Lost in Translation
Hating on speech in America
Go home, Yankee!- The Game
I don’t know what is funnier, what she said or the way she said it. She’s so confident in her statement. I mean it’s just a perfectly reasonable conclusion. Maybe Vera Jourova wasn’t the most ridiculous speaker at the World Economic Forum, there were a lot of people there who seemed utterly incapable of reading a room, but when she stated that the United States would have “hate speech laws shortly” I burst out laughing.
The world doesn’t understand America and Americans don’t understand how. Sure, the rest of the world reads America’s books, watches American television and movies. The world talks about American principles like freedom and democracy as if they are all on the same page, and Americans, blissfully ignorant at the malfeasance of petty bureaucrats and venal prime ministers think “yes, the rest of the world is totally like us. They get it.” But they don’t. They really, really don’t.
One of my favourite new games to play in my adopted country, I have named “Ain’t it a shame about America.” The game goes like this: I meet a Canadian, and, somehow, I am outed as being an American. From that point on, everything is political. Maybe it’s intimidation, or neediness, or just envy, but invariably some Canadians will want to educate me on the failings of America as a country. So, a conversation will ensue that goes “America would be such a nice country if it weren’t for ________.” And what fills in that blank is whatever Rachel Maddow or Don Lemon complained about that day. It could be sexism or racism or guns. It could be health care, or imperialism, or crime. And this is always a sort of moral failing, not a universal human condition problem that any country has or could have, in the same spot. Americans, unlike Canadians, don’t *care* enough about people to implement universal healthcare. If only we were more kind, or smarter or less greedy. I am sure that these Canadians feel like I would appreciate their constructive criticism, and perhaps, if I were a certain type of American, I would. How grateful should I be to be instructed on how I and my kind can be better people from some random stranger from the great, white, north? But I’m not a tourist just trying to get to the ski slope in Whistler or an immigrant desperate for acceptance. And so, I assuredly do not appreciate it.
Aw, Hell NO…Five conversations about my nationality
Never judge a country by its media. Without the contextual experience of being there, it’s hard to really know what the actual situation is like. I had a vague idea of what Canada was like before I moved here. Why, I had even been to Nova Scotia! But visiting a place, being a tourist or even just passing through, isn’t enough to really feel the undercurrents, know the things unsaid, understand where the buried lay lines are. For that, you have to live there; you have to struggle there. You have to fail. That’s when you learn for real what a place is like. America has plenty of flaws, I could list out a bunch and give the game away, but what the media says and what is real are two different things. If I were from Canada, I would not presume to know what someone from rural Pennsylvania, or the Antelope Valley actually thinks. And I certainly wouldn’t attempt to lecture an American who does about them. Honestly, who do I think I am?
But maybe my least attractive feature is I am ruthlessly competitive and love the fight and can’t always resist that gauntlet. So, sometimes I just have to take that bait. This leads to some awkward moments, because I have had these same five or six conversations over and over again. Given so many kicks at that can has forced me to learn the history and the economics to shut these debates down with extreme prejudice. I mention that America has graciously left Afghanistan, and a handful of cities are responsible for most of the murders in the United States. They can Google which ones and the crime stats themselves and do the math.
I say that I am fairly sure that Joey, loan officer down at the neighborhood savings and loan, is probably not going to forgo his commission on a mortgage because the couple, with a combined income of 40K and 5% down payment, are the wrong race. I mean, we all saw the Big Short. Those guys would have given a mortgage to anyone.
About health care, well, that is six percent of America’s economy. Mess with 2% that and you have an American depression that’s ripple effects kills millions of people in the third world. As well as hampering a medical innovation pipeline responsible for half the new drugs on the market today. Did we not learn anything from the pandemic?
I point out that the USA has estimated 400 million guns and that’s about how many Ruby Ridges we would have to endure to take them away. Guns which are just as useful for repelling Russians or North Koreans as they were repelling Canadians in 1812.
But okay, sure, yes, America is filled with hypocrisy and investment bankers and veterans that love their guns and also bunch of people who are just trying to live their lives, just like we are right now here. They are, for the most part, good and kind people and too busy trying to make a living to concern themselves with their neighbor’s business, who should be busy minding their own and keeping an eye out for Chinese “weather balloons.” No matter where you go, humans are the same everywhere.
At this point, my debating partner is usually in stunned silence, irritated that I’ve spoiled the game with history, economics and logic. He or she skulks away like a cat that has been doused with a hose. And here I am, an idiot abroad, making friends wherever I go. But I love my precious homeland and my family, flaws and all. Death before dishonor.
I would like to state for the record, that I have tremendous sympathy for anyone who finds themselves hampered by the random hostility of the dominant culture. It’s very difficult not to assume that every unfortunate thing, like the loss of a job or being ghosted in the middle of a budding romance doesn’t have some connection to the “outsider” status. Although that status plays an outsized part in my life, I try not to be too paranoid, to assume the best of people. I constantly remind myself that before I came to Canada, there were layoffs and failed romances that had nothing to do with my nationality or politics. Besides, being resentful and angry all the time is exhausting. It doesn’t build anything. And I like building things, like this Substack thing-y.
And I’m sure there are plenty of immigrants to America that describe the same stupid thing. To want to feel like someone is in your place, because it’s so much better than the place they left, is also universal human desire. So much so, it was a running joke on the Big Bang Theory where Raj would often have to tell Sheldon “Stop telling me about my country.” But I’m not sure it quite has the same competitive bite that it does when it’s coming at Americans, and that makes it more than a joke.
