Freedom in the Mellow Era

Debating free speech before the freakout

I used to love complex issues like this issue of Skokie discussed by Jonathan Katz in ‘The Racket’

And now this seems a bellwether. We cannot think about the permissibility of speech in the same way we once did. 

We can peer through the dramatic shift in the types of debates we have about free speech to see how society as a whole has changed, and groups within society have changed. 

The context that free speech debates took place in was once vastly more amenable to good faith debate circa 1970-2010 or so. For lack of a better term, I will call this ‘The Mellow Era.’

(I can’t quite pinpoint the precise moment of destruction but the context was becoming degraded sometime after 9/11 and it continued to decline to the impossible situation we have now.)

The Mellow Era was not at all mellow. I call it this merely to highlight our current misfortune, where terrible outcomes continually loom, and firewalls which we thought were well-established (though continually battered) are all beginning to collapse at once.  It’s mellow-by-comparison.

In the Mellow Era, freedom of speech was more widely valued, and yet certain speech was still punished without much outcry. A shared set of liberal values made these moments easier. Thus, you could engage in ‘offensive speech’ without widespread reactions but you could also be fired for ‘racist speech.’  Conservatives, liberals, and leftists were not perfectly aligned but much more in agreement on the parameters that governed the policing of speech, even while the right was continually nibbling around the margins, and liberals were reassuring the right by kicking left, a la Clinton’s attack on Sister Souljah.

The government was not the main target for these debates, but private social sanctions such as firing or shaming were not necessarily seen as unacceptably punitive, and were not generally seen as excessively employed when they were employed. 

It was much easier to consider arguments like ‘what are the limits on free speech’ in good faith given a fairly robust consensus on  what counted as  as vile speech, hate speech, etc. in the Mellow Era. 

The issue was more around acceptable responses to that speech. Fewer people muddied the water to conceal or distort the idea of hate speech. The more pertinent question was the degree to which you could restrict or punish hate speech. 

This is one reason why ‘protect the speech of Nazis’ was useful in discourse around free speech as the left, liberals, and conservatives all readily agreed that Nazi speech was beyond the pale, vile, disgusting, pointless bullshit. The speech of Nazis was a useful test case because it did not resemble speech that anyone debating the issue felt that they wanted to promote. 

I.e., the point was not really that anyone wanted to defend Nazi speech. Rather, the assumption was that reactions to speech and the skepticism such speech was valuable would be the reason most would want to shut down a form of speech. 

It was assumed anyone would emotionally react to Nazis in a negative way, and would want them to shut the hell up. 

Their speech was widely regarded as valueless. 

Their speech comes the closest to doing actual harm. 

The reasons someone would want to attack anyone’s speech would be similar to the reasons someone would want to prohibit Nazi speech. 

If you were willing to let Nazis speak, you should be willing to let almost any others speak. It was the further territory we could extend free speech to. 

But obviously, if that territory is debated, it is open to question whether they should be  allowed to speak. 

(Important to note that the Skokie case is about the use of public space. The question is whether the government can restrict their speech. Online forums are private spaces. The government is not involved. This shifts the debate entirely away from constitutional protections. Musk’s claim Nazis should get to use Twitter is absurd Nobody has ever argued all platforms must  be open to Nazis, that opportunities and offices must be open to Nazis.)

What simplified debate such that all could consider the Nazis the ultimate test case was the existence of a cross-political convergence of values that no longer exists. It also made the Nazis a less frightening prospect because it was assumed by most at that time that they could not become viable political actors. 

In fact, the views held by these factions themselves have largely ceased to exist. The ‘conservative’ view no longer represents the right in the USA.

The ‘liberal consensus” between most sectors of society, and the main competing political outlooks that were in place in The Mellow Era no longer exists. We do not have a shared framework of values that governs competing political factions in the USA anymore. 

These three main competing outlooks of the Mellow Era—conservatives, liberals, and the left—all shared some experiences that enhanced their commitments to an atmosphere of free exchange of ideas. Most essentially, they were shaped by the excesses of McCarthy, and by attempts to adjust accordingly in regret for some of these.

It helps if you remember what you want to avoid. McCarthyism was something that both liberals and the right participated in to some degree,  but which had widely come to be seen as excessive by liberals. 

One reason was that, though it was instigated by the right against the left, it gradually came to threaten liberals. And liberals were the dominant force in society at the time. 

In our current era people have largely forgotten about McCarthyism, or don’t understand it even if they use the term. We lack a shared touchstone of regret for excessive reactions to freedom of speech, creed, and association that can spread and be used as a cudgel to repress the freedom of a wide swathe of society. 

We are currently experiencing different attempts at the suppression of speech now, but under very degraded social conditions in which people don’t share the same base of factual information and there are no authoritative figures that bridge various political factions except maybe Dolly Parton. 

While there were disagreements in what I’m calling the Mellow Era, the three political factions which were relevant hung their belief in free speech upon the idea that there was such a thing as rational refutation in the public sphere. 

