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Hoo-boy—pour yourself three-fingers of your favorite high-proof single malt for this episode of the Three Whisky Happy Hour, as Steve, John, and Lucretia throw down hard on the limits of free speech in theory and practice. A lot of people—some of them conservatives (and, ahem, John at times!)—think that banning student chapters of the pro-Hamas Students for (In)Justice in Palestine, as Governor DeSantis has done in Florida, represents right-wing “cancel culture” and is therefore hypocritical. Steve and Lucretia argue that two generations of flabby jurisprudence from the Supreme Court about the First Amendment has left us illiterate about the first principles of the matter.
Thus, we recur to some older writings of David Lowenthal and Harry Jaffa on this point, and suggest that is it not difficult at all in principle to distinguish between political speech that deserves protection and speech from would-be tyrants who, if successful, would take away everyone else’s right to speech (if not right to life in the case of Jews) if they gained power. Whether to do so is a matter of prudence and circumstance, but one of the lessons of history is that if a nation waits too long (cough, cough—Germany in the 1930s—cough, cough) to assert its right of self-preservation against the barbarians in its midst, a free society is lost.
The question of barbarism is central to the second part of today’s episode, where we sort out some of the basic issues of the laws of war and just war theory. And we use Angelo Codevilla as one of our expert witnesses on this subject, which shouldn’t be that hard to sort out, but somehow is if you only read the New York Times or some other pre-school level source.
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My near constant theme that ‘Despair seems optimistic” is becoming less outlandish by the day.
On the opening discussion of universities decertifying chapters of Students for Justice in Palestine, I think I agree with Prof. Yoo’s theoretical argument if this were a matter of speech, but he is clearly missing the imminent threat to physical safety that those groups present. Enough of those groups are actively engaging in violence and are encouraging violence that it is reasonable to consider the groups themselves to represent a threat to the peace.
But even on the theoretical basis, education is not a free-for-all. So it may be appropriate to control who holds sway on a school campus.
Am I the only one who cannot separate the SJP’s advocacy of Hamas and its “from the river to the sea” refrain from incitement to riot?
“Kill the Jews ” strikes me as legitimate threat of death.
Neither incitement nor death threats have ever received First Amendment protection, Al Sharpton excepted.
I like this podcast because it draws some bright lines in where folks stand.
When I hear someone taking about “giving the government power…” when that power has already been given I start to tune that person out. Sorry John, but the arguments are lovely ideas, but the power currently is in the government – the Federal level to be exact. Look to whom has the power to act, there lies the one with authority. In this case of free speech law, the power lies not in the written words of law from the legislature/ executive, nor even in the words of the judicial branch decisions – but in those universities and state-level executives that are making actual decisions.
Down the line the courts or federal agencies will possibly act to overturn or roll back said decisions, but the “deciders” to use a GWBushism are those that curtailed the speech. The broader question and the bright lines come up when we say, who has the final word on this and what should they decide that is most in line with our national values. John seems to say a fully neutral, open free market of ideas, enforced by the federal level of costs and agencies. What’s funny is that will entail the same negative actors possibly making those decisions that he wished to avoid by having that level be the final word. A future court or federal agency or legislature can make decisions that are anti everything John wants.
Lucretia makes the great observation between free speech as an end in itself v free speech as a means to an end of a just and free society. Wonderfully done.
We had a great system that left much of these decisions to an actual marketplace of ideas when regional, state, or institutions themselves could be the point of power for these decisions. If you didn’t like it, you voted for new leaders, new school boards, left the university or otherwise voted with your feet. It’s the anti-federalism drive of our current system that stifles the actual change we need to have healthy institutions. If states and universities could have kicked these groups out, fired those professors, expelled the students back in the 80s/90s we likely wouldn’t have such a hellscape of progressive racial equity leaders and “educated” citizens like we currently do.
But we do, because we listened to those who expose the federal-level power centers which purified liberalism down to its anti-civilizational end. Your culture has to have good limits and good citizens to keep itself fortified, and we allowed the free speech as an end in itself to open the door to where we are today.
The bogeyman of the southern states or the Civil War will always be trotted out to continue this federal level cultural eradication we are going through, until the better arguments of federalism and divided powers and specific enumerated powers triumphs again.
Make it so!
Will I get @Lucretia as an instructor?