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You Can Take the Word Liberal From Me When You Pry It From My Cold, Dead Mouth by Jeffrey Tucker

I was in the middle of  a nice discussion with the man behind the counter at the firing range. He was surrounded by semi-automatic weapons and hundreds of handguns in the display case that separated us. I used the opportunity to tap his expertise, mostly because I don’t keep up with gun issues enough.

He explained to me the absurdity of the ban on automatic weapons, how and why it is that there is really no such thing as an “assault rifle,” and a bit about regulations on magazine size. He informed me that Clinton’s partial ban on assault rifles expired in 2004 due to a sunset clause.

This is where the conversation became interesting.

I asked: “So the law has been liberalized since Clinton?”

He raised his eyebrow and there was a long pause.

Finally he said in a deep Southern drawl, “I don’t know about no liberalism. I don’t like liberals.”

“Ok,” I said, “that’s not what I mean. I mean ‘liberalized’ in the sense of more liberal: like more freely available.”

That didn’t help. He just said, “I’m just saying that I don’t like much about what liberals are saying or doing.”

So I tried again.

“Well, more precisely, what I mean by liberalization is that American citizens are now more free from restriction than they once were to import and use certain kinds of weapons. We are more liberated to choose than we were before.”

Still, he stood there in silence, staring. Finally a co-worker walked by and said to him, “This customer means liberal like in the old way: a different way than you mean the term.”

I piped in and said, “yes, just the English-language ‘liberal’ meaning less government control over what we do.”

Even then, this nice man couldn’t understand what the heck I was talking about. The word “liberal” to him was like the Mark of the Beast. He somehow thought I was standing there promoting evil. Nothing I said would overcome his sense that I was somehow on the enemy side, simply because I was uttering this word.

Are we really so far down the path? Has our political terminology become so confused that we can’t even use regular English words and be understood?

Demonizing Liberals

Maybe this was an extreme case. Maybe it is not so bad all over. But I do wonder.

For years, right-wing radio commentators have been using “liberal” as a swear term: the worst epithet you could ever hurl at someone, indicating an individual hell-bent on destroying your life. They have contrasted the malice of “liberals” with the greatness of “conservatives,” who favor God, country, and free enterprise (with a bit of war thrown in). And book after book are published for conservative consumption using the term “liberal” to identify the most depraved values.

To be sure, this is not new. It has gone on since after World War II, when Russell Kirk’s Conservative Mind appeared and was promoted on the cover of Time Magazine. This  kicked off a long-running demonization of one of the great words in the English language.

Now, you might correctly point out that the “liberals” started it. About a century ago, everyone knew what a liberal was. A liberal favored free speech, freedom of action, a free economic order, and religious freedom. A liberal opposed war. A liberal favored the ever-increasing liberation of the world from oppression, poverty, suffering.

That began to change in the Progressive Era and especially with the New Deal. Liberals had to make a choice between the free economy and the fascist model of the New Deal. They chose poorly. Yet they kept calling themselves liberals. Ten years later, it had begun to stick.

Conservative Is Not What We Are 

So when William F. Buckley set out to, as he alleged, “stand athwart history and yell stop,” he needed a different name for his “anti-Left” movement. The name he chose was Kirk’s “conservative.”  The new “conservatism” differed from that of the old English Tories in that it had affection for free enterprise. Yet it harkened back to those bygone reactionaries by favoring war, the cops, and social control. The new “conservative movement” co-opted the classical liberal remnant of the time.

Already distorted, the conservative acquiescence to the left on terminology made a bad situation worse. And it has only worsened further over the decades, to the point that today the word liberal has become practically unusable in some corners, in spite of its rich and glorious history.

And yet this is mostly true just in the United States. In most places in the world, the word “liberal” still means what it is supposed to mean. More substantially, it is the right word. It has a beautiful tradition. And I agree with Mises who said there is no suitable replacement.

“This usage is imperative,” he wrote in 1966, “because there is simply no other term available to signify the great political and intellectual movement that substituted free enterprise and the market economy for the precapitalistic methods of production; constitutional representative government for the absolutism of kings or oligarchies; and freedom of all individuals from slavery, serfdom, and other forms of bondage.”

I’ll say it again: Don’t give up the term liberal. You might even be one.

Despite the gruff gun salesman behind the counter, I won’t give up the term “liberal.” The way I feel about that grand word is the same way he feels about his guns. You can take “liberal” from me when you pry it from my cold dead mouth.

Jeffrey A. TuckerJeffrey A. Tucker

Jeffrey Tucker is Director of Digital Development at FEE and CLO of the startup Liberty.me. Author of five books, and many thousands of articles, he speaks at FEE summer seminars and other events. His latest book is Bit by Bit: How P2P Is Freeing the World.  Follow on Twitter and Like on Facebook. Email.

Government Can’t Censor Content — Even If It’s ‘For Your Own Good’ by Evan Bernick

Will a recent Supreme Court decision unleash more speech than Americans can handle?

In a recent New York Times article, reporter Adam Liptak (rightly) refers to Reed v. Town of Gilbert as “the sleeper case of the last Supreme Court term.” Liptak spoke with Robert Post, First Amendment scholar and dean of Yale Law School, and Floyd Abrams, constitutional lawyer and free-speech advocate.

In Reed, the Court invalidated a town sign code that treated signs promoting church services more harshly than signs promoting other messages, and made plain that such content-based restrictions on speech must undergo strict judicial scrutiny.

Abrams praised the decision; Dean Post, according to Liptak, predicted that it will “endanger[] all sorts of laws,” “roll consumer protection back to the 19th century,” and “destabilize First Amendment law.”

Those, like Abrams, who believe that “the First Amendment is about liberty” and that “we all lose by reading it narrowly” should welcome the ruling in Reed and pay no heed to Post’s parade of horribles.

Reed resolved an ambiguity that had confused lower courts for decades and rendered many Americans’ freedom to speak uncertain in important areas. In so doing, Reed honored the broad mandate of the First Amendment, which prohibits any law “abridging the freedom of speech,” making no exception for certain messages, ideas, or subject matters — regardless of whether the government promises that curbing speech is for our own good.

How did we get to Reed? The first major case to focus on content-based speech restrictions was Police Department of Chicago v. Mosley (1972), which concerned a Chicago ordinance that barred picketing within 150 feet of schools during the school day — except for picketing related to labor disputes.

The Court invalidated the ordinance because the government provided no credible evidence that labor picketing was less likely to be disruptive than other forms of picketing.

To selectively proscribe speech on the basis of its subject matter, said the Court, is to “completely undercut the ‘profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open.’”

Subsequent cases would make clear that intent to censor is not essential to a determination that a restriction on speech is content-based; if the government had to inspect the content of speech to determine how it could be regulated, that was sufficient to trigger strict scrutiny.

But the nature of the Court’s content-based jurisprudence became muddled as it began to review First Amendment challenges to local zoning rules concerning adult businesses. These zoning rules clearly regulated speech based on its subject matter — they only applied to businesses whose expression was sexually explicit.

However, in City of Renton v. Playtime Theaters, Inc. (1986), the Court concluded that an ordinance targeting theaters that specialize in sexually explicit films was content-neutral and, thus, not subject to strict scrutiny, because it was “justified without reference to the content of the regulated speech” — specifically, because “the Renton ordinance is aimed not at the content of the films… but rather at the secondary effects of such theaters on the surrounding community.”

Renton was hotly debated by First Amendment scholars at the time, and scholar Laurence Tribe expressed concern that the newly-minted secondary effects doctrine would “undermine the very foundation of the content-based/content neutral distinction.”

In Ward v. Rock Against Racism (1989), Tribe’s concern was validated. Ward involved a content-neutral rule that required the use of city-provided sound equipment at concerts in Central Park, regardless of what was being performed.

Drawing upon Renton, the Court stated that the “[t]he principal inquiry in determining content neutrality… is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.”

Some lower courts understood Ward to stand for the proposition that facially discriminatory laws — that is, laws that identify regulated speech based on its content — could be treated as content-neutral for purposes of the First Amendment, so long as the courts believed that those laws were enacted for public-spirited reasons.

But since government officials always profess benign intentions, proving censorial intent proved difficult. The result: the proliferation of speech restrictions, including licensing schemes restricting occupational speech (such as that of tour guides, interior designers, and veterinarians), panhandling bans, and noise ordinances that exempt certain noises from regulation depending on either their message or who is speaking.

Reed v. Town of Gilbert was a perfect example of this trend. In the decision below in Reed, the Ninth Circuit Court of Appeals determined that Gilbert’s sign code was “content-neutral” because of the town’s assurances that it had no intention to discriminate.

To combat this censorial trend, when the Supreme Court granted certiorari inReed, the Institute for Justice filed an amicus brief urging the Court to clarify that strict scrutiny applies:

  1. If a law expressly requires the government to look at the content of speech in determining whether or not it is subject to regulation, or
  2. When a law’s purpose is to censor messages with certain subject matters or viewpoints.

And thankfully, to the benefit of speakers across the country, the Supreme Court did exactly that.

Writing for the Court, Justice Thomas explained,

A law that is content based on its face is subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of ‘animus’ toward the ideas contained in the regulated speech.

The Court easily concluded that the sign code at issue classified signs on the basis of their content because whether or not the restrictions applied to any given sign “depend[ed] entirely on the communicative content of the sign.”

Having done so, the Court went on to perform the kind of truth-seeking judicial engagement that is required to ensure that the government does not act as a censor, insisting that the government demonstrate, with reliable evidence, that it was pursuing a compelling interest through means narrowly tailored to that end.

