John Stuart Mill once gave expression to what he felt was a commonplace, namely that:

a party of order or stability, and a party of progress or reform, are both necessary elements of a healthy state of political life; until the one or the other shall have so enlarged its mental grasp as to be a party equally of order and of progress, knowing and distinguishing what is fit to be preserved from what ought to be swept away. Each of these modes of thinking derives its utility from the deficiencies of the other; but it is in a great measure the opposition of the other that keeps each within the limits of reason and sanity.

For limited creatures like us, wisdom in politics requires that we face opposition from those who see things differently. Because we are narrow-minded and partial beings, approximating truth in politics must take the form of “the rough process of a struggle between combatants fighting under hostile banners.” 

James Madison was more skeptical of this kind of combat, at least in democratic contexts. He feared that competition between factions (groups organized around sectarian ideologies) might result in one becoming dominant. If it did, a purely democratic government would tyrannically enforce the interests of the dominant faction, at the expense of the common good. The remedy, Madison thought, was to adopt a republican constitution capable of cooling factional disagreement. Only a system of checks and balances, including a formal separation of powers, could stop a dominant faction from becoming tyrannical.

And yet Madison was clear that this remedy was unlikely to be successful absent a diverse civil society composed of competing factions vying for representation in government. Inspired by Mill, we might say something somewhat stronger: the powers of government, once separated, ought not to be distinct merely in the sense that they lie in different hands, but also in the sense that those in whose hands they lie have conflicting visions—some conservative, some progressive, say. Without this tension, we might worry that political change will happen more quickly and with less foresight and minority input than is desirable.

It’s true, of course, that executive, legislative, and judicial allegiance to the constitution can itself provide some source of tension independent of any substantive policy disagreements. (We saw, for example, that a court composed of largely Republican appointees was nevertheless able to restrain some of former President Trump’s more extreme excesses.)

But when many of our political disagreements are precisely over the interpretation of that founding document and the degree to which it constrains legislative, executive, and judicial bodies, it’s not hard to see that a legislature which shares the political goals of an executive which shares in turn the political goals of a judiciary might be less likely to “check” one another than they might be in the presence of more disagreement. 

This brings me to the respect in which the politics of the moment make me nervous. 

Along with a Democratic executive, we have a House of Representatives with a sizable Democratic majority and a democratically controlled Senate. The latter has an increasing capacity  to pass legislation with no Republican support.

Currently, the largely Republican appointed judiciary is the only source of robust “opposition” in the sense sketched above. In normal circumstances, it might be enough. And yet, there are increasingly loud calls for congress to “pack the court” as a means of sanctioning recent republican opportunism. If these calls are heeded,  the court would lurch leftward as well. 

Naturally, even in the event of a packed court, recourse would remain to the less formal civil society checks on majority excess the founders thought so important. But many of the most prestigious media outlets exhibit a bias friendly to the Democratic Party. So too with social media platform executives. And the leftward tilt of most colleges and universities indicates that they are only inadequately positioned to provide an appropriate counterweight. Commercial interests, long opponents of progressive economic policies, are coming around on many of them.  To make matters worse, the broader population, still reeling from the pandemic, is more welcoming of government action than usual, creating a kind of popular authorization for some fairly radical changes to economic policy. 

It isn’t, then, merely that we have a government increasingly in the control of persons with a predominantly progressive vision. We have a civil society, the major aspects of which also share that vision. 

Moreover, things aren’t likely to improve in this dimension, at least not in the medium term. The republican party platform (to the extent that there is one) is massively unpopular among young voters. Its flirtation with xenophobia will make it unpopular with immigrant voters. It has long lost favor with racial minorities and women. Thus unless the Democratic Party fractures along the fault lines it is clearly showing (or the GOP recovers some sense of itself), I imagine that we’ll see a sustained period of single-party dominance in each branch of government. Absent a cultural shift that seems as unlikely as it might be undesirable, our civil society will continue to lean heavily in a progressive direction.

Some might hasten to say that the GOP itself bears the primary responsibility for all of this. And they’d be (at least partially) right. The party has ceased being a principled proponent of limited government. It has become increasingly willing to wield its power to arbitrarily punish commercial actors that it dislikes (even when this is anathema to its stated commitments). We witnessed this in Trump’s lashing out at big tech firms and abuse of executive orders, and we’re seeing it now, as major GOP actors opportunistically threaten the MLB with sanctions for its recent opposition to Republican legislation.

But though the Republican Party may bear primary responsibility for the state of affairs that has me worried, it would be shortsighted to celebrate its (perhaps deserved) decline—at least so far as one is moved by the Millian reasons rehearsed above.

Montesquieu famously wrote that “every man invested with power is apt to abuse it, and to carry his authority as far as it will go.” The above reflections suggest that democrats have a substantial mandate for exercising their own newly won authority. And yet one does not have to be as pessimistic as Montesquieu was to worry that the accountability mechanisms of the current climate leave something to be desired. 

Those yearning for an end to gridlock may, in short order, have their wish. For those of us who appreciated the virtues of slowed political action, little is left but to hope that we are every bit as paranoid as we sometimes seem to our critics. The well-being of the nation depends on it.

