The Limits of Free Speech

There's an interesting op-ed in the NYT today by Ian Buruma. It's about Geert Wilders, the extremist Dutch parliamentarian who will soon be tried for hate speech (he's compared the Koran to Mein Kampf, advocated banning it, and produced a short film arguing that Islam is an inherently violent religion). 

Wilders is definitely a vile person; there's no doubt about that - but there's something curiously ambivalent about the piece. Buruma doesn't take a really firm stand on the prosecution (though, from my reading, he seems to be leaning in favor of it), but he does have a few criticisms of Wilders' liberal defenders:

Whether Mr. Wilders has deliberately insulted Muslim people is for the judges to decide. But for a man who calls for a ban on the Koran to act as the champion of free speech is a bit rich. When the British Parliament refused to screen Mr. Wilders’s film at Westminster this week, he cited this as “yet more proof that Europe is losing its freedom.” His defenders, by no means all right-wingers, also claim to be standing up for freedom. A Dutch law professor said he found it “strange” that a man should be prosecuted for “criticizing a book.”

This seems a trifle obtuse. Comparing a book that billions hold sacred to Hitler’s murderous tract is more than an exercise in literary criticism; it suggests that those who believe in the Koran are like Nazis, and an all-out war against them would be justified. This kind of thinking, presumably, is what the Dutch law court is seeking to check.

One of the misconceptions that muddle the West’s debate over Islam and free speech is the idea that people should be totally free to insult. Free speech is never that absolute. Even — or perhaps especially — in America, where citizens are protected by the First Amendment, there are certain words and opinions that no civilized person would utter, and others that open the speaker to civil charges.

There is some very muddled thinking going on here. First, no country declared war against Germany because Hitler was a racist, and World War II wasn't a result of Nazi party members reading Mein Kampf. War World II happened because Germany was trying to conquer Europe. If there were groups advocating a war against Germany on the basis of its fascism, they were unsuccessful: the concerns about Nazi ideology definitely took a backseat to concerns about Germany's territorial ambitions, and the suggestion that the war was waged because of the former plays some tricky games with history. Suggesting that those who believe in the Koran are like Nazis is hateful and horrible - but despite what Buruma says, it does not follow that "an all-out war against them would be justified." After all, there are organized neo-fascist and neo-Nazi parties in much of Western Europe, and there has been no military action taken against them. Wilders probably understands this distinction, which is why he has tried to hard to show that Islam necessarily entails violence. He is obviously wrong about that, which is why his opinion will stay on the fringe - but the argument that his likening of the Koran to Mein Kampf is an advocacy of "all-out war" is simply incorrect. 

Secondly, I'm not sure Buruma's interpretation of free-speech laws in the U.S. holds water. He says, "Even — or perhaps especially — in America, where citizens are protected by the First Amendment, there are certain words and opinions that no civilized person would utter, and others that open the speaker to civil charges." Again, this is a terribly muddled sentence. To simplify: in America, citizens have the right to free speech. However, (and this is what I interpret Buruma to mean), there are limits to this:

1. "Certain words and opinions that no civilized person would utter," and

2. "Others that open the speaker to civil charges."

It seems to me that the first type of speech is utterly irrelevant to Buruma's argument. Of course there are limits to what is socially acceptable, but that has nothing to do with what is legal. There are plenty of things that no "civilized" person would say that are said every day, often in mass media outlets. (Michael Savage, anyone?) So it's not clear if Buruma is suggesting that American free speech doesn't include insulting, uncivilized speech, but if he is, he's wrong, and if he isn't, the argument is irrelevant anyway.

When we're discussing the topic of prosecution, the second type of speech is the only type that matters: speech that opens the speaker to civil charges. Buruma says that criticism of religion should be allowed, but that Wilders' "likening the Koran to “Mein Kampf” would not seem to fall into that category." I think it would in the United States. Laws regarding political speech (as opposed to commerical speech) in the United States are very protective of speakers' rights. Attempts to incite "imminent lawless action" are not protected by US free-speech rights, but I don't think Wilders' words, however vile, fit that description. Nor do they amount to "fighting words," words that attempt to incite immediate breaches of the peace. Again, the key idea here is "immediacy," and I don't think Wilders' actions would have caused any legal problems in the United States - though he would certainly (and rightly) be condemned by the American public. 

