimates. Howle also said that a top staff member in Napolitano’s office improperly screened confidential surveys that were sent to each campus. Howle said answers that were critical of Napolitano’s office were deleted or changed before being sent to auditors.

At the time they were doing this, they were paying their top ten executives a combined $3.7 million. Napolitano said the fund is “only” $38 million and is there for contingencies in a $28 billion state budget. But her office consumes over half a billion a year to educate no one and do no research. They just administrate.

And this is just the tip of iceberg. Just this year, we started learning the truth about Linda Katehi, the infamous chancellor of UC Davis who was partially responsible for the point-blank pepper spraying of student protesters. The graft is breathtaking.

But a few years later, the Sacramento Bee reported that Katehi “contracted with consultants for at least $175,000 to scrub the Internet of negative online postings” on the pepper-spraying and “to improve the reputations of both the university and Chancellor Linda P.B. Katehi.” UC Davis signed one 6-month contract with a PR company at a rate of $15,000 per month. An objective described in the company’s proposal was the “eradication of references to the pepper spray incident in search results on Google for the university and the Chancellor.” Scott Shackford called it “another example of colleges no longer fulfilling their roles as defenders of speech and openness, combined with abusive police behavior, with an added dash of the administrative bloat that’s driving up higher education costs.” He added, “in the years since Katehi took over in 2009, the budget for the communications office has grown from $2.93 million to $5.47 million.”

Alas, the squandering of the UC system’s money was far from complete. Embattled since the pepper-spraying incident, Katehi came under additional fire for accepting lucrative positions on the boards of firms that seemed to pose clear conflicts of interest, including a major publisher of college-level textbooks, where she earned more than $400,000 moonlighting over the course of three years, and a for-profit university.

UC Davis finally did get rid of Katehi — after spending over a million dollars investigating the matter (including $400k to Katehi to take a year off while the investigation proceeded). Some of this money came from donations and endowments, true. But money in fungible. And money the UC system spent trying to defend Katehi’s name, trying to scrub her image and then trying to fire her is money they weren’t spending on other more worthy things.

To be fair to the students, they did protest against Katehi and demanded her ouster. But to be really fair, there is a lot of this going on in university systems all over the country. State spending on universities has gone down (after sharp rises in the early part of the century). But federal and private funding is up, as are tuitions. And that sea of money is not going to professors and researchers. If you look at public data for salaries at universities, you’ll find the top money is going to administrators, doctors and sports coaches. Oh, and the consultants the six-figure-salaried administrators call in whenever they have a decision to make.

Tuitions are thousands of dollars higher and debt even bigger so that a host of admins can collect big salaries. That’s money that could be funding scholarships or hiring more professors or simply being put back into the students’ pockets. That’s something that impacts students directly and does greater damage to them than anything Ann Coulter has ever said or ever will.

Free Speech and Stochastic Terrorrism

Howard Dean has been saying some remarkably dumb things about free speech this week. I can’t embed his tweets (his Twitter staff blocked me for some very low-grade C-level snark) but it essentially amounts to there being no right to “hate speech”.

You can read Mataconis above and the link therein to Volokh who are experts in the legal history. They point out chapter and verse where Dean has it wrong.

The idea that so-called ‘hate speech,” a term which is incapable of being adequately defined objectively and seems to depend entirely on the subjective reactions of listeners, is not protected by the First Amendment goes against the entire history of the First Amendment itself as well as numerous landmark Court decisions that have put the definition of ‘freedom of speech’ to the test. One of the most famous of those, or course, was National Socialist Party Of America v. Village of Skokie, a 1972 case that involved an effort by a predominantly Jewish Chicago suburb’s efforts to block a group of Nazis from staging a march through the town. In that case, the Illinois Supreme Court, acting after a reversal of an injunction against the march issued by the United States Supreme Court, ruled that the use of a swastika in the march was precisely the kind of symbolic speech protected by the First Amendment and that the government could not enact a prior restraint against such speech just based on the fear that it could provoke a violent response from on-lookers. More recently, in Snyder v. Phelps, the Supreme Court set aside a civil judgment issued by a jury in Maryland against the Westboro Baptist Church in favor of the father of a fallen Marine whose funeral was protested by Westboro with its all-too-familiar signs and rhetoric. In its ruling, the Court held that the fact that Westboro’s rhetoric was highly offensive and hateful was not, in and of itself sufficient reason to exempt it from the protection of the First Amendment. In these and other cases, the Supreme Court has made clear that the mere fact that speech is offensive is not, in and of itself, sufficient justification for banning it or punishing those who might utter it in either criminal or civil Court.

