Im-Politic: You Bet Sarah Palin Got Shafted in Her NY Times Libel Suit

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Elizabeth Williamson, First Amendment, freedom of the press, Gabrielle Giffords, Im-Politic, James Bennet, Jared Loughner, Jed S. Rakoff, journalism, libel, Mainstream Media, media bias, press freedom, Sarah Palin, The New York Times

The more I read about it, the clearer it is that the outcome of the Sarah Palin libel suit against The New York Times was a complete travesty of justice.

Let’s start at the end. The presiding judge, Jed S. Rakoff – an appointee of former (Democratic) President Bill Clinton’s – who had already thrown out the case once ostensibly on the merits, and who therefore should have never been permitted to handle the retrial – decided to dismiss Palin’s charges a second time while the jury was still deliberating. What was the hurry, Judge?

Worse, the jury sequestration procedures were so slipshod that its members found out about his decision before their work was done. Rakoff said the jurors insisted that their own verdict against Palin wasn’t influenced by this news. Which means we’re supposed to believe that the ruling of the supreme authority figure they were dealing with for the entirety of the trial, whose very robe-clad figure symbolizes impartiality, and one of whose main duties is to instruct them on the legal dos and don’ts of their role, had no effect on their thinking. That’s remotely believable?

Just as serious – though not so unmistakably biased – was Rakoff’s view that there was so little evidence that Times editors acted with malice in producing an editorial that pinned responsibility on Palin for a failed assassination attempt on a Member of Congress that the paper should have been acquitted literally ASAP. And the jury got it just as wrong.

Here are the two paragraphs, from a June, 2017 Times editorial, on which Palin mainly based her case:

“Was this attack [by a shooter on Republican Members of Congress in 2017] evidence of how vicious American politics has become? Probably. In 2011, when Jared Lee Loughner opened fire in a supermarket parking lot, grievously wounding Representative Gabrielle Giffords and killing six people, including a nine-year-old girl, the link to political incitement was clear. Before the shooting, Sarah Palin’s political action committee circulated a map of targeted electoral districts that put Ms. Giffords and nineteen other Democrats under stylized cross hairs.

“Conservatives and right-wing media were quick on Wednesday to demand forceful condemnation of hate speech and crimes by anti-Trump liberals. They’re right. Though there’s no sign of incitement as direct as in the Giffords attack, liberals should of course hold themselves to the same standard of decency that they ask for of the right.”

The crucial tests that must be passed by libel charges against a public figure (like Palin) are (1) that the statement in question is false (The Times admitted as much a corrections it ran soon after); and (2), created by the Supreme Court in a 1964 case involving The Times, that the statement was published either with “actual malice” or with “knowledge that it was false or with reckless disregard of whether it was false or not.”

As should be obvious to anyone knowing standard English, the key portion comes in the first paragraph, which notes the 2011 attack on Rep. Giffords and others, claims that “the link to political incitement is clear” and directly proceeds to recall a map contained in a Palin political ad. The only possible sane interpretation is that the former Alaska governor and vice presidential candidate’s organization played a role in inciting shooter Loughner. And for good measure, this accusation that Palin’s ad activated Loughner was repeated in the second paragraph.

The allegation about the ad’s effect was not only false, but false on every count. What was depicted under crosshairs in the ad were not pictures of Giffords herself or any other Members of Congress, but their districts on a map of the continental United States. (As shown below, the lawmakers’ names were included under the map.)

And Loughner was so certifiably insane that, as was totally predictable, no evidence has ever emerged that he knew of Palin’s ad. Nor did he have to, as he had become preoccupied with Giffords years earlier. And indeed, as alluded to above, the Times admitted the falsehood in two corrections it ran within a day after the editorial came out.

These corrections have been cited, including by Rakoff, as evidence that the paper was not aiming to smear Palin, but simply committed an innocent mistake. But does he really believe that such brief ex post facto statements, inserted at the end of the new version, are seen by nearly as many readers and have nearly the impact of the original?  Moreover, this new version still describes the Palin ad as an example of the dangerous and indeed “lethal” “viciousness” of much American political rhetoric nowadays – before abruptly somersaulting and tacking on the qualifier that “in that case no connection to the shooting was ever established.”

Rakoff found even more convincing of the Times‘ benign intentions an email sent by editorial page chief James Bennet – who rewrote the commentary and added its most controversial language – to original drafter Elizabeth Williamson once his rewrite was finished (and, as both of them knew, finished very close to the deadline they were needlessly determined to meet, as described below).  In it, Bennet asked her to “Please take a look” at his changes, which he acknowledged – rather apologetically – were substantial. 

As explained by Washington Post media critic Erik Wempel, Rakoff judged that the email established Bennet’s good faith because “No matter what you believe about Bennet or his colleagues, he’d be foolish to ask for Williamson’s review of the draft if he’d been committed to planting damaging falsehoods in it.”

But nothing in Bennet’s message alerted Williamson – who, as made clear above, also believed in a Palin-Gifford shooting connection – to the possibility that he’d exaggerated the Palin angle in any way.  It doesn’t appear that this aspect of the rewrite was even mentioned.  (I haven’t managed to find a copy of the entire message, but am relying on the reproduction contained in the above-linked Columbia Journalism Review article.)  If anything, the last-minute nature and apologetic tone of the message indicate most strongly that Bennet viewed it as a sop to a colleague whose work he found thoroughly unsatisfactory 

Moreover, Williamson’s response shows that the last issue she was thinking about was whether Palin’s role in the nation’s violent politics had been misrepresented. 

For his part, Bennet contends both that he was unaware of previous Times reporting, and that when he wrote about the “clear” “link” between the type of “political incitement” represented by the Palin ad and the Giffords shooting, he never intended to argue that there was a clear link between the two.

Amazingly, when he presided over the first case in 2017, Rakoff simply ignored this transparently feeble attempt – from a highly educated individual who for decades had earned his living and carved out a distinguished career at the very top of his profession through his skill at using words – to argue that the words he set down on paper had nothing to do with the message he wished to convey.

Instead, the judge declared (in his above-linked 2017 ruling) that “What we have here is an editorial, written and rewritten rapidly in order to voice an opinion on an immediate event of importance, in which are included a few factual inaccuracies somewhat pertaining to Mrs. Palin that are very rapidly corrected. Negligence this may be; but defamation of a public figure it plainly is not.” That is, nothing of legal significance to see here.

But during the retrial, evidence came out undercutting his reading of events. First, as mentioned above, it became apparent that the editorial was a rush job where there was no need to rush. In fact, as recounted here, the morning that news appeared of the 2017 attack on the Congressional Republicans appeared, Times editorial staffers weren’t even sure that any commentary was warranted, much less what it would say.

