Life At The Bottom Of The Slippery Slope

Back in 2017 I joined a live debate hosted by Radiolab’s More Perfect, sort of arguing with Elie Mystal about whether America should have hate speech laws. I say “sort of” because Elie and I have had this discussion several times and I don’t believe he’s sincerely in favor of America (at least as it now exists) having broader hate speech laws. He’s an ardent critic of the system’s brutality and racism, and lacks the dissociative knack of wanting to give that same system more power expecting it to do good things.

My dad watched online. Afterwards he said “you were good but Elie is a showman and he would have won that debate if Trump weren’t president.” And that’s why I’m like this. What dad meant, of course, is that in 2017 the Trump presidency made it much easier to imagine a government that would abuse any power we gave it to punish speech. As soon as Trump left office, most people forgot feeling that way. You know they forgot because we were treated to a flood of proposed we-can-trust-the-government solutions to problems like disinformation and hate speech and political violence and extremism. Get the FCC to use its power punish misinformation! (Don’t ask exactly how, that makes them mad.). Revoke licenses and rights to broadcast! Adopt European-style hate speech laws! Charge people with incitement and threats! Do something!

These are all old familiar arguments, and First Amendment advocates¹ have old familiar responses. It’s as rote and comforting as the priest’s call and the congregation’s response in the Catholic masses of my youth. The Lord be with you! And also with you. Why not use government force to stop this bad speech? Because government force will be used by the worst people you know to do bad things. And so on. This usually leads to frustration. People who hope the government can make things better think First Amendment advocates are stubborn “absolutists”² who don’t see the danger of extremism and disinformation and are indulging in a slippery slope fallacy. First Amendment advocates think the more-laws crowd is deliberately ignorant of American history, blind to how First Amendment exceptions are disproportionately used against the powerless, and foolishly indifferent to the probability of abuse.

But the second Trump administration may represent America sprawled at the bottom of a slippery slope. That’s no fallacy. Trump has control of the presidency, and Republicans have control of Congress and the Supreme Court. Trump’s team has announced an aggressive agenda to do exactly what his critics called for: use the power of government to attach expression they think is false, misleading, disloyal, or otherwise bad. The Trumpists want the FCC to assert more power over cable and the internet and use that power to punish enemies. They want the government to use its power to attack journalists they hate. They want to protect protestors they agree with, however violent they were, but use state force and authority and deportation to suppress protests they don’t agree with. The Trumpists have a long record of abuse of defamation lawsuits and are aligned with Federalist Society luminaries who want to make it easier for the rich and powerful to sue for defamation. Trumpists want to impose ideological requirement for vast numbers of civil servants and to investigate government employees for disloyalty. In short, they want to flex government power to punish speech they don’t like.

The best case scenario is that most of this is just bluster. Trump blustered a lot in the 2016 election. Perhaps because he didn’t mean it, perhaps because he was distractible, perhaps because he had not yet corrupted enough courts, or perhaps because he was served by a squabbling mob of idiots, he didn’t succeed in punishing all the speech he threatened to punish during his first term. Will this term be different? We live in hope.

But if he means it this time — or if his team feels sufficiently empowered by their win and their Congressional and Supreme Court majority — we could see the sort of sustained, aggressive government attack on dissent that we haven’t seen since the Red Scare. Executive institutions may slow it down but may not thwart it. Judges may or may not impede it. Many Americans may simply surrender, abandoning their expressive rights in the face of the threat. Private actors, emboldened, may escalate violence and abusive litigation. Norms and traditions and values, we’ve seen, can fail.

In short, we may see what happens when the government abandons any pretense to viewpoint neutrality, exercises its maximum power to punish speech it doesn’t like, and punishes expression as false, disloyal, treasonous, inciting, and propagandizing. The First Amendment advocates’ parade of horribles will shudder to vivid life. “I told you so” will be cold comfort. It won’t last forever, but it will be ugly.

Will we learn a lesson from that, when we emerge on the other side? I don’t think it’s in our nature to do so. “The government should protect speech I like and punish speech I don’t like” is too instinctive, too fundamental. I struggle with the atavistic urge to suppress ideas I hate as much as anyone. We’ll remember how the power can be abused for a while, and perhaps enact some legal reforms to protect speech, but within another presidential administration or two we’ll be back to complaining that the government isn’t doing enough to punish bad speech.

Already you hear people saying “what good is the First Amendment if it allowed Trumpism to triumph?” That’s the problem with rights. Nobody promised you they would deliver the results you wanted. Nobody said that rights would ensure the good guys win. An approach that maximizes rights just gives you the best shot, combined with the most respect for human dignity and autonomy. Stay tuned to watch the alternative.

1  I say “First Amendment advocates” to distinguish from “free speech advocates,” who are increasingly preoccupied with having social comfort and moral support to say things rather than the protected legal right to say things, even when those protected legal rights are at risk.

2  A “First Amendment absolutist” is someone who thinks that when the First Amendment says “Congress shall make no law” it means no law — that the First Amendment has no exceptions and permits no restrictions on speech. The last prominent thinker regarded as an “absolutist” was probably Hugo Black and even he wasn’t really absolutist. However, in modern debates about the First Amendment, “absolutist” is used to mean “your description of current First Amendment law may be right but I don’t like the outcome in this case.”