Freedom of Speech and Areopagitica

Unpopular Opinions

The classical liberal principle of freedom of speech, of course enshrined in the First Amendment of the US Constitution, is supposed to protect the citizenry against state censorship. As with many Enlightenment principles and ideals, “free speech” is complicated by technology. We now live in a society where there are often more restrictions imposed on people from non-state actors than from the state itself. Consider the following examples:

Example 1: A mob silences a despicable person – someone who deserved it – it brings us all closer together in a mutually-shared opinion that the bad person committed a bad act, worthy of punishment.

Even in this circumstance, a fairly common one, many of us evince an unease of mob justice, even if we agree with the principles on which that rough justice was founded.

Example 2: A suspected child pornographer is caught with 5 terabytes of pornography on his computer (an almost unimaginable amount), but the warrant that allowed the search of his computer is flawed, and the case is thrown out after action by the ACLU – and a pedophile goes free.

In this circumstance, we are almost universally on the side of the authorities, because the guilt is obvious, the crime heinous, and the liberation of the suspect is on the basis of a technicality.

Now, a third example: a man expresses an opinion, which may be at the edge of commonly-accepted propriety or public opinion, but which is not heinous and not illegal. A social community, and not a court of law, attempts to get that man in “trouble” with his employer. He is not saved by a technicality, nor totally condemned by a mob.

The third example is the tricky place where many of our modern disputes over freedom of speech and mob justice inhabit. There is no clear legal principle which overrides the general condemnation of an overtly heinous act and there is no universal mob (that is, there are always dissenters and contrarians) which engages in a digital hanging.

Part of the question becomes: quantitatively and qualitatively, how free is our speech currently? And not just in the narrow constitutional sense, in the sense of having cultural and social constraints? How powerful are those cultural constraints, and is there anything “we” should do about it as a society? I don’t propose to have many answers here, certainly not any easy ones.

We may be easily seduced by the dull, Doric opinions stamped by the imprimatur of the enforcing mob of a habituated mass-culture – just as we may be titillated by the exotic contrarianism of a seemingly rebellious agitator, who may wring truth out of over-saturated public narratives.

Independence of thought is once again the difficult vigil of any discerning and intelligent individual. The problem with the mob is that the mob is often right, and the problem with the contrarian is that they are often wrong.

Most often, the mob is turned against those on their “own side,” as a way to enforce rigid tribal identities. The liberal artist is the one in danger of being canceled for talking inappropriately about race, not the conservative. The conservative is likely to be publicly emasculated for their opposition to the public’s ownership of AR-15’s, not Taylor Swift.

“If you say the wrong thing these day’s you’ll be canceled!” – says the centimillionaire who has made a living off of being “politically incorrect” and has, at no point, been canceled.

So the battle against censorship is fought in different dimensions now: it is fought against the government in some cases, but more often, it is fought against the mass culture of society, conjured into existence, especially, by social media. And it has also become a thing-in-itself, like so much else. It is a tool used for national politics, to enforce tribal boundaries, it is used as boogie man to frighten one side or the other.

Tribal digital mobs are fluid, and many opinions shift on “cancellation” depending on which tribe one is in. A man decrying the fate of a “conservative” losing his job one day may in fact call for the destruction of another man’s livelihood on another. Examples of this abound, and I do not feel the need to post any particular exchange. If you open up Twitter and scroll for a few minutes, I’m confident you will find an example.

The problem we are faced with now is probably unique in modernity: the social restrictions enforced by the unofficial rules and powers of mass society are as effective as the restrictions imposed by governments. Things have changed, but it may be helpful to look at the wellspring for some of the original arguments against censorship and for freedom of speech in an attempt to inform our current response.

Areopagitica

“Areopagitica” is a polemic by the poet John Milton, arguing against government censorship of books and pamphlets. It is cited often as a basis for the First Amendment, and more broadly as a classic defense of the principles of Freedom of Speech. As it has become a “classic” it is broadly defunct and dead – not a living document, but an afterthought and citation. What is forgotten about the polemic is that it is foremost an attempt at persuasion. This is fitting as there are no unassailable truths in this world, there is no scientific principle that was not overturned, and there is no basic argument about human ideals that is not, at its base, an opinion.