It’s important to realize here that, unlike their news division counterparts, the editorial page staff was under no competitive pressures from rival news organizations to keep releasing breaking, originally reported material. And especially, as noted above, since editorial page chief Bennet didn’t even receive the first draft of the piece from Williamson until very late in the production day, any responsible publication should have proceeded with caution on such a highly charged topic.

That’s an even stronger point considering that, as even Rakoff has acknowledged,

“Certainly the case law is clear that mere failure to check is not enough to support ‘reckless disregard’ in the context of any libel claim. But … where the assertion is that someone incited murder: That is such a strong statement that even under a reckless disregard standard, it calls for more assiduous checking than would be normally the case.”

And revealingly, despite the ongoing confusion about what focus the editorial should take, Palin was fingered from the beginning as a culprit behind what looked like a national outburst of political violence. As argued in the first draft (cited in the 2017 Rakoff judgement linked above):

“Just as in 2011, when Jared Lee Loughner opened fire in a supermarket parking lot, grievously wounding Representative Gabby Giffords and killing six people, including a nine year-old girl, Mr. Hodgkinson’s [the Congressional Republicans’ attacker] rage was nurtured in a vile political climate. Then, it was the progun right being criticized: in the weeks before the shooting Sarah Palin’s political action committee circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized crosshairs.”

Weirdly, the draft included a hyperlink to a post from ABC News debunking the Palin-Giffords shooting connection. But upon seeing an insinuation that someone – especially a national politician – had incited murder, Bennet didn’t engage in the kind of “more assiduous checking” Rakoff suggested is called for (even when a public figure is involved) when it comes to libel claims revolving around such grave charges. He didn’t make any effort at all. Instead, he decided that itwas much more important to meet the 8 PM deadline for making the following morning’s edition. And in the process, he wound up actually dialing up the anti-Palin rhetoric.

As reported here, in pre-trial testimony, Bennet “cited deadline pressures as he explained that he did not personally research the information about Palin’s political action committee before approving the editorial’s publication. He said he believed the editorial was accurate when it was published.”

But this is the crucial point: Why did he swallow the Palin claim so easily? Because it was Sarah Palin. Someone who, in the milieu in which he spent his entire professional life, was almost uniformly derided as a ditz at best (“I can see Russia from my house!”) and at worst as a demagogue who paved the way for Public Enemy Number One Donald Trump. And if this unmistakably blithe assumption that Palin was of course a hate- and violence-mongerer doesn’t amount to a reckless disregard for the truth, it’s hard to imagine what would,

Fortunately, Rakoff’s legal but bizarro and gratuitous decision to jump the gun on the jury seems likely to increase the odds of a retrial -and perhaps a Palin victory. Unless a U.S. justice system that’s fallen flat on its face in this case gives him yet another chance to allow a news giant to abuse its power.

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Im-Politic: A Worrisome Hole in U.S. Free Speech Protections

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civil liberties, Constitution, First Amendment, free speech, freedom of expression, Im-Politic, mob rule, Oregon, peaceful protests, Portland, protests, Supreme Court

However crazy it sounds, an idea that came to me in high school bears heavily on the burst of recent, overlapping national controversies about free speech, peaceful protests, and political violence. In fact, it spotlights what looks like a gaping, increasingly important, and increasingly worrisome hole in U.S. Constitutional protections not only for legitimate expressions of opinions, but for exercises of other significant liberties.

The idea: That public authorities have an affirmative obligation to protect the expression of unpopular and even disgusting viewpoints even, and especially if, they might ignite violent reactions, and when those violent reactions were taking place.

You might think that this is longstanding Constitutional principle, policy, and practice on the federal, state, and local levels, but that’s not so. And the result is nothing less than an invitation to mob rule that thankfully hasn’t been taken up often during American history, but seems all too tempting nowadays.

I first became aware of the problem when my senior year history class focused for a while on civil liberties and we read about a 1949 Supreme Court case called Terminiello v. City of Chicago. The question at hand was whether local authorities could prosecute a speaker expressing views in a public place to that created “a condition of unrest, or…a disturbance.”

Writing for the majority, Justice William O. Douglas, a staunch defender of civil liberties, argued that the Chicago speaker, a suspended and indeed horrifically bigoted Catholic priest named Arthur Terminiello, and others like him, were entitled under the First Amendment to voice opinions even which (in the words of the presiding local judge) “stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance.”

The Douglas opinion, in my view, was especially valuable because it held that no one – either private citizens outraged for whatever reason, morally legitimate or not, or government at any level – could censor, otherwise prevent during the fact, or punish the expression of any view belonging in the category of Constitutionally protected speech. As a result, the majority wound up expanding that realm of protected speech.

Unfortunately, this legal standard only lasted for some two years. In a 1951 case called Feiner v. New York, the Supreme Court ruled that, as described in this summary, “The First Amendment permits the government to take action against speech when there is a clear and present danger that it will cause a disturbance of the peace.”

In the 1969 case Brandenberg v. Ohio (about two years before my high school class), the Justices seemed to narrow the grounds for suppressing speech that created this kind of “clear and present danger” (a broader category of circumstances that could justify curbing speech and other forms of expression) to speech likely to incite “imminent lawless action.”

But it was only in 1977 that a truly decisive blow seems to have been struck against what I consider a blaming the victim approach when the Court ruled that government couldn’t prevent the expression of most repugnant ideas for fear of threatening public order before the fact either. The case was called National Socialist Party of America v. Village of Skokie, and upheld an Illinois Supreme Court decision that prevented a heavily Jewish municipality from preventing a demonstration by a group of (as the name makes clear) Nazis. udeupheld the defended

All the same, the group of questions I wound up asking in high school about Terminiello remains unanswered. Specifically, if hateful ideas like Terminiello’s are Constitutionally protected speech, didn’t government’s First Amendment obligations logically extend further than affirming his right to express them amid the threat or use of violence? Wasn’t government Constitutionally obliged to make sure that such expression actually take place – for example, responding to threats of violent responses by declaring that such actions themselves would be prosecuted, and following through? Wouldn’t failing to require these protective actions too often threaten to turn the act of expressing protected speech into a test of physical courage, and thereby convince too many who hold unpopular views to hold back?

Which brings us to the tragic killing last weekend in Portland, Oregon of right-wing protester Aaron Danielson amid a spate of violence that resulted from the entry into the city’s downtown of a motor vehicle caravan carrying many individuals of this ilk.

The caravan has been widely described as needlessy provocative, but the grounds seem shaky at best. According to some Mainstream Media accounts, the vehicles “descended on the city and sparked confrontations with Black Lives Matter counterprotesters.” But this phrasing raises more questions than answers. For example, what exactly about the caravan’s trip “sparked confrontations”? Were the opening clashes completely simultaneous? If not, who acted first?

