A Radical Look at Free Speech


I am not ashamed to admit that when the Erik “OMG Can You Believe What an Asshole I Am?” Loomis kerfuffle first erupted, my immediate reaction was to first conclude “Hang the little fucker out to dry” and work my way back to build the supporting argument. This process is known, often disparagingly, as rationalization, and I am starting to think it has an unfairly bad rap.

Had this not happened I might have never opened up the surprisingly large and complicated can of worms that free speech doctrine is, and, in so doing, discovered yet one more area of discourse where people are corralled into compliance with the status quo (aka pure evil) via starry-eyed notions, accepted on the most dimwittedly pure faith, about how the world either works or can easily be made to work better.

You know you are deep into indoctrination territory when people you are arguing with robotically recite the same one or two hackneyed declarations over and over, and become progressively more inclined toward verbal abuse the more you press them for supporting evidence. This happens each time I gingerly interrogate why we are obliged to honor free speech as an inflexible principle even when doing so seems very much at odds with our own interests, including our self-preservation.

In my first piece on Loomis, I argued mostly from inside the belly of free speech doctrine, because, one, I was really tired of being called an authoritarian every time I attempted a less orthodox approach; two, my position on free speech was still not fully baked; three, I think dust-ups between equally execrable establishment assholes are among the areas where cliches about free speech legitimately apply; and four, I wanted to primarily focus on how predictably dishonest and corrupt the pro-Loomis campaign is, even on conventional terms. Therefore, I didn’t state outright as I will now what my position on Loomis is:

1. Yes, in some abstract sense he has as much right to speak his mind as I do

2. In the midst of a system that works with increasing efficiency at insuring that authoritarian conformists like Loomis have an effective platform and people with less orthodox opinions, less education, less money, more pigment and no penis don’t; and in light of the overwhelmingly authoritarian character of the speech in question, I don’t, as a practical matter, give a fuck about this abstract right of his and if he loses his job over it, I don’t give a fuck about that either.

Armed with my own, allegedly equal, right to free speech and the email addresses Crooked Timber’s repellantly sanctimonious and dishonest “Statement” had helpfully provided, I offered key employees of the University of Rhode Island the following opinions, all of which I sincerely believe:

  1. That Loomis’s Twitter tirade, being overwhelmingly authoritarian in character, was at odds with the spirit of academic freedom, which encompasses not only a professor’s right to speak freely but also the maintenance of a university environment where students and colleagues feel comfortable doing the same.
  2. That Loomis’s impassioned insistence on a political opponent being labeled a terrorist and thrown in jail for life seemed very much at odds with what a university and its agents should stand for generally
  3. That Loomis’s narrow focus on permissive gun laws as the cause of the Newtown massacre and, within that framework, his singular obsession with the head of the NRA, seemed very much at odds with the capacity for grappling with complexity one would expect in a social scientist, particularly a historian.
  4. That I would never attend, nor send a child to, a university that would grant such an individual tenure.

I am fairly sure that having done this, I did more writing to the university about Loomis than any of the people who spent so much time on Twitter and in the comments section of my last post attempting to persuade me to the unique importance of his cause. And that right there gets us somewhere near the crux.

Unless we are the ACLU, with a mandate to defend the speech rights of all comers, we are going to pick and choose our free speech battles. Let’s liken our current situation to a burning house, where there are five unconscious children. You have to rescue them and have precious little time with which to do so. Two of the children are yours, two are your favorite neighbor kids and the fifth is a firebug who you have reason to believe caused this fire, having done so before. Are you to be faulted for rescuing your children and the sweet neighbor kids first, even if doing so causes the death of the firebug? Surely not. What about the guy who would rescue the firebug first, insisting to himself that all life is equally sacred, and as a consequence causes the death of one of his children? Is he a hero? Is he more principled? No. Emphatically not. He’s an asshole.

I am deeply mystified by people who will, on one hand, fully concede that Loomis’s ‘academic freedom’ is only pushed in front of us because he has passed all the speech gates that keep people far less shitty than he is from getting anywhere near real influence, and on the other insist that we are forbidden on principle from applying the obvious remedy to this asymmetry: that is, restricting our support for free speech struggles to genuine underdogs, or, horrors, actually working to see that people like Loomis lose, until the playing field is evened out.