Proponents of hate speech bans argue that such speech is, in fact, a form of violence. But this argument has gotten very far since most people, rightly, regard it as obscene to equate speech with violence. They have also tried to argue that hate speech constitutes “incitement”. But Volokh gets into this:

The same is true of the other narrow exceptions, such as for true threats of illegal conduct or incitement intended to and likely to produce imminent illegal conduct — i.e., illegal conduct in the next few hours or maybe days, as opposed to some illegal conduct some time in the future. But these are very narrow exceptions. Dean’s post came in response to a Steven Greenhouse tweet saying, “Free Speech Defenders Don’t Forget: Ann Coulter once said: My only regret w/ Timothy McVeigh is he did not go to the New York Times building”; but if Dean meant that such speech by Coulter is constitutionally unprotected, he’s wrong. Indeed, even if Coulter was speaking seriously (which I doubt), such speech isn’t unprotected incitement, because it isn’t intended to promote imminent illegal conduct. Compare, e.g., Rankin v. McPherson (1987), which upheld the right to say, after President Ronald Reagan was wounded in an assassination attempt, “If they go for him again, I hope they get him” — and that was in a case involving a government employee being fired for her speech; the First Amendment offers even stronger protection to ordinary citizens whose speech is more directly restricted by the government.

Returning to bigoted speech, which is what most people use “hate speech” to mean, threatening to kill someone because he’s black (or white), or intentionally inciting someone to a likely and immediate attack on someone because he’s Muslim (or Christian or Jewish), can be made a crime. But this isn’t because it’s “hate speech”; it’s because it’s illegal to make true threats and incite imminent crimes against anyone and for any reason, for instance because they are police officers or capitalists or just someone who is sleeping with the speaker’s ex-girlfriend.

There is one twist on this concept of incitement that I wanted to get into, however. One idea that has gained some credence on the Left in recent years is that even if “hate speech” doesn’t directly incite immediate violence, it can constitute stochastic terrorism. The idea of stochastic terrorism is that Right Wing politicians (and only Right Wing politicians) don’t actually incite violence directly but use charged rhetoric hoping that, in a nation of three hundred million people, this will motivate someone to engage in violence. It is most often applied to abortion foes, with critics claiming their cries of “murder” are deliberately designed to make people run out an shoot abortion clinicians (because, apparently, no one could honestly believe in their heart that abortion is murder). But we’ve seen it in other contexts as well: the Murrah Bombing being blamed on talk radio; the Giffords shooting being blamed on Sarah Palin; a census worker’s suicide being falsely attributed as homicide and blamed on census opponents. Hell, there were people who blamed the Kennedy assassination on his right-wing critics.

This theory of stochastic terrorism is, to put it mildly, manure. It is a theory designed but with one purpose: to tar the speech of people the theorists disagree with and, hopefully, silence them. And it is very easily proven.

Many years ago, talk show host Neal Boortz had a quiz on his website asking readers to figure out if passages about the environment were from Algore’s Earth in the Balance or the Unabomber’s manifesto. It was actually kind of difficult. They used the same language, the same extreme rhetoric, the same dire claims that the Earth was doomed. Yet no one would accuse Algore of “stochastic terrorism” because of the Unabomber (or any other eco-terrorist).

For the last two years, a large fraction of the Left has been calling Trump a fascist and comparing him to Hitler. If someone were to try, God forbid, to assassinate Trump, would they all be guilty of stochastic terrorism?

“Ah”, you might say, “But the difference is that this Left Wing rhetoric is right. The Earth is in danger. Trump is a fascist.”. Well, Islamic terrorism is a danger. Millions of potential human lives have been extinguished by abortion. Why is the danger you fear real and the danger others fear fake?