One answer – and revealingly, from the now-conspicuously woke New York Times – is that “As the vehicles displaying Trump flags and signs enter downtown Portland, protesters [gathered] along the street to confront the caravan and in some cases block its route.” I’ve yet to see any accounts blaming the caravan-ers for starting the clashes.

The caravans could legitimately be blamed for knowingly, and even illegally, inflaming an already volatile situation. But no Portland or Oregon officials have declared that the act of driving through downtown itself was illegal, or even constituted a permit-less protest. Certainly, the city’s police had no plans to stop it.

And why would they? Since when has transiting a public thoroughfare not explicitly declared off-limits by the authorities been “provocative,” much less of dubious legality? Which is where the Terminiello point comes in.

The authorities in Portland knew beforehand that the caravan would take place. Their “goal” was to restrict their route to surrounding Interstates – and away from that downtown core. But what the heck is that about? They were afraid of confrontations? If so, didn’t they have an affirmative obligation to make sure that this event could take place safely? In fact, why wasn’t protection offered in advance? And P.S.: These questions pertain whether the caravan was considered by the police to be a protest, or simply an attempt to visit a public place. Finally, regarding the right to access public spaces like downtown Portland for lawful reasons – which seems like a pretty foundational civil right – why in the first place has the area’s government permitted these blocks to become a dangerous near-combat zone for months and even longer?

Of course, decisions about most effectively allocating available resources in a given situation allocation – which need to be left up to the authorities – will always prevent police or other law enforcement agencies from protecting every exercise of Constitutionally protected freedoms adequately. The challenge, moreover, is especially great in these fraught times. At the same time, what better argument could be made for more, rather than fewer, law enforcement assets?

More important, though, the notions that travel through a public street as such, whether simply expressing an agenda or not, amounts to a provocation that is somehow illegal or even improper, and that government has no duty actively to safeguard it, should be completely unacceptable to everyone who values free expression. Because if legitimate authority doesn’t make sure that threats or acts of violence don’t shut down free speech and the exercise of similar rights, you can be certain that the mob – or mobs – will quickly take notice.

Im-Politic: How to Deal with the Confederate and Other Now-Controversial Monuments

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A.P. Hill, Abraham Lincoln, Arlington National Cemetery, Aunt Jemima, Civil War, Confederacy, Confederate monuments, Constitution, cross-burning, Elizabeth Warren, First Amendment, Franklin D. Roosevelt, George C. Wallace, George Washington, Im-Politic, Ku Klux Klan, Mexican War, military bases, Pierre Beauregard, racism, Reconstruction, Robert E. Lee, Stonewall Jackson, Theodore G. Bilbo, Thomas Jefferson, treason, Trump, Tucker Carlson, Woodrow Wilson

Not that anyone’s asked for it, but the Confederate and other allegedly racist monuments issue is back in the news, so here’s my handy dandy guide for figuring out which of these memorials should be taken down or removed, which should remain publicly displayed (and how), and which should be left alone. (This guide, which only covers the major controversies that have reappeared recently, will of course include naming decisions for public buildings and spaces like parks and squares and streets.)

Some major misconceptions need to be cleared up first. Right off the bat, everyone should agree that whatever actions are taken (removal or alteration), they must result from legal processes. Unauthorized teardowns and inflictions of damage are simple vandalism and should be punished as such. No private person or group has the right to take these matters into their own hands, precisely because no one’s voted for you. As for public officials, unless laws specifically empower them to act unilaterally, they should always work through legislation or established rule-making procedures.

In addition, let’s drop the dishonest nonsense about statues and plaques on public grounds, and choices of names for public buildings or military bases and spaces like parks and squares, being simple descriptions or illustrations of history. Nothing could be clearer than that they’re meant to express honor and pride.

Similarly, making changes (including removal) has nothing to do with “erasing history.” To take one example, if Robert E. Lee’s name is taken off a high school or highway or whatever, there’s no chance that Lee will be forgotten. Every American who takes a public school course in U.S. history will learn about his role as commander of the Confederate army during the Civil War. And if you happened to cut or sleep through that class, you can always access one of the upteen gazillion books about that conflict that have been written for the last roughly century-and-a-half since it ended.

It’s true that public school students may not encounter the names of lesser Confederate figures. To which the only adult reply is “Big deal.” The reason that folks like Generals A.P. Hill or even Stonewall Jackson may be overlooked is because, in the end, they weren’t such big deals.

Also a no-brainer: If Americans want to honor controversial or despicable figures or movements or ideas on their own property, that’s in virtually all cases their Constitutionally protected right. Ditto for private businesses. If your neighbor is flying a Confederate flag or has painted a swastika on his property, you’re free to shun him, and to urge others to do the same. If you’re offended by Aunt Jemima, switch your pancake syrup brand, ask the company to use a new image or character, or encourage boycotts and trust in the market and consumer choice to settle the issue. (Cross-burning on one’s own private property, a la the viciously racist and anti-semitic Ku Klux Klan, is legally treated somewhat – but only somewhat – differently.)

More complicated is the question of which level of government should be making which decisions where public property is concerned. For instance, should a federal ban be enacted on using Confederate names on any public grounds, including state and local? I can see an argument for that proposition (as indicated below, it provides encouragement for treason, a Constitutionally designated crime or, alternatively, creates a discriminatory environment). But I can also understand the case for leaving the decision to the states and localities – and ultimately letting the market decide (mainly in the form of privately organized boycotts of the type that has pushed several states to drop anti-LGBT measures).

So having cleared away this intellectual brush, here’s the guide – at least for some of the major cases:

>Confederate leaders – they’re the easiest call of all. They were traitors. They took up arms against the U.S. government. No decent American should want to honor them in any way. Yes, there’s an argument that some of these naming decisions (e.g., for U.S. miIitary bases) were made in order to promote reconciliation between North and South after the Civil War. Indeed, President Trump just made it.

But the U.S. decision not to prosecute the leaders of the Confederacy – and execute them if found guilty – was a strong enough gesture of reconciliation. In addition, nearly all Confederate veterans – including senior officers – were soon permitted to vote and hold public office once more. And the same states whose rebellion ignited the war were admitted back into the Union.

As a result, naming numerous U.S. military bases after Confederate generals represents a grossly mistaken (at best), and I would argue utterly perverse and continuing slap in the face to all American citizens and legal residents of the country, and especially to the soldiers who fought and died to preserve the Union and their families and descendents. There are plenty of other American military leaders who served their country in actually patriotic and genuinely heroic ways. Their names belong on these bases instead.