Objections to a selective approach are based on two assumptions, both of which are faulty:

Faulty assumption 1: If we do not uphold free speech as a principle for everyone, we put the principle itself in jeopardy

People’s speech rights have been contested for my entire life and I am quite sure they’ll be contested after I die. Free speech purists conjure a fantasy of a state and institutions that happily comply with rules established by precedent. For the sake of argument, let’s put aside how preposterously stupid this is in light of  ‘free-speech zones’,  government-directed assassinations, infiltrations, and wars on whistleblowers and contend only with the courts. Anyone familiar with the history of First Amendment cases knows that state indulgence goes up and down depending on who’s  speaking. Hate speech is privileged in a way that dissident speech and pornography are not. The state  let up on persecuting communists only after the Ku Klux Klan had been dragged in on the same grounds. By then the Communist Party was effectively destroyed.

The lesson is that principles do not gain and lose ground independent of individuals and factions gaining and losing ground. Freedom advances when people who believe in freedom advance. Authoritarianism advances when authoritarians advance. This seems obvious to me. Therefore, ensuring that an obvious authoritarian like Loomis can keep his job and advance professionally toward greater influence must surely be a tactical draw at best from the standpoint of entrenching free speech as a social good.

Faulty assumption 2: Free speech is almost always contested at the margins of speech. There are rarely any real heroes in free speech struggles, therefore, you cannot restrict the struggle for free speech to ‘good guys.’

This is bullshit also, predicated on the deeply conformist notion that contested speech is invariably terrible speech. News of gross infringements on people’s rights fly at us every day, and those infringed are frequently quite nice and sometimes even heroic. But it’s only when infringements affect Loomis’s political class, or people that his class cares about, that we’re reminded of how urgent and universal this shit is and how immaterial is the speech itself.

I don’t recall Crooked Timber’s online petition for the school administrator who was fired from her new job based on sexy emails she had sent from the work computer at her old job. Where were the alarmist tweets from Glenn Greenwald, Aaron Bady, Matt Yglesias, Julian Sanchez, Doug Henwood or Duncan Black when a guy serving three years for burglary got five years added to his sentence for threatening the president and his wife. Where were they when this grandmother got shaken down by police for sending teabag tabs to her public officials?

You could dedicate the rest of your life to fighting for speech rights – the rights of prisoners, the rights of workers, the rights of labor organizers, the rights of whistleblowers, the rights of silenced rape survivors – without ever once having to fill a time lull with some asshole like Loomis or the clowns of Westboro. So let’s quit pretending that, in a world of horror, Loomis’s tiny little career nightmare matters to us for any reason but that sympathetic people with influence — who, not coincidentally, look and sound a whole lot like him — think it should.

Related Reading

On The Authoritarian Asshole Erik Loomis’s Free Speech Problems

The Corey, Freddie and Erik Show

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47 Responses to A Radical Look at Free Speech

  1. Sir Felix Carbury says:

    Keep digging.

  2. skeri says:

    Agree with you 100%. Let our would-be cultural managers gobble each other up. Employ the free-speech illusions to defend people under real attack doing things that matter. There are, as you note, enough of those to fill our time.

  3. I never even heard of this Loomis d00d until I read your first piece. Perhaps that fact alone may provide some inkling into the sheer volume of shit I do not give about lifting a finger in support of this asshole’s particularly precious free speech rights. As you point out, we have to pick our battles. Loomis is hardly a hill worthy of dying on for a principle wielded so self-righteously in his case…yet curiously not so much when those far less privileged than him suffer egregious abridgements of their human rights every fucking day ,at the hands of those factions his speech serves so very, very well.

  4. redmaistre says:

    Questions from a Stalinist troll
    What does it mean to call something a right mean to you? Is it natural or is it socially constructed?
    What is the social purpose of free speech?

    • ohtarzie says:

      I am not interested in questions about the social construction of rights. I don’t think free speech is meaningless, certainly, else I would not insist that some struggles were worth taking an interest in and others not.

      I do not think that anything people do has to demonstrate its ‘social purpose.’ The onus for justification is entirely on those who want to restrict freedom.

      I think the abundance of legitimate rights struggles spares us having to have tedious conversations about what rights should be, who should have them, what they should look like etc.

      The house is on fire and people need to be pulled out.

      • redmaistre says:

        The fact that you demurred on the bigoted professor case suggests you don’t really object to academic discrimination in that case. Otherwise you would have openly affirmed that firing in that situation is Stalinist or something.

      • ohtarzie says:

        Well not knowing about the hypothetical I can’t make a judgment. I am not demurring when I say I don’t care. My position is that I don’t care. You want a principles. You want rules.

        I. Don’t. Care.

  5. redmaistre says:

    Sorry for obvious typo in previous post
    And I’m still curious your position on firing an obviously racially bigoted professor: is that unacceptably “authoritarian” or not?