It is antithetical to the very concept of this nation for people to be afraid to using strong language when they fear that something very wrong is being done. I may not agree with them. And I will frequently think they are being needlessly hysterical. But if you think abortion is murder, you should be able to say so. If you think Trump is a fascist, you should be able to say so. Yes, there is always a risk that someone will take your words to heart and do something awful. But we can not let our political dialogue be set by a fear of maniacs. We can not allow a “gunman’s veto” on free speech. This is why the Courts have taken a precise view of what constitutes incitement. And it’s why they should continue to do so.

It’s strange for me to say this because I think that extreme rhetoric is a problem in American politics and that people do not need to back off and listen to each other. Debates about healthcare, taxes, terrorism, war and spending would be a lot better if they weren’t conducted in apocalyptic terms. But good manners, a sense of perspective and respectful dialogue can not be enforced with moral threats. And good dialogue does not begin with restrictions on free speech.

A Little Consistency Would Be Nice

The California State Attorney General has now brought charges against the two activists who secretly recorded Planned Parenthood and edited the videos in a deceptive fashion. 14 counts of recording someone without consent and 1 of conspiracy. Now they did break the law — California is a two-party state.

But here’s my question: when are charges going to be brought against animal rights activists who secretly record damning footage (and, in the case of PETA at least, sometimes deceptively edited it)? Were charges ever brought against the people who secretly recorded Mitch McConnell discussing campaign strategy? Kentucky’s not a two-party state but it’s not a no-party state. Nor is Florida, where someone secretly recorded Mitt Romney’s “47%” comment (and if your memory is long enough, someone spied on Newt Gingrich’s phone calls). When are we going to see police raids of their homes and multiple felony charges brought against them? The answer, of course, is never.

Jacob Sullum, hardly a Right Wing Culture Warrior, ask the same question. He notes that public conversations (which these were) and investigations (which the activists claim this was) are generally exempted from California’s wire-tapping laws.

Would California’s attorney general have pursued felony charges against pro-choice activists who used hidden cameras to record meetings with the operators of “crisis pregnancy centers” that steer women away from abortion? If not, Becerra’s concern about “the right to privacy” is nothing more than a pious-sounding cover for a political vendetta.

The problem here is that the Left does not see pro-Life activism as legitimate activism. It’s why they propose and support things like buffer zones and bans on signs showing fetal remains — restrictions on speech that would decry as fascism if they were applied to, say, striking factory workers. I’m pro-choice. But I will defend to the last full measure the right of pro-lifers to express their views.

Keving Drum:

I continue to have zero sympathy for these two. They edited their videos deceptively and basically lied about everything they did. Nevertheless, I don’t like the idea of prosecuting them. This was a legitimate investigation, and no level of government should be in the business of chilling it. The First Amendment doesn’t say anything one way or the other about how honest one’s speech has to be.

This also strikes me as political grandstanding. I imagine that if this were a couple of liberal activists secretly recording meetings with anti-immigration groups, Attorney General Xavier Becerra wouldn’t so eager to go after them.

This was started by former AG, now Senator, Kamala Harris, who had a history of bringing high profile bullshit prosecutions while ignoring things like cops passing around an underage prostitute like she’s a job perk. In the wake of the Planned Parenthood videos, she proposed extra laws to protect … Planned Parenthood. She was a very political AG and her successor seems equally political.

I hate defending these guys. I agree with Drum that the videos were deceptive. But the more I think about it and the more I read about it, the more this prosecution crosses me as garbage. This is not about deceptively-edited videos or violations of privacy. This is about political grandstanding by two Attorneys General. This is about protecting a liberal interest from any kind of scrutiny. It’s about, as Clark at Popehat once brilliantly said, walking around the field of the Culture War battle and shooting the survivors of the losing side.

