Garland’s memo serves a progressive crusade to render these rights little more than a parchment promise.
Garland’s memo serves a pernicious progressive crusade to render these rights little more than a parchment promise.
T he Soviet constitution of 1936, Joseph Stalin’s constitution, explicitly guaranteed freedom of speech to all citizens of the USSR — in Article 125, which also vouchsafed the closely related freedoms of the press, of assembly, of mass meetings, and of street demonstrations. When Moscow revised the constitution in 1977, pains were again taken (in Article 50) to ensure — at least on paper — that “citizens of the U.S.S.R. are guaranteed freedom of speech, of the press, and of assembly, meetings, street processions and demonstrations.”
Were they in a position to do so, the tens of millions of men, women, and children immiserated, imprisoned, enslaved, and killed by the same totalitarian communist regime would have begged to differ.
“Rights” are not rights by virtue of being written down. They are not self-enforcing. Written “rights” are, instead, a reflection of what a body politic perceives to be fundamental. They are not an assurance that this perception will be actualized. Whether freedom of speech truly exists is a cultural question, not a legal one. It hinges on the society’s commitment to liberty as something that is lived, not merely spoken of.
To rely on the legal system to enforce a “right” that the culture, when it gets down to brass tacks, does not support, is to not have a vibrant guarantee. It is to have a parchment promise that is effectively worthless.
Increasingly, the latter is the state of play in the United States, and there are two reasons for this.
First, progressives, who call the tune in the bipartisan political establishment, do not believe in free speech. They may, like the Bolsheviks, nod to it as the tribute stealthy vice must pay to public virtue. But to the limited extent they are ideologically principled rather than just power-hungry, progressives believe that the good is arrived at through scientific study, by experts who, of course, are rigorously apolitical. In this way of thinking, it is not enough to dismiss robust discourse as folly; progressives see free speech as antithetical to human flourishing, an appeal to the passions and prejudices of the masses who are too benighted to sort matters out on their own. With due respect to Oliver Wendell Holmes, Jr. there is no marketplace of ideas; there are the progressive establishment’s ideas, versus the remaining dangerous ideas.
Second, progressives do believe, deeply, in process. While we are in the midst of a period of radicalism, progressive strategy is generally (and in its most effective form) Fabian. Process is the way ascendant progressives advance their own ideas while eroding those of the bourgeois culture. It is the way dominant progressives strangle any emerging competition in the cradle.
The rule of law is a cultural phenomenon. Law enforcement, by contrast, is a process — one that can, perversely, abrade the rule of law it purports to undergird.
Case in point: Biden’s attorney general Merrick Garland’s memo directing federal investigations against dissenters — in the main, parents — who object to progressive indoctrination by school administrators.
As a short-term political objective, the Garland memo cynically paints these recalcitrant parents with the same brush that tars conservatives as “domestic terrorists,” on the rationale that Trump supporters who rioted at the Capitol self-identify as the patriotic political right and profess to share some conservative ideas. (Of course the rioters — whether they realized it or not — were undermining the very constitutional system that is essential to the conservative conception of liberty and thus were anti-conservative, but that is a story for another day.)
As for the long term, Garland’s memo serves the progressive crusade against free speech.
You may read our Constitution as a guarantee of free expression and open political debate. But it cannot be such a guarantee unless the government, which is privileged to use force to maintain order, regards order as necessarily including free expression and open political debate. Government’s incumbent ruling class will always prize stability over conflict. Consequently, for free speech to be meaningful, the dominant culture must be committed to free speech – even speech it finds repellent, as long as it does not intentionally incite violence — and the government must truly be accountable to that dominant culture. Otherwise, our written First Amendment assurance of free speech is nearly as worthless as was the Soviet guarantee.
Put more concretely, the Justice Department may acknowledge, as Garland’s memo grudgingly does, that the Constitution protects debate and dissent. But if the DOJ simultaneously warns, as Garland’s memo indignantly does, that the FBI is going to be investigating those who engage in debate and dissent against the progressive government’s favored class — school administrators who are executing the indoctrination mission — then in what authentic sense do we have free speech?
Sure, the outcome of the FBI’s investigative process is likely to be that no federal charges are filed. After all, if the Justice Department were foolish enough to go to the extreme of actually indicting dissenters, it would expose the fatal flaws that a) the First Amendment prevents courts from allowing speech to be the subject of a criminal conviction and b) the federal government lacks statutory jurisdiction to bring an incitement case unless the resulting violent acts would violate federal law (which is rare — threats of violence, when they occur, are overwhelmingly concerns of state and local law).
But it will never come to actual in-court prosecution. The abuse will be confined to the investigative process. Coupled with Garland’s saber-rattling, that is more than enough to suppress dissent. The citizen is warned that he is being scrutinized by the federal government in all its comparative might. For exercising his supposed right to protest, the citizen will be harmed in a hundred different ways by the fact of an FBI probe — the anxiety of potential prosecution, the often prohibitive expense of retaining counsel, the loss of business opportunities because of the specter of prosecution, the loss of social ties as friends and associates abandon the citizen lest Leviathan sees them as fellow conspirators.
If a putative safeguard were actually a right, one would need neither endure an investigative process nor go to court to vindicate the right. These processes are punitive; a right worthy of the name would protect us from them just as it protects us from criminal conviction. If the culture loses the will to compel an accountable government to presume the right — to respect it a priori — then there is no right.
What there is tends to be rationalization. The Soviet constitution said that free speech was guaranteed “in order to strengthen the socialist system.” While it paid lip service to freedom, the tyrannical regime implicitly empowered itself to suppress any speech it decided could weaken the socialist system.
Today’s progressives say you have free speech . . . as long as it is not incitement. But then they redefine incitement to entail not just violence the speaker intends but violence to which hypersensitive progressives are “triggered,” even if violence was the last thing the speaker wanted. They reduce “free speech” to a protection only against criminal conviction, not against the intimidating law-enforcement process. And as they marginalize dissent, they excuse, even lionize, the mob.
Free speech is still inscribed in America’s Constitution. That does not mean it is still quintessentially American. We need it to be.