    • ohtarzie says:

      I don’t have a hard and fast position on firing a bigoted professor except that I don’t really care. What became clear from our Twitter discussion and what you can’t seem to grasp is that you are clearly very inclined to make rules and to see them as extremely important. I am inclined to select free speech struggles that genuinely empower people and ignore the others.

      I sent email in opposition to Loomis simply to express my views on his conduct. My specific interest was not in getting him fired, but I would not care if he were. From the beginning, I never thought his job was in jeopardy.

      • redmaistre says:

        To be clear: was not arguing for loomis being fired for those specific remarks. I was arguing on the level of the questions of principal that this case has raised.

      • ohtarzie says:

        Yeah, I know. I was just clarifying my lack of strong convictions on the hypothetical you mentioned and clarifying my position on Loomis in case that muddied the water.

      • redmaistre says:

        There seems to be a tension in your position, in so far you argue cogently that there are limits to freedom of speech, that not all expression deserve equal respect, some speech is toxic, not worth defending etc. But you still draw back from withdrawing belief in an abstract right to self expression.
        If you really beloved in such a metaphysical right to speech though then it would seem to be the case that we are morally obligated to defend Eric loomis. Wesboro baptists, etc as much as Norm. Finkelstein or Chomsky. For if its an intrinsic right then all those persecuted are suffering the same wrong. But if we instead view right to speech as flowing from and being conditional on the needs of human flourishing and the political struggle, then denying reactionaries our sympathies would make perfect sense.

      • ohtarzie says:

        I never said that all these struggles are equal.

        What I have said is that my interest is overwhelmingly tactical. I do not feel the need of a theoretical interrogation. I find it quite boring in fact.

        If everyone were starting out equal, perhaps the interrogation of free speech as an inherent good would interest me as much as it does you. My inclination is toward the absence of authority. More interest in supporting rights than depriving them.

  6. Hear, hear. I was both skeptical and intrigued when you first started working through your Loomis ideas, but you have me entirely convinced by now. And it’s hard to understand how anyone could read this well-argued, concise piece and not be convinced as well.

    It’s mindblowing that people see the Loomis fight as anything else but a fight over whether a specific class of people can say specific things about their specific enemies. That Loomis is going to apparently emerge unscathed means nothing for anyone or anything I care about.

  7. ohtarzie says:


    Thanks. Having worked through this I think, yeah, what’s the big deal. But some people went literally nuts on me on Twitter today over this.

  8. Kat says:

    Glad you wrote more. I commented on your previous post and had hoped to include something like point #2– about his inability to see the complex reasons for mass killings, but was not able to put it as succintly, so I gave up. If Wayne LaPierre is offering wrongheaded and simplistic solutions, Loomis’ answer to the problem is not much better.
    I think your characterization of his (self censored tweets) as “brownshirtty” is quite apt.
    The whole back and forth between Loomis and groups such as Campus Reform looks pretty goofy to me. On one hand you have these reactionaries pretending that Loomis’s tweets are threatening to the status quo in any way. That is par for the course; they have been distracting us for years as the corporate takeover of our universities continues unabated. Then you have Loomis who is happy to play into the worst fears of these reactionaries.. The fact that his tweets were pretty moronic helps too. This is the battle that labor historian Loomis chose. Imagine if URI announced a new partnership with the corporate polluting, job outsourcing, tax dodging member of the military welfare complex, GE (I know, who could imagine such a thing!)– you think we would see a similar twitter campaign of outrage from Mr. Loomis?

  9. ohtarzie says:

    Hi Kat:

    Your comment about how the two ‘sides’ play off each other is apt. I have long seen the relationship between liberals/centrists on one side and right-wing reactionaries on the the other as far less combative than symbiotic. Portraying it as something of a performance is on the money, though I think they mostly believe what they say. I think Loomis really is an authoritarian who would like to see gun advocacy treated as terrorism.

    You’re right about the overall goofiness. Since so many on the right are such authoritarians themselves, it should be no surprise that they have focused on the most trivial elements, like the ‘head on a stick’ remark and the idea of Loomis being mentally unstable. Offensive shit like declaring every dues-paying member of the NRA a terrorist went right by most of them. Some winger approvingly linked to my first piece on Loomis in a post about his potty-mouth, which is really funny when you consider the title of my post.

