For those of you who don’t have HBO and are unfamiliar with Last Week Tonight With John Oliver (very much in the same vein as The Daily Show only uncensored) the segment below is a must watch. While John Oliver is certainly of the Left, he definitely has a libertarian streak on social and criminal justice issues. In this segment, Oliver takes on the travesty known as mandatory minimum sentences (i.e. zero tolerance policies with even more severe consequences).
Is Gawker violating its writers’ rights if its chief executive editor de-publishes a controversial post?
What about if a company’s CEO is forced to step down in the face of a threatened boycott over the CEO’s political positions? Is an artist being “censored” if a comic book publisher cancels his covers and suspends him? Is it an unconstitutional “ban” on speech if Amazon and Walmart remove Confederate flag memorabilia from their offerings?
Across the web confusion abounds about what freedom of expression really means.
Most recently, in the messy wake of its sex-shaming post about a private citizen’s violation of Gawker’s neo-Victorian strictures on monogamy, founder and CEO Nick Denton (who pulled the post) had this to say to his editors:
What I can’t accept is an unlimited and subjective version of editorial freedom. It is not whatever an editor thinks it is; it is not a license to write anything; it is a privilege, protected by the constitution, and carrying with it responsibilities.
Literally, every part of that last bit is wrong.
The editorial autonomy of Gawker writers is not constitutional in nature. It is a license granted by their employer—i.e. Denton. Absent a binding contract, it can be revoked at any time without running afoul of anyone’s rights, and certainly not running afoul of anyone’s constitutional rights.
The constitutionally protected freedom that Gawker writers do have (as do we all) is not to publish at Gawker. The Constitution restricts the power of Congress, not the discretion of Nick Denton.
Nor is that constitutionally protected freedom a “privilege.” It is a right.
And it does not have to be exercised responsibly.
It vexes me when people who should know better get sloppy in their framing. Messy language leads to messy thinking and, in the process, dilutes effective defense of this crucial freedom.
Perhaps a libertarian(ish) review is in order.
“FREE SPEECH” V. FREEDOM OF SPEECH
Although routinely used in Supreme Court decisions, the words “free speech” do not appear in the Constitution. In my opinion, overuse of this terminology induces people to mistakenly believe their speech should always be costless and consequence-free.
That is not how it works.
Speech requires a forum, which must be paid for by someone.
Similarly, bookstores are not required to carry every book printed just because the author claims a “free speech” right. The corner market does not have to sell every conceivable magazine. Art galleries do not have to make room for every painting. Radio stations do not have to play every song.
And Gawker does not have to publish every post. (I would totally make it publish this one.)
If a speaker wants his speech to be “free” in the sense of not having to pay for the forum, he must either utilize a public forum or find a private owner willing to host the content gratis. Luckily, in this day and age, there are lots of options for that.
Gawker is not one of them.
Like other private publishers and forum owners, it exercises its right to decline hosting or publishing content it dislikes. There’s a term for that right.
It is tempting to say that Brendan Eich was “forced” to resign from Mozilla over his position on same-sex marriage. That Richard Albuquerque was “forced” to pull his Batgirl cover variant. That TLC was “forced” to cancel the Duggars.
That Nick Denton was “forced” to pull the now infamous Gawker post.
It sounds more melodramatic and provocative to phrase it that way. But to the extent it’s semantically correct, this is not the kind of “force” that runs afoul of the freedom of expression.
Wrongful force is actual physical force used to prevent or punish speech or other forms of expression.
Preventing forceful suppression of expression is a higher order principle. When triggered, that principle transcends issues about the content of the speech being defended.
Because speech is the most powerful weapon that ever has or ever will exist.
It has the power to topple kings, eviscerate falsehoods, destroy paradigms, provoke thought, change minds and hearts, alter the course of history, and transform the world.
And it can do all that without shedding a drop of blood.
A weapon like that cannot be entrusted to the exclusive control of the few. Enlightened rulers using force to curtail speech have too often gotten it wrong. Power once ceded can rarely be retrieved, and battles not fought with words and ideas will be fought instead with violence and bloodshed.
We cannot retain the best of speech without protecting its worst. We cannot extract its power to do harm without diluting its power to do good.
EVERYTHING BUT FORCE IS FAIR GAME
That being said, everything short of physical force is fair game.