Canada, Eh? – Self-Censoring in Canada
I have to watch what I say in my dealings with work, with the parents at my kid’s school, at the nightclub and on Tinder and pretty much anywhere I’m going to come in contact with people. And certain things, like at the doctors or in court, unnerve me because I never know when I will be exposed and who can I trust to be fair? Sometimes this life feels very fraught, and I feel like I have almost nothing in common with the people around me. So, I just work like a dog. I conserve all my cash. I make friends rarely, or often not at all. When I’m out, I pretend to be dumber and drunker than I am to keep things light and stupid. I talk to my co-workers in the same peculiar passive aggressive way that seems mandatory, but which communicates nothing, and I don’t really understand, and for a while, that works. Occasionally, I have this suffocating feeling, like I’m weighed down by this heavy blanket of social expectation, expectations I didn’t even meet in America, never the popular kid. I go home, turn on Minecraft and a podcast, and I forget about it for while. It is a very cloistered life, and I am only half of myself. The other half lives here and I can’t shut her up anymore.
I’m sure all this would feel very familiar to people from countries with dictatorial regimes or regimes that once were. That’s probably why those immigrants to America are so devoted to its principles, it must feel so liberating. But for people who may have missed the era, for those whose regimes never exercised the hard arm of the law on dissidents, and whose Queens and Kings were benevolent rules, more pomp and circumstance than prisons and cruelty, what is free when it comes to speech is a delicate play on good taste and manners –until it’s not.
Ms. Jurova is not wrong to be assured about the possibility of hate speech laws in the United States. She, like everyone else she knows, assumes that it is only logical that people need to police speech. She lives in a world where this is common and practical and expected. She probably doesn’t even feel that this is oppressive. Surely it cannot be that hard to change the law? Prime Ministers do it all the time. And that is the problem because, to Americans, hate speech laws are incomprehensible. They are so outside the American experience that like Aztecs gazing on Cortez’s approaching ships, they don’t understand what they are looking at.
Spacious skies – Reprieves from the old world
You have to remember: America was a complete and utter repudiation of all things from the old world. The founding fathers jam packed the Constitution with things that would prevent any majority, official or judge from resurrecting laws that would curb this wild and limitless land. It was aggressively not European. So, things like federalism, juries, and guns, checks on the system that could keep bureaucratic power from entrenching itself for perpetuity, were bootstrapped into America’s founding document. Faustian bargains were made over slavery to keep the states in but beyond the reach of a centralized government or any overarching standing army like in Britain or Canada. And freedom from papal laws against blasphemy or heresy were bolted right to the front. The First Amendment, the one that guarantees the freedom to say whatever hateful and offensive thing you want to say, outranked everything else, including guns, due process, searches, imprisonment, cruel punishments, and the right not to have the army seizing your home for their barracks. Americans, most of them anyway, revere this right akin to the commandments of God. To even gently impose on it, is to be scoffed at and sued immediately.
Which is exactly what happened to New York’s new social media law. It’s basic design is to force social media companies and bloggers to set up a “snitch line” for people to complain about any comments that “vilify, humiliate, or incite violence against a group” over “race, color, religion, ethnicity, national origin, disability, sex, sexual orientation, gender identity or gender expression.” It threatens to fine these companies and Instafamous people thousands of dollars. It was immediately excoriated. The New York Post called it “dumb and dangerous” and said it was “transparently unconstitutional.” The National Review called it “patently unconstitutional” and indignantly states, “This is not east Germany, it is America.” Anyone with a high school class in American Civics would know that this law has as much chance of standing a SCOTUS challenge as Seth Rogan does of taking on Robert Constantin in a bar fight. (The kickboxing champion, not the doctor. Although to be fair, he’d probably have a pretty hard time with the doc too. And no, I will not stop picking on him.)
The reaction was instantaneous, and parties came out of the woodwork to sue. A First Amendment scholar and blogger, Eugene Volokh, along with social media companies Locals, and Rumble Canada, started a lawsuit the next day. The Foundation for Individual Rights and Expression represented them, without hesitation, as it continues to sue colleges and anyone else that would tangle with free speech. They will undoubtedly win but while the law is in action, Elon Musk better watch his back, as well as any nascent startups into social media. It is ironic that the city that I moved to at eighteen and was basically a lawless free for all, where artists of all kinds came to roll the dice with edgy works of art, graffiti, performance art in the streets, has turned into this? WTF? It should be ashamed. Go smoke in a bar or something. This is New York City…not fucking Boston.
Meanwhile, over in Colorado, a certain baker is being sued, again, this time by a member of the trans community for not wanting to bake a cake with blue insides and pink outsides, or something like that. The claim is an obvious trap for the baker, and with the trans community’s talent of losing friends and alienating people, there is a lot less sympathy going around. Nevertheless, we are destined to Washington again so SCOTUS can have another kick at the can. Last time Masterpiece cakes was there, they won, but it was a slight of hand by the court that did not want to answer the central question: what are the boundaries of free speech and religion? Justice Roberts hinted at the answer in the opinion, but now, with a conservative court, it’s expected that the Colorado Civil Rights Commission is going to come out the loser in this. Another free lawyer organization is picking up the tab for Masterpiece’s defence. It appears, for lawyers, offensive speech is spoiled for choices.
First the lawyers- You can always find help
Which brings me to the lawyers, legal professionals, and non-profits that will help someone fight a speech oppression claim. There are literally, probably, hundreds of thousands of people that would jump on a chance to take a case to Supreme Court for their oppression of speech. There is honestly no other greater calling in the American legal system – except for sparing an innocent black man from the gallows. Remember, Larry Flint was the hero of the story.