For those looking to the sage words of our intellectual forebears on the construction and nature of liberty, there is no succor to be found for a society where social norms are enforced by mobs:

“Nor is it Plato’s licensing of books will do this, which necessarily pulls along with it so many other kinds of licensing, as will make us all both ridiculous and weary, and yet frustrate; but those unwritten, or at least unconstraining, laws of virtuous education, religious and civil nurture, which Plato there mentions as the bonds and ligaments of the commonwealth, the pillars and the sustainers of every written statute; these they be which will bear chief sway in such matters as these, when all licensing will be easily eluded. Impunity and remissness, for certain, are the bane of a commonwealth; but here great art lies, to discern in what the law is to bid restraint and punishment, and in what things persuasion only is to work.” (pg 18, paragraph 1)*

Aside from this (an argument that leads to the thesis that censorship will be ineffective), the central argument of “Areopagitica” is that exposure of controversial ideas, through a free press, allows society to sift and refine ideas until only the specks of pure truth remain.

“For books are as meats and viands are; some of good, some of evil substance; and yet God, in that unapocryphal vision, said without exception, Rise, Peter, kill and eat, leaving the choice to each man’s discretion. Wholesome meats to a vitiated stomach differ little or nothing from unwholesome; and best books to a naughty mind are not unappliable to occasions of evil. Bad meats will scarce breed good nourishment in the healthiest concoction; but herein the difference is of bad books, that they to a discreet and judicious reader serve in many respects to discover, to confute, to forewarn, and to illustrate.”(pg. 12, paragraph 1)

In this argument, people are forever infantilized by censorship – our liberty of thought and action is restricted by a government paternalism. If we are to be fully-realized people we must have access to the various contrary arguments and temptations of the world.

“I cannot praise a fugitive and cloistered virtue, unexercised and unbreathed, that never sallies out and sees her adversary, but slinks out of the race, where the immortal garland is to be run for, not without dust and heat. Assuredly we bring not innocence into the world, we bring impurity much rather; that which purifies us is trial, and trial by what is contrary.” (pg 13, paragraph 2)

Here is another possible fix to the intractable facts of disagreement, to try our best to channel outrage into productive debate. To use a “bad” opinion to sift our own.

The last thing that we CAN learn from Milton’s piece is the best remedy we have, perhaps the only remedy: to think independently. It is not an easy answer, or a quick social fix. It is not a principle which can be codified in law, and it will not stem the tide of accusations, harassment, unfairness, or rigidity from digital mobs. As in all matters which beset the modern mind, it speaks to personal responsibility, to recognize in one’s self the means whereby we may fix our feet to the ground and not be pulled along by those surging around us. I wish I had a better answer, but it seems the only way to fracture the mob is to not participate. It is doubly-hard because we should be most skeptical where we are most sympathetic and most engaged. Mobs inflame our sense of tribal identity and ignite the most passion where they find dry kindling.


*Areopagitica and Other Prose Works, by John Milton, from the Everyman’s Library, 1941 Edition

Mobs and Riots

Reconstruction

Ulysses Grant, Union General and President of the United States, is more popular now than at any time since the 1880’s. After his death, he was long regarded as an inferior general, a poor President, and an unremarkable and flawed man. With a host of biographies and changing views on racism, his formerly withered reputation is blooming.

Grant’s military career and Presidency are an excellent example of the sandy foundations of the stories we tell ourselves about the past. The moral clarity of his Presidency will henceforth protect him, inasmuch as there is a public memory of him at all in our relentlessly forward-looking society. But in the focus on the shifting opinions of Grant’s career, the context of his moral-firmness is a revelation of vicious inhumanity and tribalism.

Reconstruction is (probably, though I’m sure there are other contenders) the most shameful period of American history.

