Coyote Blog

A reader sent me a link to this critique, sort of, of free speech in the Daily Princetonian.  I say "sort of" because I thought the thinking and logic of the article was pretty muddled, so much so that I am not even totally sure what point they are trying to make, exactly, though it clearly is meant as a critique of Conservatives defending free speech.   Frankly I was pretty depressed that a Princeton philosophy major couldn't write in such a way as to make even their thesis clear.

Anyway, the comments are closed and I still feel enough of a connection to Princeton that I wanted to at least try to engage the students, so I wrote this back:

I didn't find your Daily Princetonian article of 9/25 particularly compelling, in part because you don't engage with defining an alternate regime if you toss out free speech.  "we don't need to hear any more form group x or y" is a fine policy for setting up your personal Twitter block list, but how does it work in a democracy?  Everyone assumes when they advocate for such controls that they and their fellow believers will be the ones controlling, but do you really believe that?  After the last election?  What if a President Lindsey Graham (god forbid) were to take your rules advocating for getting rid of hate speech and define hate speech as advocating for abortion rights?  The ACLU didn't famously defend the speech rights of the American Nazi party because it liked Nazis -- it defended them because they were justifiably afraid that the precedent of speech limitation might someday be used to restrict speech far more dear to them.

This is why I think Progressives are making a huge mistake in opposing free speech, on their own terms.

Speech codes are written by and for the privileged.  They are written by the oppressor to shut up the oppressed.  George Wallace did not need the First Amendment, black kids trying to go to the University of Alabama needed it.  So the progressive opposition to free speech (e.g BLM shouting down the ACLU over free speech) is either 1) completely misguided, as the oppressed need these protections the most or 2) an acknowledgement that progresives and their allies are now the privileged, that they are the ones in power, and that they wish to use speech codes as they have always been used, to shut up those not in power.  In our broader society the situation is probably #1 but on university campuses we may have evolved to situation #2.

The folks who wrote the first amendment were thinking about this dynamic.  Had they instead decided to write a speech code, it likely would not have been good.  It might well have banned the criticism of slavery, for example, if Jefferson and his Virginians had anything to say about it.  But they didn't create a speech code, thank god.  In fact, I am trying to think of any time in history I would have been comfortable with the ruling elite locking down the then-current norms of their society into a speech code, and I can't think of one.  What gives you confidence, vs. the evidence of all history, that you can do so today with good results?

Way back in 2014 I wrote:

I often wonder if Democrats really believe they will hold the White House forever.  I suppose they must, because they seem utterly unconcerned, even gleeful in fact, about new authoritarian Presidential powers they would freak out over if a Republican exercised.

Coyote's first rule of government authority:  Never support any government power you would not want your ideological enemy wielding.

As Damon Root writes:

In December 2007 presidential candidate Barack Obama told The Boston Globe that if he won the 2008 election, he would enter the White House committed to rolling back the sort of overreaching executive power that had characterized the presidency of George W. Bush. "The President is not above the law," Obama insisted.

Once elected, however, President Obama began to sing a different sort of tune. "We're not just going to be waiting for legislation," Obama announced. "I've got a pen and I've got a phone...and I can use that pen to sign executive orders and take executive actions and administrative actions."...

To make matters worse, many of Obama's fervent liberal supporters pretended to see nothing wrong with such obvious abuses of executive power. For example, consider the behavior of the prestigious editorial board of The New York Times. Back in 2006, when George W. Bush had the reins, the Times published an unsigned editorial lambasting Bush for his "grandiose vision of executive power" and his foul scheme to sidestep the Senate and unilaterally install his nominees in high office. "Seizing the opportunity presented by the Congressional holiday break," the Times complained, "Mr. Bush announced 17 recess appointments—a constitutional gimmick."

But guess what the Times had to say a few years later when President Obama had the reins and he utilized the exact same gimmick? "Mr. Obama was entirely justified in using his executive power to keep federal agencies operating," the Times declared in defense of Obama's three illegal appointments to the National Labor Relations Board. (Those three NLRB appointments, incidentally, were ruled unconstitutional by a 9-0 Supreme Court.)

I remember a conversation with my mother-in-law, who is a fairly accurate gauge of New England Left-liberal thought.  She was absolutely adamant that the Republican Congress, from the very beginning, had dug in and refused to work with Obama and that the resulting gridlock gave Obama the absolute right to work around Congress and govern by fiat.   I remember asking her, are you comfortable giving President Lindsey Graham that power too? (Trump was not even a glimmer in the eye of the body politic at that point so Graham was the best Republican bogeyman I could think up on short notice).  I don't remember an answer to this, which reinforced the sense I had at the time that Democrats honestly did not think they would lose the White House in their lifetimes -- I suppose they thought that 8 years of Obama would be followed by 8 years of Clinton.