The town failed to carry its burden. Although the town claimed that the sign code “preserv[ed] the Town’s aesthetic appeal” and protected “traffic safety,” the town “allow[ed] unlimited numbers of other types of signs that create the same problem[s]” and did not demonstrate that “directional signs pose a greater threat to safety than do ideological or political signs.”

Even assuming that the town’s stated interests were compelling, the Court concluded that the sign code was insufficiently narrowly tailored to pass constitutional muster.

Which brings us to the present where, as Liptak observes, Reed is already having an impact.

In the wake of Reed, the Seventh Circuit Court of Appeals revisited an ordinance barring panhandling in the “downtown historic district” of Springfield, Illinois.

Last year, the Seventh Circuit had upheld the ordinance as content-neutral, even though an officer enforcing the ordinance would have to listen to the content of the speaker’s message in order to determine whether the ordinance had been violated. (A request for a charitable donation might be impermissible, but a request for a commercial transaction would not.)

Following Reed, the Seventh Circuit accepted a petition for rehearing and a unanimous panel invalidated the Springfield ordinance. Judge Easterbrook, writing for the panel, recognized the broad scope of Reed’s holding: “Any law distinguishing one kind of speech from another by reference to its meaning now requires a compelling justification.”

Although Reed reaffirmed the Court’s historical (and highly critical) view of content-based regulation, not everyone sees the ruling as cause for celebration. But Dean Post’s specific criticisms are unwarranted.

Although Post argues that the decision could undermine restrictions on misleading advertising and professional malpractice, such laws have coexisted with the First Amendment for over 200 years, and there is no reason to believe that the Court’s decision will change that. Nor will Reed destabilize our First Amendment law; it stabilizes that law by providing much-needed guidance to lower courts.

Dean Post’s real complaint is that, for over a quarter century, the Court has gradually shifted away from his preferred theory of the First Amendment — one that would allow the government to privilege certain favored categories of speech — towards a more libertarian view, which leaves such judgments about the value of speech to the free choices of Americans. Reed v. Town of Gilbert is simply the most recent step in that evolution, and it is nothing to be afraid of.

In Reed, the Court affirmed that the government is not free to pick and choose what topics it would prefer Americans speak about or what information they can be trusted with, even if the government earnestly professes that it has our best interests at heart. Reed will help to ensure that speech remains uninhibited, robust, and wide open.

A version of this article first appeared at the Huffington Post.

Evan Bernick
Evan Bernick

Evan is the Assistant Director of the Center for Judicial Engagement at the Institute for Justice, a libertarian public interest law firm.

Can Millennials [And Academia] Take a Joke? by Clark Conner

Millennials can be a hypersensitive bunch, and nowhere is this more apparent than in the academy. American institutions of higher learning have become veritable minefields of trigger warnings, safe zones, and speech codes.

It appears we can add another line item to the growing list of things too radical for college students: humor. Comedian Jerry Seinfeld recently joined an expanding group of high-profile figures in denouncing higher education’s culture of hyper-sensitivity.

In an interview with ESPN Radio’s Colin Cowherd, Seinfeld discussed why comics are reluctant to take their act on campus:

COWHERD: Does the climate worry you now? I’ve talked to Chris Rock and Larry the Cable Guy; they don’t even want to do college campuses anymore.

SEINFELD: I hear that all the time. I don’t play colleges, but I hear a lot of people tell me, “Don’t go near colleges. They’re so PC.” I’ll give you an example: My daughter’s 14. My wife says to her, “Well, you know, in the next couple years, I think maybe you’re going to want to be hanging around the city more on the weekends, so you can see boys.” You know what my daughter says? She says, “That’s sexist.”

COWHERD: That’s amazing.

SEINFELD: They just want to use these words: “That’s racist”; “That’s sexist”; “That’s prejudice.” They don’t know what they’re talking about.

It took roughly 24 hours for Seinfeld’s point to prove itself. The day after the Huffington Post ran an article on Seinfeld’s comments, an open letter appeared on the site addressed to Mr. Seinfeld from a “College Student.”

The letter touches on a myriad of topics, including racism, sexism, offending the “right” people, and (for reasons unknown) “the underlying culture of violence and male domination that inhabits high school football,” but its overarching spirit is summed up in the author’s ironic introduction:

Recently, I’ve heard about your reluctance to perform on college campuses because of how “politically correct” college students are… As a college student that loves and appreciates offensive, provocative comedy, I’m disheartened by these comments.

So, a college student was “disheartened” by Jerry Seinfeld’s observation that college students are too sensitive. Let that sink in.

Seinfeld isn’t the only comedian to denounce the current sensitivity epidemic on campus. In a discussion with Frank Rich, Chris Rock espoused the same views as Seinfeld:

RICH: What do you make of the attempt to bar Bill Maher from speaking at Berkeley for his riff on Muslims?

ROCK: Well, I love Bill, but I stopped playing colleges, and the reason is because they’re way too conservative.

RICH: In their political views?

ROCK: Not in their political views — not like they’re voting Republican — but in their social views and their willingness not to offend anybody. Kids raised on a culture of “We’re not going to keep score in the game because we don’t want anybody to lose.” Or just ignoring race to a fault. You can’t say “the black kid over there.” No, it’s “the guy with the red shoes.” You can’t even be offensive on your way to being inoffensive.

Former Tonight Show host Jay Leno, too, shared his experience with a college intern who conflated his dislike of Mexican food with racism.

The experiences of Seinfeld, Rock, and Leno obviously can’t be projected on the whole of entertainment media, but their willingness to criticize the don’t-offend-me culture indicates a growing sense that American campuses are becoming hostile to humor. 

And their criticisms aren’t unfounded: the uptrend in campus outrage over even mildly provocative humor is inescapable. Ask Robert Klein Engler, formerly of Roosevelt University, who received his walking papers after telling his class a joke he overheard as a way of stimulating conversation about an Arizona immigration bill.

“There was a sociological study done in Arizona,” Engler said to the students, “and they discovered that 60 percent of the people in Arizona approved of the immigration law and 40 percent said, ‘no habla ingles.’”

That caused a student, Cristina Solis, to file a written complaint with the university, which in turn opened a harassment investigation against the professor.

According to reporting from the Foundation for Individual Rights in Education, Engler was summoned by university officials to discuss the harassment charges, but they wouldn’t disclose the nature of accusation, nor the identity of the accuser. Engler agreed to cooperate with the university’s investigation, but only if the accusations were put in writing.

Roosevelt wouldn’t do so, and also refused Engler the right to be accompanied by his attorney at investigation meetings. Stripped of due process, Engler chose not to participate in the sham investigation, which resulted in Roosevelt University terminating his employment.

What’s worse, Ms. Solis voiced her approval with the university’s decision to terminate Engler. In a quote to the student newspaper preserved on Minding the Campus she proclaimed:

If that [Mr. Engler’s firing] is what it took to give him a reality check, and to make sure that no other student has to go through that, maybe it’s for the best. It’s just something you don’t say in a classroom, not coming from a professor, and especially not at a school like Roosevelt University, which is based on social justice.

What a dangerous precedent this is, that a lone student infatuated with the idea of social justice can spearhead a movement to fire a professor over a throw-away joke.

Teresa Buchanan, formerly an associate professor at Louisiana State University, also knows what it means to offend the wrong people.

Buchanan was known by her students as a “gunslinger” who sometimes incorporated profanity or sexually charged jokes in class. For example, Reason reports that one of her zingers came in the form of advice to female students that their boyfriends would stop helping them with coursework “after the sex gets stale.”

After the Fall 2013 semester, Buchanan was informed by the university that she was being placed under suspension pending an investigation for “sexual harassment” and promoting a “hostile learning environment.”

The investigation dragged on, and 15 months later a faculty committee upheld the university’s accusation of sexual harassment. The committee, however, decided that termination was not the solution, but rather that LSU should ask that Buchanan tone down her language.

This suggestion was ignored by university president F. King Alexander. Buchanan was fired on June 19, 2015.

Not only are American academics under fire for using semi-edgy humor, British academics, too, are learning the hard way to leave the one-liners at home.

The saga of Sir Tim Hunt illustrates how even the most prestigious careers can be derailed by pitchfork-wielding mobs feigning outrage over innocuous comments.

Hunt, a Nobel laureate, found himself to be the object of scorn, stemming from a joke he made while presenting to the World Conference of Science Journalists in South Korea:

It’s strange that such a chauvinist monster like me has been asked to speak to women scientists.

Let me tell you about my trouble with girls. Three things happen when they are in the lab: you fall in love with them, they fall in love with you, and when you criticize them they cry. Perhaps we should make separate labs for boys and girls?

Now, seriously, I’m impressed by the economic development of Korea. And women scientists played, without doubt, an important role in it. Science needs women, and you should do science, despite all the obstacles, and despite monsters like me.

This comment was first reported by Connie St. Louis, a journalism professor at University College London (UCL) who was present for Hunt’s speech. She claimed his comments induced a “stony silence” on the crowd.

In reaction, an armada of social media warriors descended on Hunt, resulting in his resignation from multiple honorary positions, including at UCL. Although Hunt incessantly apologized for his “transgression,” his opponents continued to besmirch his character and career.

In making the comments public, however, St. Louis only mentioned some of Hunt’s remarks. She omitted the part where Hunt clearly stated he was joking and praised the role of women scientists.

A few weeks later, a report from a European Commission official recalled a different version of events. Unlike St. Louis, the report included Hunt’s entire statement and claimed that Hunt’s joke was received by laughter, not the agitation asserted by St. Louis.

Despite the EC report vindicating Hunt and dispelling the charges of sexism, the damage is done. Hunt’s top-shelf academic career is now in shambles after being sullied by a throng of raging speech oppressors.

A joke was all it took.

Anything Peaceful

Anything Peaceful is FEE’s new online ideas marketplace, hosting original and aggregate content from across the Web.