In a recently published paper, I defend what I call U.S. free speech exceptionalism (FSE) against recent objections from philosophers. FSE refers to the constellation of legal norms and precedents that makes it difficult in the United States to prohibit various kinds of undesirable speech. In the U.S., for instance, hate speech is protected, as is much obscenity and defamatory speech that is liable to legal limitation abroad.

Critics of FSE often worry that it is irrational. After all, the reason to constitutionally protect free speech is that doing so realizes several crucial positive goods. These are varied, but a typical list will include (among other things): discovery of the truth, autonomy, diversity, and enabling better democratic deliberation. But—and here’s the problem for FSE—it is easy to imagine that there are circumstances in which we better achieve those goods by limiting, rather than protecting, speech.

Far from promoting truth and democratic deliberation, FSE tolerates misinformation (including false defamatory or libelous statements uttered in the absence of actual malice). Far from promoting diversity, FSE tolerates hate speech, which issues in patterns of exclusion and dignitary harm. Far from promoting autonomy, FSE tolerates demeaning pornography which silences women where it can most matter to hear them speak.

One response on the part of FSE is to deny all of this. Another is to say, sure, there’s bad speech. But the best response to bad speech is more, better speech. I’ve never found these replies satisfying. The best response, in my view, is to own up to these facts, admitting that free speech does not always advance the values that justify it, admit that more speech will not always be forthcoming, and to say that, nevertheless, FSE deserves our allegiance. In virtue of what?

You can read the paper for the full answer, but the short version is that we should accept FSE because departing from it creates new powers on the part of governmental bodies to act in tyrannical ways. Knowing what we do about human psychology and political power, we have good reason to think that these new powers will be wielded against unpopular minorities. Even if we are convinced that the people that wield the powers in the near term will use them for good, perhaps progressive, ends, we should not be very confident that future leaders will. More than that, we should expect that those silenced by the good people in charge now will be eager to vie for power themselves and silence those who silenced them. By hypothesis, those silenced will not deserve that kind of treatment.

It’s easy to respond to this argument with skepticism. Indeed, I’ve received plenty of sideways glances when I’ve told people why I’m a fan of U.S. free speech jurisprudence.

Well, the politics of the moment has seen an uptick in proposals for legislation that, I think, makes the argument credible. Such legislation aims to suppress the proliferation of radical ideologies. A bill currently under debate in New Hampshire is a good example. It would make it unlawful for a state agency (or contractor thereof) to advocate for or train persons to believe certain tenets of critical race theory, among other things. To take a concrete example, the law would arguably bar a public university from paying a speaker who thinks that the history of the United States is inherently racist. There are several proposed laws like this. Jeffrey Sachs calls them the new anti-woke laws.

At least some of these laws seem to me unconstitutional, violating first amendment rights of educators, contractors, and state employees. For that reason, I do not expect them to be passed (at least not in their current forms). If they are passed, I expect them to be struck down by the courts. But these expectations are expectations formed in a context in which the judicial commitment to FSE remains strong. Weaken that commitment, and I’m less sure.

Liberals worried about these kinds of laws should renew their faith in strong protections for free speech and norms tolerating heterodoxy. Conservatives inclined to support these laws (due to worries that state agencies sometimes use their power to promote fringe ideologies) should instead continue embrace the constitutional free speech norms that would in some cases lead to their being struck down. For eroding those norms will also make space for progressives to gain power and legislate in similar ways regarding “reactionary” ideology.

Mill was right when he observed that liberal toleration for freedom of speech was rarely principled. He saw this clearly in the reformation, when early Protestants held toleration up as an ideal only when they perceived their powerlessness to impose their ideology on others with impunity. Generally, the human disposition to “impose [one’s] own opinions and inclinations as a rule of conduct on others”, Mill writes, is “hardly ever kept under restraint by anything other than but want of power” (OL: 13).

But it doesn’t have to be this way. Instead, we could embrace the imperfect modus vivendi that is FSE and convert opportunistic support for toleration into principled support. This, rather than attempting to sustain political power longer than our enemies (Sachs’ proposal), seems like the best way forward for our imperfect political union. Or so it does to me.

* Note: Thanks to Andrew J. Cohen for feedback on an earlier version of this post.

On Wednesday August 5^th, Donald Trump posted a snippet of a Fox and Friends segment to his social media accounts. Discussing the important matter of school reopenings, the president said the following:

Schools should be reopened. When you look at children, children are almost—and I would almost say definitely, but almost immune from this disease…they’ve got stronger—it’s hard to believe depending how you feel about it—much stronger immune systems than we do somehow for this and they…don’t have a problem…and I’ve seen some doctors say that they’re totally immune.