Well, the freak out is officially here and I will happily embrace all Democrats who want to make common cause in limiting Presidential power.

Coyote's first rule of government authority: Never support any government power you would not want your ideological enemy wielding @reason

— Coyoteblog (@Coyoteblog) November 14, 2016

Update:  Glenn Greenwald makes many of the same points

Sen. Barack Obama certainly saw it that way when he first ran for president in 2008. Limiting executive-power abuses and protecting civil liberties were central themes of his campaign. The former law professor repeatedly railed against the Bush-Cheney template of vesting the president with unchecked authorities in the name of fighting terrorism or achieving other policy objectives. “This administration also puts forward a false choice between the liberties we cherish and the security we provide,” he said in 2007. Listing an array of controversial Bush-Cheney policies, from warrantless domestic surveillance to due-process-free investigations and imprisonment, he vowed: “We will again set an example for the world that the law is not subject to the whims of stubborn rulers.”

Yet, beginning in his first month in office and continuing through today, Obama not only continued many of the most extreme executive-power policies he once condemned, but in many cases strengthened and extended them. His administration detained terrorism suspects without due process, proposed new frameworks to keep them locked up without trial, targeted thousands of individuals (including a U.S. citizen) for execution by drone, invoked secrecy doctrines to shield torture and eavesdropping programs from judicial review, and covertly expanded the nation’s mass electronic surveillance.

Blinded by the belief that Obama was too benevolent and benign to abuse his office, and drowning in partisan loyalties at the expense of political principles, Democrats consecrated this framework with their acquiescence and, often, their explicit approval. This is the unrestrained set of powers Trump will inherit. The president-elect frightens them, so they are now alarmed. But if they want to know whom to blame, they should look in the mirror.

I had this argument the other day with my mother-in-law -- you can't allow a President more power just because he is "your guy" and you trust him.  No matter how well you think that person will use the power (and I trust no one), you are setting a precedent for the next guy whom you may very well not like.   I wrote this way back in 2005:

Technocratic idealists ALWAYS lose control of the game.  It may feel good at first when the trains start running on time, but the technocrats are soon swept away by the thugs, and the patina of idealism is swept away, and only fascism is left.  Interestingly, the technocrats always cry "our only mistake was letting those other guys take control".  No, the mistake was accepting the right to use force on another man.  Everything after that was inevitable.

For years I have asked liberals -- who have cheered President Obama's power grabs as righteous on the basis that "Congress won't don anything, so Obama has to" -- how comfortable they will we with a President Lindsey Graham using the same powers.

I was frequently dismissed, but not any more -- as folks on the Left begin to wake up and imagine President Trump using the same powers wielded by Obama.  To this end, the New York Times has a good article on Obama's drone war and the precedent set for the next President:

President Bush started the drone wars, but Mr. Obama vastly expanded them. Almost entirely on his watch, United States strikes have killed as many as 5,000 people, possibly 1,000 of them civilians. The president approved strikes in places far from combat zones. He authorized the C.I.A. to carry out “signature strikes” aimed at people whose identities the agency did not know but whose activities supposedly suggested militancy. He approved the deliberate killing of an American, Anwar al-Awlaki.

The president also oversaw an aggressive effort to control the public narrative about drone strikes. Even as senior officials selectively disclosed information to the news media, his administration resisted Freedom of Information Act lawsuits, arguing that national security would be harmed if the government confirmed drone strikes were taking place.

The administration also argued in court that federal judges lacked the authority to say whether drone strikes were lawful. It refused to release the evidence that it claimed made Mr. Awlaki a lawful target. In lieu of information, the administration offered assurances that the president and his aides were deeply moral people who agonized over authorizing lethal force.

That last line is perhaps the most dangerous single argument in all of democracy, that it is somehow OK to give an individual enormous extra-Constitutional powers because you trust that individual.  Only now, at the end, do they understand:

But as this election season has underscored, powers this far-reaching should not rest solely on the character of the president and his advisers. In a democracy, the ability to use lethal force must be subject to clear and narrow limits, and the public must be able to evaluate whether those limits are being respected.

When discussing Trump, I see a lot of writers referring to 20th century precedents of populist autocrats.  But if you want to be worried about American democracy, a better example is perhaps the Roman Republic.  The Republic was not killed by one man, even Julius Caesar.    The Republic fell through the slow accretion of autocratic precedents over nearly a hundred years, many of which were set by folks like Gracchus (who seems to have been a well-intentioned reformer) and Sula (who was a hero in Rome).