EDITORS NOTE: A version of this post first appeared at the Pope Center for Higher Education Policy. The featured image is courtesy of FEE and Shutterstock.

How Economic Control Threatens Political Liberty, Free Speech and the Rule of Law by Jon Guze

John Cochrane (aka “The Grumpy Economist”) has posted a long meditation entitled “Rule of Law and the Regulatory State,” in which he makes a very important point:

The United States’ regulatory bureaucracy has vast power. Regulators can ruin your life, and your business, very quickly, and you have very little recourse. That this power is damaging the economy is a commonplace complaint. Less recognized, but perhaps even more important, the burgeoning regulatory state poses a new threat to our political freedom.

What banker dares to speak out against the Fed, or trader against the SEC? What hospital or health insurer dares to speak out against HHS or Obamacare? What business needing environmental approval for a project dares to speak out against the EPA? What drug company dares to challenge the FDA?

Our problems are not just national. What real estate developer needing zoning approval dares to speak out against the local zoning board?

Readers who doubt that this is an urgent problem should read the whole thing, which includes numerous chilling descriptions of regulatory abuse, but here I want to focus on an issue he raises in passing: how best to refer to this urgent problem?

Cochrane says he hasn’t found “a really good word to describe this emerging threat of large discretionary regulation, used as tool of political control.” He considers “socialism,” “regulatory capture,” and “cronyism,” but he rejects all three. Regarding the last two, he notes:

We’re headed for an economic system in which many industries have a handful of large, cartelized businesses — think 6 big banks, 5 big health insurance companies, 4 big energy companies, and so on.

Sure, they are protected from competition. But the price of protection is that the businesses support the regulator and administration politically, and does their bidding. If the government wants them to hire, or build [a] factory in unprofitable place, they do it.

The benefit of cooperation is a good living and a quiet life. The cost of stepping out of line is personal and business ruin, meted out frequently. That’s neither capture nor cronyism.

The fact is, we’ve seen this system of political economy before — most notably in Mussolini’s Italy and in Hitler’s Germany — and there’s a commonly used term for it. It’s fascism. Maybe Cochrane thinks that term is too emotionally charged. However, I’d have thought a bit of emotional charge was warranted. As Cochrane says:

The power of the regulatory state…lacks many of the checks and balances that give us some “rule of law” in the legal system. …

The clear danger we face is the use of regulation for political control. Each industry gets carved up into a few compliant oligopolies. And the threat of severe penalties, with little of the standard rule-of-law recourse, keeps people and businesses in line and supporting the political organization or party that controls the agencies. …

A return to economic growth depends on reforming the regulatory state. But… preservation of our political freedom depends on it even more.

Read the rest here.

This post first appeared at the John Locke Foundation.

EDITORS NOTE: See Steve Horwitz’s “Why the Candidates Keep Giving Us Reasons to Use the “F” Word“; Jeff Tucker’s “Trumpism: The Ideology“; and Jason Kuznicki’s “The Banality of Donald Trump.”

Jon Guze

Politics Worsens Racial Divides — Markets Can Mend Them by Jeffrey A. Tucker

Do you know what inspired the great Frederick Douglass finally to escape from slavery? He was working for a man in Baltimore, Maryland, and getting paid at the end of the day. He took his earnings to his master, who then decided how much Douglass could keep. This struck him as inherently unjust, a wicked symbol of servitude.

He fled to freedom because he wanted to realize and retain his full value in the marketplace. Effectively, he cut out the middle man, the coercive hand that presumed to control his life and property. It was then that he truly began to live a full life.

So it has been since slavery finally was finally abolished in the United States. Markets and commercial culture have been the respite from servitude, the enabler of social peace, the means by which justice is realized, and a source of empowerment for all peoples. Markets turn tension to harmony, injustice to personal fulfillment.

But when government intervenes, much like the role of Douglass’s master, it creates conflict, unfairness, and harms people’s capacity to work toward a more peaceful and prosperous world.

This is the message I gain from a poll released last week. It reveals that both blacks and whites think race relations are generally bad, and by wide margins. In general, two-thirds of survey respondents say that people are not getting along and that tension is high.

The striking fact: This is the reverse of what people believed in the days after the election of Barack Obama, the nation’s first black president.

American civic culture has always treated the presidency as some kind of mystical pinnacle, a beautiful bellwether of where we are as a people and where we are headed as a country. The idea is that we all look to the great man to set the tone and shape the character of us as a people.

Surely, then, because most everyone but a few trolls wants peace, understanding, and cooperation between blacks and whites, the best path forward is to elect a person of color. Surely that will fix something. Right?

Of course it did not. It’s one thing to observe little improvement in these poll numbers but it is quite something else to see them flip to reveal more despair than ever.

During Mr. Obama’s 2008 campaign, nearly 60 percent of blacks said race relations were generally bad, but that number was cut in half shortly after he won. It has now soared to 68 percent, the highest level of discontent among African Americans during the Obama years and close to the numbers recorded in the aftermath of the massive riots that followed the 1992 acquittal of Los Angeles police officers charged in the beating of Rodney King.

The presumption that a black presidency would repair the US race problem trivializes the on-the-ground reality. It presumes that people will respond to symbolism, to identity, to the perception of a new form of power-sharing in society, regardless of reality. Something similar is emerging in the case ofHillary Clinton: her womanness will surely bring new forms of gender justice and therefore harmony between the sexes. Based on the experience with Obama, we can look forward to a similar shot of optimism followed by a dramatic reversal of fortunes.

But let’s dig just a bit deeper into the polls, because it reveals something interesting. Though the news was buried in the story, the polls show a huge chasm between people’s macro and micro perceptions. It turns out that when people are asked about their own communities, which is to say their own lives, the picture is much brighter. Fully 77% said that race relations are good at this level — a number that has not changed in 20 years.

In other words, in terms of people’s experiences in daily life, we find evidence that both blacks and whites get along pretty well. And what does this mean? How do the races typically encounter each other in their own lives? Mostly it is through commercial settings. Shopping, trading, working, and engaging in all the normal activities of life, people find common interests despite their differences. Or it takes place in our social lives: at our houses of worship, the community pool, the neighborhood barbecue. On this very human level, it would appear that matters are better.

So in what respect do people perceive problems? It is when they reflect on the larger picture, which usually involves perceptions of politics and official institutions. Here is where differences manifest themselves. And in this respect, what has changed so dramatically over the past six years to signal new levels of racial tension? It is in the new every day: It is the treatment of blacks by civic institutions, meaning cops and criminal justice in particular. Here lies a major source of the problem.

You can see this in the data too. Here are the charts on how police treat people by race.

These are wide disparities. Among whites, 82% feel safe concerning the police, but only 58% of blacks say the same. Only 5% of whites believe that they have been singled out by police because of their race. Among blacks, 41% believe that — which is quite high (though not as high as I might have expected).

The polls are surely affected by the daily barrage of YouTube videos coming out that show horrendous treatment of black people by police. For white Americans, this has been a remarkable parade of injustice, causing a serious consciousness-raising on the part of every white person I know. Everyone has noticed has much more militarized policing has become over the last couple decades, but the problem is felt particularly intensely by blacks, who are disproportionately harmed by harassment and abuse.

My friend T.K. Coleman, who is black, posted a note a few days ago about his own experience. He and his wife were detained, handcuffed, and questioned for absolutely no reason. His account is harrowing.

He concludes:

There’s this naive idea floating around that people should never be afraid of cops as long as they’re innocent and compliant. For a lot of people in this country, that’s simply not true. …

But if we want to have intelligent discussions about authority in this country, we have to stop using a logic that tells us that people in authority always have a fair reason for doing what they do. We do a lot of talking about what people can do to avoid being abused by cops.

We don’t talk as much as we should about the abuse that happens to people who follow all those instructions. If we can’t question authority, we are doomed.

What we can tease out of these polls is the single most striking fact about human relationships. When they are politicized, and when we rely on government to rule our associations with others, the result is less harmony and more tension and injustice. But when we let go and let voluntary human associations take over, letting people trade and keep property and make decisions for themselves and cooperate as equals, we see progress toward what most everyone wants: peace, harmony, and mutually beneficial engagement.

The implications of this realization are epic. For hundreds of years, governments at all levels have been interfering in race relations, favoring or disfavoring one group or another, sometimes in petty ways and other times in egregious ways. In taking this path, governments have done no one any favors. And today, government remains the single biggest obstacle towards a more harmonious social life of inclusion and free association.

In these last days of his presidency, Obama has finally turned his attention to the problem of criminal justice and the horrible problem of prisons. Finally! I have no reason to doubt his sincerity, even if it turns out to be too little and too late. To the extent he manages to reform the system, removing the boot from the neck just a bit, he will have made his greatest contribution toward racial reconciliation.

In the long run, no one benefits from top-down control. If we are to forge good lives and good communities for ourselves, it is going to be by deferring to the emergent processes of social and economic engagement, one person at a time. Government divides people; markets bring us together.

Frederick Douglass made a courageous decision to seek his own freedom as a path to realizing his highest value in this world. He did this by saying no to the master who presumed to rule his life and property. So must we all.


Jeffrey A. Tucker

Jeffrey Tucker is Director of Digital Development at FEE, CLO of the startup Liberty.me, and editor at Laissez Faire Books. Author of five books, he speaks at FEE summer seminars and other events. His latest book is Bit by Bit: How P2P Is Freeing the World. Follow on Twitter and Like on Facebook.

Don’t Agree with the Mayor’s Politics? No Permits for You! by Walter Olson

Boston mayor Martin Walsh gives Donald Trump the Chick-Fil-A rush* over his immigration opinions. Via the Boston Herald:

If Donald Trump ever wants to build a hotel in Boston, he’ll need to apologize for his comments about Mexican immigrants first, the Hub’s mayor said.