After the Civil War ended and slavery abolished it became clear that the true driving force of Southern society’s defense of slavery was not its economics, or based in regional conservatism (in the sense of unchanging institutions), or competing views of Federal power – it was based on social tribalism.

Subjugation, the institutionalized inferiority of black people for no other benefit than maintaining a particular division of social standing, became the primary goal of radical Southern political movements.

And the history of that tribalism and those political movements is shockingly depraved and revolutionary.

There were:

  • Massacres of black people, in some cases hundreds at a time
  • Literal coups, where state government’s were overthrown by armed force
  • Widespread Terrorism across the former Confederate states
  • Massive Federal military intervention, including the suspension of the Writ of Habeas Corpus

By the end of Grant’s second term in office, Reconstruction was abandoned. And why did Reconstruction end without enforcing the rights of full citizenship of freed slaves? It was subsumed by national politics.

In the last three weeks, there were two nationally-known incidents (several others but these received the most attention) which intimately concerned race and policing.

The Destruction of Amy Cooper

A white woman used the police as an implicit threat on the physical health and safety of a black man. The reaction to the video of the incident being made public was animated by a modern mob, a digital one. Without passing judgment on her digital destruction, it is an example of the power of social media to amplify tribal signaling. Much of the backlash became about showing everyone else that “they were on the right side,” dare I call it virtue signaling?

The Murder of a Black Man

The murder of George Floyd was a clear example of the aggression and callousness of modern policing. But these protests, riots, and the reaction to them, have gone far beyond this initial outrage. Looting, arson, and people dissatisfied about other aspects of the social order have joined in, and muddied the focused protests over policing.

A Riot is a Signal

Mob violence is an expression of rage and tribalism. A mob, a riot, is a thing-in-itself, not connected to any particular ideology – in the post-Civil War south, riots were anti-black affairs. They were both political tools and a signal of dissatisfaction with the current social regime. We now judge this harshly, but it was, at its base, a signal to the occupying Federal forces, and enough northerners grew tired of constant intervention that they became effective political tools.  And public perceptions of those riots became the currency of national politics, deeply influencing the course of political events.

One thing that people tend to forget when they’re caught-up in idealism or discussions on policy: organized violence is effective. It goes both ways, the violence of the mob can produce real change, the suppression of the mob through violence can stifle it.

These incidents now are also in the process of being subsumed by national politics. The construction of narratives in relation to these protests both destroys nuance and is necessary to try to resolve the deep unease generated by chaos.

If I were to exhort people toward one action it would be to resist, and resist deeply, the temptation to blame all of  this on one of our two political tribes. These tribes will use this chaos to advance their fight over the throne, and not for reform.