If such a thing exists, Nazi lies can be refuted. It is relevant that these things—shared norms of rational refutation and a shared public sphere— do not exist anymore. 

The left particularly was aware that they were the most threatened by restrictions on speech, either in defense of racial equality or in defense of economic equality. 

These tended to be combined much more readily in the 1970s and even 1980s, in such movements as the Black Panther Party, when the speech of people like Angela Davis was the target of people like Ronald Reagan. This was before my time but I grew up in the fallout around that, when the reaction to attempts to silence, even violently silence, the speech of Black activists was a stronger commitment to free speech given the excesses that had occurred in the McCarthy era, the Vietnam era, and the general panic around communism.

The left always had the most to lose when it came to punishing speech, and freedom of association (you can punish communism, you can claim that any political dissent is communist), and this made them highly committed to protections on speech. 

What Changed?

The context of the Mellow Era bears little resemblance to the social context today, although our context today is something which evolved out of it. Many things changed it, not all of which I can list. But here are some of them.

1) The right has become far more comfortable with racist and other hate speech, and far more aligned with groups that wish to engage in hate speech, with the goal of making their hate of various social groups effective in shaping society.

The right is now therefore much more concerned that their speech about racial inferiority, gender inferiority and the immorality of various identities, particularly LGBTQ identities, and the rights of immigrants, will be suppressed. 

Their curiosity about the possible inferiority of particular social groups has increased dramatically. For some, this has turned into a strong commitment to beliefs about that inferiority. (Many likely held such views in the Mellow Era, but did not want to openly proclaim given the disgust they would engender.)

2) The left has split between groups that are more punitive in their speech, often in reaction to the right, and groups that are reacting to them. 

There is a back-and-forth symbiotic relationship between the right’s desire to target particular social groups in speech, and this group’s desire to limit their speech. This is because of the right’s attempts to specifically home in on groups, and harm them or eliminate their rights. 

So, e.g., Milo Y’s speeches attacking specific DACA or other students at UC Berkeley was shut down in order to protect those students, and attacks on transgender people. 

The pushback to make room for such speech became much fiercer, and more articulated. They often included the desire to suppress criticisms which were mainly socially damaging rather than denying a platform for speech (i.e., rhetoric around cancel culture).

As in the McCarthy era, some liberals joined the right here—but in pushing back against what they saw as attempts to suppress speech. 

Although it looks like the situations are flipped—that liberals in the McCarthy era were suppressing speech and now they are defending it—that is an illusion. In both cases, liberals are defending aspects of the status quo. In the McCarthy era, communism was disruptive to the status quo. In the current era, the ‘cancel culture’ they decry is disruptive to the status quo (since these are complaints from people lower down the ladder, critiques that can harm higher status individuals).

3) We essentially lost most of the civil society we had, never a tremendously strong asset in our commercialized society. There is no forum or location where false speech can be adequately challenged. There are no authoritative figures that bridge the different political factions. Indeed, we have few identifiable political leaders which are seen as speaking with moral authority for any of the factions. What we have is more Elmer Gantry-type leaders for whom there is strong affinity within the groups, and antipathy without. 

There are no almost no universally shared terms of debate, shared moral norms or shared norms of rationality now. 

It is therefore next-to-impossible to genuinely win a political argument, prove something false, or discredit a factual view. Authority and expertise simply don’t have any cross-factional traction. 

(Just a warning: the universities are the last realm governed by norms of rational discourse, and the right is coming for these, hard. Some on the left are as well, but this will probably have little effect.)

4) Related to (3) the liberal consensus is dead. Liberals of one kind or other are probably the largest group in society but not the dominant force in society in that they have much less power to discipline the right (and to a lesser degree, the left). 

Conservativism is also dead. It has been replaced by a further right view that rejects the liberal consensus entirely, rejects social equality, rejects the expansion of freedom for women, and racial, ethnic, and sexual minorities, and possibly even rejects universalist claims about human equality that formed the heart of the liberal consensus.

At best, the right in the current era rejects universalism by embracing us v. them. At worst, it rejects universalism by positing that some are naturally superior, and deserve to rule over others. 

5) Liberals subsumed some values of the left, particular around social group identity, and shifted them toward their purposes. The benefit to those groups was an increase in power. There was no real harm to the groups in this, and it’s probably to be expected given that, ultimately, liberals are committed to rational argument and what are called the ‘identatarian’ arguments were based on liberal principles and had good factual grounds. 

This is why conservatives during the Mellow Era, who were part of the liberal consensus, also came to accept the fundamentals of social equality among racial groups, and even among LGBTQ and other minorities. 

However, liberals did not deliver adequate social equality to these social groups. This  has led to an uneasy marriage between leftist conceptions of social agitation and social change, and liberal power, which is committed to the status quo. The  right has exploited these divisions very well, in a useful divide-and-conquer way by whipping up white racial anxiety and attracting adherents from people who might otherwise be liberal except for their fears liberals are not on board with continuation of the status quo. 