But what about the graves of Confederate veterans (including rebels from “ordinary” backgrounds who may not have been slave owners or even racists) currently lying in U.S. military or other national cemeteries, including Arlington? There’s no doubt, as made clear here, that a number wound up there because of mistakes in identifying very partial physical remains. But it’s also clear that many were placed in or actually moved to these plots and the graves specially marked as signs of respect – and that Congress approved.

Massachusetts Democratic Senator Elizabeth Warren has recently introduced legislation to “remove all names, symbols, displays, monuments, and paraphernalia that honor or commemorate the Confederate States of America and anyone who voluntarily served it from all military bases and other assets of the Department of Defense.” Presumably (though I haven’t found the full text) this includes the markers.

Fox News talker Tucker Carlson (who I generally admire) condemned this measure as grave “desecration.” That’s reckless hyperbole, but if Warren would actually remove the markers, that looks excessive as well, since at least according to the official description in the National Parks Service post linked above, they simply identify the deceased as Confederates.

My bottom line: It’s not possible to figure out which of these veterans were bad guys and which were at least reasonably good guys, and the bodies are already interred. So I’d leave them be.

Not so, however, for the Confederate Memorial at Arlingon Cemetery – which even its official website says “offers a nostalgic, mythologized vision of the Confederacy, including highly sanitized depictions of slavery.” The Cemetery authorites go on to contend that “The Confederate Memorial offers an opportunity for visitors to reflect on the history and meanings of the Civil War, slavery, and the relationship between military service, citizenship and race in America.”

But given the monument’s clear glorification of the Confederate cause and its rose-colored view of slavery, and given that visitors have lots of other opportunities to reflect on the meaning of the Civil War and related issues, I’d ship this slab of stone out of there. It has no place on arguably the most sacred ground of this nation’s civic religion.

What to do with it, however, from that point – along with other Confederate monuments on federal grounds? Here I fully agree with those who would put them in museums instead of simply destroying them. Wouldn’t it be best to show them in a setting that could describe them fully and explain the context of their creation? And I’d deal with these statues and plaques on state and municipal lands in exactly the same way.

>Let’s move to American historical figures who didn’t revolt against their country, but nonetheless owned slaves and/or expressed racist views or supported racist policies. Here I’ll restate the argument I originally made in this post. If these figures were known only or best for racist views and positions – like former segregationist Alabama Governor George C. Wallace, or former (if you can believe it) even more racist Mississippi Governor and U.S. Senator Theodore G. Bilbo, I’d remove any statues etc from public grounds and stick them in museums, displayed as described above.

>The same would go, by the way, for Civil War leaders who for various reasons were widely seen after the conflict as personifications of honor or other military virtues, or who actually repented in word and/or deed after the war. Lee is the leading example of the former. However gentlemanly he might have been, or however well he may have treated his soldiers, and even however distinguished his record in the U.S. Army during the Mexican War (which, to complicate matters further, was in large measure a war of annexation), few would have paid much attention to him, or even known of him, if not for his Civil War role. So let’s get him and his name out of public spaces.

A prime example of the latter is Pierre Beauregard. This former Confederate general actually led the troops in South Carolina who fired on Fort Sumter and for all intents and purposes started Civil War. After the conflict, according to the official website of his hometown of New Orleans, he became “an early proponent of equal rights in Louisiana, serving as the outspoken leader of the short-lived and ultimately failed unification movement.”

Since I do believe in redemption (and hope everyone else does, too), I’d go along with a monument of some kind. But not the kind currently standing in the city – which depicts “the uniformed general astride his horse.” How about moving that statue to a museum, complete with a full bio, and putting up a new monument portraying him in civvies and celebrating his efforts to champion equality? Ditto for any similar cases.

As for those leaders with troublesome racial pasts and/or policy records who nonetheless are (rightly) known for much more (as I argued in the RealityChek post linked above) , I’d leave their monuments in place, too – but make the maximum feasible effort to add some explanations that mention these blemishes. By the way, such leaders include not only former slave-owning Presidents like George Washington and Thomas Jefferson, and outspokenly racist former Presidents like Woodrow Wilson, but even former Presidents generally seen as race relations heroes – like Abraham Lincoln and Franklin D. Roosevelt. 

A final point about dealing with the Confederate and especially other controversial monuments: If anything should be obvious about this discussion of the issue, it’s how complicated much of the history is, and therefore how complicated many of the monuments et al decisions are. Some are indeed easy calls and should be made promptly. But no one should favor anything resembling a rush to judgment on the others.

Im-Politic: On Sports, Politics, and Boundaries

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boycotts, China, culture, entertainment, First Amendment, free speech, Hong Kong protests, Im-Politic, national anthem, National Basketball Association, National Invitational Tournament, NBA, politics, Princeton University, protests, social media, sports, Vietnam War

One my my funnest (indulge me) memories of college was driving round trip between central New Jersey and New York City’s Madison Square Garden four times one week in the spring of 1975 to see the Princeton men’s basketball team play in – and win! – the National Invitational Tournament (which was a reasonably big deal back then).

During one of the games, a friend and I unfurled a dorm-made sign protesting something or other about the rapidly ending Vietnam War. We considered it an important message to send, and given the conflict’s damage to America’s economy, politics, society, and culture, and given the destruction wreaked throughout Southeast Asia, I have no problem all these decades later with the content.

In retrospect, though, I wish we’d left the banner back on campus, because I’m now convinced that injecting political and policy debates into a college basketball game wasn’t the right decision. I’m bringing it up today because I wish those well-meaning basketball fans supporting the Hong Kong protesters and China’s other repressive policies inside the arena would recognize that these actions are mistaken, too.

Don’t get me wrong: As I’ve written, I have no problem with athletes and other figures from the sports world expressing political and policy views. I don’t find them to be of any special interest, and way too often they’re the epitomes of ignorance, virtue signaling, or both. But all of them – along with celebrities and others from entertainment circles – unmistakably enjoy the same First Amendment rights of all other Americans. (Complications do arise, however, when their free speech rights clash with their obligations as employees of companies concerned that such words and actions will be bad for business.)

In fact, I’ve also urged National Basketball Association officials, players, owners, and other employees to think much more seriously about their partnership with China (and, by extension, other repressive countries), and even consider a boycott.

But just as I’ve urged athletes to keep their political views (e.g, taking a knee during the playing of the national anthem before pro football games) off the court and playing field (because their fame gives them so many other high-profile opportunities to speak out – and to big audiences), I’d urge fans to keep home their own beliefs, however heartfelt and morally compelling. The same, by the way, should apply to entertainers turning awards shows into political fora.