    That’s an excellent point about where Loomis would stand on a shady URI investment or partnership. Certainly universities are up to their eyeballs in that stuff and our courageous academics seem disinclined from doing much about it. Your juxtaposition raises a point that I hadn’t previously considered: guns are the new culture war. The stakes seem higher than, say, gay marriage (a battle the right has effectively lost) but it’s really the same thing: a lot of political theatre to foster the illusions of good guys and bad guys while the pair of them make war, pursue austerity and go through our pockets. I wish we had discussed this before I wrote my piece as it would have integrated nicely.

    Perhaps a post on the collusion between universities and corporations is somewhere down the road. The alleged sanctity of the university is a pet peeve of mine.

    Very insightful stuff. Thanks!

  10. Jacob Muehlbauer says:

    Good post. Although I didn’t follow the Loomis story as it happened, I have to say that I am a little surprised at the controversy. In my opinion, Loomis being reprimanded — or even fired for his comments — is in no way related to his right to speech. Since when does “free speech” mean that you can go around making ridiculous comments and not face any consequences? I mean, if Loomis was arrested or fined by the state for his comments, then we could start talking about speech rights — but he wasn’t. As for academic freedom: What if some jackass professor of Astronomy decided to make a statement like our solar system’s sun was at the center of the big bang and all galaxies in the universe rotate around the Milky Way Galaxy? Obviously, employing such a professor would destroy the reputation of this university and as a result, he/she would likely be fired — the same can be said of Loomis. Speech rights categorically do not protect an individual from facing consequences in their professional or personal lives and thus, I have a problem taking anyone seriously who defends Loomis on this ground. If speech rights were intended in this way, then I would be able to run around my workplace mocking all my Christian coworkers for their ridiculous beliefs without having to worry about my job.

    • ohtarzie says:

      Jacob –

      You raise some good points. Generally I am in favor of a fairly expansive interpretation of speech rights; in fact, my primary objection to Loomis’s speech is how at odds it is with the concept of free speech on which he and his advocates appealed.

      But you’re right, it’s complicated: a too expansive interpretation of academic freedom does seem at odds with the general requirement that professors be smart and not stupid. One of the things I find really striking about Loomis is the simple-mindedness of so much of his rhetoric, not simply his preposterous post-Newtown tirade but also his writing on Lawyers, Guns and Money.

      I like your workplace example, but speech rights at work are subject to debate among advocates. From a legal standpoint, there is no legal protection of free speech in the workplace (at least not in the private sector) but that doesn’t mean there shouldn’t be. Again, I am in favor of fairly expansive rights, but your hypothetical example about your Christian colleagues provides a lot of food for thought. That’s a case where an expansive free speech policy would be in conflict with the civil rights mandate to maintain a hospitable workplace regardless of religion. One can easily imagine scenarios where civil rights law could bump up against academic freedom in a similar way, for instance, if Loomis spoke disparagingly of the women he worked with in sexist terms.

      One problem I have with free speech purism is that it puts so much burden on listeners – particular minority factions and women – to be constantly defending themselves when really they should be left in peace.

      • Jacob Muehlbauer says:

        Although I’m far from a constitutional scholar, I’ve always interpreted our right to speech — at least in the sense of your right to be an asshole — to only apply to your right to say crazy/racist/sexist stuff without fear of government oppression. Sure, I have the right to run around mocking people for beliefs which I deem insane, but my boss would also have the right to fire me for being a dick. I don’t know why anyone would object to that. I agree with everything you wrote regarding the fact that Loomis just doesn’t seem to be very intelligent and his inability to grasp the complexity of violence in the US SHOULD be enough to disqualify him from any “scholarly” position, but that seems to be the problem of URI. If they want a professor who runs around attacking people who object to killing Muslim children or who advocates for imprisoning people for their speech, then more power to them. On the other hand, if they determine that employing such buffoons will be harmful to their university, then they should have every right to reprimand or fire him for making ridiculous comments.

        Regarding your criticism of free speech purists: I completely agree. I don’t have any time for anyone who argues that speech rights should shield them from suffering consequences for discriminatory rhetoric. They should be protected to from going to prison, but that’s it. Unfortunately, when a majority of the citizenry are bigoted assholes, then it becomes really difficult to protect the rights of minority factions and women.

  11. Rob says:

    This is great, you’re delving more into the issue, well written, shows how rights can come into conflict with each other. I understand your position more, I’d still say (at the risk of sounding like a broken record) that it could summarized as basically being a question of priorities, I don’t see how that’s changed at all.