A Congressional communications director can be pressured into resigning (or fired) for making snarky comments about the President’s daughters. TLC and A&E can cancel their reality television lineup for any reason consistent with the contracts negotiated. Customers can boycott wedding photographers or bakers in retaliation for expression of disfavored opinions. Landlords can refuse to rent to people with Confederate flags in their rear windows. Employers can bypass applicants over their social media postings.
Firing. Boycotting. Refusing to hire. Pulling advertising. Cancelling subscriptions. Social media flame wars. De-publishing. Disassociating. Shaming.
All of these are fair game. All of these are themselves protected acts of expression.
They may make life unpleasant for the target. They may feel coercive or even deeply wounding.
They’re supposed to.
If speech didn’t have that power, we wouldn’t bother protecting it.
Deciding to refrain from speaking because such consequences are too unpleasant is not a response to force. It is a response to speech.
GAWKER IS GETTING SPOKEN TO, NOT SUPPRESSED
If Gawker were being threatened with forceful suppression of its speech, defending against that violation would be a higher order principle that transcended all others. Personal feelings about the content of the speech would be secondary.
But where no force is imposed or threatened, those secondary principles are the only ones at play. The whole point of the higher principle is to create a circle of freedom in which ideas, without limitation, can be explored and judged on the merits. If we never got around to the judging part, we would destroy the very reason for preserving the freedom.
Nothing happening at or to Gawker (in this specific case) poses any threat to anyone’s fundamental right to free expression. The writers are free to write. The owners of Gawker are free to choose what to publish. The editors are free to “fall on their poisoned pens” in protest. Advertisers are free to abstain. Readers are free to boycott.
None of this constitutes a violation of anyone’s freedom. It’s what freedom looks like.
Not only did Christie not get the traditional “bump” in polling that candidates get when they first officially announced, he’s dropped from 4 percent to 2 percent in a Monmouth University poll over that time period. With a 5 percent margin of error, it means Christie’s support could be at 0 percent.
He could be at 0 percent? No, that’s not what that means. I suppose I should give credit for not saying he could be at -3 percent, but clearly he can’t be at 0 percent unless the 2 percent in the Monmouth University poll were just flat lying.
He could be at nearly 0 percent, yes. Those 2 percent of a very small poll could be the only people in America who support Chris Christie’s presidency. But that’s still non-zero.
It’s like a “statistical tie”. If one candidate is polling at 30% and another at 20% in a poll with a 5% margin of error, that doesn’t mean the two are tied. It means that there is a VERY SMALL probability that they are tied, but that there is a very high probability that one candidate has a sizable lead.
I understand that in America’s public education system and Kardashian-driven pop culture, we’ve reached a state where most people think numbers are hard. But they’re not this hard, people!
…[W]e have to be a lot more productive. Workforce participation has to rise from its all-time modern lows. It means that people need to work longer hours and through their productivity gain more income for their families. That’s the only way we are going to get out of this rut that we’re in.
Bush has clarified he did not mean full time workers needed to put in more hours, but that people looking for more work need to be able to find it. That has not stopped the campaign of newly revealed political mastermind Hillary Clinton from sending some well-aimed Twitter barbs Bush’s direction.
I have an idea.
Let’s ask Greece.
Greece is currently in the end stages of a long social experiment in massive, unprofitable jobs programs, political graft, and crony capitalism. In addition to soul-sucking tax rates, Greece also ran up colossal debt during the loose lending years of the pre-2008 boom.
Now Greece’s foreign debt is 177% of its GDP. Its unfunded liabilities are 875%. Its unemployment rate is more than 25%, and its labor participation rate 53%.
Despite taking in 50% of GDP in taxes, its government does not earn enough to fund its basic functions. And because Greece is incapable of paying its debts, no one is particularly interested in lending it any more money.
Greeks agree! They rejected by a decisive margin a proposal for paying back all that debt that allowed their free university education, their jobs-program national railroad, their jobs-program schools and their generous early-retirement pension programs.
What does a government do when it doesn’t “earn” enough (in taxes) to fund its basic functions, much less make payments against its overwhelming debt, and cannot find new lenders to keep that financial house of cards standing?
Not work more hours! That would be mean.
Jeb Bush mean.
Well, Greece could just default. Of course, it won’t get any more loans after that, so it would have to live within its means: only spend what its citizens can afford to pay in taxes.
That’s mean too!
They could go off the Euro and print as much as their own currency as they want. At least one economist has argued that periphery Euro-nations like Greece have been harmed by the monetary policies of the European Central Bank, and that non-Eurozone nations able to set their own monetary policies fared better during the financial crises that began in 2008.