For even though spectators lack the renown and followings of athletes and entertainers, they’re hardly devoid of influence. They can choose to stay away from arenas, cinemas, theaters, and other venues showcasing performers, franchises, or entertainment businesses whose actions or statements they dislike. They can also organize boycotts of these individuals and organizations if they wish – and social media gives them a more powerful megaphone than ever. (For the record, I’m anything but enthusiastic about such politicization, especially regarding prominent individuals and organizations who fail to take desired stances.)

And I can’t imagine how any court could legitimately decide that such protesters aren’t allowed to make their views known verbally and/or visually on public transportation corridors and systems leading to and servicing sports or entertainment venues (subject of course to any level of government’s right to regulate protest activity in such a way as to permit travel and other everyday activity from proceeding).

But even if businesses and organizations that stage sports or entertainment events lacked the legal authority to ban activity at events that has nothing intrinsically to do with the sporting or entertainment angle of these events (the current legal consensus is pretty unclear, at least judging from this article), would anyone this side of rational and sane really want to go to, say, a Los Angeles Lakers pro basketball game and be forced to listen to some attendees heckle star LeBron James all contest long for his failure to condemn China’s human rights practices? Or to need to see “Free Hong Kong” banners throughout the Staples Center or any other NBA court?

The law plainly prevents such heckling or chants or other disruptive behavior at entertainment events where it’s crucial to listen to the performers. But even when speaking and listening aren’t important, who would really want to visit an art museum whose every gallery contains a protester or two or ten holding up Pro-Life or Pro-Choice signs? Who would really want to walk around a Central Park blanketed with Dump Trump or MAGA posters?

The sports, entertainment, and cultural worlds shouldn’t be shielded from politics and policy, and indeed can’t be – unless we want to make them completely irrelevant to our lives and to our posterity. But given all the opportunities available to all Americans nowadays to express political and policy views, it seems not only entirely reasonable to treat actual performances as refuges – including as escapist opportunities, from these other spheres, but essential to the health and vibrancy of both individuals and the nation as a whole. And these are boundaries that a genuinely wise society should be respected regardless of whether, and to what extent, they’re legally enforceable or not.

Im-Politic: Biden’s Real Problem(s) with Women

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feminism, First Amendment, free expression, gender, hate speech, Im-Politic, Joe Biden, Me Too, New Puritans, personal space, privacy, sexism, sexual assault

As long as Joe Biden remains in the potential or actual 2020 presidential election game, Americans will be debating the propriety of his longstanding touchy-feely style of dealing with women in particular, and how best to respond to these and similar situations and charges. As usual, opinion (at least as expressed in the often hysteria-prone national media) seems polarized between extremes, and as usual, genuine wisdom resides somewhere in the middle.

The best way to arrive at sensible conclusions – i.e., those that permit us to continue functioning as human beings with legitimately differing personalities while respecting the equally legitimate sensitivities and indeed fears of others – seems to be to unpack the several overlapping issues involved, at least in part (because there are good reasons for much of the overlap).

Even the women who have complained about Biden state that his behavior wasn’t sexually motivated, which is definitely a big point in the former Vice President’s favor. Even so, he deserves reprimands on many grounds. First, Biden’s claim, in his first extensive (video) response, that in the wake of the Me Too revelations and movement, the rules regarding personal space have changed, is simply too convenient. So are defenses of Biden claiming that his critics seek to criminalize even normal, often desirable displays of affection, or endorsing his insistence that he’s simply been slow to adjust to changing times.

The “Biden-ists” have a point when the individuals involved who are well acquainted, either as friends or as relatives. In such instances, spontaneous, light physical contact can be perfectly fine – and indeed a necessary form of human bonding. But in these Biden cases, these kinds of relationships didn’t exist. And when that’s the case, the default position should rule out touching unless it’s expressly welcomed.

Moreover, what’s the evidence that intense physical contact among strangers has been the norm in American history before the so-called New Puritans of the Left emerged? For what it’s worth, as long as I can remember, public schools have taught even their youngest students to refrain from touching their peers without some clear sign of permission or encouragement, or aside from contact sports and games. And I’ve never met a parent who has told his or her child that physical contact outside of boisterous play is just fine once the other child protests.

At the same time, the incidence of sexual abuse among relatives makes clear that the mere existence of a relationship can’t seen as license to caress away. Which brings up a second problem with Biden’s actions and his subsequent defenses – and a second reason for entering any social situation with a hands-off mindset. When it comes to physical contact, the object individual’s feelings must be paramount. And mature adults in particular should be actively trying to anticipate them before plunging in. That’s why the idea of personal spheres or zones of privacy have always been so valued, especially in cultures and societies that prioritize protecting individual rights. The very idea of privacy logically assumes that the “contact-ee” is entitled to absolute control over entry into that zone, and that the “contact-er” needs to recognize this form of sovereignty and avoid taking genuine initiative.

As a result, Biden’s suggestion that he should be absolved because his intentions were innocent (which, to be fair, was followed by an admission of the importance of getting up to date) is thoroughly inadequate. He should have been continually aware that, in cases of women he didn’t know, or didn’t know well, it never should have been “all about him.” The women’s potential feelings should have ranked much higher on his scale of concerns – and the more so since Biden’s strongly feminist policy record, including an active role in pushing zero-tolerance-type policies on college campuses, indicate that he’s thought a great deal about such matters.

Even weirder is Biden’s apparent cluelessness about the power issues raised by his actions. After all, the Me Too Era has rightly and finally shone a blazing light on how common it’s been for men to exploit their professional and other business positions for sexual ends. It should be equally clear, therefore that women have long lived with justifiable fears about such exploitation. So even if he was unaware of such context in the episode involving New Mexico politician Lucy Flores, it should be plain as day to him now how uncomfortable and even afraid his (unsolicited) kissing and nuzzling, however gentle and innocently aimed, would likely make her given his role near the top of a political party in which she obviously hoped to succeed. At the very least, in this context, his behavior can’t help but convey a sense of entitlement.   

Moreover, the long-time and often continuing subordination of women in America, and the fact that such invasions of privacy are so common and therefore until recently have attracted so little attention means that “Believe women” is a justifiable guideline. As I wrote in connection with the battle over confirming Brett Kavanaugh to the Supreme Court, that’s why the law recognizes that numerous similar considerations warrant exceptions to the presumption of innocence in criminal sexual abuse cases.

Finally, Biden deserves some shots on the Me Too et al score both for never having apologized for his behavior (as opposed to saying he “felt badly” for any discomfort he caused) and then for making light of his accusers and their allegations.