    The two issues of 1st Amendment protections (limiting government’s power to sanction for speech) and a more general idea of speech as power in the political-economic context need to just be separated in order to talk about this clearly.
    Regarding the Chester inmate, on whether or not threats to the president are protected speech legally, these are relevant:

    The only issue I have is with the assertion that : “Freedom advances when people who believe in freedom advance. Authoritarianism advances when authoritarians advance.”
    This implies that “freedom” is something inherent to certain types of people, something immutable in their character that can’t be changed – that is, if you take this logic to its extreme, one could “solve” the problem by simply purging the wrong type of people. The problem is that almost everyone believes that they support “freedom”, and that they’re right about who the bad guys are, and every tyrant in history has claimed that right, so you see where that could go in extreme cases… We got a taste of that irony with the response to Loomis’ authoritarian tweets, which was itself pretty authoritarian.

  12. ohtarzie says:

    Jacob –

    Yes, you are right, the First Amendment only protects speech in relation to reprisals from the government, but not everyone, including me, concedes that The Constitution is the last word on human rights. Our government has been set up by, and mostly for, property owners and the law reflects that. I don’t think workers are obliged to yield their speech rights entirely to their bosses simply because they work for them. It’s one thing for a boss to enforce speech codes to protect employees from harassment and verbal abuse. It’s quite another to punish workers for dissident views that harass no one or to require employees to lie, sign petitions or otherwise misrepresent themselves for the sake of their employer.

    These things are not at all simple.

    • Jacob Muehlbauer says:

      I agree with you. I don’t think I explained my position on this very well. I never meant to imply that workers should be forced to yield their speech rights entirely, but at the same time, if a worker’s speech reflects poorly upon the institution for which he is employed (as is the case with Loomis), then I fully support the right of the employer to fire the employee. This is especially true when the employee’s speech is discriminatory in nature. I acknowledge that there are problems with such a vague/simplistic definition of speech rights as that which I have provided, but at the moment I am at a loss for how to phrase the differences between the Loomis case and employees speaking out against Walmart’s labor practices. I suppose under the definition which I have provided, then you could argue that it would support the right of Walmart to fire striking employees due to their speech “reflecting poorly on Walmart”, but I would never support that notion (or anything similar). I will continue thinking about a better way to phrase my position, but I would never support an employer having the right to punish workers for any of the examples that you have listed.

      • ohtarzie says:

        Jacob –

        You’re raising great hypotheticals all of which point to the difficulty of formulating an overarching standard for free speech protection. The Walmart strikers juxtaposed against an employee’s public hate speech, is a thought-provoking example. It seems like it might make sense for codes to be made explicit and subject to negotiation. Right now it seems as if it’s mostly up to the employer except in the public sector.

      • Jacob Muehlbauer says:

        Thanks for the reply. I am still unsure of how to phrase my viewpoint as I will acknowledge that my feelings on this are entirely subjective and consequently very difficult to explicitly articulate; basically, if your speech is discriminatory in nature or falls into what I can best describe as “just being an asshole”, then you should expect non-state consequences. For example, Loomis should expect professional consequences for publicly stating that the head of the NRA is somehow responsible for gun violence in the US, calling him a terrorist and promoting his imprisonment. This is largely due to the nature of his job and all of the points that you outlined in your communications with URI, but his vast oversimplification of an incredibly complex issue and his seeming inability to understand the concept of white privilege as stated in his Lawyers, Guns and Money piece seem especially relevant — in other words, he has clearly demonstrated that he is intellectually lacking and that is a huge problem if you aspire to be an “intellectual”. It’s one thing to claim that your “academic freedoms” are being violated if you are punished for presenting a controversial opinion IF there is evidence to support it and if it does not, quite ironically, violate the academic freedoms of others. However, this clearly does not apply and thus I wholeheartedly agree that I really don’t care what decision URI makes, but if I were a parent of a URI student, then I would be very upset if they continued employing him. Again, I don’t really see this as a speech-rights issue, but would argue that this is, at its core, an issue of competence.

        Unfortunately, as you stated in your previous reply, it is extremely difficult to create an overarching standard for free speech. For this reason (amongst others), I highly doubt that there is a legislative solution to this matter. I think the only thing that can be done on this issue is to continue working within our communities to eliminate bigotry in all forms, but especially the soft bigotry that often goes unnoticed. I have no idea how to accomplish this as we are socialized to hate that which is different and this hatred is deeply ingrained within our culture. It seems like, as a society, hatred is almost zero sum: whenever there is progress on one issue (gay rights), much of that animosity is reapplied to another group (Muslims). Perhaps that is overly-cynical, but I find myself constantly surrounded by bigotry of some form and it often works against me when I point it out. I work in the public sector and despite working with some of the most vulnerable members of society, I am forced to listen to my colleagues routinely make bigoted comments towards minority factions (especially immigrants) and/or adopt an incredibly condescending attitude towards our client base. This may seem a little off-topic, but I think it is impossible to make real progress on issues such as speech or human rights in general — as opposed to some phony/feel-good piece of legislation that doesn’t change anything — until our society as a whole becomes a little less shitty. I’m hopeful that people will be forced to confront their prejudices and progress can be made as more people are forcibly pushed towards the margins due to our continually-weakening economy, but such hopes are of little consolation considering the increase in human misery that would be required for this to occur.