In The News

A few stories I’m following right now:

  • I’ve been critical of some of Trump’s cabinet choices. But my first impression of Mattis, the proposed Secretary of Defense, is positive. He opposes torture, supports a two-state solution for Israel, recognizes that the Iran deal is flawed but that tearing it up would be a mistake. His approach to Iraq was a big reason the surge worked and his musings show an active and sharp mind. He has been willing to praise or criticize politicians from both sides. Moreover, Trump said that one thing that impressed him was that Mattis opposes torture, which Trump ostensibly favors, and made a good argument against it. One of the big concerns with a President is that he will surround himself with Yes Men. Mattis is definitely not a Yes Man. He’s a good choice. But the thought process behind the pick is also encouraging.
  • Of course, he’s still thinking about Bolton for State, so it’s not all roses.
  • Trump sent out a tweet the other day saying that flag burning should be banned and come with a loss of citizenship. You can pretty much guess my response to this: I’m with Scalia.
  • Of course, Hillary Clinton her own damned self once co-sponsored an anti-flag burning bill. No matter what Trump does, let’s not lose sight of what the alternative was like.
  • Neither Obama nor Biden will attend Castro’s funeral. Good.
  • Trump’s deal to keep Carrier from shipping jobs to Mexico (actually, Pence’s deal) does not impress me. It’s a $7 million tax break specifically for Carrier to keep 1000 jobs in Indiana. It’s crony capitalism and an example of what we shouldn’t be doing. We have an entire economy run on backdoor tax breaks, regulatory holidays, subsidies and special dispensations. What we need to do is make America a better place for all businesses through comprehensive and universal regulatory and tax reform.
  • However, I suspect the Carrier deal is a preview of Trump’s Presidency. He’ll make a huge fuss about little things he does like saving a thousand jobs, to give the impression that he’s doing good (which, to be fair, all Presidents do). The real good will have to come from Congress, who have the power to unshackle our economy.

Silencing Science

Again, before we get into this, here is where I am coming from: global warming is real; we are almost certainly causing it; it is very likely to be bad; proposed liberal solutions are terrible and often counterproductive.

To wit:

A landmark bill allowing for the prosecution of climate change dissent effectively died Thursday after the California Senate failed to take it up before the deadline.

Senate Bill 1161, or the California Climate Science Truth and Accountability Act of 2016, would have authorized prosecutors to sue fossil fuel companies, think tanks and others that have “deceived or misled the public on the risks of climate change.”

The measure, which cleared two Senate committees, provided a four-year window in the statute of limitations on violations of the state’s Unfair Competition Law, allowing legal action to be brought until Jan. 1 on charges of climate change “fraud” extending back indefinitely.

“This bill explicitly authorizes district attorneys and the Attorney General to pursue UCL claims alleging that a business or organization has directly or indirectly engaged in unfair competition with respect to scientific evidence regarding the existence, extent, or current or future impacts of anthropogenic induced climate change,” said the state Senate Rules Committee’s floor analysis of the bill.

No no no no no no no no no no no NO NO NO! Bad legislature! Bad, bad legislature. Go sit in a corner and think about what you almost did.

I’m not going to mince words: this bill was (and probably will be again) a totalitarian piece of shit. It would have opened up climate skeptics to lawsuits because of their speech and opinions (keeping in mind that “climate skeptics” is class that often includes me because I oppose liberal solutions to global warming). Not only that, it would have extended that liability back for 30 years, allowing climate skeptics to be sued for statements they made when the science was way less certain.

Not only is the bill an attack on the First Amendment, it’s an attack on science. Science benefits from criticism, even criticism from cranks. In the case of climate science, methodology has been improved and data made more readily available to the public in response to skeptics. This has made the case that global warming is real stronger.

I understand where this is coming from. Climate scientists have found themselves the targets of a massive disinformation campaign. Garbage climate memes (polar ice caps are growing! Global cooling! It’s the sun!) proliferate no matter how often and how thoroughly they are debunked. In many cases, it’s gotten personal with online attacks and death threats.

But as Megan McArdle pointed out, fighting fire with fire isn’t helping:

There is a huge range of possible beliefs that go into assessing the various complicated theories about how the climate works, and the global-warming predictions generated by those theories range from “could well be catastrophic” to “probably not a big deal.” I know very smart, well-informed, decent people who fall at either end of the spectrum, and others who are somewhere in between. Then there are folks like me who aren’t sure enough to make a prediction, but are very sure we wouldn’t like to find out, too late, that the answer is “oops, catastrophic.”