The relevant case here is Brandenburg v. Ohio, in which the Supreme Court upheld the free speech rights of a Ku Klux Klan leader who had advocated "revengeance" against blacks and Jews and used racial slurs at a KKK rally. The leader had been fined and sentenced to prison for advocating violence, but the Court reversed that conviction and ruled that free speech could not be limited by advocacy of violence or lawlessness in the abstract. 

So, while "even in America" there are certain words that are not protected by freedom of speech, it is very doubtful that Wilders' bile meets that standard. Mr. Wilders is a hateful, sick-minded man who would destroy modern society if he ever got the chance. But it is a sign of modern society's strength that it allows him to spew such hateful things. It shows that we can reject his views without suppressing them - a distinction that would probably escape Wilders, who has advocated banning the Koran. Nonetheless, it is one that free societies should uphold, even when it's tough.

Bigotry and Bad Theology, Courtesy of NRO

But why should I be surprised? It's the Corner!

This really is worth a read: Michael Novak's big thoughts on repealing DOMA and closing Gitmo!

The gem of the piece might be his bile about repealing the "Defense" of Marriage Act:

From these announcements we learn that President Obama recognizes no difference between the Jewish-Christian covenant between a woman and a man (a covenant that they will have and nurture children, if they are so blessed), and a civil contract between two persons of any sex, in order to set up a household of affection and sexual favors.

"A household of affection and sexual favors." Notice that word choice: affection instead of love. The implicit message: Gay people can't feel love - after all, they're lesser than you and I. Anybody who thinks you can separate opposition to marriage inequality from homophobia is deluding themselves. 

Just when you thought Novak's hateful, homophobic, bitter and bigoted dismissal of committed, loving relationships was enough B.S. for one Corner post, he offers us his enlightened views on closing Guantanamo Bay:

We learn, second, that this president’s guiding light in matters of national security is not a realistic assessment of the national interest but personal concern for what kind of figure he is cutting in the international eye. Good headlines first, practical thinking later. 

Naturally! After all, wanting to keep the U.S. in line with international law and international norms, removing a stain on our reputation, depleting a major terrorism recruitment tool of its power - none of those silly things are in our national interest. No one could ever disagree with Michael Novak and still have the best interests of the country at heart. In fact, I would go so far to say that if you don't agree with Michael Novak's far-right take on the world, you don't really love America.

How's that political strategy working out for you, you clueless bigot?

Quote of the Day

"My administration will not deny facts. It will be guided by them." - President Obama, in his statement today before signing more executive orders.

He gets it.

Did You Catch That?

At the bottom of Bill Kristol's column today: This is William Kristol’s last column.

Friends, rejoice! The era of consistently terrible Kristol op-eds and wasted column inches is over! Maybe the NYT can find a conservative who's worth printing now. 

"Most Economic Bang"

Recall E.J. Dionne making this argument 10 days ago and Ramesh Ponnuru responding?

Paul Krugman in today's NYT:

The point is that nobody really believes that a dollar of tax cuts is always better than a dollar of public spending. Meanwhile, it’s clear that when it comes to economic stimulus, public spending provides much more bang for the buck than tax cuts — and therefore costs less per job created [...] because a large fraction of any tax cut will simply be saved.

Terrorism and Politics

JDR ponders the links between terrorism recruitment, national security, and the Bush administration's illegal policies:

Anyway, the Dearly Departed screech that torture and illegal detentions kept America safe from another 9/11. As the same policies help terrorist organizations recruit and gain support. Also, a couple of huge terrorism magnets called military invasions.

But it would be terribly naive to suggest that reversing these policies necessitates further terrorist attacks... oh, thank you Marc A. Thiessen, former chief speechwriter for Bush, in your WaPo op-ed from today:

"If Obama weakens any of the defenses Bush put in place and terrorists strike our country again, Americans will hold Obama responsible -- and the Democratic Party could find itself unelectable for a generation."

It would be even more terrible, however, if the American people hold Obama responsible for any terrorist attacks in the near future. They would surely be the responsibility of the Bush administration; if not even motivated by the Administration's disastrous policies, than for the simple fact that terrorist plots take time, and would have been hatched and developed on their watch.