The Verdicts of History

Near the end of 1940, with Britain fighting alone against Nazi Germany, the famously appeasing former Prime Minister Neville Chamberlain died. Prime Minister Winston Churchill eulogized him in the House of Commons, saying:
“It is not given to human beings, happily for them, for otherwise life would be intolerable, to foresee or to predict to any large extent the unfolding course of events. In one phase men seem to have been right, in another they seem to have been wrong. Then again, a few years later, when the perspective of time has lengthened, all stands in a different setting. There is a new proportion. There is another scale of values. History with its flickering lamp stumbles along the trail of the past, trying to reconstruct its scenes, to revive its echoes, and kindle with pale gleams the passion of former days. What is the worth of all this? The only guide to a man is his conscience; the only shield to his memory is the rectitude and sincerity of his actions. It is very imprudent to walk through life without this shield, because we are so often mocked by the failure of our hopes and the upsetting of our calculations; but with this shield, however the fates may play, we march always in the ranks of honour.”
There are three aspects of this thought that are worthy of attention. The first is the changing appreciation of the past when viewed through the lens of current events. The second is the idea of the “telescoping” effect of examining history. People look at events, outcomes – maybe even debates – and do not see the human dimension surrounding the focal points of historical events. The third idea here is an argument for morality, without knowing what will happen in the future, or how any action may be perceived, it is important to do what one thinks is right in the moment.
The Second World War, a truly seminal and unique event in world history, is actually a multitude of related events with social, political, and of course, military dimensions. Most date the War as beginning in September 1939 and ending in September 1945 – but the Japanese invasion of China began in earnest in 1937, and the Japanese annexation of a province in Northern China began in 1931. Colonialism, social injustice, the failures of Capitalism, scientifically-precise industrialization, monetary systems, modern information technology, and forms of government all had a starring role in the upheaval of the so-called Second World War.
And our perceptions of the War have changed over time too. Once a beyond-reproach moral victory for the West, the actions of the Allies, and the United States in particular, have been brought under scrutiny. This is not to diminish the evil (yes, I will use the absolutist term of “evil”) of the Nazis, the Fascists in Europe broadly, and the racist, genocidal violence perpetrated by the Japanese in their (Orwellian-named) Greater East Asia Co-Prosperity Sphere. But – as time skidded into the future, the Allied bombing campaigns (including the use of the atomic bombs), the “take-no-prisoners” attitude and taking of gruesome trophies by American soldiers in the Pacific, and the ruthless appropriation of the underpinnings of the British Empire by the Americans have all come under a moral examination.
All of the aspects of the Second World War which I just mentioned share a common theme, they all involve a type of mental foreshortening of events. Mental foreshortening occurs for the sake of convenience, things that are too complex to understand are made simpler, perhaps with a narrative: “World War 2 occurred because Hitler decided to invade countries surrounding Germany.” It occurs because the emotional content that drove decisions is not always apparent in historical sources and a “zeitgeist” can be difficult to measure: “Germany was taken over by the Nazi’s because of the Great Depression.” And it occurs because we want to protect our moral integrity, or the moral integrity of aspects of our chosen identity: “The US had to bomb those cities like that because it was the only way to win the War quickly.” [Note: this is very similar to what Epsilon Theory calls “abstraction” and “memes.”]
We like to put neat labels on events to make them easier to understand, but history, just as current events, flows and ebbs like a tide, it does not run straight between banks like a river. And as the generation that lived through World War 2 fades, the memories of the past fade too. We can scarcely imagine the mass mobilization, the mass feeling, the patriotism, the colossal scale of horror of the Second World War now.
So what can this knowledge tell us about the issues and events of the day?
Firstly, in the Impeachment of President Donald Trump, the Democrats are looking for a “savior” and are appealing to the “verdict of history” in trying to sway Republicans to their point of view. Democrats will find this effort to be in vain. Any individual Senator or Cabinet official will not be remembered as a “coward.” If they are remembered at all, it will be as a gear in a large machine. (How many people have strong feelings about Senator Aldrich – besides Twitter’s Rudy Havenstein?) When you hear people “appealing to history” it is an acknowledgment of the failure to obtain or exercise power. There is no possible conception of how history will view the Impeachment, or the Trump presidency, without knowing the consequences of his tenure in office beforehand.
“History,” in its simplification and smoothing of emotions, will remember the Impeachment as an aspect of the failure of the political parties to compromise – the entire period may well be seen as being defined by (in another Epsilon Theory phrase) the “widening gyre.” There are too many things happening, too many different aspects of the present age to consider, for any individuals without the magnetic presence of Trump to be remembered for much of anything – they will be cut out. Appeals to history are ineffective, unrealistic, and arrogant. In 700 AD, a single history or document would serve to color our perceptions of an entire time period or of a leader’s rule, but no more. Evidence and multitudinous documentation now exist for every moment of our lives. (Incidentally, this may lead to some more “mental foreshortening” to reduce complexity and assign a narrative, but it may be difficult for any single actor to create that simplification.) Churchill famously tried to define his place in history by “writing” it, but those narratives are coming undone now too.
Climate-change is another fraught topic. One that involves appeals to an absolute and certain view of the future. On both sides – “nothing will happen, its all a scam” and “it is the end of the world” – the outcomes are both unknowable. So what is there to say about this that “history” can teach us? Future scientists (if we’re not all dead, under 20 feet of water) will almost certainly say that our predictions were wildly incorrect, and that the movements were more a product of social issues than actual environmental concerns. The view of our present moment will change when viewed through the distant and holistic lens of the future. Political clashes resulting from differing views on climate change will be hard to understand, as the firm convictions and views of the participants will find their sharp edges dulled by subsequent, factual events. With this in mind, it would behoove both sides to take measured, morally-correct actions in the present. Instead of trying to force massive change (or no change), a holistic view of both shortcomings in knowledge and inclusion of all impacted parties should be implemented. In practice this means trying to find economic solutions for developing countries, attempts to innovate technologically, and to ameliorate the political fears of climate-change deniers.
A history of post-9/11 America is being formulated now too, but its dimensions are vague. Modern capitalism is being questioned in a way that seemed to vanish after the collapse of the Soviet Union. Economic and political and military power all seem to be waning for the United States, but it is unclear to what degree this is occurring. A narrative will be assigned to America’s fate – after it is obvious.
Beware of trying to assign a specific or complex historical value to events happening now. If you are going to conduct an action that is tangential to the broad history of the nation or world (supporting a political party, allocating your resources in a political manner – boycotts, cryptocurrency, ESG-investing) then you must act by what you think is right, not by what history will say about the movements. Predicting the future is the Quixotic task of legions of technological innovations and industrial-scale processes, but it will always fail. We are achieving the opposite of Hari Seldon’s Psychohistory, we may be able to predict the short-term future, or the actions of one individual, but definitely not all of humanity. Stay closer to the ground, more self-contained. Act boldly for what you think is right, but leave the predictions, and the verdicts of history, to those future generations looking backward with a mirror.