These are not differences that can be resolved by name calling. Nor has the presumed object of this name calling — to delegitimize thoughtful opposition, and thereby increase the consensus in favor of desired policy proposals — been a notable political success, at least in the U.S. It has certainly rallied the tribe, and produced a lot of patronizing talk about science by people who aren’t actually all that familiar with the underlying scientific questions. Other than that, we remain pretty much where we were 25 years ago: holding summits, followed by the dismayed realization that we haven’t, you know, really done all that much except burn a lot of hydrocarbons flying people to summits. Maybe last year’s Paris talks will turn out to be the actual moment when things started to change — but having spent the last 15 years as a reporter listening to people tell me that no, really, we’re about to turn the corner, I retain a bit of skepticism.

(McArdle, who thinks global warming is real and we should take action just in case it turns out be very bad, was immediately branded a Koch shill and a denialist for having the temerity to suggest that calling every heretic a Koch shill and a denialist wasn’t a great way to promote science. So, yeah. She also links Warren Meyer’s outstanding series of posts on why is a “lukewarmer”. I don’t agree with everything he says, but he has a very good grasp of the science and makes the case for a conservative set of policies to address global warming.)

This is long past being absurd and going into territory that’s outright dangerous. We have Attorneys General investigating “denialists”. We have cartoons depicting violence against “denialists”. We now have a legislature trying to effectively silence “denialists” by gutting the First Amendment. Global warming is becoming less of a science/policy issue and more of a Culture War issue and we really can’t afford that.

Enough. It’s tiring, I know. But the only way to fight bad speech is with good speech. That has always been the case, it is currentlty the case and it always will be the case. If the global warming alarmists want to make some progress, decoupling the science case that global warming is real from the political case that we must do X, Y and Z would be far more beneficial than passing blatantly unconstitutional law to try to shut people up. You’ll get a lot more people to talk about global warming if talking about global warming doesn’t necessarily mean giving government even more power over our lives.

Update: In related news, Andrew Cuomo has issued an executive order to boycott businesses that boycott Israel. I support Israel. I think the boycott business is ridiculous. I think a government moving against boycotters is a horrific intrusion on free speech and free association.

Chaos in San Jose

Oof:

Protesters and supporters of Donald Trump clashed in the streets of San Jose, California, Thursday night after the presumptive GOP nominee held a rally.

Protesters waved Mexican flags and one could be seen burning an American flag, with another burning Trump’s “Make America Great Hat.” Some chanted “F— Donald Trump” and “Donald Trump has got to go” outside the San Jose Convention Center, where Trump held his rally.

Reports include Trump supporters being egged, supporters and protesters being punched and protesters jumping on cars and screaming about how we need socialism (the irony of far more violent protesters over the effects of socialism in Venezuela being lost on them).

This is insane. This is thuggery. This is unacceptable. A lot of the commentary focuses on how this plays into Trump’s hands and will rally his support. Maybe. But I find myself agreeing with Chris Hayes:

And as for my feelings about this:

Trump is bad Presidential candidate and I think would likely make a bad President. His “plan” for expelling eleven million illegal immigrants has the very real potential to be a humanitarian disaster. And he has no respect for other people’s First Amendment rights, having brought numerous SLAPP lawsuits to silence his critics and making open threats of what he would do, as President, to judges and reporters he doesn’t like. But he’s not Hitler. I have no problem with people protesting against him or his policies. But when they attack his supporters or try to stop him from speaking, they’ve crossed a line.

This is usually the point where some helpful person will point out the First Amendment only protects us from government censorship. And they’re right. However, as Greg Lukianoff has argued, it is critical that we not only respect the First Amendment but that we cultivate a culture of free speech. We ned a country where the mere idea of silencing people we don’t like through thuggery, be it individuals or government, is repellent. But to far left, the idea of letting people speak has become anathema. We used to boast about letting Nazis and the KKK — real genuine hate groups that advocated violence — speak what was in their twisted little minds. Now we descend into madness on the words of a two-bit New York real-estate mogul.