I’m sure many of these suits don’t get off the ground because the action is so egregious that one visit with a local lawyer is enough to put off their mission to shut people up. But just in case you need any more evidence that an unfortunate baker or blogger need not look far for representation, here are twenty organizations I just had ChatGPT pull up: the American Civil Liberties Union (ACLU), Electronic Frontier Foundation (EFF), First Amendment Lawyers Association (FALA), The Reporters Committee for Freedom of the Press, Free Press, National Coalition Against Censorship (NCAC), Freedom Forum Institute, Media Law Resource Center, PEN America, National Association of Broadcasters (NAB), The Brennan Center for Justice, International Association of Media Lawyers (IAML), Media Freedom and Information Access Clinic, Institute for Free Speech, Student Press Law Center, Center for Democracy and Technology (CDT), National Press Club, National Freedom of Information Coalition (NFOIC), Freedom of the Press Foundation, Knight First Amendment Institute at Columbia University.
And if none of those people will work for you because of your particular bent for calling people ugly names or suggesting that certain medications aren’t as effective as they should be, numerous other organizations have sprung up to fill in the gap, including FIRE and the New Civil Liberties Association. These new advocates are designed specifically to defend unpopular or more conservative causes. While there have been censorious impulses by university administrators, Neil Young, the FBI, and a certain social media company, these actions are met with such fierce resistance, they probably shouldn’t even be bothering. There’s no such thing as “misinformation” in the United States. To an atheist, the Bible is misinformation, and no one is talking about stopping it’s reach. Even Russians and people who think crop circles are a real thing enjoy the right to say whatever silly thing they want. If you believe that, well that’s on you, Sucker. What do expect for a country that produced PT Barnum?
Our home and native land- Free Speech Canada Style
In Canada, there have also been skirmishes with free speech, but that’s where the similarity ends. Originally, section 13 of the Human Rights code guided what could and could not be said in Canada as far as hate speech. From 1977 it was an offense to transmit hateful messages through federally regulated telecommunications. For those who don’t know, back in the before-before time we had telephones with publicly listed numbers that we would receive calls on from Nazis and other undesirables, like telemarketers. They would just run down names in the phone book calling everyone at dinner time and so from 6 to 8 you couldn’t call your friends because they would hang up on you or just not answer. In Canada, it was (and still is) illegal to spread hate speech propaganda this way and after 1998 you could be fined not less than $10,000 (well in Canadian but still) for violating this law.
And the law didn’t stop there, after 2001 the law was expanded to cover all telecommunications as well. This led to the unfortunate situation where being a “reply guy” on various internet sites was enough to attract a fine and did for several people too foolish to know never to use their real name. Even if this law was a violation of Canadian’s charter right to “freedom of expression,” a less aggressive version of the American clause, Section 1 of the Canadian charter allows the government to suspend some rights if it has a good enough reason. This get out of jail free card for the government allows it to search people without warrants, interrogate them without lawyers, and hold people without trial indefinitely if it can find an excuse. Hardly the version of democracy Americans think about when they think about Canada. (To be fair, this is practically never.)
To an American, this would have been enough to elicit indignation. I mean if you can’t insult someone in the comments on the internet, then where can you? But Canadians seemed fine with the standard until 2007, when the Canadian Islamic Congress accused Macleans Magazine of hate speech over an article called “The Future Belongs to Islam.” It was one thing to throw the book at anti-Semitic reply guys and bona fide Nazis, but a pillar of Canada’s precious domestic media? What was next? The CBC? Almost immediately, there was talk of a repeal, and by 2014 the whole clause was gone. It only took 37 years, but if the Canadians and their quasi-fascist government can’t make a go of it, what makes anyone think Americans can?
Fighting words- The exceptions to Free Speech in America, Threats and Defamation
There are several very large carve outs to free speech in the USA. One is if someone is making a “true threat”. The threat can’t just be any threat, it has to be a believable one. It can’t be some casual, if hyperbolic back and forth. Veiled threats like “I’d like to watch you die” are not considered true threats at all, different states have a patchwork of different laws, and proof of a true threat might be hard to come by. So this charge is often tacked onto assaults but buoyed by an actual action, like holding a gun. Threats on their own are hard to prosecute. With the polarizing effects of the pandemic charging up the rhetoric, threats against even minor public officials have become markedly worse and now the number of arrests and prosecutions is rising.
Defamation is easier because unlike threats, there are always witnesses. The US and Canada differ in how defamation can be prosecuted, as the standard of malice is necessary in the United States, while in Canada it’s not. Malice means that the person knew the statement to be untrue and said it anyway, and celebrities and politicians have even less protection. While it may bewilder our Northern and European allies, in America calling Hillary Clinton a pedophile is perfectly legal, if a little nutty. And because of the “American rule,” lawsuits don’t automatically attract costs that the losing side has to pay.
So, for a while in Canada, defamation claims by politicians against each other or their critics was a popular strategy. Canada actually had to pass a law against it, and so the Strategic lawsuits against public participation law was invented, or “SLAPP laws”. Imported from Canada SLAPP laws have been passed by thirty-two states, but they vary in strength and effectiveness. They are mostly extensions of the First Amendment, but that doesn’t mean defamation is dead. America has just as many liability lawyers as it has for free speech and these lawyers don’t rely on non-profits to fund them, they rely on winning.
This is why the Washington Post and CNN had to settle with Nicholas Sandmann, the most famous face of the “Covington Kids” for $250 million and $275 million respectively, a discount from the $800 million he was asking. Not bad for an uncomfortable smirk, which also included an undisclosed amount from NBC. The media dog pile was an object lesson in how not to cover someone who isn’t already famous. Kyle Rittenhouse received an “allyup” from Sandman as well, and who may also be bringing multiple suits. It wasn’t long after that that the media, as a whole, lost their appetite for hurling the word “white supremacists” at random teenagers, making them billionaires in the process, and stuck to doing it to cops and the system which has less of a defense.