At the same time, let’s not suppose that the object’s feelings also necessarily override all else when the offenses are verbal. Constitutionally, of course, laws and even norms against abusive speech run into strong First Amendment protections. No unwanted physical contact of any kind enjoys such status. Moreover, it’s easy to identify unwanted contact. It either has or hasn’t taken place. (Yes, “in your face-type” approaches are less clearcut.) Bright lines separating acceptable from allegedly unacceptable speech are much harder to find (though not impossible, since free expression is not an absolute right under long prevailing interpretations of the Constitution). Consequently, it’s much easier to abuse even the best-intentioned efforts to curb or ban hurtful speech.

This latter complication, in turn, influences the so-called “snowflake” factor. Specifically, the centuries-long determination of American society to permit even the most hateful speech in most circumstances seems to reflect a belief that in a free society, a high degree of verbal rough-and-tumble is necessary and even often desirable. In addition, psychologically, it’s reasonable to assume that leading a healthy, well-adjusted life entails some ability to roll with most such verbal punches as well. I’m aware of no comparable conviction that a free society requires a high degree – or any degree – or unwanted physical rough-and-tumble, much less that such behavior produces any positive results. And show me the mental health professional who believes that emotional well-being and normality entail sloughing off lots of groping.

The bottom line? There’s no valid reason to stamp Biden as a sexual predator or even a sexist. There’s every reason to view him as an exemplar of terrible judgment and (stubbornly) gross insensitivity on this cluster of gender issues. As a result, Democrats and others who keep seeking better from him are anything but New Puritans. They’re folks who’d like to to see their political leaders display some genuine ability to learn.

Im-Politic: How Trump Could Really Make the News Media Great Again

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CNN, Constitution, First Amendment, Harvard University, Im-Politic, Mainstream Media, press freedom, Sean Spicer, The New York Times, Trump, White House Correspondents Association, White House press corps

The nation’s intertwined media and political elites are in an uproar over President-elect Trump’s performance at his press conference yesterday – the first he’s held since July. Their stated fear: Mr. Trump’s refusal to answer questions from a CNN reporter at the session add to evidence that he and his administration will be willing to “retaliate, bully, and ban journalists whose questions he doesn’t want to answer.”

As a result, the media won’t have “the access and information necessary to accurately and honestly cover the new administration” and the public will lose out “on the perspective those reporters bring, and we as an industry lose out in our efforts to hold power accountable.”

Sounds pretty serious. Except here’s what these supposed watchdogs of democracy either don’t get or won’t admit: More than ever before in recent memory, the Mainstream Media that Mr. Trump has so often attacked are hardly the totality of the U.S. media universe. They’re clearly not the totality of the competent or intellectually honest U.S media universe. And therefore, restricting some of their members’ access to American officials no longer means that the public’s right to know need be endangered.

The nation, and especially those increasingly overlapping political and media classes, have gotten so used to the structure of the journalistic universe as it’s evolved in recent decades that everyone’s forgotten that it has never, and shouldn’t be, set in stone. More specifically, although freedom of the press unmistakably is and should be protected vigorously by the Constitution, the role of today’s leading national news organizations, and in particular, the current White House press corps, has no legal or Constitutional basis. Nor should they enjoy such a privilege.

The White House Correspondents’ Association (WHCA), for example, exists and itself influences access to White House officials through its membership criteria, solely at the president’s behest. No government officials are required to deal with reporters on its roster, and as the organization itself acknowledges, presidents have treated it with dramatically varying measures of respect and disdain for more than a century.

In fact, the last word on who can interact in the role of journalists with government officials on any level legally belongs with government agencies themselves. In the words of this 2014 Harvard University study on such issues, the First Amendment

“does not cover the full spectrum of newsgathering activity, and, as presently understood, does not confer a right to gather news in particular places or circumstances to which the public is not otherwise admitted. This includes access to private events, as well as access to nonpublic spaces owned by the government (such as government offices and prisons).”

Could American leaders exploit this situation in order to deny the public the information it needs to evaluate their performance, and weaken the vibrancy of truly representative government? Of course. But keep the following three considerations in mind:

First, according to the Harvard report, “Recognizing that effective newsgathering requires greater levels of access than what the First Amendment provides, legislators and regulators at various levels of government have adopted policies granting to a subset of the public identified as the ‘press’ certain privileges to do things that ordinary citizens may not.”

In addition, as this study documents, the courts have demonstrated a clear determination to ensure extensive access by journalists to public officials, and to define “journalist” in ways that have enabled aggressive reporting.

Regarding worries about the presidency in particular, the federal government also contains a legislative branch with plenty of members of opposition political parties. Even disgruntled members of a president’s own party have ample means to disclose information they consider important – either through their authority to compel testimony and reports from the executive, as well as their power of the purse; or by working with the media themselves.  

Second, how democratic would it be to empower the media themselves – which after all consist overwhelmingly of privately owned, profit-seeking businesses – to determine who can attend press conferences and belong to media pools covering traveling leaders? Indeed, how democratic would it be to entrust the establishment media specifically with this responsibility?

These businesses – again at the government’s sufferance – already play a decisive role in these matters. How many Americans – outside Beltway insider circles – are satisfied with the results? And what evidence is available that the White House Correspondents Association has adequately disciplined members who have been exposed as partisans? As little as has been seen from the journalistic employers of these hacks – who don’t seem to have fired any of them.

Third, the better establishment journalists perform at reporting accurately and impartially, the likelier they are to create, maintain or reestablish the kinds of informal relationships with the widest variety of officials that have always been central to the most valuable investigative reporting – as opposed to shouting questions in the White House press room. And don’t forget the importance of filing Freedom of Information Act suits, or even keeping up with information on the public record – which can be astonishingly revealing.  

In the meantime, the incoming administration has indicated that it’s thinking of introducing some badly needed accountability of its own into its dealings with the press – for example, Mr. Trump’s refusal to respond to the CNN reporter in the (not unreasonable) judgment that the organization has too often fallen short of best journalistic practices. Moreover, his press secretary-designate, Sean Spicer, has spoken of changing the authorized White House press pool in various ways in order to reflect better the makeup of contemporary journalism.

So America may be heading towards a world in which presidents (and other senior government officials) don’t feel any particular need to deal with, say, CNN. Or The New York Times. In the short term, the result might be a rocky period for the government, for the media, and possibly for the flow of high quality information a real democracy needs. Yet the status quo ante plainly was not sustainable – both because of new technologies that have been rapidly transforming the media landscape, and because traditional journalism’s recent performance in particular has been so deficient.

But American leaders will still have powerful interests in getting their stories and narratives out through news organizations with large audiences. That’s why I’m confident that, however scornfully they treat individual media companies, they’ll nonetheless wind up dealing with responsible and dedicated journalists. And who knows? Maybe heightened competition will help make the Mainstream Media great again.