Let Trump speak. Let people support him. And respond to thing you don’t like with more speech and rallying your supporters. That’s the way you deal with politicians and political movements you don’t like. And as long as you’re doing that, I will support your right to speak just as vigorously as I support Trump’s.

No, You Can’t Sue, Part Duh

I’ve made it clear where I stand on global warming: I think it’s real, I think we are causing it, I’m pretty sure it’s going to be bad, I don’t think our government has a clue what to do about it. Yet, I feel very comfortable saying that this is bullshit:

The Competitive Enterprise Institute (CEI) today denounced a subpoena from Attorney General Claude E. Walker of the U.S. Virgin Islands that attempts to unearth a decade of the organization’s materials and work on climate change policy. This is the latest effort in an intimidation campaign to criminalize speech and research on the climate debate, led by New York Attorney General Eric Schneiderman and former Vice President Al Gore.

“CEI will vigorously fight to quash this subpoena. It is an affront to our First Amendment rights of free speech and association for Attorney General Walker to bring such intimidating demands against a nonprofit group,” said CEI General Counsel Sam Kazman. “If Walker and his allies succeed, the real victims will be all Americans, whose access to affordable energy will be hit by one costly regulation after another, while scientific and policy debates are wiped out one subpoena at a time.”

The subpoena requests a decade’s worth of communications, emails, statements, drafts, and other documents regarding CEI’s work on climate change and energy policy, including private donor information. It demands that CEI produce these materials from 20 years ago, from 1997-2007, by April 30, 2016.

This isn’t coming out of nowhere. Several climate activists have bene calling for precisely this sort of investigation for a while and several other AG’s have been pondering such a move. But while I strongly disagree with the CEI about the reality of climate change, this is an extremely chilling move (no pun intended).

Walter Olson again:

If the forces behind this show-us-your-papers subpoena succeed in punishing (or simply inflicting prolonged legal harassment on) groups conducting supposedly wrongful advocacy, there’s every reason to think they will come after other advocacy groups later. Like yours.

This is happening at a time of multiple, vigorous, sustained legal attacks on what had been accepted freedoms of advocacy and association. As I note in a new piece at Cato, Sen. Elizabeth Warren has just demanded that the Securities and Exchange Commission investigate several large corporations that have criticized her pet plan to impose fiduciary legal duties on retirement advisors, supposedly on the ground that it is a securities law violation for them to be conveying to investors a less alarmed view of the regulations’ effect than they do in making their case to the Labor Department. This is not particularly compelling as securities law, but it’s great as a way to chill speech by publicly held businesses.

Make no mistake. This isn’t about racketeering and it certainly isn’t about science. It’s about shutting people up. And as a defender of free speech, I will defend it for everyone. The CEI is not engaged in criminal conduct. Nor are they part of a shadow conspiracy of evil oil interests to wreck the planet. At worst, they are guilty of deception in talking about global warming. More likely, they are guilty of motivated reasoning, rejecting global warming because they don’t want it to be true. Neither of those things is a crime. McArdle, on the similar BS inquiry into Exxon Mobil:

State attorneys general including Walker held a press conference last week to talk about the investigation of ExxonMobil and explain their theory of the case. And yet, there sort of wasn’t a theory of the case. They spent a lot of time talking about global warming, and how bad it was, and how much they disliked fossil fuel companies. They threw the word “fraud” around a lot. But the more they talked about it, the more it became clear that what they meant by “fraud” was “advocating for policies that the attorneys general disagreed with.”

New York Attorney General Eric Schneiderman gave the game away when he explained that they would be pursuing completely different theories in different jurisdictions — some under pension laws, some consumer protection, some securities fraud. It is traditional, when a crime has actually been committed, to first establish that a crime has occurred, and then identify a perpetrator. When prosecutors start running that process backwards, it’s a pretty good sign that you’re looking at prosecutorial power run amok.

Frankly, the CEI is an odd place to start if we’re going to start bashing anti-science people. The CEI, at worst, is delaying action on a climate crisis that might have negative effects in the future (pushing aside pseudoscientific theories that global warming created ISIS and such). But anti-GMO activists, by contrast, are killing people right now. They’re preventing the use of the golden rice which could stop thousands of people from going blind right now. And don’t get me started on the anti-Vaxxers. But you don’t hear anyone talk of prosecuting them. Why not? Because they’re not associated with Evil Big Oil.