“I just don’t agree with him at all,” Boston Mayor Martin J. Walsh told the Herald yesterday. “I think his comments are inappropriate. And if he wanted to build a hotel here, he’d have to make some apologies to people in this country.”

More on the use of permitting, licensing, and other levers of power to punish speech and the exercise of other legal rights at Overlawyered’s all-new regulatory retaliation tag. (And no, I’m not exactly thrilled with Mayor Walsh for making me take Trump’s side in an argument.)

* In case you’d forgotten the infamous Chick-Fila-A brouhaha, here’s Overlawyered’s coverage:

The uproar continues, and quite properly so (earlier here and here), over the threats of Boston Mayor Thomas Menino and Chicago alderman Proco (“Joe”) Moreno to exclude the Chick-Fil-A fast-food chain because they disagree (as do I) with some of the views of its owner.

Among the latest commentary, the impeccably liberal Boston Globe has sided with the company in an editorial (“which part of the First Amendment does Menino not understand?…A city in which business owners must pass a political litmus test is the antithesis of what the Freedom Trail represents”), as has my libertarian colleague Tom Palmer at Cato (“Mayor Menino is no friend of human rights.”)

The spectacle of a national business being threatened with denial of local licenses because of its views on a national controversy is bad enough. But “don’t offend well-organized groups” is only Rule #2 for a business that regularly needs licenses, approvals and permissions. Rule #1 is “don’t criticize the officials in charge of granting the permissions.”

Can you imagine if Mr. Dan Cathy had been quoted in an interview as saying “Boston has a mediocre if not incompetent Mayor, and the Chicago Board of Aldermen is an ethics scandal in continuous session.” How long do you think it would take for his construction permits to get approved then?

Thus it is that relatively few businesses are willing to criticize the agencies that regulate them in any outspoken way (see, e.g.: FDA and pharmaceutical industry, the), or to side with pro-business groups that seriously antagonize many wielders of political power (see, e.g., the recent exodus of corporate members from the American Legislative Exchange Council).

A few weeks ago I noted the case of Maryland’s South Mountain Creamery, which contends through an attorney (though the U.S. Attorney for Maryland denies it) that it was offered less favorable terms in a plea deal because it had talked to the press in statements that wound up garnering bad publicity for the prosecutors. After that item, reader Robert V. wrote in as follows:

Your recent article about the [U.S. Attorney for Maryland] going after the dairy farmers reminded me a case in New York state where the Health Department closed down a nursing home in Rochester. They claim is was because of poor care, the owner claims it was because he spoke out against the DOH.

The state just lost a lawsuit where the jury found the DOH targeted the nursing home operator because he spoke out against them.

According to Democrat and Chronicle reporters Gary Craig and Steve Orr, the jury found state health officials had engaged in a “vendetta” against the nursing home owner:

Beechwood attorneys maintained that an email and document trail showed that Department of Health officials singled out Chambery for retribution because he had sparred with them in the past over regulatory issues. The lawsuit hinged on a Constitutional argument — namely that the state violated Chambery’s First Amendment rights by targeting him for his challenges to their operation.

The Second Circuit panel opinion in 2006 permitting Chambery/ Beechwood’s retaliation claim to go forward is here. It took an extremely long time for the nursing home operators to get their case to a jury; the state closed them down in 1999 and the facility was sold at public auction in 2002.

Versions of these posts first appeared at Overlawyered.com, Walter Olson’s indispensable law blog, published by the Cato Institute. 


Walter Olson

Walter Olson is a senior fellow at the Cato Institute’s Center for Constitutional Studies.

Girl Sues Draft for Only Registering Males by Ilya Somin

A recent lawsuit filed by a teenage girl in New Jersey (in conjunction with her mother) challenges the constitutionality of male-only draft registration, arguing that it violates the Constitution because it discriminates on the basis of sex [h/t: Elie Mystal of Above the Law]:

A New Jersey teenage girl has brought a federal class action against the Selective Service System, claiming its refusal to consider women for the draft is discriminatory.

“With both males and females available for such roles today, the two sexes are now similarly situated for draft registration purposes and there is no legitimate reason for the government to discriminate against the female class, so equal protection applies,” the complaint states. “Further, with both males and females available for such combat roles, there is no reasonable basis for infringing the associational interests of the female class by preventing them from registering.”

Noting that she will turn 18 this year, E.K.L., as she is named in the complaint, says she attempted to register for the draft on the website of the Selective Service by filling out the online form.

Once she clicked “female” during the online registration process, however, the website prevented her from registering….

E.K.L. and her mother call it undisputed that the Military Selective Service Act creates a sex-based difference.

Banning women from the pool of potential recruits is not rational given the role females currently play within the military, according to the complaint.

“If the two sexes can fight and die together, they can register together; if not, then no one should have to register,” the complaint states.

More information about the lawsuit is available in this article.

predicted that such a case would arise back in early 2013, when the Pentagon made women eligible to serve in nearly all combat roles (though I expected it to be brought by men forced to register for select service, rather than by women excluded from doing so).

The Supreme Court previously upheld the constitutionality of male-only draft registration in the 1981 case of Rostker v. Goldberg. However, as I also pointed out in that post, that ruling was partly based on the theory that women would not be as valuable draftees as men in an era when the armed forces excluded women from most combat positions.

Obviously, that logic is no longer valid. I also noted other reasons why the Court might overrule or at least severely limit Rostker if the issue came before it today:

Lower courts applying Rostker could therefore still conclude that male-only draft registration is constitutional, though Rostker is ambiguous enough on the amount of deference due [to federal government] that the issue is not a slam dunk.

If the issue gets to the Supreme Court however, I’m far from certain that Rostker wouldn’t be overruled or severely limited. As compared with 1981, the idea of women serving in combat is far more widely accepted by both elite and public opinion. And sex discrimination in draft registration is likely to seem like an outdated relic of the days when women were barred from numerous positions in the military.

If the Pentagon sticks to its new policy on women in combat, I think it’s likely that some male plaintiff will bring a new challenge to the Selective Service registration system, and that plaintiff will have a good chance of succeeding. Like most other constitutional law scholars, I think that Rostker was a dubious decision, and would not shed many tears if it were overruled.

For reasons outlined by Steven Calabresi and Julia Rickert, there is also a good originalist case for courts taking a strong line against sex discriminatory laws.

I would add that, since 1981, the Supreme Court has taken a tougher line against sex-discriminatory laws and policies. Most notably, it invalidated the exclusion of women from the Virginia Military Institute in the 1996 case of United States v. Virginia. The exclusion of women from a military college is not exactly the same as their exclusion from draft registration. But the two situations have obvious similarities.

There is a chance that this case will end up being thrown out on procedural grounds. A court could potentially rule that women exempt from draft registration don’t have standing to sue because they don’t actually suffer any harm as a result (draft registration is usually considered a burden, not a benefit).

This is one of the reasons why I thought a case would be more likely to be brought by men subject to draft registration than by women exempt from it.

Also, a court might deny the plaintiff’s bid to certify the case as a class action on behalf other similarly situated women. But if the case does go forward, there is a real chance it will ultimately result in the invalidation of male-only draft registration.

To avoid misunderstanding, I should emphasize that I do not support either drafting women or forcing them to register for a possible future draft. But I also oppose drafting men. Conscription is both a severe infringement on individual liberty, and tends to reduce the quality of the military relative to an all volunteer armed forces.

Ultimately, the best way to avoid conscripting women is to not have conscription – or draft registration – at all. By taking that step, we could simultaneously reduce the likelihood that the draft will be reimposed in the future and eliminate one of the last bastions of open sex discrimination in government policy.

In my view, a decision striking down male-only draft registration is more likely to lead to the abolition of draft registration altogether than to its extension to women.

This post originally appeared at the Volokh Conspiracy. 

Ilya Somin

Ilya Somin is Professor of Law at George Mason University School of Law. He blogs at the Volokh Conspiracy.

Students Expect (and Demand) to Have Their Beliefs Confirmed by George C. Leef

With so many more Americans going to college than in the past, you would think that anti-intellectualism would be a distant, rapidly fading memory. But you’d be mistaken, argue Mark Bauerlein and Adam Bellow, editors of a sharp new book The State of the American Mind.

“Instead of acquiring a richer and fuller knowledge of U.S. history and civics, American students and grown-ups display astounding ignorance of them, and their blindness is matched by their indifference to the problem,” write Bauerlein and Bellow.

Increasingly, Americans shrug at the idea of basic liberties but “accept restrictions on speech, freedom of association, rights to privacy, and religious conscience.”

The book they have put together shows the depth of these worrisome trends.

Each of the sixteen essays included is worthwhile. I am going to focus in particular on one that dovetails especially with the work of the Pope Center — Greg Lukianoff’s “How Colleges Create the ‘Expectation of Confirmation.’”

Lukianoff is the president of the Foundation for Individual Rights in Education (FIRE), a group that stands up for free speech on campus no matter who the speaker is or what the content of the message might be.

In his essay, he laments the fact that many college students have become so bold as to demand that school administrators silence speakers with whom they disagree and “protect” them from arguments contrary to their beliefs.

Or, it would be more accurate to say, “assume they disagree with,” because they refuse to allow the individuals to speak. Therefore, they are spared having to actually think of logical responses after listening to the speaker’s arguments. So is everyone else on campus, of course.

The “heckler’s veto” thus affects those would like to hear the speaker’s message just as much as those who think they’re entitled to silence perceived enemies.

Lukianoff presents quite a few instances, starting with one at Brown University, where Ray Kelly, former New York City police commissioner, had been scheduled to give a talk. A group of students managed to so disrupt the event that Kelly finally gave up and left the building. Afterward, a student who had been at the center of the disgraceful, anti-intellectual protest bragged, “They decided not to cancel the lecture, so we decided to cancel it for them.”