Think of the children- Children’s speech and talking to kids
The other pronounced carve out is when it comes to children, who do not enjoy the same latitude of rights. This usually only applies to what happens to kids in government run schools. Children educated outside the system are free to say whatever they want about anyone they want, but inside the school and increasingly outside the school, children are routinely curbed from saying outlandish things if it significantly disrupts the operation of the school. The law recognizes that children are not always capable of knowing where the boundaries are for polite society and such, allows schools some control on student’s speech. Don’t like it, homeschool then.
And this is where the rubber hits the road on freedom of speech, because while adults are allowed to say whatever is on their mind to other adults, they can’t do the same when it comes to children.
The most obvious example is of enticement. Enticement of children is a crime in most states, especially if the motive is some kind of sexual abuse or trafficking. But teachers are limited in other ways by the government, in what they teach, by the school, and by the parents who control the boards and pay the property taxes that fund the school itself. It’s only fair parents should have a say; they are legally responsible for ensuring the education of their children. And to be fair, parents know their children better than they know themselves. They know if they have to, say, ban The Lion King from the video rotation because every time their three year old sees Mustapha die, it’s a whole hour of tears and getting put back together, and it’s just a mess and there’s plenty of movies to watch like Dumbo, oh wait, no Bambi, wait no, the Fox in the Hound…wait no I give up..
But the weird and uncomfortable convergence of the internet, the teacher’s unions, libertine attitudes towards sex and gender, and the innocence of younger teachers, as well as helicopter moms, single moms, religious moms, activist moms, trad moms, BIPOC moms, foreign moms, crunchy moms, dance moms, moms who work, moms who stay at home, moms with Onlyfans accounts, moms who may have once been dads, and moms with serious problems like drugs, or unemployment or depression is causing one hot mess of how to deal with the kids on the elementary level. As of today, pitched battles are being fought in school boards everywhere about what books the school library should have, what teachers can say to kids about gender, and who should be allowed to know what the children say at school.
Say my name, say my name- Right to Privacy in the USA
The closest that the Constitution comes to any kind of right to privacy is its protection from “unreasonable searches” found in the fifth amendment. Otherwise, talking out of school about someone else’s business is fair game as long as you have no reason to believe its false. This isn’t totally unlimited, but there does seem to be some acknowledgment that people have a general, if amorphous, right to privacy somewhere in the Constitution. Usually, the fall back position is the Ninth amendment. However, the writers of the constitution could not have imagined the vast surveillance state we live in today. To them, the world was wild and undomesticated and if you wanted privacy you could go for a walk in the fields or the woods and if you weren’t killed by something hostile, you could have all the privacy you wanted. The founders of America wanted a society that was open and mobile, unlike the Europeans, who broke their societies in unassailable classes or designed “star chambers” that kept their secrets.
This makes it very difficult to sue someone for defamation. Between the First Amendment and the lack of clear privacy rights, embedded in the Constitution, litigants must rely on a patchwork of federal and state laws that protect certain kinds of information, but not others. And if the defamer truly believes that the election was stolen by voting machines, or that vaccines cause heart attacks, it can be very difficult to do anything about it.
But as the private life and public life merge online this issue has become more and more pressing. It could be that if there is to be a major law passed, it probably wouldn’t be to prevent hate speech but more to prevent people from finding out about it. And it would do much to keep the government censors out of Americans lives. Americans are more and more suspicious of what social media companies do with their data, there are cameras every where, and there is growing database of biometric material can be used to track down dissidents and criminals alike. This could compel Americans to add to the list of Amendments to the Constitution, one that protects them from invasive searching and storing and transmitting of their personal data.
The other failing of the system was that the pandemic exposed an uncomfortable amount of “viewpoint discrimination” by both the government and private companies. Private companies can discriminate any way they want as long as they aren’t doing the government’s bidding. That may end if the definition of “protected class” expands to include people who are libertarians (I am aware of that irony). While no lawyer I know of is in support of this, people who have been politically marginalized and who have had their alternative media, like Parlar, shut down, might have something to say about it. If such an amendment to the Civil Rights Act, or even the Constitution gained traction, private companies wouldn’t be able to fire anyone for being a communist or having a conservative blog.
Water coolers and happy hours- Speech at Work
Which leaves the most restrained part of speech in America: what we can say at work. As it stands, Americans have almost no freedom of speech at work. This isn’t by operation of law, just a company can fire you for whatever reason they feel like. Generally, unless the company as a whole discriminates against, someone they are not allowed to discriminate against, for a quality that they aren’t allowed to discriminate for, in the situation that wouldn’t require discrimination of that kind, the company can do whatever it wants. Don’t let your ass hit the door on the way out.
So, if you are fired because you are working a desk job and pregnant, that’s discrimination. If you go online and spew national front talking points, well sayonara sucka.. There’s been of flood of firings in the last few years about what people said on the job. Most of these firings started in the #metoo era, had nothing to do with speech and were mostly men who were well known for being class A a-holes. But then men whose behavior was maybe less then stellar, or maybe had done nothing at all, became objects of the purge. It wasn’t long after that the mob moved onto speech and people began to be fired for saying things that were considered benign just a few years before.
IN one of the more famous events, At Evergreen College, biology professor, Bret Weinstein and his wife were physically chased from the campus by activists. Brett had sent an email objecting to the College’s day of absence policy which he perceived was a divisive racial tradition. Then a string of forced resignations and outright dismissals annihilated a whole generation of academics overnight.
The Weinsteins may have been the first but they were hardly the last, and whatever you wanted to call the phenomena was spreading to better and better schools. Erika Chistakis questioned if the Halloween costume policy of Yale was a bit overreaching. Her and her husband, both from Yale, were confronted by an angry mob of students, and eventually both resigned.