6) The left, while not entirely stripped of their links to social identities has also factionalized due to white agitation against social identity groups. Some are also very motivated to distinguish themselves from liberals, even as liberals are mostly paying lip service to social and economic equality, and are generally not willing to fully deliver it to people, given how disruptive it would be to the status quo. 

The lip service and incrementalism has powerfully negative effects on almost everyone, except those people who benefit from the status quo. 

This creates discontent among white leftists, who become hostile to the idea of social equality. It creates discontent among white people generally, and makes it more tempting for them to to bond around scapegoating those of any stigmatized identity. 

In spite of this,  however, almost everyone on the left in the USA shares an overlapping set of values with liberals. These values are largely ‘liberal’ norms and values such as commitment to rational argument, belief in basic human equality, and other universalist commitments like fairness. It’s not inherent to left politics to prefer persuasion over coercion. So the left often makes claims that it is does not, on social media. But, in actuality, they do. One likely explanation is that liberal values, even though they are held (inconsistently) by the powerful to preserve the status quo, also protect the weak. The left is weak in America, and luckily, is smart enough to know that they will be creamed in any genuine power struggle (the increase in power is why so many attention-seeking white people who claim to be leftist gradually switch to join the right ).

(My personal view is that, even if theoretically, Marx raised some doubts about adherence to juridical values, you can’t really DO anything or motivate anyone or persuade anyone without some of these. Enlightenment values built the master’s house, and you probably have to use house-building tools if you’re building houses even if they’re the master’s tools.)

Rather than get offended by this, leftists, you should consider yourselves mammals in the dinosaur era. Maintaining respect for others and believing in reciprocity are good values but also they are survival values, cooperative values, skillful norms for survival and there is no shame in being tree shrews in the forest. Dinosaurs are not better than you merely because they are bigger and you cannot win fights with them. They need too much, which imperils their survival (and everyone else’s unfortunately). A solid ethos is a way to outlast them. 

7) Everyone is reacting to everyone else, then reacting to their reactions. Because nobody in power who claims to care about social and economic equality is able and/or  willing to deliver these things, tremendous cynicism and resentment has arisen—a lot of this cynicism and resentment is fought in the realm of freedom of speech. 

At least this is what I think explains why so much discontent finds its outlet in debates around freedom of speech. This topic is easily weaponized by almost everyone, since it can easily be wrapped up in white identity or some other identity, and everyone can see themselves as having a stake in the outcome of such debates, whatever their identity. 

It is an easy way to fight about social recognition and social position when one’s hands are tied in other domains, and ultimately it does cash out in political power, even if it is ultimately defensive and improves nobody’s lot in life in the longer term. 

8) The rise of social media has completely obliterated any clarity on what people actually stand for and what they are able to do. Talk is incredibly cheap. Much of the political energy people have is spent on talk, rather than action. Opinions shift, the consensus shifts, new conceptual schemes arise, and die sometimes within less than a year

Most political action has shifted to the arena of propaganda rather than institutional action and change. The hope is that the propaganda will change institutional forms. And one can see this happening, particularly around right wing attacks on public education, and even (recently) private education. But these changes are mostly reactive, and not intended or able to build anything of lasting benefit for anyone. 

The internet has also created an absurd climate for noxious speech such that actually addressing harmful speech in other formats can seem absurd. 

Coping With the Post Mellow Era

I doubt anyone young has nostalgia for the Mellow Era. Amusingly, young people often seem to believe the Mellow Era was an era of dramatically lesser awareness about oppression and injustice, even if virtually the entire framework of the discourse around oppression and injustice of every kind was formulated during the Mellow Era. But they are correct that the awareness of these analytical tools was much less widespread. 

Older people do have nostalgia for the Mellow Era. In fact, the stupider ideas about free speech —like protecting the speech of Nazis, an idea which is completely distorted, and used in bad faith—might be arising out of that nostalgia. 

I also have nostalgia for the Mellow Era, not because it was better but because it was a climate in which solutions to social and political problems were more possible. 

Nevertheless, I think we should temper that nostalgia with some realism. We cannot go back to the Mellow Era because, partly thanks to the internet, our social conditions have radically changed. Our forms of communication have changed. Even our minds have changed. 

Where we once had politics—a situation where competing interests could utilize the same values and tools to shape the society—we now primarily have power struggles. 

It is no exaggeration to say the right in the USA, and perhaps globally, is operating from a degraded and dangerous value system, one that does not currently envision the flourishing of everyone who now exists, and ultimately excludes the survival of many others.                     

Whatever speech norms we choose, and however we adapt to this current freaked-out era maybe this is what we should remember.  Even if it is a power struggle where we are the ‘them’ and endangered by the bad faith manipulation of the values of freedom with the intention of crushing our liberty, there is no meaningful ‘winning’ the power struggle if all our values are degraded and destroyed. The communication we have to preserve from the right needs to transmit more than absolutist values of speech and more than concern for people’s feelings but commitments to the fundamental humanity of everyone.