Im-Politic: A Common Sense Approach to the National Anthem

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1968 Olympics, Colin Kaepernick, Constitution, First Amendment, Im-Politic, John Carlos, Muhammad Ali, national anthem, National Football League, professional sports, race relations, racism, Tommie Smith

Ever since pro football player Colin Kaepernick of the San Francisco 49ers decided to protest racial injustice in America by kneeling during the national anthem, I’ve been asking myself why I’ve found his (and similar recent) actions so unimpressive, while remaining moved by the political actions of black athletes in the 1960s. And I’ve come to conclude that it’s not because I’m a fogeyish baby boomer who by definition believes everything was better back in the day.

I say this for two related reasons. But first, let me express agreement with those who have noted that Kaepernick’s gesture is completely protected by the First Amendment. Also, I’ve heard some arguments to the effect that athletes and other employees in many other industries routinely sign contracts holding them for public relations reasons to certain standards of behavior both on the job and off, and that as a result, the quarterback (voluntarily) surrendered some of his freedom of speech.

But both the 49ers and the National Football League deny that this has been the case.  And although I’m not a lawyer (and don’t even play one on TV!), I doubt that it’s constitutional for employers to deny or even curb the free speech rights of their employees unless exercising them can be shown to either interfere significantly with carrying out their responsibilities, or significantly harm the company’s image. 

Let’s get another matter out of the way, too. Although Kaepernick can’t be legitimately criticized for this, he and other football players pros who made national anthem protests can be knocked for timing last Sunday. I mean – on September 11? Seriously? The merits of the case aside, what could be likelier to forfeit public sympathy, especially among those not already with them?

But I would have been put off by the protests regardless of date – in contrast to my admiration for, say, Muhammad Ali and the two sprinters who bowed their heads and gave black power salutes when awarded medals at the 1968 Olympics.

The first reason has to do with the context. In the late 1960s, the involvement of athletes in politics was brand new, and taking non-mainstream stances was virtually unprecedented, especially for high profile performers. In fact, genuine courage was required – as made clear in Ali’s case when he was fined and  suspended from pro boxing simply for conscientiously objecting to military service during the Vietnam War. Olympians Tommie Smith and John Carlos had no opportunities to cash in on their triumph in Mexico City by running track professionally, but they paid significant personal prices, too.

Although Kaepernick et al have caught non-negligible flack, athlete and broader celebrity involvement in political and social issues has now become so routine that many causes use their Congressional testimony as core elements of their strategy. Even better, athletes and celebrities who take left-of-center positions can count on strong support from the country’s media and entertainment establishments.

My second reason for disquiet with the current generation of athletic and celebrity activists concerns the targeting of the national anthem. Actually, I have some sympathy for the view that patriotic displays have no place at sporting events, and that however traditional playing the anthem has become, the fabric of American life would remain fundamentally unchanged if the practice was ditched.

But here’s what matters more, as I see it. National anthem-like protests had more merit decades ago, when channels of protest, even for prominent individuals, were much fewer and further between simply because the media universe was so small. You had the three major commercial broadcast networks, along second-tier operations like Metromedia (essentially the ancestor of Fox). You had three national newspapers, three weekly newsmagazines, a few publications like Life and Look that didn’t deal with hard news controversies and opinion quite so consistently, and that was it. National syndicates did offer commentaries from the likes of Walter Lippman and Drew Pearson and the team of Evans and Novak. But the op-ed page didn’t exist until 1970. So if you hoped to reach broad audiences, and weren’t already world or nationally famous, you were for all intents and purposes out of luck. And this was also true if your renown came from a career not associated with journalism or public affairs.

Need I explicitly mention you that we’ve come an awfully long way since then? Indeed, we’ve come so long that unless you’re actively seeking to avoid them, there’s almost no escape from commentaries about political issues, and about controversial social and cultural issues. And in this environment, it seems reasonable to me to view an event like the playing of the national anthem as a valuable and constructive opportunity. It’s a chance to capitalize, on occasions when large numbers of us gather together in person, to affirm our common American identity in ways diametrically unlike the current smash-mouth style of most current politics and opinionizing.

As a result, although no one is legally obligated to stand or sing, those who decide to kneel or otherwise demonstrate at that moment strike me as at the very best off-putting, and at worst not so much unpatriotic as unreasonably hostile to acknowledging anything positive about the nation’s history and achievements. And I’d like to think that I’d take this stance even if the protest supported a cause I favored.

So here’s my plea to Kaepernick and other athletes moved to continue national anthem protests, for whatever reason: Given all the other powerful platforms you have to make your points, could you keep at least this particular ceremony a haven from the constant din of our ubiquitous public conversation? Americans today are anything but short of ways and means of expressing our disagreements and divisions, genuine and concocted. Questions of constitutional liberties aside, how about preserving at least one occasion for expressing our common bonds?

Im-Politic: What I Did – & Didn’t Do – in the PC Wars

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Baby Boomers, Chile, First Amendment, free speech, hate speech, Im-Politic, junta, political correctness, Princeton University, The Daily Princetonian

Time to take a break from the terrorism wars and turn to the latest round of political correctness wars raging on many of the nation’s college campuses.  Given their seeming prevalence, it was instructive to be reminded recently that (a) I used to be a college student and (b) I was involved in some of these skirmishes back in the day myself.

The specific incident took place in November, 1974, and concerned a speaking invitation that the debating society at Princeton University extended to Chile’s ambassador to the United States. To save everyone the need to Google this, the decision was controversial because Chile’s democratically elected socialist government had just been overthrown the year before in a military coup, and the ambassador was a general who represented the junta responsible and its repressive rule.

It would be an exaggeration to say that the campus was convulsed in debate over how – or if – to respond to the planned event. (The counterculture and any major political residue of the 1960s was long gone by then from Princeton.) But the invitation certainly triggered an unusual amount of discussion and even actions by individual students and by various campus groups, including the student government.

For example, the latter voted to condemn the junta, but turned down a motion to urge students to boycott the speech. The campus Socialist Study Group (trust me – it was small), denounced the invitation itself, and also sponsored a “militant boycott.” This consisted of a protest outside the venue whose participants sought to convince others not to attend.  (This account comes from articles in the digital archives of the student newspaper, The Daily Princetonian.)

What I find especially interesting – and pertinent for today’s free speech controversies – is that I can’t find any record, and don’t personally recall, any organization or individual at the university that urged that the invitation be withdrawn, or that the speech be disrupted. In fact, the Socialist Study Group explicitly decided to oppose any attempt to interfere with the event. And I found genuinely eloquent and moving one activist’s rationale for the planned demonstration: “We want it to be impossible for someone to get inside without having to ask himself ‘why am I going inside?'”  