The intellectual climate on many campuses has been in decline for years, but it seems to be speeding up. Just a few years ago, the big new trend was the demand that lectures, books, and everything else on campus that might possibly offend anyone be scrubbed of ideas or images that might “trigger” a sensitive student. Lukianoff senses that we are moving further into this swamp as the “right not to be offended” morphs into “the right to have your views confirmed and not challenged.”

Although it occurred too recently to make it into the book, the Laura Kipnis furor is evidence for Lukianoff’s point. When a liberal feminist professor at Northwestern wrote an essay that took issue with the popular trope that college campuses are dangerous places for women and need more federal oversight, she was blasted by women students who couldn’t stand Professor Kipnis’ disagreement with their cherished beliefs.

The students did more than just wring their hands and write about their hurt feelings. They filed an official complaint against Kipnis with Northwestern’s “Title IX coordinator,” claiming that her writings had violated their rights. Thus began an amazing, Kafka-esque series of proceedings for Kipnis, which she details here.

My point is not that Title IX invites abuse, although it certainly does. My point is that we now have college students who think that it is proper to bring down the weight of federal regulation on the head of a professor simply for saying something that clashed with a view they expected to be reinforced.

It’s especially troubling that the students went after a member of the faculty. In the past, you would have expected students to at least show a bit of deference towards scholarly thought. “Maybe we should consider the possibility that Professor X has a point here….”

But now we find a new breed of know-it-all students who eagerly use the machinery of federal regulation to wreak vengeance on a professor for writing something they find disagreeable.

Lukianoff’s analysis of the reasons for this deplorable state of affairs centers on the way Americans increasingly “cluster” ideologically. That is, they tend to hear only opinions that coincide with theirs and, disturbingly, that phenomenon becomes more apparent as educational levels rise.

Citing Diana Mutz’s book Hearing the Other Side, Lukianoff notes that “people with a high school education or less are the most likely to engage in discussions along lines of political and philosophical disagreement, while those with higher levels of education are less likely.”

I suspect that observation is generally correct, but the effect is much more pronounced among leftist students. Students who have at least some sympathy for private property, free enterprise, and individual responsibility are very apt to encounter people, especially in the education system, who will argue against their beliefs. (“Denounce” would often be a more accurate word than “argue,” however.)

As Professor Michael Munger observed in this Pope Center piece last year, it is leftist students who are likely to get rewarded just for stating the “correct” beliefs. Conservative and libertarian students don’t develop that expectation of having their opinions validated and their egos stroked because they can hardly avoid intellectual combat. There is a huge ideological asymmetry here.

Moreover, leftist students themselves tend to cluster in courses where ideology is the primary focus and professors are prone to reinforcing their already formed views about the array of “social justice” topics.

As a means of countering this noxious trend of students who think that the point of college is to reinforce their existing beliefs, Lukianoff suggests that part of freshman orientation be devoted to “instruction in productive academic engagement.” That is, tell students “we fight offensive speech not with censorship but with contrary words.”

That is a superb idea. Orientations should be used for the salutary academic purpose of explaining to students what intellectual arguments are and how they’re conducted. An assignment might be to read that part of John Stuart Mill’s On Liberty that deals with the importance of free speech and debate.

Schools should be just as interested in making sure that students know the rules of academic dispute as that they know the rules, say, about drinking on campus.

We hear again and again from college leaders that they want students to learn “critical thinking skills,” but evidence keeps mounting that the exact opposite is happening — that many students are learning how to make life miserable for those who dare to disagree with them.

Leaders who really care about the intellectual development of the students who come to their schools ought to pay attention to the alarm Greg Lukianoff is sounding.

This post first appeared at the Pope Center.

George C. Leef

George Leef is the former book review editor of The Freeman. He is director of research at the John W. Pope Center for Higher Education Policy.

“Contempt for the Screening Process” and 91 Other Reasons TSA Thinks You’re a Terrorist by Daniel Bier

It’s true that TSA’s physical screeners are embarrassingly bad at their jobs, failing to notice 95% of threats in tests by Homeland Security.

But always never fear! TSA also has Behavior Detection Officers. These super agents can spot terrorists just by looking at them. Now, thanks to a leaked TSA checklist (and scorecard) of suspicious behaviors, you can too!

The document shows 92 different behaviors that can flag you as suspicious — such as being too happy (or too sad); having “sweaty palms” or “rubbing hands”; “arriving late” and “body odor”; “gazing down” or “open staring eyes” — to which an arbitrary number of “points” are attached.

If you score six or more points, you win a trip to enhanced screening and an interrogation by police. But you can get points deducted for being old (minus 1 point for women over 55 or men over 65) or married and old (minus 2 for a couple over 55).

Of course, the Intercept reports, the program has

attracted controversy for the lack of science supporting it. In 2013, the Government Accountability Office found that there was no evidence to back up the idea that “behavioral indicators … can be used to identify persons who may pose a risk to aviation security.”

After analyzing hundreds of scientific studies, the GAO concluded that “the human ability to accurately identify deceptive behavior based on behavioral indicators is the same as or slightly better than chance.”

The suspicious behavior checklist also includes “having a cold penetrating stare” and “expressing contempt for the screening process.” After reading this, I’m not sure it’ll be any easier for me to get through TSA without them.


Daniel Bier

Daniel Bier is the editor of Anything Peaceful. He writes on issues relating to science, civil liberties, and economic freedom.

EDITORS NOTE: The featured image is of TSA officer Robert Howard signals an airline passenger forward at a security check-point at Seattle-Tacoma International Airport Jan. 4. (AP Photo)

The Ghosts of Spying Past by Gary McGath

In the 1990s, the Clinton administration fought furiously against privacy and security in communication, and we’re still hurting from it today. Yet people in powerful positions are trying to commit the same mistakes all over again.

In the early days, the Internet was thoroughly insecure; its governmental and academic users trusted each other, and the occasional student prank couldn’t cause much damage. As it started becoming available to everyone in the early ‘90s, people saw the huge opportunities it offered for commerce.

But doing business safely requires data security: If unauthorized parties can grab credit card numbers or issue fake orders, nobody is safe. However, the Clinton administration considered communication security a threat to national security.

Attorney General Janet Reno said, “Without encryption safeguards, all Americans will be endangered.” She didn’t mean that we needed the safeguard of encryption, but that we had to be protected from encryption.

In a 1996 executive order, President Clinton stated:

I have determined that the export of encryption products described in this section could harm national security and foreign policy interests even where comparable products are or appear to be available from sources outside the United States, and that facts and questions concerning the foreign availability of such encryption products cannot be made subject to public disclosure or judicial review without revealing or implicating classified information that could harm United States national security and foreign policy interests.

The government prohibited the export of strongly secure encryption technology by calling it a “munition.” Putting code on the Internet makes it available around the world, so the restriction crippled secure communication. The Department of Justice investigated Phil Zimmerman for three years for making a free email encryption program, PGP, available.

The administration also tried to mandate government access to all strong encryption keys. In 1993 it proposed making the Clipper Chip, with a built-in “back door” for government spying, the standard for serious encryption. Any message it sent included a 128-bit field that would let government agencies (and hopefully no one else) decrypt it.

But the algorithm for the Clipper was classified, making independent assessments impossible. However strong it was, it would have offered a single point to attack, with the opportunity to intercept virtually unlimited amounts of data as an incentive to find weaknesses. Security experts pointed out the inherent risks inherent in the key recovery process.

By the end of the ‘90s, the government had apparently yielded to public pressure and common sense and lifted the worst of the restrictions. It didn’t give up, though — it just got sneakier.

Documents revealed by Edward Snowden show that the NSA embarked on a program to install back doors through secret collaboration with businesses. It sought, in its own words, to “insert vulnerabilities into commercial encryption systems, IT systems, networks, and endpoint communications devices” and “shape the worldwide cryptography marketplace to make it more tractable to advanced cryptanalytic capabilities being developed by NSA/CSS.”

The NSA isn’t just a spy agency; it’s one of the leading centers of expertise in encryption, perhaps the best in the world. Businesses and other organizations trying to maximize their data security trust its technical recommendations — or at least they used to. If it can’t get the willing collaboration of tech companies, it can deceive them with broken standards.

Old software with government-required weaknesses from the nineties is still around, along with newer software that may have NSA-inspired weaknesses. There are still restrictions on the exporting of cryptography in many cases, depending on a complicated set of criteria related to the software’s purpose. Even harmless file identification software, used mostly by librarians, may have to carry a warning that it contains decryption code and might be subject to use restrictions.

With today’s vastly more powerful computers, encryption that was strong two decades ago can be easily broken today. Some websites, especially ones outside the United States that were denied access to strong encryption, still use the methods which they were stuck with then, and so do some old browsers.

To deal with this, many browsers support the old protocols when a site offers nothing stronger, and many sites fall back to the weak protocols if a browser is limited to them. Code breakers have found ways to make browsers think only weak security is available and force even the stronger sites to fall back on it. Some sites have disabled weak encryption, only to be forced to restore it because so many users have old browsers.

You’d think that by now people would understand that secure transactions are essential, but politicians in the US and other countries still want to weaken encryption so they can spy on people’s communications.

The FBI’s assistant director of counter-terrorism claims that strong encryption gives terrorists “a free zone by which to radicalize, plot, and plan.” NSA Director Michael S. Rogers has said, “I don’t want a back door. I want a front door.” UK Prime Minister Cameron says,

In extremis, it has been possible to read someone’s letter, to listen to someone’s call, to mobile communications. The question remains: are we going to allow a means of communications where it simply is not possible to do that? My answer to that question is: no, we must not.