Moving to the drachma, however, is not without its difficulties. The drachma will fall in value against the euro. The more drachmas “printed” to service the debt, the more its will fall. Greece will still face the problem of wary lenders and having to live within its means.
His focus on “hours” was regrettable only because over the long run, advances in technology, innovation and specialization should theoretically allow increases in labor outputs without corresponding increases in hours worked. But he was right that the only way to increase the wealth of a nation is to increase the outputs of labor.
Simply infusing money into a system is not sufficient.
Don’t believe it? Imagine sitting on a virgin planet with all of Earth’s gold in the cargo hold of your space ship. Or being castaway on an uninhabited island with a duffle bag full of bank notes.
So what would it look like for the Greeks to be more productive? Half-clad single mothers chained in mines as sweat drips down their faces and IMF overlords crack whips over their heads? Children toiling in sweat shops as flies buzz around their demoralized brows?
It means getting rid of the entrenched bureaucracy, bloated government, and corrupt police and political regimes that keep investors from making investments that result in jobsthat allow people to work more hours. It means lowering the effective 90% tax rate individuals pay so that working those hours is remunerative. It means fewer cartels and licensing requirements that keep would-be entrepreneur sidelined leaving no jobs for all those free university graduates. It means getting rid of the minimum wage and price controls that prevent the economy from responding to supply and demand.
I’m not sure the Greeks have the political will for any of the foregoing, or whether the ECB/IMF negotiators have the imagination to focus on the necessary fundamental reforms to the Greek economy. Without them though, there is no way out of the morass. More loans in the lean years cannot help a country that overspends in the fat years.
Interestingly, even as the Eurozone debates Greece’s future, here across the pond, the national campaign spokesperson for Ted Cruz also took a swipe at Jeb Bush:
“It would seem to me that Gov[ernor] Bush would want to avoid the kind of comments that led voters to believe that Governor Romney was out of touch with the economic struggles many Americans are facing. The problem is not that Americans aren’t working hard enough. It is that the Washington cartel of career politicians, special interests and lobbyists have rigged the game against them.”
In the wake of the Supreme Court’s decision making gay marriage legal in all 50 states, the rally cry of many libertarians and conservatives is to get government out of marriage. Presidential candidate and Kentucky Senator Rand Paul wrote an op-ed suggesting just that. While that’s a tempting proposition, it’s probably not possible without a major overhaul of everything from government benefits to nearly the entire civil and family legal code.
The sheer volume of benefits offered to married Americans may make it difficult for the United States to disentangle itself from the “marriage business.” In the US, there are 1,138 benefits, rights and protections granted under legal marital status, based on federal law, according to the Human Rights Campaign. Benefits of marriage extend to areas of Social Security, tax law, immigration, employee benefits for federal workers, and health coverage to name a few.
Unless we repeal or modify every single one of these programs and rights, simply eliminating marriage will create new legal nightmares.
Jason Kuznicki of the Cato Institute found that while decoupling the Federal tax code from marriage is a good idea, there are many aspects of marriage related law that serve a valuable function in a free society. Among those are:
Ability to sponsor spouses for immigration visas.
The presumption of legitimacy that make child custody matters much easier for married couples.
Spousal immunity from giving testimony against each other.
Enrollment on a spouse’s insurance plan and other benefits.
Automatic right of visitation in a hospital or the right to make medical decisions as next of kin.
Can be held responsible for spouse’s debt.
Right of automatic inheritance if spouse dies.
The right to file joint petitions for adoption.
To get “government out of marriage” is a fantasy because it takes away an efficient way to handle civil and family matters. However, there is an alternative that libertarians and conservatives can support, which is a separation of civil and religious marriage. All references to “marriage” in the law can and should be replaced with “civil marriage.”
For legal purposes, only a civil marriage is required to access the spousal benefits and rights. That is granted by a marriage license issued by state governments and all that is simply signing a piece of paper and having it signed off on. All the state is doing is recording the marriage. It is not passing judgment on the wisdom of the ceremony. If they want an actual ceremony, they can pay more money for one.
A religious marriage is simply what it sounds like, a marriage performed by a minister or clergy and not merely signed off on by a bureaucrat. Those could be done by combining the religious ceremony and the minister signs off on it, just as done today or it can be done outside the religious ceremony.
Since it is impossible to “get government out of marriage”, libertarians and conservatives should concentrate on separating civil marriage from religious marriage.