Peter Boghossian, along with his intellectual criminal syndicate of Helen Pluckrose and James Lindsey, pranked some supposedly scholarly journals with silly research papers that anyone with a brain would have known to be false. I still think “The Conceptual Penis as a Social Construct” is a desperately hilarious “Bridget Jones’s Diary” type book that begs to be written. After years of vicious harassment, Peter quit his job at Portland State. For being wrong, one can be forgiven, but they will never forgive you for being right, Peter. (That’s paraphrasing Thomas Sowell, who is, as far as I know, is still safe from losing his job at the Hoover Institute…at least for now.)
And there were the “accidental” rifts, Greg Patton was suspended for teaching Chinese and using a very common word that is similar to the n-word. It’s meaning would be a word you would use when you are searching for the right words to say, like “like.” And Ilya Shapiro was investigated and then resigned from Georgetown Law for an awkwardly worded tweet that questioned the practice of limiting the choice of Supreme Court judges to a certain demographic. He later deleted the tweet and apologised but it was too late.
Older people, with their dated understanding of what was acceptable in the chattering classes, were driven out of non-profits, think tanks, and media firms. A grizzled long-time reporter for the New York Times, Donald McNeil, was forced to resign over his opinions on racial opportunity and repeating the N-word in context of a song.
The cancellations for even suspected “wrong think” continued to the law firms themselves. Pal Clement and Erin Murphy resigned from their Big Law Firm of Kirkland and Ellis because the firm demanded they withdraw from a successful representation of New York State’s Rifle and Pistol Association, defending gun rights in the Supreme Court. There are other reports as well of lawyers having to withdraw from firms for reasons like the firm objected to their faith based or pro-life clients, or even lawyers who just clerked for conservative appointed judges. The list is apparently quite long.
Porky’s revenge- Colleges the worst
That being said, college is meant to be experimental. It is meant to allow for the free exchange of ideas. It is meant for young adults to try out their wings in an environment where they will make mistakes but the soft cushion of youth and community and sage guidance from the academic class will keep them from falling too badly. It is also a proving ground. To separate the strong from the weak, the industrious from the lazy, the incompetent from the professional. Graduating students can go out into the world with the promise to pull down a livable wage, and a comfortable retirement, in exchange for precious brain work they are now prepared to perform. These two diametric perspectives on what college is, held by parents who pay the bills, professors who entertain fantasies of how the world works, and businesses that hire the graduates, is not creating a situation where students pay too much money, to be paid way too little, for way too long in their lives.
College probably wouldn’t matter if businesses could just give intelligence tests, but as of 1971, in the United States, at least, generalized intelligence tests were banned on the basis that they could be biased against certain populations of candidate. Businesses needed some new way to weed out the idiots, so they chose college degrees. It has not worked, if the recent decline of Disney’s stock price is any indication but this continuous arms race for ever more glittering credentials has now made a mess of what was once the exclusive social club of engineers and rich people’s kids.
But it’s in colleges that these battles have reached a fever-pitch. Conservative pundits carry on relentlessly about institutional capture and how theories – that used to live in the upper echelons of social science– have trickled down into the general culture, stripping these theories of nuance and relative applicability. It seemed the war was lost when NYU fired Maitland Jones Jr. because his organic chemistry class was too hard and some of the students couldn’t get the grades they thought they deserved to get into medical school. Too hard for who? Future doctors?
When the saints go marching in- Protests on Campus
I live in a part of town where it seems like every single weekend in the summer, there’s something going on. I never understood why people protested here. What did they expect a bunch of aging hippies and Koren English language students to do about it? I am a firm believer that if you are mad about the government, you need to go the government seat. That’s what you want, right? To change a law? But the protesters at the colleges of today are not the freedom marchers of the 1960s or the anti-war marches of the 1980s. These are an older and more foreign form. They march to shut people up. They march on people’s private homes. They threaten vulnerable populations with death. Whether it’s George Bush or Linda Sarsour, college students or people pretending to be them, have been shutting down events and chasing away speakers with whom they do not agree. Violence comes from either side, or even both as in the case of Ben Shapiro, who is both reviled by the left and the white supremacists right. His rise to fame was assisted by regular speeches and Q&As at college campuses which now always require personal security, something he has been quite vocal about.
When Bret Weinstein and his wife, Heather Heying were chased off the grounds of Evergreen College, the reaction was muted. What did anyone expect from a school that’s main claim to fame was its progressive approach to education with no majors, no academic departments and no grades. It was a crackpot school acting in a crackpot way.
The Buck Stops Here- Hanging judges
It seemed like there was no end to the ideological purge but that’s when twelve federal judges, let by Judge James Ho, declared they were no longer going to hire clerks from Yale Law school. They had had enough of its students exercising the “heckler’s vetoes” on visiting speakers. As well as the Christakises, this included a violent confrontation over the lawyer, Kristen Waggoner, who represented Masterpiece Cakes. Federal clerkships are “golden tickets” to Big Law legal careers. If going to Yale became a scarlet letter, no one was going to go there. Fearing the vapor pressure on the college’s tuition dollars, Yale slammed on the breaks and passed rules that prohibited outsiders and the press from attending events, and severely punished students who disrupted proceedings with a protest. The next event where Ms. Waggoner, aka the “Queen of Darkness” spoke (how on earth do I get people to call me that?) was a sedate affair. If there is one take away from all this its that college administrators are as craven of a people as you are going to get. It won’t take much to put them on their back heels if a few judges take a stand.