      • ohtarzie says:

        Well said, Jacob. Completely with you on how improvements in the realm of speech only get us so far. I sometimes think the focus on speech is out of frustration with losing so much ground on material conditions and being unable to recover it. In the speech zone, I like the ‘Being an asshole’ benchmark. It’s hard to measure and enforce, but it certainly can help guide our own allegiances. I think the insistence that we’re morally obliged to defend assholes – each and everyone of us at all times – is quite a deft bit of brainwashing. This Loomis campaign took it a step further, in that there was very little, if any, conceding on the part of Loomis’s advocates that he was even being an asshole. The bar for that just gets lower and lower.

  13. ohtarzie says:

    My position was always mostly about priorities. It was you and your fellow homily reciters that attempted to make it about something else. It’s really rather irritating that after so much hyperventilating on Twitter, you are now going to pretend this shit has been self-evident to you all along. Also, just to be clear, I have no problem at all with people at least trying to make life more difficult for people like Loomis, and truly don’t care if such people as he suffer misfortune as a result.

    I do not consider legality the last word on anything and deliberately did not introduce it. Those links you provided look interesting but the particularities of ‘threat’ law are quite irrelevant to my purposes with this post. That certain things are legal doesn’t immunize liberals from taking an interest in them. As ever, you want to miss the point for a technicality, the point being that free speech struggles with merit are happening every day but we only hear about some of them. Is that point incorrect? No. Do my examples demonstrate it? Yes. Clearly.

    I am aware that freedom is a subjective assessment as is our sense of ourselves as advocates. Everyone is aware of subjectivity, so much so that stating it as a qualifier is banal. That doesn’t mean that there aren’t individuals who really do advance freedom and those who don’t. The point, which you miss in your ceaseless mission to impart your truly awe-inspiring broadmindedness, is that it is constituencies advancing and not blindly advocated principles that make for change, especially since everyone but you and your fellow Twitter moralists will adhere to principles tactically anyway. You all will likely behave tactically too (to the extent that any of you act at all) but will no doubt continue to declare over and over how one mustn’t. By the way, I really doubt that any of you chest beaters for the sanctity of free speech sent a single email to URI on ‘underdog’ Loomis’s behalf, but that’s beside the point now. He’s in the clear, just as I’d said he was in my first post.

  14. Pingback: On The Authoritarian Asshole Erik Loomis’s Free Speech Problems (@ErikLoomis) | The Rancid Honeytrap

  15. I was reading in a book about Melville recently and this bit struck me as relevant and resonant to much of what occurs in the “principled” world of Western constitutional democracies:

    “Words, discourses, inherited paradigms of belief: these were what confounded thought by forcing it into straitened terms and generating insoluble problems that were actually functions of an idiom. Recognizing the contingency of vocabularies, however, did little to help…”(Milder, Exiled Royalties, p 38.)

    Morse Peckham, back in the ’87, wrote a pretty interesting piece called “Literature and the State” (I will share the pdf if interested) that discussed “terrorism” as “appropriate” violence (the locus of definition is always the point) but also touches on the “legalistic” argument:

    “The use of violence, mild or extreme, by the state can be seen in two ways, or analyzed into two differing functions. The first is governance, that is, control of behavior; the second is politics, the use of violence to maintain the social stability of the group or even individual known in a given circumstance as the state. Both the function and the limitation of violence can be seen by glancing at the contemporary problem of terrorism. It cannot be that the state objects to terrorism because its citizens are being killed. In this country the citizens kill each other by murder and automobiles, fifty percent of the latter by drunken driving, and the state remains on the whole quite unruffled, except when some group of citizens forming itself as an organ of the state manipulates the state to take some action….No, the state objects to terrorism for quite different reasons. A state maintains its legitimacy by maintaining a monopoly on the use of violence for politics and governance. Terrorism is a challenge to the state’s monopoly on violence for such purposes….The trouble with violence is that if it is used in its ultimate forms there is no further recourse. So we may understand civilization as the strategy by which control and position are maintained without resorting to violence. Legal texts are of the first importance, of course, in circumventing the use of violence as well as justifying violence.”