Politically, the problem is clear: if there were a successful terrorist attack here in the next 4 or 8 years, it could have nothing to do with the reversals of Bush-era policies on Guantanamo, torture, extraordinary renditions, etc. - but it could retard our progress on those matters indefinitely. 

The correlation between illegal torture and detention policies and the absence of another 9/11 could be entirely coincidental - certainly there have been attempts at attacks (and thank God they weren't successful!), but there's no reason to think that those attempts couldn't have been stopped if the USA had been acting lawfully. 

This is what's going to make the re-establishment of the rule of law so difficult: Bush convinced the right (and more than a few people in the middle) that breaking the law is ok if it keeps us safe. In fact, according to their logic, if the administration breaks the law in order to keep America safe, it hasn't broken the law at all. If you're scratching your head, you're not alone. But if you were paying attention over the last eight years, you shouldn't be surprised: this notion is the work of John Yoo, who infamously asserted that if the president needs to crush the testicles of a detainee's child, there is no law that can stop him. (No, I'm not kidding.) This is why Retired Major General Antonio Taguba concluded in 2008 that there was "no doubt" the Bush administration committed war crimes; the only question remaining is why so few people seem to care. 

So - if the next attack comes, which will prove stronger? Our laws or our illusory goal of complete safety? 

This, by the way, seems like a good time to quote the wonderful Sarah Vowell, who, back in 2006, captured perfectly what was so maddening about Bush's approach to this issue:

Whenever I hear the president mention, oh, every 12 minutes, that his greatest responsibility is "to protect the American people," the insufferable civics robot inside my head mutters: "Actually, sir, your oath, the one with the Bible and the chief justice and the Jumbotron, is to protect and defend the Constitution of the United States. For the American people are not mere flesh whose greatest hope is to keep our personal greasy molecules intact; we, sir, are a body politic — with ideals."

Settling for Less

Don George on civil unions: 

The best part of this is that it is such a powerful tool. Literally hundreds of thousands, possibly millions of gays in all 50 states will have the ability to access these 1100+ federal benefits even if their own state doesn't recognize that relationship.

Finally, I realize that the screams from our own left will say "marriage or nothing." Here's a counter argument. By setting up such a clearly "separate but equal system" (there is no debate on this, right?), that separate but equal system, as a half step, will be successfully challenged more quickly (either through public education or in the courts) and become full marriage equality sooner, than the purer route of going from nothing at the federal level to full marriage equality in one step. Anyone who thinks that going from nothing to full marriage equality at the federal level all in one step is coming soon is fooling themselves. That is a much harder, bigger, and more time consuming route.

I wish I could say my thinking is original on this, but it is based on my discussions with a prominent LGBT Obama campaign official and a prominent ACLU attorney neither of whom wishes to go on record at this time. (h/t: The Daily Dish)

I don't know. There's always a tension in politics between no-compromises activism and patient incrementalism. There is certainly enough room in the system for both kinds of leadership, but should we really be settling for less when it comes to - of all things - civil rights issues? The acceptance of a clearly "separate but equal" solution may be the best move in the meantime, and perhaps it would force the issue into the courts before DOMA could be repealed. But after accepting discrimination and inequality for so long - after institutionalizing it - how can the law come so close to full equality but stop short? 

In the end, though, the argument is almost certainly correct: full marriage equality will arrive sooner if civil unions are adopted in the meantime. If that's what's most important, maybe this is the way to go. But what a frustrating route to have to take. 

January 20

It will be great to have a President who can be a role model. 

Oh! I Think I Know

Rep. Steve King doesn't understand why President-elect Obama's critics can't use his middle name to criticize him, but he can use it when being sworn in! From Politico:

He doesn’t like the fact that the president-elect will be sworn in using that middle name on Tuesday’s inauguration. 

After telling the Associated Press last year that Obama’s middle name was among the reasons Islamic terrorists would rejoice over his election, King says he’s since been careful to avoid using it. Thus he found Obama’s decision to allow it be mentioned on the steps of the Capitol “bizarre” and “a double-standard.”

“Is that reserved just for him, not his critics?” King asked.

