The Creep Of The Categories

     “The party in power is smug and arrogant. The party out of power is insane.” – Meghan McArdle, a.k.a. “Jane Galt”

     Among the older maxims of politics is to beware handing the State a new power without first reflecting on how your opponents could use it against you. For as sure as the Sun rises in the East, your opponents will return to dominance someday, and whatever powers you awarded the State will be in their hands.

     Just now, the focus is on President Trump’s choice of a replacement for retiring Supreme Court Associate Justice Anthony Kennedy. The Democrats are tearing their collective hair out over this, as now that the filibuster is a dead letter for judicial appointees, their minority status in the Senate leaves them no way to block his selection. Yet it was Senate Democrats during the Obama Administration who first attacked the filibuster – when they were in the majority and sought to confirm Obama appointees. Coulda told ‘em then, but they weren’t in a mood to listen.

     Today’s critical battles are over freedom of expression and “deplatforming.”

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     Some folks of sound mind and generally good will are exercised about how Silicon Valley giants such as Facebook and Twitter regulate their immensely popular social-media platforms to disfavor conservatives. The complaints have been many, and a great many of them are both accurate (i.e., the things complained about really happened) and valid (i.e., only persons of conservative or libertarian bent were silenced). However, they come up against a barrier that’s proved impassable to date: the right of private property.

     So a lot of those folks have embraced the notion that those platforms could be regulated by the federal government as public accommodations. That’s the conception under which the Civil Rights Acts were deemed to hold legitimate authority over restaurants, hotels, movie theaters, and other nominally private properties. If you present your facility as “open to the public,” the logic runs, then you can be forbidden to discriminate – i.e., to provide your services to some members of the “public” but not others.

     (For those who remember the “nationwide Bell System,” the phrase common carrier might rise to mind. The concept is essentially the same, as was the federal government’s assertion of authority over it. However, in that particular case, the rationale was that the Bell System was a monopoly, protected by that same federal government. Telecom deregulation and the breakup of the Bell System put paid to that scheme, thank God.)

     Those in the Right who favor this notion are asking for trouble. Someday the balance of power will shift leftward once again. What would the Democrats – an increasingly totalitarian bunch who’ve never seen a law, a regulation, or a tax it didn’t love – do with the precedent that an Internet platform can be regulated as a public accommodation, despite being private property?

     It’s worth more than a moment’s thought.

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     The Left isn’t blameless in this matter. It’s been a while since left-leaning courts started to rule that a private club could be forbidden to discriminate on the basis of sex. The arguments there haled back to the public accommodation concept, with a grace note: that since unrelated business transactions are often facilitated in such clubs, to forbid women to join them was also a form of economic discrimination, to which the Civil Rights Act of 1964 had already been held to apply.

     However, today, the Left’s attention is on freedom of expression, which they claim has become a new form of oppression. If you’re familiar with Herbert Marcuse’s essay “Repressive Tolerance,” you’ll recognize the contemporary Left’s argument as on all fours with his:

     To discuss tolerance in [a democratic polity] means to reexamine the issue of violence and the traditional distinction between violent and non-violent action. The discussion should not, from the beginning, be clouded by ideologies which serve the perpetuation of violence. Even in the advanced centers of civilization, violence actually prevails: it is practiced by the police, in the prisons and mental institutions, in the fight against racial minorities....

     The very notion of false tolerance, and the distinction between right and wrong limitations on tolerance, between progressive and regressive indoctrination, revolutionary and reactionary violence demands the statement of criteria for its validity. These standards must be prior to whatever constitutional and legal criteria are set up and applied in an existing society (such as 'clear and present danger', and other established definitions of civil rights and liberties), for such definitions themselves presuppose standards of freedom and repression as applicable or not applicable in the respective society....

     Liberating tolerance, then, would mean intolerance against movements from the Right and toleration of movements from the Left. As to the scope of this tolerance and intolerance: ...it would extend to the stage of action as well as of discussion and propaganda, of deed as well as of word.

     [Emphasis added by FWP.]

     Marcuse had no patience for the notions of freedom of expression and conviction as the Enlightenment thinkers conceived them. For him, they weren’t rights but privileges to be enjoyed only by those he favored:

     The whole post-fascist period is one of clear and present danger. Consequently, true pacification requires the withdrawal of tolerance before the deed, at the stage of communication in word, print, and picture. Such extreme suspension of the right of free speech and free assembly is indeed justified only if the whole of society is in extreme danger. I maintain that our society is in such an emergency situation, and that it has become the normal state of affairs. Different opinions and 'philosophies' can no longer compete peacefully for adherence and persuasion on rational grounds: the 'marketplace of ideas' is organized and delimited by those who determine the national and the individual interest....

     Withdrawal of tolerance from regressive movements before they can become active; intolerance even toward thought, opinion, and word, and finally, intolerance in the opposite direction, that is, toward the self-styled conservatives, to the political Right--these anti-democratic notions respond to the actual development of the democratic society which has destroyed the basis for universal tolerance.

     Whenever you hear some Leftist moonbat screaming about how “Hate speech is not free speech!” you’re hearing an illiterate repetition of Marcuse.

     But the Left, just as with the Right, has no idea what powers it’s contemplating investing in the State. For it could only be the State, through legislation and judicial action, that would define and delimit what constitutes protected “free speech” and unprotected “hate speech.” It could only be the State that would enforce laws or regulations that touch on them. And control of the State swings back and forth between Left and Right in an irregular and unpredictable way. But they of short time horizons take no interest in such matters.

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     Caution in the delegation of authority to governments is an important thing. It’s why we have a written Constitution that’s difficult and time-consuming to amend. Note that the United Kingdom, which lacks a written Constitution, has descended swiftly into totalitarianism, as is evidenced by the recent arrest and incarceration of Tommy Robinson...for practicing journalism.

     Stability in the law, wrote Thomas Aquinas, is a virtue above and apart from the law itself. In a stable legal order, men can plan. They can arrange their affairs with confidence. When the law is unstable, capable of being twisted about according to fads and fashions, all planning is done with trepidation. Note how American businesses practically froze in their tracks, declining to invest or expand, during the legally unstable Obama years. Note also how the return of a conservative Administration has relieved that paralysis.

     The same guideline applies to every area of human life the law touches. Men of good will should respect the limits on their ability to see far ahead in time. They should not be too quick to shout that “There oughta be a law,” no matter what it is that currently rankles them.