In 2015 over eighty civil society organizations, companies, and trade associations, including Apple, Microsoft, Google, and Adobe, sent a public letter to President Obama expressing concern about such actions. The letter states:

Strong encryption is the cornerstone of the modern information economy’s security. Encryption protects billions of people every day against countless threats — be they street criminals trying to steal our phones and laptops, computer criminals trying to defraud us, corporate spies trying to obtain our companies’ most valuable trade secrets, repressive governments trying to stifle dissent, or foreign intelligence agencies trying to compromise our and our allies’ most sensitive national security secrets.

In the United States, we have a tradition of free speech, but in many countries, even mild criticism of the authorities needs to travel in secret.

A country can pass laws to weaken its law-abiding citizens’ access to cryptography, but criminals and terrorists exchanging secret messages would have no reason to pay attention to them. They can keep using the strong encryption methods that are currently available and get new software from countries that don’t have those restrictions.

Governments would gain increased ability to spy on people who follow the law, and so would free-lance data thieves, while competent criminals would still be able to communicate in secret. To crib David Cameron, we must not let that happen — again.

Gary McGath

Gary McGath is a freelance software engineer living in Nashua, New Hampshire.

RELATED ARTICLES:

Encryption stalemate: A never-ending saga?

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Did Oregon Gag the Anti-Gay Marriage Bakers? by Walter Olson

Readers who follow the battles over forfeiture law may recall the recent case in which a North Carolina convenience store owner from whom the government had seized $107,000 without any showing of wrongdoing decided to fight the case in the press as well as in court, backed by the Institute for Justice.

Lyndon McLellan’s decision to go public with the dispute drew a menacing letter from a federal prosecutor about the publicity the case had been getting:

“Your client needs to resolve this or litigate it,” Mr. West wrote. “But publicity about it doesn’t help. It just ratchets up feelings in the agency.” He concluded with a settlement offer in which the government would keep half the money.

That case ended happily, but the problem is much broader: many individuals and businesses fear that if they seek out favorable media coverage about their battle with the government, the government will find a way to retaliate, either informally in settlement negotiations or by finding new charges to throw against them.

That such fears might not be without foundation is illustrated by last week’s widely publicized Oregon cake ruling, in which a Gresham, Oregon couple was ordered to pay $135,000 in emotional-distress damages for having refused to bake a cake for a lesbian couple’s commitment ceremony.

Aside from the ruling’s other objectionable elements, the state labor commissioner ruled it “unlawful” for the couple to have given national media interviews in which they expressed sentiments like “we can see this becoming an issue and we have to stand firm.”

Taking advantage of an exception in free speech law in which courts have found that the First Amendment does not protect declarations of future intent to engage in unlawful discrimination, the state argued — and its commissioner agreed — that the “stand firm” remark along with several similarly general comments rallying supporters were together “unlawful.”

That ought to bother anyone who cares about free speech. I’ve got a piece up at Ricochet.com, my first there, exploring the question in more detail:

Suppose someone began a sentence with the words “I don’t think I should have to serve [group X] at my shop….”

If they follow with the words “but since it’s the law, I’ll comply,” the sentence as a whole would clearly count as protected speech under current law. If they follow with the words “and I won’t, law or no law,” it loses protection.

But suppose the speaker were to end the sentence at “…my shop.” Up to that point, the speaker has expressed only an essentially political opinion, not a forward-looking intention to defy the law.

Such speech is all the more of core First Amendment interest when it takes place not in a local, commercial context but as part of broader political discussions between citizens as to whether laws are unjust or government too heavy-handed.

Read the rest here.

Walter Olson

Walter Olson is a senior fellow at the Cato Institute’s Center for Constitutional Studies.

RELATED ARTICLE: Hypocrisy ALERT: Gay Bakeries Refuse to Make Pro-Christian Cakes [+Videos]

EDITORS NOTE: This piece cross-posted from Cato at Liberty and Overlawyered.

Religious Charities, Gay Marriage, and Adoption: A Case for Pluralism by Walter Olson

At Reason, Scott Shackford has a valuable piece on where libertarians’ interests are likely to coincide with those of organized gay rights advocates and where they are likely to diverge, following the Supreme Court’s ruling on marriage.

One flashpoint of controversy is likely to be the role of conservative religious agencies in areas of adoption that are commonly assisted with public funds (as with the adoption of older kids from foster care).

It is now legal all across America for gay people to adopt children, and now with same-sex marriage, they can adopt their partner’s child as well. This fight is largely over, and was actually pretty much won even before gay marriage recognition.

But there is another side, and it ties back into the treatment of religious people. Some adoption agencies are tied to religious groups who do not want to serve same-sex couples or place children in same-sex homes. They are also typically recipients of state funding for placing children, and are therefore subject to state regulation. Should they be required to serve gay couples?

Some states, such as Illinois, attempted to force them. As a result, Catholic Charities, which helped the state find adoptive and foster home services for four decades, stopped providing their services in 2011.

At the time, a gay activist declared this a victory, saying “Finding a loving home for the thousands in the foster/adoption system should be the priority, not trying to exclude people based on religious dogma.”

Some libertarians I admire have taken the view that where any public dollars are involved, private social service agencies must be held to rigorous anti-discrimination standards.

While I respect this view, I don’t share it.

Programs that are explicitly voucherized (such as G.I. Bill college tuition benefits, which can be used for seminary study) often go to institutions that I might find discriminatory, and the same logic can apply even with some less explicitly voucherized benefits.

If a state depot is dispensing gasoline to rescuers’ boats after Katrina, and Catholic Charities’s boats spare the need for government boats to reach some rescue targets, the “subsidy” might in fact save the taxpayers money.

In Olson’s experience, the more agencies out there serving the needs of the children looking for homes, the better. …

Much as with the controversies over bakers and florists, being denied service by one agency does not actually impact a gay couple’s ability to find and adopt children at all.

But eliminating Catholic Charities from the pool reduces the number of people able to help place these children. It’s the children who are punished by the politicization of adoption, not Catholic Charities.

This is especially important when dealing with older children or children with special medical needs. … Allowing both sides (and others as well) to play their role as they see fit benefits all children in the system.

As for the concern that some adoption agencies take taxpayer money and then discriminate, Olson points out that it’s much more expensive to the taxpayers to leave children to be raised by the state, not to mention terribly cruel.

“If you don’t care about the kids or the families, at least care about the taxpayers,” Olson says. But you should probably care about the kids, too.

I’ve written about the same set of issues (in the foster care context) before. The new Reason piece is here.


Walter Olson

Walter Olson is a senior fellow at the Cato Institute’s Center for Constitutional Studies.

RELATED ARTICLE: ‘Cake Artist’ Fights in Court to Be Able to Refuse to Make Wedding Cakes for Gay Couples

EDITORS NOTE: This post first appeared at Cato.org.

Celebrate Independence With a Revolution Against the Surveillance State by Ryan Hagemann

In the decade before 1776, British courts began issuing “writs of assistance” for the general search and seizure of colonists’ documents. The intention was to permit British troops to inspect properties for smuggled goods, but these writs gave officials broad power to enter private homes to search for, and seize, anything and everything that might be considered contraband by the British Empire.

Such general warrants were among the many complaints the colonists levied against the crown and played no small part in the American Revolution.

This Independence Day, it would behoove us all, as Americans, to reflect on the motivations for the colonists’ revolt against Britain. In a 2013 piece at the Huffington Post, Radley Balko spoke on the core meaning of the Fourth of July:

Independence Day isn’t for celebrating the American government and whoever happens to be currently running it, but for celebrating the principles that make America unique.

And in fact, celebrating the principles that [animated] the American founding often means celebrating the figures who have defended those principles in spite of the government.

The list of modern Americans who have stood as stalwart guardians of the principles of liberty is regrettably short. More concerning, however, is what has happened in the years since 9/11, as fear and paranoia over terrorism gripped the American electorate and absconded with many of the basic liberties that the founding generation fought and died to uphold. America just isn’t what it used to be.

But the tides of unrestrained surveillance seem to be receding.

A few weeks ago, thanks to a vibrant and broad coalition of civil libertarians, grassroots organizations, and cross-aisle partners, America finally took the first step in reining in the secret surveillance state that Edward Snowden revealed to us almost two years ago to the day. The USA FREEDOM Act, for all its flaws, stands as the most significant piece of surveillance reform legislation since 1978 and signals Congress’s willingness to work on surveillance reform.

While there is much to do in preparing for upcoming battles over government surveillance, a look back at recent events can help shed light on how we as libertarians can best move forward.

Not surprisingly, the debate left some dissatisfied that the reforms did not go far enough, while others considered anything short of a full USA PATRIOT Act reauthorization to be an unacceptable compromise.

Filled with riotous rhetorical broadsides, the debate featured civil libertarians supporting reform against civil libertarians backing a complete, uncompromising end to the surveillance state, pitting Republican hawks against centrists and Democrats, and Sen. Rand Paul against pretty much everyone.

In a story of strange political bedfellows, Sen. Paul joined hawks such as Sen. John McCain and Sen. Richard Burr in voting against the USA FREEDOM Act. While Paul criticized components of the bill for not going far enough (all criticisms being perfectly fair and true), the political reality was such that this bill, however imperfect, was by far the best chance for reform in the near term.

As Cato’s Julian Sanchez noted prior to its passage: “While ‘Sunset the Patriot Act’ makes for an appealing slogan, the fact remains that the vast majority of the Patriot Act is permanent — and includes an array of overlapping authorities that will limit the effect of an expiration.”

In other words, the limitations of USA FREEDOM would actually be more effective than simply letting a two or three provisions of the USA PATRIOT Act (temporarily) expire.

