The earthquake that struck Pompeii in 62AD was devastating. Houses were toppled, streets torn apart, and over 2000 people killed. The locals assumed that this was the whim of some intemperate god, rebuilt the city, and got on with their lives. But this was just the prelude. 17 years later, Vesuvius erupted and the city was swallowed in a deluge of volcanic ash.
It’s all too easy to miss the early warnings of an impending disaster. Today’s culture wars are often interpreted as the symptoms of an ephemeral fad. Most can feel the tremors — restrictions on free speech, public shaming of those with unfashionable views, regressive identity politics masquerading as “progress” — but there is a widespread sense that if we ignore the problems, they will simply disappear. But what if these rumblings presage something far worse to come? What if, like the people of Pompeii, we are at risk of civilisational collapse but are misinterpreting the signs?
Further tremors have reverberated recently with renewed attacks on the First Amendment to the US Constitution, perhaps the final bastion of free speech in the West. Speaking at the World Economic Forum earlier this month, former Secretary of State John Kerry argued that when it comes to “disinformation”, the “First Amendment stands as a major block to be able to just, you know, hammer it out of existence”.
The First Amendment codifies a “negative liberty”, not a licence for certain behaviour but rather a protection from government interference. It reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” It can function as a kind of barrier to the worst excesses of the illiberal Left, even at a time when their party of choice occupies the White House.
Such challenges to the First Amendment began around 10 years ago with the emergence of the Critical Social Justice (or “woke”) movement, which sought to promote equity according to group identity through authoritarian means. In March 2018, an article appeared on the website of the American Civil Liberties Union (ACLU) which noted that by this point it was “common” for Leftist activists “to call for lower legal protections for speech”. The writer concluded that such calls were misguided, describing the First Amendment as “our most powerful tool to keep the government from regulating the conversations that spark change in the world”.
But other activists took a different view from the ACLU. In 2018, two of the founders of Critical Race Theory, Richard Delgado and Jean Stefancic, republished their 1997 book Must We Defend Nazis?: Hate Speech, Pornography, and the New First Amendment. This version of the book was modified according to the shift in activists’ demands, and the subtitle was now Why the First Amendment Should Not Protect Hate Speech and White Supremacy. In that same year, activist and legal scholar Justin Hansford argued in the Yale Law Journal Forum that, when it comes to race, the “marketplace of ideas” does not apply. “When ideas on race that would disrupt the racial hierarchy of white over Black emerge,” wrote Hansford, “the First Amendment is disproportionately applied to trample that dissent”.
The “woke” movement had always taken a pro-censorship stance, but by 2018 the First Amendment was clearly identified as the key obstacle to their aims. This was developed further in The Cult of the Constitution (2019), in which legal scholar Mary Anne Franks took aim at “First Amendment fundamentalism”. An entire chapter was devoted to what Franks calls “the cult of free speech”, a chilling phrase that recalls Labour MP Nadia Whittome’s belief that “we must not fetishise ‘debate’ as though debate is itself an innocuous, neutral act”. Authoritarians frequently resort to this kind of sophistry rather than admit outright that they find the concept of free speech inherently rebarbative.
In October 2019, former editor of Time magazine Richard Stengel continued this disturbing trend with an article for the Washington Post entitled “Why America needs a hate speech law”. Stengel rehashed the typical concerns about “false narratives” and “lies”, as though any kind of speech regulator could possibly be immune from deceptive or misleading behaviour. He also repeated the “direct effects theory” which posits that people act on cue from social media posts, even though more than six decades of research into media impact on public behaviour has seen such notions fully discredited. The First Amendment, Stengel argued, “should not protect hateful speech that can cause violence by one group against another. In an age when everyone has a megaphone, that seems like a design flaw”.
A snobbish mistrust of the masses lies at the heart of the opposition to the First Amendment, a feature that we can trace to the Frankfurt School and the French postmodernists of the Sixties, two groups that have substantially influenced the philosophy behind Critical Social Justice. According to this view, popular culture has created a society of unthinking clones. What Herbert Marcuse described as the “one-dimensional man” is irredeemably blind to his own subjugation and reacts mechanically according to decrees from above. According to this perspective, “hate speech” has the power to rile up one group against another, even though the evidence for this claim is scant.
Those of us familiar with the concept of the “long march through the institutions” will be aware that these theories take time to percolate and to infect the mainstream. John Kerry’s recent remarks would suggest that First Amendment scepticism has finally made the leap from academic activism into the political sphere. Whether it gains traction in its new home should trouble us all.
The signs are not promising. This week, Hillary Clinton weighed into the debate during an interview with CNN. “We should be, in my view, repealing something called Section 230,” she argued, referring to the section of the Communications Decency Act introduced in 1996 that protects online platforms from liability for comments posted by users. Without these protections, big tech would have little choice but to implement draconian censorship measures. The consequences for free speech, in the de facto public square of our digital age, would be catastrophic.
Clinton stopped short of a call for a ban on “hate speech”, but how long before other mainstream politicians are echoing Kerry’s assessment of the First Amendment as a “major block”? There was a telling moment in the recent vice-presidential debate, in which Tim Walz interjected to claim that “hate speech” is excluded from First Amendment protections. The remark was so fleeting that it was not even included in the official CBS News transcript, but it was perhaps the most significant moment of the evening. If the Democrats are triumphant in the election, Americans will be governed by an administration that does not believe the First Amendment is fit for purpose.
History teaches us that legal proscriptions against offensive viewpoints do not have a mitigating effect; bad ideas that are driven underground tend to fester and multiply. We also know that laws against offensive speech soon become expanded to incorporate any viewpoints that are not approved by those in power. In 1644, John Milton published his Areopagitica, a counterblast to the Licensing Order of June 1643 which decreed that all printed texts be passed before a censor in advance of publication. In this essential defence of liberty, he pointed out that censors do not “stay in matters heretical” but inevitably broaden their remit to “any subject that is not to their palate”.
Once a state has been empowered to set the limits of speech, to introduce legislation against vague and indefinable concepts such as “hate” or “offence”, the groundwork for future tyranny is firmly established. One thinks of Juvenal’s famous question: quis custodiet ipsos custodes? (who will watch the watchmen?). Kerry, Clinton, Walz et al seem to believe that those in authority can be trusted to distinguish between fact and fiction, but this was roundly disproved during the Covid pandemic when the lab-leak theories, now widely accepted as credible, were censored as “disinformation”.
Any attempt to carve out exceptions to the First Amendment for “hate speech” will inevitably empower the state to curb freedom of expression at will. The hopelessly subjective notion of “hate” means that this will be tantamount to a censor’s charter, a means by which political opposition can be stifled with the backing of the Constitution. As more and more political figures are willing to openly question the validity of the First Amendment, the threat to free speech in the West is now palpable. The tremors are becoming more frequent, and we ignore them at our peril.
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Source: UnHerd Read the original article here: https://unherd.com/