Of course, The Princetonian needed to weigh in, and as one of the editorial page editors, I drafted our perspective. In retrospect, the main point made seems sensible – and struck the necessary balance between tolerance and conscience. The editorial blasted Heitmann as “nothing more than a thug in formal clothing” but insisted that “The wisdom of Whig-Clio’s [the debating society] decision to invite him is both debatable and immaterial.” It continued:

“What is important is that when [Ambassador Walter] Heitmann appears, the community should expose him to the full force of its outrage and indignation. Accordingly, we strongly urge all members of the university to protest vigorously Heitmann’s presence and’the murderous nature of what he represents. At the same time, the community should remember that to disrupt the ambassador’s speech is to resort to his own gutter tactics.”

And then came the part that, in my mind, was crucial. The edit spotlighted and praised the debating society’s president for announcing that the ambassador had agreed to take questions after his speech. That, apparently, had not been a foregone conclusion. According to the editorial, this decision mattered because:

“it adheres to the spirit as well as the letter of free speech, a notion which entails much more than undisturbed presentation. At its crux lie ideas of discussion and exchange, which are by no means served by giving Heitmann a soapbox and then permitting him to make a neat, quick exit.”  

The upshot: Heitmann gave his speech. A crowd estimated at 275 protested outside. Their chants could be heard through the windows of the venue that remained open, but evidently were not loud enough to interfere with the proceedings. Inside, two students who were standing with their backs to the podium moved to the rear of the room when, according to the Princetonian, they were “told that they were blocking the view of the audience….” But no one was hurt or arrested.  And by all accounts, Heitmann was challenged vigorously.

But although preventing “neat, quick exits” and insisting on opportunities for genuine exchange still seems to be a good policy for handling speakers with arguably offensive messages, it doesn’t address another major aspect of today’s campus speech controversies: what seem to be increasingly common instances of what deserves to be called – at least unofficially – hate speech.

I imagine that it’s difficult for my baby boom peers to get a grip on this problem, because racial and homophobic and similar epithets were practically unheard of in public, on campus of off, whether in the form of slogans scrawled on walls or insults shouted at individuals or groups.

The First Amendment enthusiast in me bridles at the thought of official responses, especially when it comes to remarks made in the heat of the moment. But the rest of me believes that everyone has a right to go about their daily routines, especially in a place of learning, without being assaulted audibly or visually by words whose only purpose can be to denigrate and harm and in fact to dehumanize, but that fail to threaten physical violence (a plausible threshold in my view for legal action, along with findings of vandalism).

Any thoughts from you RealityChek readers on handling this dilemma would be most welcome. But until I figure this out, I’m left with the hitherto unimaginable thought that, at least compared with the present, my time as a student, in the ’60s and ’70s, was generally a garden party.

Im-Politic: A Free Speech Expert Who’s Clueless About Free Speech’s History

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chattering class, Columbia University, First Amendment, free expression, Im-Politic, Lee C. Bollinger, radical Islam, theocracies, tolerance, Washington Post

Americans should be grateful to Columbia University President Lee C. Bollinger for once again reminding that even world-class scholars can be completely ignorant about what’s genuinely important in their fields and what’s not.

According to Bollinger, writing in The Washington Post, Americans shouldn’t get up on their high horses (though he didn’t use that recent phrasing by President Obama) about all the anti-free-speech government repression and extremist group violence that seems so distressingly common around the world today. His reasoning: “[T]the protections for uninhibited expression in this country are just a half-century old.” Even better, writes Bollinger, also a law professor at the university, ‘The way that Americans learned to adapt to changing times, and to tolerate discordant views, shows how others can, too.”

The reason? America’s own free speech protections “were not attained quickly or easily, nor were they simply a product of judicial edict. They took hold because they emerged from larger forces that are visible again today around the world: expanding economic markets, quantum leaps in communications technology and a set of urgent social problems solvable only through previously unavailable levels of concerted action.” 

No one can doubt that Americans today are freer to express themselves in a greater variety of ways in a broader range of circumstances than before the landmark cases of the first two-thirds of the twentieth century that Bollinger cites. But that’s not to say that the author is remotely correct to imply, per his unmistakable line of argument, that that earlier America was comparable to today’s repressive societies.

For despite Bollinger’s reputation as “one of the country’s foremost First Amendment scholars,” he seems not to know that the First Amendment established, and therefore began protecting, free expression rights, starting in 1791. Did barriers to unfettered speech continue afterwards? Of course – as Bollinger’s article usefully shows. But was the vast majority of Americans unable to voice a wide variety of opinions on a vast array of political, economic, and social issues? Were ordinary citizens and writers and cartoonists routinely prosecuted for portraying public figures in the most insulting possible ways? Were governments able to muzzle expression sufficiently to keep themselves in power illegally? To prevent the rise of political parties and movements with fundamentally different views? Of course not. Have protests been declared illegal from the get go? (Strikes were forbidden early in the republic – but recognized as a freedom in 1839.) Was even a significant share of the population ever barred from worshiping as it pleased? Of course not again.

Again, it’s valid, and worthy, to point out that America’s commitment to free expression has been a work in progress, and has been too often honored in the breach – especially in times of high civil tensions or peacetime foreign danger, when the most demanding tests of principle emerge. It’s just as important to remember the country’s history of slavery and denying the vote and other civil rights to non-whites and women (although Bollinger seems to distinguish these and similar major historic wrongs from anti-free-speech laws and policies per se, and in my view is analytically right to do so).

But it’s way off base to suggest that America before the mid-twentieth century was as thoroughly and fundamentally unfree and intolerant as modern Islamic theocracies and other majority Muslim countries, Russia, China and the like. And it’s positively dippy to contend, as Bollinger does, that free expression norms could spread strongly and quickly into such lands because of “the transition to a global society occurring today” that mirrors the prior transformation of “the United States into a truly national American society.” For a strong ideological consensus in favor of free expression already existed in the United States, and simply never developed in most of the rest of the world.

As a result, although Bollinger is right to warn against hastily “casting judgment on foreign governments and their people,” his article disturbingly indicates an overpowering reluctance to arrive at any reasonable, historically rooted judgments at all.

These truths are so self-evident that I feel almost embarrassed to articulate them. As a matter of fact, I suspect they’re evident to Bollinger, too, as well to the Washington Post editors who published his piece.  That they were apparently shunted aside by a prominent American academician and president of one of our greatest universities, and by the editors of a leading newspaper, in order to traffic in sophomoric moral equivalence, speaks volumes about what’s wrong with much of America’s guilt-ridden chattering classes.