The heroes of this debate were a broad coalition of civil-society groups, technology firms, and nonprofits dedicated to moving the ball forward on reform, no matter how small the gain.

However, even as some are celebrating this small but important victory, there are troubled waters ahead for privacy advocates and civil libertarians. The upcoming Senate vote on the Cybersecurity and Information Sharing Act (CISA) is the next battle in the ongoing war against the surveillance apparatus. If passed, it would be one step forward, two steps back for the small victories privacy advocates have won over the past month.

I’ve written quite a bit on the issues that many civil libertarian organizations have with CISA, which is little more than a surveillance Trojan Horse containing a host of “information-sharing” provisions that would allow intelligence agencies to acquire information from private firms and use it to prosecute Americans for garden-variety crimes unrelated to cybersecurity, due process be damned.

A broad coalition of organizations has once more come together, this time to oppose CISA, to continue the battle against expanding the surveillance state.

In public policy, the Overton window refers to the spectrum of policy prescriptions and ideas that the public views as tolerable: the political viability of any idea depends not on the personal preferences of politicians, but on whether it falls within the range of publicly acceptable options.

That is why a willingness to compromise is so vital in public-policy discussions. Marginal reforms should be seen as victories in the slow but consistent effort to rein in the excesses of our Orwellian security order.

USA FREEDOM is far from ideal, and the expiration of provisions of the PATRIOT Act, such as Section 215, will not stop government surveillance in its tracks. The government can still use National Security Letters (NSL), and Section 702 of the FISA Amendments Act can still be creatively interpreted by the intelligence community to justify continued mass surveillance, to say nothing of Executive Order 12333, which covers surveillance conducted outside of the United States.

Nonetheless, the new law is an important first step towards tearing down the most onerous provisions of the PATRIOT Act in a piecemeal fashion. This may seem a daunting and less-than-ideal approach for many libertarians, but the alternative is merely symbolic gesticulation.

So where do we go from here?

Libertarians need to start working with nontraditional allies to support, on an issue-by-issue basis, real, practical reforms to the surveillance state. If we do not, we cannot hope to be effective and valuable partners to those individuals and organizations working tirelessly in support of the same values and freedoms that we all hold dear.

We must also recognize that there are limitations to compromise, and we should never forsake our core principles in favor of political expediency. But, on the margins, we can make significant contributions to civil liberties, especially in the ongoing surveillance reform debate. Recognizing the reality of what is achievable in the current political landscape is necessary for identifying and taking advantage of the available opportunities for restoring liberty.

We have a choice in the upcoming surveillance-reform fights: We can be positive contributors to a legacy of liberty for future generations, or we can continue to fancy ourselves armchair philosophers, ignoring public-policy realities and taking comfort in the echo chamber that never challenges our worldview.

Given political realities, marginal reforms constitute the fastest path forward. The American people are owed their civil liberties; hence, we must fight to move, however incrementally, towards a freer, more civil society.


Ryan Hagemann

Ryan Hagemann is a civil liberties policy analyst at the Niskanen Center.

RELATED ARTICLE: Cyber Security: Where are we now and where are we headed?

Gays Need the Freedom to Discriminate by Jeffrey A. Tucker

Gaining the right to be married is a win for liberty because it removes a barrier to free association. But how easily a movement for more freedom turns to the cause of taking away other freedoms!

Following the Supreme Court decision mandating legal same-sex marriage nationwide, the New York Times tells us that, “gay rights leaders have turned their sights to what they see as the next big battle: obtaining federal, state and local legal protections in employment, housing, commerce and other arenas.”

In other words, the state will erect new barriers to freedom of choice in place of the old ones that just came down!

To make the case against such laws, it ought to be enough to refer to the freedom to associate and the freedom to use your property as you see fit. These are fundamental principles of liberalism. A free society permits anything peaceful, and that includes the right to disassociate. Alas, such arguments seem dead on arrival today.

So let us dig a bit deeper to understand why anti-discrimination laws are not in the best interests of gay men and women, or anyone else. Preserving the ability to discriminate permits the market system to provide crucial information feedback to a community seeking to use its buying power to reward its friends and noncoercively, nonviolently punish those who do not share its values.

Ever more, consumers are making choices based on core values. Does this institution protect the environment, treat its workers fairly, support the right political causes? In order to make those choices — which is to say, in order to discriminate — consumers need information.

In the case of gay rights, consumers need to know who supports inclusion and who supports exclusion. Shutting down that information flow through anti-discrimination law robs people of crucial data to make intelligent buying decisions. Moreover, such laws remove the competitive pressure of businesses to prove (and improve) their commitment to community values, because all businesses are ostensibly bound by them.

A market that permits discrimination, even of the invidious sort, allows money and therefore success and profits to be directed toward those who think broadly, while denying money and profitability to those who do not. In this way, a free market nudges society toward ever more tolerant and inclusive attitudes. Money speaks far more persuasively than laws.

Notice that these proposed laws only pertain to the producer and not the consumer. But discrimination is a two-edged sword. The right can be exercised by those who do not like some groups, and it can be exercised by those groups against those who do not like them.

Both are necessary and serve an important social function. They represent peaceful ways of providing social and economic rewards to those who put aside biases in favor of inclusive decision making.

If I’m Catholic and want to support pro-Catholic businesses, I also need to know what businesses don’t like Catholics. If I’m Muslim and only want my dollars supporting my faith, I need to know who won’t serve Muslims (or who will put my dollars to bad use). If a law that prohibits business from refusing to serve or hire people based on religion, how am I supposed to know which businesses deserve my support?

It’s the same with many gay people. They don’t want to trade with companies that discriminate. To act out those values requires some knowledge of business behavior and, in turn, the freedom to discriminate. There is no gain for anyone by passing a universal law mandating only one way of doing business. Mandates drain the virtue out of good behavior and permit bad motivations to hide under the cover of law.

Here is an example from a recent experience. I was using AirBnB to find a place to stay for a friend. He needed a place for a full week, so $1,000 was at stake. The first potential provider I contacted hesitated and began to ask a series of questions that revolved around my friend’s country of origin, ethnicity, and religion. The rental owner was perfectly in his rights to do this. It is his home, and he faces no obligation to open it to all comers.

On the other hand, I found the questions annoying, even offensive. I decided that I didn’t want to do business with this person. I made a few more clicks, cancelled that query, and found another place within a few minutes. The new renter was overjoyed to take in my friend.

I was delighted for two reasons. First, my friend was going to stay at a home that truly wanted him there, and that’s important. Force is never a good basis for commercial relationships. Second, I was able to deny $1K to a man who was, at best, a risk averse and narrow thinker or, at worst, an outright bigot.

Declining to do business with him was my little protest, and it felt good. I wouldn’t want my friend staying with someone who didn’t really want him there, and I was happy not to see resources going toward someone whose values I distrusted.

In this transaction, I was able to provide a reward to the inclusive and broad-minded home owner. It really worked out too: the winning rental property turned out to be perfect for my friend.

This was only possible because the right to discriminate is protected in such transactions (for now). I like to think that the man who asked too many questions felt a bit of remorse after the fact (he lost a lot of money), and even perhaps is right now undergoing a reconsideration of his exclusionary attitudes. Through my own buyer decisions I was actually able to make a contribution toward improving cultural values.

What if anti-discrimination laws had pertained? The man would not have been allowed to ask about national origin, religion, and ethnicity. Presuming he kept his room on the open market, he would have been required under law to accept my bid, regardless of his own values.

As a result, my money would have gone to someone who didn’t have a high regard for my friend, my friend would have been denied crucial information about what he was getting into, and I would not be able to reward people for values I hold dear.

This is precisely why gay rights leaders should be for, not against, the right to discriminate. If you are seeking to create a more tolerant society, you need information that only a free society can provide.

You need to know who is ready to serve and hire gay men and women, so they can be rewarded for their liberality. You also need to know who is unwilling to hire and serve so that the loss part of profit-and-loss can be directed against ill-liberality. Potential employees and customers need to know how they are likely to be treated by a business. Potential new producers need to know about business opportunities in under-served niche markets.

If everyone is forced to serve and hire gays, society is denied important knowledge about who does and does not support enlightened thinking on this topic.

Consider the prototypical case of the baker who doesn’t want to make a wedding cake for a same-sex couple. He is within his rights. His loss of a potential customer base is his own loss. It is also the right of the couple to refuse to give this baker business. The money he would have otherwise made can be redirected towards a baker who is willing to do this. It is equally true that some people would rather trade with a baker who is against gay marriage, and they are within their rights as well.

Every act of discrimination, provided it is open and legal, provides a business opportunity to someone else.

How does all this work itself out in the long run? Commerce tends toward rewarding inclusion, broadness, and liberality. Tribal loyalties, ethnic and religious bigotries, and irrational prejudices are bad for business. The merchant class has been conventionally distrusted by tribalist leaders — from the ancient to the modern world — precisely because merchantcraft tends to break down barriers between groups.

We can see this in American history following the end of slavery. Blacks and whites were ever more integrated through commercial exchange, especially with the advance of transportation technology and rising incomes. This is why the racists turned increasingly toward the state to forbid it. Zoning laws, minimum wage regulation, mandatory segregation, and occupational licensing were all strategies used to keep the races separate even as the market was working toward integration.

The overwhelming tendency of markets is to bring people together, break down prejudices, and persuade people of the benefits of cooperation regardless of class, race, religion, sex/gender, or other arbitrary distinctions. The same is obviously and especially true of sexual orientation. It is the market that rewards people who put aside their biases and seek gains through trade.

This is why states devoted to racialist and hateful policies always resort to violence in control of the marketplace. Ludwig von Mises, himself Jewish and very much the victim of discrimination his entire life, explained that this was the basis for Nazi economic policy. The market was the target of the Nazis because market forces know no race, religion, or nationality.