Yes, it is, and since you are apparently too stupid to understand why, perhaps I can explain: America is a country where people can live without fear of being judged because of their name. It's a country where anyone who is smart enough and talented enough can succeed, and where - if you convince enough voters - you have the honor of leading the country. And when you employ someone's birth name as a weapon against them, you are being ignorant, stupid, hateful, xenophobic, and racist! Barack Obama's parents gave him the middle name Hussein, and if you don't like that, then why don't you move somewhere where a name can be considered a disqualification? I know at least one person who wouldn't miss you. 

Your Daily Dose of Hypocrisy

Ramesh Ponnuru complains about ideological hubris!

Despite what may be overreaching on "most economic bang," Dionne's overall point - that liberals don't need ideology to make the case for some of the items on their wish list - still stands. Ponnuru cites Greg Mankiw's recent piece in the NYT, which mentions research by Christina Romer (now an Obama economic advisor) showing tax cuts stimulate GDP growth more than government spending does.

But doesn't that merely reinforce Obama's agenda? He spent the entire campaign talking about huge tax cuts. The liberal opposition to Bush's tax cuts, at least among mainstream thinkers, was never the mere idea of lower taxes, it was about fiscally irresponsible payouts to the new administration's wealthy political allies. Democrats have been talking about middle-class tax cuts since at least Clinton's 1992 campaign, so why shouldn't that be included in any discussions of a "progressive wish list"?

Neuhaus, Religion, and the Liberal Tradition

For anyone who missed it, there was a pretty interesting back-and-forth between Ross Douthat and Damon Linker over the legacy of Richard John Neuhaus, who died last week. Neuhaus was a Catholic priest and writer who founded First Things and advised President Bush (43). 

Things started with Douthat's obit for Neuhaus in his Atlantic blog: 

The Bush years produced many spasms of hysteria: Among the silliest was the notion that Neuhaus and his intellectual circle represented some sort of grave and reactionary threat to liberal democracy. In reality, Neuhaus as an archetypal post-Vatican II figure, whose deepest intellectual interests lay in finding compatibilities and building bridges - between Jews and Christians, Protestants and Catholics, faith and the free market, and above all between Christianity and liberalism. [...] No modern intellectual did so much to make the case for the compatibility between Christian belief and liberal democratic politics - and in the future, when the two have parted ways (as I suspect they will) more completely than at present, both Christians and liberals will look back on the synthesis he argued for with nostalgia, and regret. 

The "silly notion" Douthat was referring to was apparently a reference to Damon Linker's book The Theocons. This provoked a response from Linker in his blog at The New Republic:

In his obituary for Richard John Neuhaus, Douthat claims, in response to some nameless silly person (who just happens to be me), that Neuhaus was dedicated to reconciling Christianity with the liberal tradition. I suspect that will sound pretty odd to those familiar with Neuhaus' role in arming the conservative side of the culture war with arguments intended to decimate liberalism. But then everything begins to make sense once you follow the link that Douthat supplies with his statement, which brings you to a Neuhaus article on "The Liberalism of John Paul II." Oh, that liberal tradition. The liberalism that traces American democratic ideas not to the Enlightenment but to medieval Christendom. The liberalism that believes (in Neuhaus' words, written in 1984) that "only a transcendent, a religious, vision can turn this society from a disaster and toward the fulfillment of its destiny" as a "sacred enterprise." The liberalism that holds (in Neuhaus' words, written in 1997) that the American experiment "may well be ending . . . under the iron rule of the 'separation of church and state.'" [...] Rather than maintaining that the religious right should replace liberal politics with some other, religiously grounded form of political association, he insisted that, properly understood, liberal politics is (or once was, or should be--on this he was often unclear) a religiously grounded form of political association. Viewed in this way, the Pope, Neuhaus himself, and their Protestant friends (like Pat Robertson, Chuck Colson, James Dobson, Ralph Reed, and Karl Rove) become America's true liberals, while all those millions of Americans on the right and left who prefer a more mundane form of politics (and who in nearly every other context are considered liberals of the classical or modern variety) become the antagonists the true liberal tradition.