This is garbage. Attorneys General who engage in this sort of tyrannical lawfare need to hounded out of office. This is a companion to my post below on lawsuits against gun companies and it has the same principle: the law is not a weapon to use against people you disagree with. Because once we establish that it is, it will take about ten seconds for that law to be used against your interests.

Book Review: Unlearning Liberty

I just finished reading Greg Lukianoff’s excellent book Unlearning Liberty. Lukianoff, who is the President of the Foundation for Individual Rights in Education (aka, the FIRE) has spent the last decade fighting attempts in higher education to stifle free speech, trample on free association and turn campuses to indoctrination centers.

I highly recommend the book. It’s four years old but it’s age is actually a strength. Over the last year, we have witnessed an explosion of illiberal, speech-crushing actions on college campuses. We’ve seen communications professors try to “muscle” the press. We’ve seen pro-Trump chalking decried as “hate speech”. We’ve seen students scream at a professor because he thought they could decided for themselves what Halloween costumes were appropriate. We’ve seen student demands less freedom, more censorship and the hiring of hordes of new administrators to teach sensitivity and fight racism (and then wonder why college costs so much).

This eruption of political correctness didn’t come from nowhere. It was built over two decades and Unlearning Liberty details how it was built. Lukianoff shows how speech codes (which afflict about half of college campuses) have been used to silence dissent and promote liberal agendas (and to silence critics of administrators and student government). He describes professors declaring certain ideas to be undebatable in their classroom. He details how universities will allow exclusively black or gay groups on campus, but fight against exclusively Christian groups. He details a maddening questionnaire incoming students are forced to fill out that asked them such things as whether they would have sex with someone of a different race. And then he details how refusing to answer such questions could earn mandatory sensitivity training sessions with crackpots teaching from “oppression wheels”.

Viewed through this lens, the current climate on campuses is not surprising. This is simply the poison hatching out after years of indoctrination (that really starts in high school). This isn’t just a generation of crybaby students. It’s a generation that has been taught from Day One that liberal ideas are right, that disagreement is hate and that further indoctrination is good.

(It has also empowered and enriched people who are, frankly, crackpots. When you read about what these people believe (or claim to believe) it’s crazy totalitarianism. Penn and Teller once had an interview with a “cultural auditor” who makes tons of money teaching about political correctness on campus. Every word this man said was garbage, a word salad of high-sounding nonsense. And the stuff he was teaching was frequently racist garbage, such as it was “insensitive” to expect black people to be on time for things.)

Lukianoff describes himself as a liberal Democrat but has admirably spent much of his time fighting for campus conservative and Christians with whom he disagrees. The book will give you an excellent contrast between a classical liberal like Lukianoff and what Andrew Sullivan has dubbed “the illiberal left” — a group of Left Wing advocates who have decided that free speech, free association and free religion can not be tolerated if it might disrupt their agenda.

One final thought that struck me when I finished the book: has political correctness ever solved a problem? Ever? I’m serious about this. Has all this nonsense with safe spaces and speech codes and affirmative consent and intersecionality and oppression wheels actually solved any of society’s problems?

I would argue that it hasn’t. In fact, I would argue that by depriving us of our ability to discuss issues of gender and race in frank terms, by stomping down ideas considered “incorrect”, by putting everyone on tenterhooks, political correctness has made things worse. It has created political paralysis on key issues. It has created armed political camps that lack the ability to discuss and debate issues lest someone be offended. It has left institutions of higher learning in the hands of cranks who have no idea what they’re doing. In fact, Lukianoff thinks the illiberalism on college campuses is a big reason why our politics have become so partisan: a generation of college students are coming of age who have never had to engage opposing ideas or consider that their own ideas might be wrong. They are used to retreating into ideological “safe spaces” where their ideas can not be challenged. And, of course, only talking to people with whom you agree has a tendency to make one even more extreme.