Pardons, the Law, and America’s Future

The United States of America sprung full grown from the Enlightenment as a nation-state like Athena from the mind of Zeus. It became a nation without going through the complexities of the European nation-states, which grew through feudal and class systems under aristocracies and absolute rulers to form modern states. America’s ideological foundation is firmly centered on the idea of the supremacy of ideas and ideals – primarily the idea of the nation as a system of laws and legally-established structures.

Intellectuals driving the ideology of the Trump movement (people like Steve Bannon) believe that the US is held together by white, Anglo-Saxon, and Judeo-Christian values. They are terribly wrong. They have misread the diversity of America as a weakness, or as a threat to the life of the nation. In the United States there has been diversity for much of the history of the nation, and fears that immigration from Latin America threatens the values and cohesiveness of the nation are histrionic. Without the concepts of justice and limited government, there is nothing to hold the nation from spinning apart.

Trump has consistently played to his base, and his pardon of Joe Arpaio is no different – many politicians and presidents over the history of the United States have played to their key supporters. But this is different than previous pardons and pandering. In several key ways the pardon undermines the rule of law.

Firstly, Joe Arpaio is a key political supporter of President Trump, especially on the divisive issue of immigration. Pardoning any key political supporter convicted of ignoring a federal court order is weighted with undermining the impartiality of the justice system. By doing this Trump is essentially placing political allegiance above the law and the separation of powers.

Secondly, the specific crime which Joe Arpaio was convicted for violating was a court order. “America’s toughest sheriff” flaunted the judiciary’s authority to determine whether or not his actions were constitutional. So the pardon was a direct challenge to the constitutional position of the judiciary, one of the three pillars of balanced government.

Thirdly, Joe Arpaio was pardoned without going through the normal legal process. Normally pardons are issued after a person has been sentenced and after they have appealed to the president to be pardoned. Furthermore, the individuals are normally pardoned in the interests of justice.

A key argument of Trump supporters is one of equivalency. This is an argument used with consistency by those supporting Donald Trump, and it is a dangerous form of sophistry. False equivalency blurs obvious moral and legal boundaries. In philosophical logic this is known as the “tu quoque” fallacy. Rather than addressing the logic of the argument presented against them, in this case “President Trump used his power to pardon to undermine the separation of powers and the ‘rule of law,'” supporters of the President will respond: “where was the outrage when Obama pardoned thugs and criminals?”