And colleges are losing money in other ways. Evergreen State, where it all began, had a precipitous drop in enrollment until it reorganized itself away from its unstructured ways. Mills, an all-girls school and the Western rival to the seven sisters, was the first to accept a transgender student into its midst. It also aggressively pursued a mission to be the school for minority and LGBTQ students. It was to the point where the majority of students are either students of color and/or are gay, or trans or well.. whatever. The problem is that to fill their diversity quotas they had to deeply discount tuition for many of the students. This bit so hard into their endowment that the whole school was becoming unsustainable. After all that and for its socially conscientious ways, it still lost 40% of the student body to other schools.
I fought the law and the law won- The cancelled fight back and win
But even in an area where there is almost total discretion to limit speech, employment, the resistance manifested itself. Numerous ex-employees have filed lawsuits regarding their dismissal along the grounds of breach of contract, discrimination, defamation and a host of other charges. And they are winning, James Damour, author of the famous “Google memo” settled out of court. Considering that if Google was convinced it would win and Damour had nothing to lose at that point, one wonders how much Google paid to make this go away. Nicholas Meriwether, a professor at Shawnee State, refused to use requested pronouns, sued his employer and won against college. He got a $400,000 in cash, kept his job and will never be mandated to use pronouns again. Amy Wax continues to do battle with Penn Law School over her controversial statements about race, despite suffering from life threatening cancer. And two students of the other Amy, Ms Chau, who wrote the semi-notorious, “Battle Hymn of the Tiger Mother”, are hashing it out with Yale because they refused to throw Ms. Chau under the bus for trying to help them deal during the pandemic.
Even if you were to find that the alleged offensive speech of Wax or Weinstein an unforgiveable offence, sometimes the cause of cancellation borders on the absurd. In Connecticut, Candice Mumma sued her employer Pathway Vet Alliance for firing her for posting a meme questioning the identities of several people, including the “Native American” heritage of Elizabeth Warren. This would seem to put America in a world where even the most innocuous and true statements on the internet come with intolerable consequences. If gender expression could be added to the civil rights act as a protected class, so could political belief. What started with Justine Sacco, the woman who tweeted, ironically, about her own white privilege while flying to Africa and found her life totally destroyed by the time the plane landed, has now become an everyday event that can happen to anyone for literally anything at all. You have to wonder if the public gets tired of that – and then the guy in the next cubical is hanging up a confederate flag and there’s nothing you can do about it, because he will just sue you for discrimination.
Heal me, Lord- Money changes everything
Lastly, University of Richmond decided to drop the name of the benefactor of its law school, T.C. Williams, over a tenuous and unsubstantiated connection to slavery. Now it is embroiled in a fight with the descendants of TC Williams over its endowment. TC Williams Jr., a major benefactor, as well as many of his descendants, who had no connection to slavery at all, gave continuous gifts of money to the school over the years starting before the Civil War. Now the family wants the money back with interest. It is perhaps more unfortunate that one of Mr. Williams descendants is Rob Smith, a writer for Real Clear Markets and a managing partner of Chartwell Capital Advisor, a wealth planning firm that he founded. Whether the school is legally obligated to give the money back will depend on what agreements were in place at the time of the donation, something I am sure Mr. Smith has demanded and apparently not received. But in a scathing open letter in Real Clear Markets, Mr. Smith writes,
“the present value of these gifts is $ 3.6 billion. 150 plus years of compounded returns add up. Numbers don’t lie. It might be worthwhile for you to require every woke activist to take a course in finance to appreciate those for whom they want to cancel.”
He continues, “The University should be proud to have these rare men of substance and learning call U of R their alma mater. Instead, you and the Board have sh#t on them.
We have pulled the social media accounts of many of the “Low IQ” woke mob members that you and the Board grovel to. How ironic that these superficial imbeciles, who in their posts literally cannot properly conjugate simple verbs sit in judgment of these honorable and accomplished men.
Exercising quiet humility and modesty, the Williams family’s contributions have served the University for nearly 200 years, and the City of Richmond much longer. You moved to Richmond two years ago. Besides being a carpet bagging weasel and spitting on the graves of my family, what have you done for the University or the City of Richmond?”
It is without a doubt, one of the most entertaining demand letters I have ever read, and I can’t help but notice the sermon-like, “Sinners in the Hands of an Angry God” quality of the writing. Perhaps it’s the Baptist in Mr. Smith. I am sure Mr. Smith, a lawyer, is familiar with the ins and outs of charity law and I do not think this will be the end of it. While there are rules regarding how long a person’s gifts can be ruled by their Will, those rules are different for charities and often don’t apply. It will be an interesting case to watch as it appears that Mr. Smith is not in a forgiving mood. Andit is fortunate for the school that the dead cannot sue for defamation.
1883, dying on the trail.
More and more corporations beholden to their youngest and most vocal employees wind up broken on the shoals of old agreements, irritated parents, unsympathetic governments, and core customer bases.
RR Reno, editor of the conservative “First Things” in his screed against hiring anyone from the Ivy League, wrote in the Wall Street Journal that “Dysfunctional kids are coddled and encouraged to nurture grievances, while normal kids are attacked and educationally abused..”. And in the Washington Times, Tom Basile, anchor at Newsmax, wrote, “Corporate leadership has lost control of their employees who are increasingly snowflake millennials, screen-obsessed Zoomers, leftist political activists or some horrid combination of the three.” I would like them to know that I am available to work, should they need the help, and I am none of those things. Okay, maybe a little screen obsessed but this whole thing is FASCINATING.
In any case, the concept of “Go Woke, Go Broke” worked its miserly magic and the university red guard was put to route. The United States is hands down one of the most innovative if not THE most innovative country in the world. It needs ideas, good ones, bad ones, ones that need to be refined in the crucible of criticism. In a way, its progressivism is part of that ecology. But some dreams need killing to make way for ideas that actually work and defund the police and just firing everyone doesn’t. Ideas like iPhones and rocket ships and cures for cancer and vaccines for covid and new media and podcasts and everything that America invents. For any law against speech in America to pass, it’s going to have to traverse a hostile and expensive landscape of legal, corporate and government institutions and interests. I doubt it will make it.