Look at a serious issue: sexual violence on campus. We can’t warn students about the connection between alcohol and sexual violence because that’s blaming the victim. We can’t have fair trials because the issue is too important. We push this idiotic model of affirmative consent which has little bearing on the realities of human sexuality. Brandeis, a university named a fierce civil liberties advocate, found a student guilty of sexual misconduct with no trial because his boyfriend decided after the relationship was over that some stuff had not been consensual. This process is becoming extremely expensive, driving up college costs and creating a virtual police state.

(Each link in that paragraph, BTW, is a must-read.)

But all this is necessary, we are told. All of this is critical to destroying rape culture and making campuses safe.

The problem: according to the Left, it’s not working. The Left claims that one-in-five women on campuses are victims of sexual violence. Let’s put aside that this number is almost certainly a wild exaggeration. If we accept it at face value, this means that all this political correctness has made things worse for women, not better:

Sexual violence in our society is down — way down. According to the Bureau of Justice Statistics, rape has fallen from 2.5 per 1000 to 0.5 per thousand, an 80% decline. The FBI’s data show a decline from 40 to about 25 per hundred thousand, a 40% decline (they don’t account for reporting rate, which is likely to have risen). RAINN estimates that the rate has fallen 50% in just the last twenty years. That means 10 million fewer sexual assaults.

Yet, for some reason, sexual assault rates on campus have not fallen, at least according to the favored research. They were claiming 1-in-5 in the 80′s and they are claiming 1-in-5 now. The sexual violence rate on campus might fall a little more slowly than the overall society because campus populations aren’t aging the way the general population is and sexual violence victims are mostly under 30. But it defies belief that the huge dramatic drops in violence and sexual violence everywhere in the world would somehow not be reflected on college campuses.

I explain how you can unbias the current research to show that sexual violence has, in fact, declined on college campuses. But if you accept the Left’s number, it has not. All that censorship, all that sensitivity, all those kangaroos courts. And, if you believe them, the result is that women are in more danger than ever.

Political correctness has also deprived us of our ability to recognize and deal with actual racism and misogyny. After all, when you’re kicking students off campus for just having a book about the decline of the KKK, how are you going to emotionally deal with, say, some racist asshole who goes into a black church and murders a bunch of people? When you’ve called the campus vice squad on someone for complimenting a woman’s appearance, how are going to deal with someone demanding sex for a promotion?

You have to be tough to deal with discrimination. And political correctness doesn’t make people tough; it makes them weak. It makes them incapable of dealing with ideas they don’t like without three college administrators holding their hands. I’ve had to deal with anti-Semitism from time-to-time. Would I be more or less capable of doing that if the mere sight of a Christmas decoration gave me a fainting spell?

I’m not saying that people should ignore “microagressions” or small acts of racism and sexism that many people experience very day. I’m saying we need to keep thing in perspective, to differentiate between things we can deal with by engaging other people and things we need to literally make a federal case over. Screaming racism and bringing the wrath of a college administration on someone over a racist joke is not going to solve anything. It’s going to make people defensive and entrench any discriminatory beliefs they have.

Even worse, a lot of the time, the dictatorial powers we have given college campuses are being used to silence and punish the very students they are supposed to help. See, e.g., Brandeis putting a black mark on gay student’s record without so much as a hearing.

If you were Mr. Evil Republican White Christian Male and wanted to maintain racism, sexism and bigotry in our society, you’d be hard pressed to find a better weapon than today’s political correctness. It makes people weak and hypersensitive. It brings debate and understanding to a grinding halt. And it’s spreading out from college campuses to infect the media, the workplace and our personal lives.

So what do we do about it? For one, keep calling it out. Young people especially need to be calling this out. On a political level, the federal government needs to stop supporting and even mandating this garbage through Title IX and other provisions. Even better, it could come out and make a bold statement against unconstitutional speech codes and indoctrination, declaring that it will always throw its weight on the side of free speech and free minds. If college campuses knew the Justice Department would side with a student punished for speaking his mind, they’d think twice about their ridiculous speech codes. Simply putting down the Federal foot down on the side of decency and respect would go a long way toward restoring some sanity to our campuses.

So, buy Lukianoff’s book. And better yet, support the FIRE. The last thing we need is this country is another generation of voters who retreat into their own navels when their ideas are challenged.

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