    I find that speech rights are readily arrogated and just as readily discarded at the level in which there is little significance in either position. I was dismissed from a public school, working as a classroom aide for 9 bucks an hour, for blogging about the system’s acquiescence to the state’s testing regimen and the fact that positions like “aide” become more prevalent as teaching is denied professional importance. My dismissal is irrelevant when compared with class denigrations and gender discriminations (I am a white male). But it is meaningful in the context of the state’s agents and speech rights.

    Further complicating issues is the primary collusion, as you note above, of law and property. This makes any infringement on the “prosperity” of property an infringement of rights. It is almost ancillary “which” rights are infringed (this is like choosing how to prosecute by choosing which law being broken will “stick” against a “perp”). That is “rights” are “used” by social classes according to their ability to, well, use them. (As in my personal situation, I need a lawyer which I can’t afford, or the ACLU which must pick cases narrowly and devote limited resources where they will do the most good.) This leads us back to the “money as speech” arguments that folks defend because they fear the “slippery slope” of speech censorship. This pragmatically makes all speech contingent on social class. Just as it makes murder contingent on class (and the “right” side of a military program); just as it makes “terrorism” appropriate according to the appropriations committees.

    When the affirmation or denial of one’s right to speech is at bottom something of a description of “who” you are (what social position you hold, what color your skin, what genitals you present, etc.) this negates the very idea of a “principle.” This is why 2nd Amendment advocates are, again at bottom, really 1st amendment advocates. Society asks that we give up rights to live peaceably–and that means under force of law and ultimately (the threat of) violence. The Bill of Rights simply creates exceptions for those who can afford to purchase them.

    Sorry, I’m sure I’m rambling and losing focus. Thank you for the forum.

    • Kat says:

      That’s pretty awful that you lost your job due to your blogging. My guess is that there were no “heads on a stick” or “dealt with like a terrorist” type statements. On the other hand, your post was probably more threatening to the powers that be than Herr Loomis’s tweetorama.

      • I’m pretty sure getting on the “wrong side” of the administration (Superintendent and Curriculum Directors) is a bad career move. However, all of my blogging specific to these folks (speaking against the creation of positions called “preventionist” and “interventionist”; the rate of pay disparities/equivalencies for school security, locker room attendants and class aides and, ehem, Superintendents and Curriculum Directors) was prior to my becoming employed. It’s always the POINT that “managers” cannot be conscientious, they must be expedient. Primarily they must be expedient for their self-interest. A Super makes 200k, a curriculum director 100k…these people carry water for business and the state. Period. They have no interest in “rights” or even what many of us must understand as their primary charge, educating students.

  16. ohtarzie says:

    Hi Pierre:

    Thanks for the more formal investigation of the things I touched on in this piece, particularly with respect to class/race/gender etc and speech rights. Your own experience as a poorly paid public school worker contrasts very usefully with Loomis’s and is much more typical of conflicts over speech that people fight, and mostly lose, every day.

    A number of deeply stupid people have been reading my objections to free speech doctrine as an authoritarian call for more speech controls, when my main objection is primarily to how it fortifies illusions about the state’s relationship with the individual and glosses over the pay-as-you-go rights you usefully describe here. As such, I think it is extremely misleading and I increasingly find the starry-eyed attachment to it among quarters on the left EXTREMELY unbecoming. Still shocked by how meanly and stupidly its adherents defend it. It’s very clear that most of the people who weigh in with their idiotic slippery slope tropes know almost nothing of the history of free speech struggle. They also seem rather weirdly oblivious to the state of things now. Even allowing for a slippery slope, it seems we are near the bottom.

    • As you’ve usefully linked to Greenwald in past posts, we might use him again in this case. Greenwald, as far as I’ve read and can remember, is on the side of absolutism in speech, including the so-called idea of money as speech. (Please let me know if I’m mischaracterizing his position.) Recently he spoke against the state (France) trying to censor hate-speech on Twitter. Now, it’s hard to argue against Greenwald as he is wicked smart and far more learned than, well, seemingly everyone. But, it seems to me that we have two issues when we think of these things in terms of absolutes. 1. There is the State as the “protector” of rights and 2. There is the absolute idea of speech rights. Is the judiciary an arm of the State? Yes. We imagine or have been trained to believe that the judiciary, as an institution, (and even in its representatives), is one in which the weight of history bends towards fairness or “constitutionality” (I’m not convinced these are anywhere near equivalents). They, as opposed to the other branches–Congress “serves” local constituencies (interests); the Executive serves an abstract “nationalism” that in reality is the “Business” of world economic governance (the people’s economic health), yes very arguable; but the judiciary is to serve a primary document of “templated” fairness–the best document ever (!) so we’re told.