“Many decades of intensive anti-Semitic propaganda,” Mises  wrote in 1944, “did not succeed in preventing German ‘Aryans’ from buying in shops owned by Jews, from consulting Jewish doctors and lawyers, and from reading books by Jewish authors.” So the racists turned to the totalitarian state — closing and confiscating Jewish business, turning out Jewish academics, and burning Jewish books — in order to severe the social and economic ties between races in Germany.

The biggest enemy of marginal and discriminated-against populations is and has always been the state. The best hope for promoting universal rights and a culture of tolerance is the market economy. The market is the greatest weapon ever devised against bigotry — but, in order to work properly, the market needs to signaling systems rooted in individuals’ freedom of choice to act on their values.

And, to be sure, the market can also provide an outlet for people who desire to push back for a different set of values, perhaps rooted in traditional religious concerns. Hobby Lobby, Chick-Fil-A, In-and-Out Burger, among many others, openly push their religious mission alongside their business, and their customer base is drawn to them for this reason. This is also a good thing. It is far better for these struggles to take place in the market (where choice rules) rather than through politics (where force does).

Trying to game that market by taking away consumer and producer choice harms everyone. Anti-discrimination laws will provide more choices at the expense of more informed choices. Such laws force bigotry underground, shut down opportunities to provide special rewards for tolerance, and disable the social learning process that leads to an ever more inclusive society.

New laws do not fast-track fairness and justice; they take away opportunities to make the world a better place one step at a time.


Jeffrey A. Tucker

Jeffrey Tucker is Director of Digital Development at FEE, CLO of the startup Liberty.me, and editor at Laissez Faire Books. Author of five books, he speaks at FEE summer seminars and other events. His latest book is Bit by Bit: How P2P Is Freeing the World.

Blurred Lines: The Humanitarian Threat to Free Speech by Aaron Tao

“Think of liberalism … as a collection of ideas or principles which go to make up an attitude or ‘habit of mind.’” – Arthur A. Ekirch

In Democracy in America, Alexis de Tocqueville was keen to observe that “once the Americans have taken up an idea, whether it be well or ill founded, nothing is more difficult than to eradicate it from their minds.”

Reflecting upon my experience as a first-generation immigrant who grew up in the United States, I concur with Tocqueville; this inherent feature of the culture and character of the American people holds true even today.

In America, there are no sacred cows, no one is above criticism, and no one has the final say on any issue. It is worth emphasizing that today, the United States stands virtually alone in the international community in upholding near-absolute freedom of personal expression, largely thanks to the constitutional protections provided by the First Amendment.

But without certain internalized values and principles, the legal bulwark of the First Amendment is nothing more than a parchment barrier.

As cliché as it may sound, it is important to recognize that our cherished freedom to think, speak, write, and express ourselves should not be taken for granted. Defending the principle of free speech is a perennial conflict that has to be fought in the court of public opinion here and abroad.

Unfortunately, a number of recent developments have greatly alarmed civil libertarians and may very well carry long-term negative repercussions for the United States as a free and open society.

In his new book, Freedom from Speech, Greg Lukianoff, the president of the Foundation for Individual Rights in Education (FIRE) and tireless free speech advocate, highlights a troubling cultural phenomenon: the blurring of physical safety with psychological and ideological comfort.

It is a disturbing trend that is not limited to the United States:

People all over the globe are coming to expect emotional and intellectual comfort as though it were a right. This is precisely what you would expect when you train a generation to believe that they have a right not to be offended. Eventually, they stop demanding freedom of speech and start demanding freedom from speech.

On the other side of Atlantic, Great Britain is undergoing what one writer describes as a “slow death of free speech.” The land of Milton is now home to luminaries who wish to reinstate Crown licensing of the press (not seen since 1695!).

Meanwhile, ordinary people face jail time for callous tweeting. In British universities, student-driven campaigns have successfully shut down debates and banned pop songs, newspapers, and even philosophy clubs.

While the United States is fortunate enough to have the First Amendment [to] prevent outright government regulation of the press, cultural attitudes play a greater role in maintaining a healthy civil society.

Lukianoff reserves special criticism for American higher education for “neglecting to teach the intellectual habits that promote debate and discussion, tolerance for views we hate, epistemic humility, and genuine pluralism.”

Within academia, “trigger warnings” and “safe places” are proliferating. In a truly Bizarro twist, it has now come to the point that faculty members are defending individual rights and due process and decrying mob rule, while their students run off in the opposite direction.

We now hear on a regular basis of campus outrages involving a controversial speaker or perceived injustice, and the “offended” parties responding with a frenzied social media crusade or a real-world attempt to shame, bully, browbeat, censor, or otherwise punish the offender.

A small sampling from this season include attempts to ban screenings of American Sniper at the University of Michigan and the University of Maryland, resolutions to create a Stasi-like “microaggression” reporting system at Ithaca College, and the controversy involving AEI scholar Christina Hoff Sommers speaking at Oberlin College.

These incidents are just the tip of the iceberg.

With the endless stream of manufactured outrages, perhaps it is fitting that George Mason University law professor David Bernstein would raise the question, “Where and when did this ‘makes me feel unsafe’ thing start?”

My personal hypothesis: When postmodernism found itself a new home on Tumblr, spread across the left-wing blogosphere, became reinforced by mobs and echo-chambers, and spilled into the real world.

Luckily, not all progressives have sacrificed the basic principles of liberalism to the altar of radical identity politics and political correctness. One liberal student at NYU courageously pointed out the grave dangers posed by the ideology embraced by many of his peers:

This particular brand of millennial social justice advocacy is destructive to academia, intellectual honesty, and true critical thinking and open mindedness. We see it already having a profound impact on the way universities act and how they approach curriculum. …

The version of millennial social justice advocacy that I have spoken about — one that uses Identity Politics to balkanize groups of people, engenders hatred between groups, willingly lies to push agendas, manipulates language to provide immunity from criticism, and that publicly shames anyone who remotely speaks some sort of dissent from the overarching narrative of the orthodoxy — is not admirable.

It is deplorable. It appeals to the basest of human instincts: fear and hatred. It is not an enlightened or educated position to take. History will not look kindly on this Orwellian, authoritarian perversion of social justice that has taken social media and millennials by storm over the past few years.

I, too, am convinced that these activists, with their MO of hysterical crusades, are one of today’s biggest threats to free speech, open inquiry, and genuine tolerance, at least on college campuses. The illiberal climate fostered by these their ideologues seems to be spreading throughout academia and is continuing to dominate the headlines.

As of this writing, Northwestern professor (and self-described feminist) Laura Kipnis is undergoing a Kafkaesque Title IX inquisition for writing a column in the Chronicle of Higher Education and making comments on Twitter that offended a number of students. The aggrieved mobilized in full force to have her punished under the federal sex discrimination law.

These groups and their tactics represent what Jonathan Rauch would describe as the “humanitarian” challenge to free speech. In his must-read book, Kindly Inquisitors: The New Attacks on Free Thought, Rauch identified how these “humanitarians” sought to prevent “offense” to “oppressed and historically marginalized” peoples. In the name of “compassion,” words became conflated with physical action.

As speech codes spread and the definition of “harassment” (reading a book in public, for instance) became broader within the bureaucracy of academia, an “offendedness sweepstakes” was cultivated and turned into the norm.

Rauch’s book was published in 1993, but his diagnosis and arguments still apply today, if not more, in the age of social media when the “offendedness sweepstakes” are amplified to new levels.

Nowadays, PC grievance mongers can organize much more effectively and more often than not, get rewarded for their efforts. The future of a free society looks very bleak should these types become a dominant force on the political landscape. I can’t help but shiver at the prospect of seeing the chronically-offended eggshells of my generation becoming tomorrow’s legislators and judges. The chilling effects are already being felt.

Even as numerous challenges emerge from all corners, free speech has unparalleled potential for human liberation in the Digital Age. The eternal battle is still that of liberty versus power, and the individual versus the collective. I remain confident that truth can still prevail in the marketplace of ideas. It is for this reason we should treasure and defend the principles, practices, and institutions that make it possible.

Last month marked the birthday of the brilliant F.A. Hayek, the gentleman-scholar who made landmark contributions to fields of economics, philosophypolitical science, and law, and established his name as the twentieth century’s most eminent defender of classical liberalism in the face of the collectivist zeitgeist.

For all his accomplishments, Hayek practiced and urged epistemological humility (a position that should be natural to any defender of free speech) in his Nobel lecture. Looking back on his life’s work, Hayek was highly skeptical of the nebulous concept of “social justice” and its totalitarian implications. He even went as far as to devote an entire volume of his magnum opus, Law, Legislation, and Liberty, to completely demolish The Mirage of Social Justice.

Hayek concluded:

What we have to deal with in the case of “social justice” is simply a quasireligious superstition of the kind which we should respectfully leave in peace so long as it merely makes those happy who hold it, but which we must fight when it becomes the pretext of coercing other men [emphasis added].

And the prevailing belief in “social justice” is at present probably the gravest threat to most other values of a free civilization.

Hayek did not predict that “social justice” would be first used to silence dissent before moving on to its long-term agenda, but it would not have surprised him. Weak ideas always grasp for the censor in the face of sustained criticism — and feeble ideas made strong by politics are the most dangerous of all.

Humanitarians with guillotines can be found from the French Revolution to present day. Modern day defenders of individual liberty would do well to heed Hayek’s warning and resist the Siren song of “social justice,” the rallying cry of collectivists who cannot realize their vision without coercion.


Aaron Tao

Aaron Tao is the Marketing Coordinator and Assistant Editor of The Beacon at the Independent Institute.