Trump goes on to cite as evidence the fact that only one person under 18 died from the virus in the state of New Jersey, which he (no less than his viewers) should know falsifies any claim of total immunity. Charitably, he likely means that children are shielded from the worst effects of the virus. Evidence: Just weeks ago, Trump made more reasonable claims that (1) children face less risk from the virus (they recover quicker) than adults and (2) that they may transmit it less readily than adults. As in the case of transmission to and from animals, the evidence concerning children’s role in transmitting the virus is still coming in. Whereas about a week ago, experts were optimistic about children’s role in transmission (believing on the basis of limited evidence that it might be lower), a recent German study has raised doubts (though has yet to pass through peer review). But regarding this risk, Trump admitted that further research was necessary and that his administration was taking this factor seriously.

Speculation about what he really means aside, the false and misleading nature of the letter of his claim (that children are immune) led Facebook and Twitter to remove the video for violating their policies around misinformation and covid-19. Were they right to do so?

In my previous post, I indicated that there was good reason to worry that this was actually the best way of promoting what might be dangerous content. Once again, I awoke to numerous headlines which repeated Trump’s claim. Thanks to the Streisand effect, people will see this claim, that children are ‘almost immune’ to coronavirus, repeated over and over again; thanks to the illusory truth effect, people may be more susceptible to believing it, even if they know it’s false.

Here, I want to emphasize a different strategic aspect of all of this. Suppose that Trump knows that the more strident claims are strictly false and that they will cause controversy. (If you watch the video closely, he indicates that he knows as much when he hedges: “I hate to use the word totally because the news will say, ‘oh, he made the word totally and he shouldn’t have used that word”.)  Might censoring it frustrate the aims of the censoring parties and ultimately serve Trump’s interests?

Perhaps. It is unprecedented for social media platforms to remove the president’s speech. Their policy, to date, has (reasonably in my view) been that, though what the president says might be false, misleading, or harmful, the people have a right to know that he’s said it (even if they should also be informed that it is misleading). But such platforms have been facing increased pressure by representatives of more traditional media, by politicians, by advertisers, and by some users to exercise a heavier hand in this regard, and to stop exempting Trump’s speech from their community standards. Trump, already so annoyed by the ways in which social media platforms have handled his content as to issue an executive order barring them from engaging in censorship, presumably knows this. The more he can get social media companies to censor him, the more he may be able to convince his base that these platforms are untrustworthy.

Supposing that it is true that a majority of users of social media platforms (including 38% of democrats) already believe that social media platforms are biased against conservatives, censoring the president’s speech in this manner might further negatively impact the reputations of these platforms (reputations which have already taken a large hit in the past year). Not only can this sort of censorship further increase polarization by leading conservatives to disengage (costing the platforms active users, and, ultimately, advertisement revenue), it may also cause people more generally to doubt social media platforms’ disclaimers about the dangerous or misleading content they choose to leave up, reducing their credibility and leaving vulnerable persons more susceptible to misinformation (though see Goldman’s Knowledge in a Social World, ch. 7). In the particular case at hand, these effects may be amplified because the censored party here is the president and it is reasonable to believe that voters have a legitimate interest in knowing what their leaders are saying, true or false, good or evil (though some evidence suggests that, with respect to offensive content in particular, many think this kind of censorship, even of the U.S. president, is desirable).

One thing that these considerations put into sharp relief is that despite the bare facts that social media companies have a right to censor and legitimate interests in censoring, there is no guarantee that they will censor well, even relative to their own goals (somewhat narrowly construed). If they are sufficiently bad at choosing which content to censor to advance their ends (was this really the most dangerous segment we’ve heard?), this establishes a weak presumption against their censorship—not as a matter of law or even of ethics, but a matter of organizational rationality.

Still, the claim that children are basically immune from coronavirus is false and may mislead parents into taking risks with their children that they ought not to take. While I think Trump did not mean exactly what he said (and that most people can understand this), surely an interest in protecting children favors censoring the content, outweighing this presumption.

Yet, whether this consideration is decisive in favor of censorship does not simply depend upon the magnitude of the risks unreflective uptake of the content poses (which might be slight). It also depends crucially upon censorship’s being sufficiently effective in stopping parents from taking such risks as to outweigh people’s legitimate interest in hearing what our elected officials say about important topics and the costs to credibility that platforms might incur as a result. Here, it is important that the censorship will not achieve this much unless enough people who would have otherwise seen and taken Trump’s words at face value are now shielded from their harmful effects. My other worries about the unintended consequences of censorship aside, I wonder how many now find themselves in such a position.

In the end, though Trump is wrong that children are immune to covid-19, he might well be right that the evidence favors reopening schools. Given plausible hypotheses about the importance of early education in socializing children, for adding meaning and purpose to their lives, for helping parents get back to work, for taking children out of deprived and abusive environments, and for ensuring that vulnerable children are not left behind, reasons to favor reopening hang heavy in the balance. These reasons must be weighed carefully against risks to children and to teachers and family members from reopening, risks that Trump himself has previously acknowledged. If the United States chooses to reopen its schools, it will not be alone. Sweden never closed them, and a number of other countries (many of them apparently faring better in the fight against coronavirus) have similar plans.  All other matters aside, it would be unfortunate if discussion of these serious issues were to take a back seat to the political theater of a battle between Silicon Valley executives and the commander in chief. Sadly, all parties involved are acting in ways that may predictably realize this unfortunate outcome.