To address this fallacious argument it is instructive to examine some of the most controversial pardons and acts of clemency in recent American history. The first one that comes to mind is the pardon of Richard Nixon. Richard Nixon, embroiled in the Watergate Scandal and forced to resign the presidency, was pardoned by President Gerald Ford shortly after he took office. Because Nixon had so poisoned the public perception of the Republican Party and the reasons for pardoning him were for the interest of the nation, it has generally been excused and vindicated by historians and politicians. This act, though enormously controversial at the time, was not made to a political supporter, and could not have been made for any feasible reason besides to move the nation past the tragedy of Nixon’s presidency. There was no personal loyalty, quid pro quo, or undermining of the law – the outcome of Nixon resigning the office and the implication of guilt were more in the public’s interest than his conviction in a trial.

Faction and partisanship have always been a threat to democracy and good government in America. Our Founding Fathers were concerned about the establishment of political parties and their ability to undermine the principals of republican government. Instead of ruining the government however, parties throughout the history of the United States have tended to operate within general bounds of fairness and legality, and as institutions have helped to channel a diverse and dissimilar population into orderly groups that can fight for general political principles. Several times the political parties have broken down, most catastrophically before the Civil War, where the regional demands on a single government became so great that the country was torn in half. Recently the rise of Donald Trump both displayed the weaknesses in the modern Republican and Democratic parties, and then tore them to shreds. Without the political parties channeling differences into governmental policy and actions the United States is left with the aimless politics of the dynamic politicians who rise to the top. In this case we have Donald Trump – not attempting to placate a political party who is willing to work within governmental structures, but appealing directly to his loyal, self-made political base of disaffected white Americans. Without a tradition, understanding, or respect for the government and law, he appeals directly to this political base. This is how democracy is undermined in America: it is done by breaking down the legal and heuristic edifices that keep the passions of people channeled and within recognized bounds of justice and fairness. Donald Trump doesn’t need to abolish the Constitution or rule by fiat to crack the United States of America’s foundations of individual liberty, limited government, and sharing of power.

The threat Trump poses is beyond the scope of contemporary conservative or liberal issues, he is his own class of threat. It started with denigration of the media – this allowed his supporters to feel that Trump was being misrepresented and victimized no matter his actions or words – making him nearly immune from criticism from his new political base; it was followed by the destruction of the coalitions that made the political parties (which they themselves are largely responsible for by growing so far from the people and interests they purport to represent); and now has moved on to the elevation of his political views over the laws of the nation.

Homelessness and Nazi Rallies

In my previous post I discussed how extremist groups have managed to elevate themselves to a semblance of respectability and find common cause with regular conservatives, in this one I will discuss how to best counter their propaganda.

We should all just stay away. That is the obvious solution to preventing the rise and spread of extremist groups in the United States. It is unlikely in this country that popular support for Neo-Nazis or the Ku Klux Klan could reach a proportion where they could take over the country, a la Nazi Germany. So with that in mind, the best way to prevent them from gaining any sort of mainstream foothold is to do what experts have recommended for years: ignore them. Without the massive counter-protest, which exacerbated and enflamed the violence, the extremist protestors would have gotten little press.

People want to resist, they want to do something to show their disapproval of neo-Nazis, but by doing that they’re playing directly in to their marketing strategy. For years advocates for homeless people have told citizens that the best way to prevent the scourge of panhandling in cities is to stop giving homeless people money. Without the incentive to panhandle the homeless are more likely to seek help and to leave commuters alone. Honest, good people contribute to the social problems of homelessness because of their impulses to help people, or to be seen as virtuous and moral. It is that same twinge of self-interested moralism that leads people to protest a Nazi rally.

I can’t help but think that if people weren’t going to post things on social media, they wouldn’t attend such rallies in such large numbers. Our society is obsessed with displaying each individual’s personal morality and virtue over communications technology, and because we are obsessed we can’t starve the beasts of extremism of what they crave most: exposure.