Make your bed- Well, I guess he wasn’t that crazy after all.
I couldn’t consider this podcast complete if I didn’t talk about one Canadian. You may know him as the cantankerous, sometimes bordering on hysteria, mercurial and disagreeable, often celebrated by men in dire need of a benevolent authoritarian father, professor of psychology at the University of Toronto…No, not you Mr. Bloom. We will have a chat about you later. Of course, I mean Dr. Jordan Peterson, the GOAT Canadian resistance fighter.
One of my favourite podcasts of all time is the one where Sam Harris meets Jordan Peterson for the first time; a man who is for all practical purposes, completely obscure to Sam. Sam’s listeners pester him enough to finally have Peterson on. It’s episode 62, called “What is True,” and is hands down hilarious. I’ve listed to it three times and every time it gets funnier still, because it’s clearly a case of two men in an argument, and neither of them really know why. It’s an intellectual train wreck. It’s also an example of almost every debate I have ever had with Canadian. In the beginning, Peterson walks Sam through the pronoun law and his objections to it. Peterson is not wrong in his amateur legal analysis. Worse case scenario, he is correct that someone could go to jail for misgendering. Or rather, he could go to jail to have been found in violation of the human rights code, refuse to pay the damages, and be charged with contempt of court that could result in winding up behind bars. Because at the end of every law is the government gun. But Sam knows he doesn’t have the skills to analyze the claim and puts it to the audience to let him know where or if Peterson has fallen off the map. That’s when Peterson forgets where he is.
He should know, having spent so long in the US, but he must have recently spent too much time surrounded by Canadians, who will accept pronouncements of Great Men without comment. Unfortunately, Harris has made it a mission to discharge his ego, at least when it doesn’t revolve around Trump, and is completely guileless in his questions. Sam focuses like a laser on the nature of truth, something he’s a bit of expert in. This leaves Peterson in over his head and trapped between conceding to Harris and thereby “losing” to a much higher status American or making ever more ridiculous statements about the nature of truth. He can’t bring himself to do the former, so he chooses the latter over and over and over again. Sam is confused and bewildered because he just doesn’t understand the Canadian pathological need to not lose in a moral argument to an American. Sam always allows his guests to recut things they don’t like, or think were misinterpreted or awkwardly put. There was an out, but Peterson refuses to take it. The conversation swirls around the drain for two more hours as Peterson’s throw away comments about truth get interrogated like a terrorist in Gitmo. Finally, completely mystified as to what just happened, Sam breaks the spell and the torture of the obscure and insecure Canadian mercifully ends. This will never not be funny to me.
However, Peterson would later become even more provocative to Canadians, cumulating in an ugly incident where grad student, Lindsay Shepard, would be verbally defenestrated by two professors at Wilfred Laurier College. Shepard had shown a clip of Jordan Peterson and several other participants having a debate about pronouns to her college level English class. The debate had also featured a vigorous defence of “trans-inclusionary” language, for lack of a better term. But for this capital crime of thought, Shepherd would be cruelly lectured and insulted for forty-two excruciating minutes by two other employees at the college. And despite being profusely sorry and at one point crying, she was still fired. With nothing to lose and her reputation in tatters, Shepherd contacted the National Post, where the paper posted an entire tape of the conversation that she had surreptitiously recorded where you can still hear it today. Ultimately Shepherd and Peterson both filed lawsuits against the college which are still not resolved four years later.
Letting the universe unfold as it should- is there free speech in Canada? Probably not.
If Peterson was insecure then, he has no reason to be today. He would meet with Sam several more times, the very next one apologising for his foolishness, which Sam, classy as ever, blithely smooths over. They’ve done roadshows together, and through those he was added to the ranks of the “Intellectual Dark Web,” a curious amalgamation of public intellectuals who are centrist or can’t be easily defined or just won’t go along with every faddish obsession of the left. Of course, they are accused on the regular of being Nazis, or racists, or far right, even though a not insignificant number of these people are Jewish, black, or were considered radical leftists 15 seconds before. As Mr. Peterson’s fame grew, so did the bullseye on his career, and now he is fighting with the College of Psychologists of Ontario to keep his license over some social media posts he made. As opposed to the Tribunals that hear cases on human rights and that have rules to protect people from specious accusations, the College allows anyone from anywhere to make a complaint which it must investigate. That would have been fine, it could have done so and, realizing that it was out of its jurisdiction, walked away, but instead it demanded that Peterson take a course in how to be nicer on the internet. Because that’s just common and practical and expected.
Both the Human Rights court and the College are tribunals and fighting with tribunals is hard in Canada. Unlike in the United States, where citizens can demand a jury trial for almost anything, Canadian tribunals are decided by one person, who may have little or no legal training at all. In Canada, the deference that Canadian courts give to these bureaucrats who decide if you have been evicted fairly or fired properly, can be unsettling. Often, these tribunals have their own rules that are quicker and less forgiving than a courts, and judgements don’t have to hew all that closely to the law or be “correct” – just good enough. If Mr. Peterson is successful, it would force the College to back down in his case, but others might not have the wherewithal to fight it. If he’s unsuccessful, he will still be a rich man with a job in America at the Daily Wire, who has adopted him as a native son. Either way, for a person without the means to defend themselves, once they become enmeshed in the system, is speech really free? Perhaps not.