Douthat responded: 

Neuhaus argued that the American constitutional order, and the form of liberalism it embodies, "is premised upon moral truths secured by religion," to quote from his essay on John Paul II and the liberal tradition. Moreover, he believed that the modern left's emphasis on the separation of religion and politics (as opposed to church and state) ran toward illiberalism, and that the left-wing promotion of legalized abortion and euthanasia amounted to a frontal assault on essentially liberal principles - human rights and human dignity and so forth. These are not uncontroversial views, to put it mildly, and they certainly made him a conservative in the modern political landscape. But they are views have deep roots in Anglo-American political history - the notion that liberalism's basic premises depend in some sense upon religion, in particular, is as old as Hobbes and Locke - and as such they properly belong within the big tent of the American liberal tradition, rather than outside it. And a liberal tradition that cannot find, within its many mansions, room for Neuhaus (and, yes, for John Paul II as well), is a liberalism that any Christian worth his salt should think twice for before subscribing to.

It seems to me that Douthat is conflating two hugely different ideas here. He's certainly correct that liberalism's emphasis on human rights, human dignity, etc. is (in many ways) rooted in the traditions of the major monotheisms, but one of liberalism's great achievements (as Mark Lilla has persuasively argued) was the separation of theological concerns from the mechanisms of politics. That is not a repudiation of religious values, nor is it an attempt to wholly separate religion from politics. Liberalism can be rooted in religious values without being guided by religious concerns. Enter Andrew Sullivan: 

There is, of course, an enormous distinction between accepting the religious roots of liberalism (Hobbes and Locke are the ur-texts here) and in asserting that fundamentalist Christianity is the founding doctrine of the American polity - and that it can also command political authority in the modern world. And there is an enormous distinction between respecting the role of faith in forming the public views of citizens who nonetheless make public arguments in secular and moral terms - and the kind of crude Christianism that Neuhaus supported. It is the difference between liberalism and illiberalism. Neuhaus was an illiberal - even to the verge of declaring the alleged iniquities of modern American government as a justification for violent resistance.

Exactly. Hobbes may have been happy to acknowledge the influence of Christianity on liberalism, but he was clearly convinced that Christendom was an unstable, untenable political system (hence his attempt to subordinate it to civil authority). Leviathan was perhaps the first major work of political thought to address political problems in a purely secular manner - and that is one of the major parts of Hobbes's legacy. It is at best problematic to assert that Neuhaus and Hobbes belong to the same liberal tradition - even if Neuhaus argued against theonomy in its purest forms (and eloquently so!), he was a major force in a movement that is all the more pernicious because it is more mainstream. And the intellectual difference between Neuhaus and the theonomists is one of degree, not of kind: in his book Catholic Matters, Neuhaus wrote, "I think for myself not to come up with my own teaching, but to make the Church's teaching my own." This is not the theonomist temptation to order society according to Biblical rules, but it is a rather startling surrender of intellectual autonomy to an imperfect and fallible organization. Neuhaus, of course, would argue such a surrender was actually the Enlightenment stance; personal intellectual autonomy to him was simply modern man's inability to accept truth. 

This is dangerous ground to inhabit, and it is indeed inhabited by a number of religious men and women. Of course, a practicing Christian must ultimately concede that they have faith in God's truth, and that this truth is ultimate and authoritative. However - and this is a big however! - this truth is rarely as clear-cut as religious conservatives would like it to be, and our allegiance to it does not provide a simple method of behaving in the world. There is no 10-step plan for the believing Christian; there is no blueprint or map for right action. Certainly there are rules, and the broad outlines of behavior are outlined in the Ten Commandments and other texts. Certainly there is the Golden Rule and the command to act with love. Certainly there is charity, hope, generosity, and above all the example of Christ in the world. 

But this does not make behavior simple. This does not simplify every action and decision - particularly in politics, where decisions are always difficult - into a black-and-white choice! In so many situations, there is only faith, deliberation, meditation, prayer, and ambiguity - and acting in accordance with what we believe to be God's will is ultimately a decision made within our own minds, with our own powers of deliberation, and with our own intellectual autonomy. We must admit both the sovereignty of God and the powers of our own mind, and the conservative religious tradition in America today claims to recognize the former while totally abandoning the latter. (In fact, it could be argued that many on the Christian right claim to recognize the former by abandoning the latter.)

I would submit that conscious, careful, and reasoned dedication to the will of God is impossible without internal deliberation and behavioral choices that other reasonable believers will disagree with. That is the political and moral condition of human behavior, and its ambiguity is certainly frightening. But it is authentically faithful, authentically Christian, and authentically liberal. The illiberalism of religious fundamentalism is bad politics, but it may be even worse theology.