      The State, as is obvious, has very conflicting interests and so cannot and should not ever be trusted as an unalloyed good–or even as a good period. We, as we are told time and again, cannot know what the state knows and so must leave it to experts to operate our lives at one level. We are only allowed to operate at a lower level and within very strict boundaries, and this includes speech, and these boundaries expand and contract according to our means and our social (racial/gender/wealth) position. That is to say, finally, that the State, in all its functions, has no primary interest in protecting speech generally or as an absolute.

      Now, when we talk about “absolutes” and speech, we are really talking about speech consequences. Again, our social status is where this is played out–where the Loomis scenario plays out, where my own scenario plays out–If I had any juice at all, 1. I wouldn’t have likely been a classroom “aide,” and 2. I’d have contested and sued immediately or 3. They would not have fired me out of this fear of reprisal in court. (I’m guessing about those…but that seems possible.) Where Greenwald speaks–at that top level of STATE intrusion–he speaks of consequences…the slope. We must always uphold speech rights as absolutes–the exceptions are seemingly clear. No incitement to violence is protected for example. The State censor is a real worry. But so is the censorious public lives we are all but forced to live. The marketed understanding of convention. The fear of job loss if we do anything “detrimental” to the business real or perceived. This may be changing, BUT, it seems to me it’s changing in a somewhat Orwellian fashion.

      That is to say, more and more is possible–twitter, facebook, email, etc.–as regards “speech” acts online. And the mass of us in Western countries seem to spend our days and nights doing little else besides what I’m doing now! Or we are just generally digitally tracking our every thought and physical movement. That is worrisome of course for many reasons. But it leads to the reality of “thought crime”–it leads to the the tangible acts of “treason” by incendiary idea. It leads to the psychological profiling of any twitch of the keyboard. But, again, the reality seems to reveal that this profiling will only matter for the Winston Smiths. It will only matter for those who might possibly matter as regards the operations of the State as it has melded into a Global partnership of population management.

      That is to say, again, finally, that if you are poor (a prole)–text away! If you are not, perhaps you will be disappeared.

      Ultimately, you are powerless against the behemoth state (Leviathan!). What are we arguing about?

      • ohtarzie says:

        Hi Pierre:

        Another great comment.

        Yeah, Greenwald and I differ somewhat about free speech, less on matters of policy than on arguments for or against. However, the more I investigate things, the more I am starting to differ on policy too. I find the view of the state that underlies so much free speech doctrine a little starry-eyed, despite all the scary talk of slippery slopes toward dystopia. I don’t find the underlying idea, that the state is more governed by rules and precedents than its own interests, at all supportable. It’s clear the state interprets and applies principle and rules very liberally. I mean, when an attorney general can, fairly uncontroversially, say that the ‘process’ in due process can be just about anything, well then, why have a Constitution at all?

        Your comments also raise an issue I have started thinking about lately, which is what does free speech mean in an era of mass online social networking coupled with mass online surveillance? One could argue that unfettered speech can actually serve the interests of the state as the process for identifying dissidence becomes more automated and measures for suppression become less subject to either judicial review or public scrutiny. This is no reason for remaining indifferent to speech suppression, but must factor into any discussion of its relationship to the state. I think that is the other thing bugging me about free speech doctrine: it’s sounds almost antiquated in light of the way we live now. Our conventions around speaking about it need an update.

  17. Thanks, Ohtarzie. I think you’re right that we need to reconceive how we imagine our new “MO” world (Massive Online…Games, Courses, etc.) might be “protected” and/or surveilled. But this to me seems utterly unimaginable. First, speech protections REQUIRE a “higher” institution to “enforce” freedoms–you can see the contradictions in that idea in the very way I framed it.

    But worse is that we are massively militarized and simply, well, massive. I just cannot conceive of a way to be protected against either State or Corporate intrusion and abuse of any and all I do or say online. Perhaps only if “freedom” simply means I am not jailed or killed for speech then that may be all I can ask.

    My only real protection though will be to NOT speak. And herein is our coming dystopia. Of course, this is the kind of milieu in which Shakespeare wrote…

    I am open to hearing the upside of the ever-moving dawn of technology–but if it involves the rebellion of hackers, I think we’ve sailed way beyond the rubicon.

  18. trayNTP says:

    FYI, I read it. We pretty much covered all of this earlier today.

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