Mambo No. 5 – Chapter and verse
So, what about the law that Peterson objected to? Well, in 2021, a non-binary, gender fluid, waitperson, who uses they/them pronouns, filed suit against their employer for discrimination because a bar manager refused to use their preferred pronouns. Well sort of, this bar manager refused also to just use the Claimant’s name and instead called they/them diminutive names like “sweetie” and “honey.” He made sexually charged jokes in incredibly poor taste and then refused to change course when lightly reminded – and then reprimanded. Subsequently, for some odd reason, the bar manager was not fired for this classic “hostile environment” he had created for they/them. Instead, it was Jessie, the complainant, was let go from their job.
If it were not for the pronoun issue, this would have been a classic case of sex discrimination that hasn’t been tolerated in any American workplace since “Working Girl” came out. Jessie received $30,000 plus interest for the insult to their dignity, which may not have been that out of line with American civil rights law for an identical situation. So, while Mr. Peterson is technically right, and it is important that justice keeps a very close eye on the application of this law to make sure it doesn’t spiral out of control like Section 13, triggering the law may require a bit more than using “she” and being annoying. The downside to this law could be that businesses will now start taking applications where the applicant specifies their pronouns and putting them directly into the circular file. The conservatives have concluded “some horrid combination of the three” may not be worth the trouble. More centrist businesses could see that light - especially when the revolution starts coming for its own.
#winning- Brave new world
Americans, ever vigilant, probably need not worry about hate speech laws finding their way into American law. We left the old world behind for a reason, but the old world just doesn’t know it. It would seem that the racists and the offensive among us still hold the high ground against the fascists and the censors. Media outfits and universities that bang on about how “words are violence” and who disingenuously attack people are ruining their reputations, hemorrhaging viewers, having their boards of directors replaced and losing money. Money talks, bullshit walks, and the speech of money is a powerful one. In America, sooner or later, you bully the wrong person and then all of sudden one of the richest men in the world is destroying Gawker or buying Twitter – which then tweets all of Gawker. All of this is manna from heaven for the booming industry of independent journalism and pundits and race hustlers and muck rackers and podcasters and twitch streamers and…well all the jobs that you used to only get because you knew someone in the business of radio or print or tv. As someone once said to me, “Everyone loves to watch the circus on fire” which probably describes accurately our current political environment.
But the burning elephant in the room is that America’s attachment to free speech isn’t going anywhere, no matter how many lecturing think pieces are written about how the government will regulate Facebook or TikTok. Mark Zuckerberg knows how fragile his position is. He knows there’s always another thing coming that will be beyond the reach of the church ladies and social justice warriors of the suburbs. Maybe it will be 2 Live Crew, or golden tablets, or internet billboards, or punk rock, or digital copies, or Howard Stern, or virtual reality comedy cafes, or the Vagina Monologues, or the blues, or a settlement on the moon, but people will talk, they will sing, they will make snide jokes at other’s expense. They will critique other’s ideas, sometimes with great veracity. They will believe in crop circles and lizard men and gods and unicorns and conspiracies. And lets not forget, Americans have 400 million guns if things get hairy – and every politician knows it.
Sticks and stones
You can’t legislate or litigate someone into loving you so what the law says isn’t going to matter. If people are going to be kind to each other, that is up to them. There was a time in America where people used the N-word, along with a whole host of other slurs, and no one ever thought anything of it. Old people I knew as a child would pepper that word into conversation as if it were nothing. But that habit died out in my mother’s generation, and it’s been a long time since I’ve heard a joke made or some slur dropped in casual conversation. Maybe I am being naïve, or willfully blind, but I can sense the difference in shades of meaning between being “from the States” and “American” when it comes out of a Canadian’s mouth. I don’t mind that at all. At least I know where I stand, and I’m used to it; Americans have always been free to be jerks, this is the way. It tells me more about them than it does about me. But we don’t spend all our time being jerks because we have better things to do, like invent the internet or Netflix and chill or send billions to the Ukraine or go to the Moon.
Prague is apparently a beautiful city, every single picture I see of it on the internet looks like a fairy tale, but it's still the Old World, and underneath that beauty is evidence it can’t escape its own history of suppressing speech. Policing speech in the communist era was simply common and practical and expected. That won’t ever fly in America because censorship, despite all attempts, is never common, practical or EXPECTED. Despite the perennial temper tantrums of our younger generations (and some democrat representatives), censorship has yet to find permanent purchase outside the Catholic school. There are just too many people who will refuse to shut up. People who will fire hose money at free speech causes. Judges that will have none of it or remember “The Old Ways.” People who will give up things they used to love: careers, magazine subscriptions, passes to Disney, to protect their rights and especially free speech. If it takes a whole rebuilding of media to do that, that CAN and will and is being done. And unlike in Canada and Europe, American media was never dependent on government in the first place. That was the point. It wasn’t common and practical and expected, it rose organically from the people, so-called journalists, who had nothing but a pen and a press.
I look forward to the next silly pronouncement about Americans out of a non-American mouth because they never stop coming. But despite my annoyance at it, I’m glad they feel free to say it. I just hope they can stand to listen to the answer.
***EDIT****
After listing to Matt Taibbi and Michael Schellenberg yesterday at the Congressional hearings on the Twitter files, I thought I would update this essay a little. Congressional hearings are always more political theater than hearing. Often, this makes them quite boring, because listening to some sundry representative from an obscure county in Ohio, or *checks notes* the US Virgin Islands, bang on the table and moralize loudly about this or that is pretty boring. This particular one would have been the same if it hadn’t been outright scary and, in moments, unintentionally hilarious. Like the villain at the end of the movie, hanging off the edge of the cliff, on the verge of being rescued magnanimously by our hero, or “threesome” as the case may be, the Democrats plunged spectacularly into the abyss. Even long-term lefties had to admit defeat. Despite being the headline for most conservative and even middle of the road publications, the story was persona non grata on CNN, MSNBC and the Washington Post. It was too toxic to even be spun. The silence is deafening.