I think they’re both mostly right.
French is absolutely right that defense of our liberties, and our deepest beliefs will require courage. But I think he cedes much of Shapiro’s point when he describes his own personal and legal counsel to people under duress. He writes:
Silence (and sometimes outright opposition) from fellow Christians and conservatives was so common that it became a standard part of my warning to clients. “If you file this case, I’m with you every step of the way. I’m here for you morning, noon, and night. But on campus you’ll be alone. You’re fighting for people who won’t thank you, who won’t support you, and might even oppose you.”
In other words: Count the cost. During the contraception mandate debates of the Obama years, I went on MSNBC and not only defended the Church’s legal reasoning, but the Church’s moral prohibition against artificial contraception itself. I had defended that teaching before at Business Insider with Pascal Gobry. That had gone well. But it carried some risk. I’m a sinner and believer, not an exemplar. The MSNBC appearance didn’t go so well. This was before outrage culture really gained steam. But I still hadn’t anticipated that strangers would threaten to get my wife fired from her job for what I said. What were the ripple effects of my courage? I’m still not sure.
There were other things I couldn’t quite anticipate, like the way that even the Catholic litigants — like Notre Dame University — would crumble under faculty pressure. It’s relatively easy for people in the controversy business to be at the center of controversy. Lawyers and pundits get in uncomfortable situations when defending unpopular causes, but they don’t typically risk their livelihoods. For most normal people, there is no day in court coming to vindicate them. Just a pink slip. It’s notable that the two clients French vindicated have had their subsequent careers defined by advocacy rather than the course of study they initially pursued. Of course some of us need to be open to the adventures life imposes on us. But all? James Damore of Google seems to have tried to make that transition as well. Not as successfully. Be innocent as doves, yes. But also wise as serpents.
The part of Shapiro’s essay that deserves even more attention is his plea for leadership. It was harder for Catholic journalists to speak up for the Church’s position in its controversies because Church leaders tried not to speak up about it, fearing even their own parishioners. Christian and conservative leaders have special social burdens in this climate, and should be careful about piling on supererogatory demands on people whose risks they don’t truly share.
Shapiro suggests reforms to libel law, and particular measures that affect giant social-media and internet companies when they are used to destroy the lives of non-public persons.
Let’s make it a civil offence punishable by fines for the professional press to disseminate the name or likeness of any individual who is not a public figure without contacting that individual and granting them unedited response to an event. That would stop something like the Covington disaster from happening, protecting people from the vicious and instant disaster of the online mob.
Let’s pass a law that allows people to submit a request to Google to remove their name from search results when they have been targeted by an online mob and their life destroyed. …
Let’s pass tech regulation that holds more Twitter or Facebook accountable when they allow their trends to destroy the lives of non-public individuals.
David writes of Shapiro’s proposed changes to the law this way.
He suggests some rather astounding legal reforms that would blast apart the liberties of Christians and conservatives with every bit as much force (if not more) than it would protect the rights of conservatives to speak. He’d loosen libel laws, require media companies to grant private figures unedited access to their public platforms as a condition of disseminating their name or likeness, and implement massive fines when companies allow trends to “destroy the lives of non-public individuals.”
Great ideas . . . right up until you come to the rather elementary realization that those powerful new state instruments would be turned on your allies with a vengeance.
I’m not quite sure about all of Shapiro’s suggestions. Designed improperly and they could criminalize much behavior that should be deemed innocent. But I know I’m not worried about the ones aimed at social media giants. Free Will Baptist Search Engine and The Catholic Diocese of Rochester Social Network will not feel the wrath of these new laws.
In fact, some of Shapiro’s ideas seem like protections I’m happy to share and extend to our cultural and political rivals. If some non-public person at IBM or Dairy Queen says something regrettable while defending Democrats, or shares a Tankie meme on Facebook, I don’t want some right wing site to whip up an outrage mobs to destroy that destroy his life either. Subjects of outrage mobs frequently commit suicide. French invokes people who died for their faith, and their country. Those are high and noble deeds. But not applicable in most of the circumstances here. The Founders pledged their lives, fortunes and sacred honor collectively. These controversies tend to single out one or a small handful of people, isolate them, and destroy them.
French adds later:
Never in my life have I seen conservatives more eager to rationalize passivity and seek the aid of politicians to make their lives easier. They look to politicians — even incompetent, depraved politicians — and cry out, “Protect us!”
Protect you? You have the Constitution. Use it. You have nondiscrimination laws. Use them. You have the power of your voice. Use that. Otherwise, your liberty will start to slide away, cultural change will eventually lead to legal change, and your grandkids will one day ask what happened to our free nation.
“Even incompetent, depraved politicians.” Do we think there is a House and Senate majority made up exclusively of high-character people? Non-discrimination laws were passed by scoundrels, too.
Yes, much of the fight against outrage culture and for the protection of moral minorities will require personal courage, bottom-up social change, and social leadership. We need churchmen and conservatives to show that we will make unjust victims of this kind of abuse more than whole. But it’s not unthinkable that new challenges requires new laws. RFRA was passed because legal trends and social facts led to a demand for new legal protections.
Shapiro is thinking of the next generation. Historically, the truly excruciating fear during times of testing is the fear or apostasy of our children. There are genuinely difficult prudential judgements at hand, and our children depend on us to make brave and wise ones. Destroying your family’s livelihood to play Don Quixote in the wrong cause is as likely to cause it as cowardice and passivity.
The internet has created a pseudo–global commons with no shared common culture underneath it. This is a profound and even revolutionary development in life, and discussing whether it should be legal for major media companies to enable mob-driven defamation on an eternally persistent, easily accessible permanent record and sell ads against it is part of using the Constitution and our voice.