Ch 3.3 | 🖼️The culture wars
“Nothing in the world is more dangerous than sincere ignorance and conscientious stupidity.” — Martin Luther King Jr., 1963.
These are hard issues. Our politicians try to make this black and white, "us vs. them." But these are not simple concerns. As I've argued, there should be certain basic commitments to fairness that bind us as a country.
My intention here is to discuss the "culture wars" in the context of our political system and not in isolation. I want to discuss them in the context of how the political parties have used these issues to divide us rather than find common sense solutions.
The passions of identity politics make us angry and they keep us engaged, but they do not always make us wise. The duopoly uses culture wars to divide us, to incite each side’s “base” and ensure they maintain a grip on the system. And I believe that the federal government’s role extends beyond setting economic policy and must include setting social policy. Ironically, while I prefer a far more conservative approach to the federal government's role in the free market, I prefer a far more liberal role when it comes to social policy. Absent the strong hand of our federal government, we will never ensure the Bill of Rights is fulfilled with fairness and equality.
In "The Day the Delusions Died," the Free Press makes reference to Thomas Sowell's 1987 book "A Conflict of Visions: Ideological Origins of Political Struggles."
In this now-classic, he offers a simple and powerful explanation of why people disagree about politics. We disagree about politics, Sowell argues, because we disagree about human nature. We see the world through one of two competing visions, each of which tells a radically different story about human nature.
Those with “unconstrained vision” think that humans are malleable and can be perfected. They believe that social ills and evils can be overcome through collective action that encourages humans to behave better. To subscribers of this view, poverty, crime, inequality, and war are not inevitable. Rather, they are puzzles that can be solved. We need only to say the right things, enact the right policies, and spend enough money, and we will suffer these social ills no more. This worldview is the foundation of the progressive mindset.
By contrast, those who see the world through a “constrained vision” lens believe that human nature is a universal constant. No amount of social engineering can change the sober reality of human self-interest, or the fact that human empathy and social resources are necessarily scarce. People who see things this way believe that most political and social problems will never be “solved”; they can only be managed. This approach is the bedrock of the conservative worldview.
What do you think of this? Does this resonate?
I'm not sure if I agree that it's so simple, nor that it is binary. But it bears on my thesis in Fairness Matters, because whether you agree or disagree, the question that you should be asking yourself is: What do we do about it? What's going on in the world in the aftermath of Oct. 7 bears witness to some of what Sowell warns of. So do we give in to the inclination to shift our thinking to agree with Sowell’s conclusion?
No amount of social engineering can change the sober reality of human self-interest, or the fact that human empathy and social resources are necessarily scarce.
I still believe that the solution lies in the power of the vast majority of common sense Americans who lie in the middle. We must give a voice to the silent majority if we are going to regain our footing.
That said, my goal here is not to merely draw a conclusion on the validity of a particular point of view about the culture wars, but instead to explore how the duopoly exploits these issues to divide us rather than unite us. Worse still, it's clear that the duopoly has no interest in finding a solution to the problems that divide us.
Why do I say that? Because, the "leaders" of our country — on both sides of the aisle — have failed us for decades by fanning the flames of discord, using the culture wars to foster division that is undeniably contrary to the best interests of the American people!
I hope we can all acknowledge and agree that politics and culture swing like pendulums. It's certainly fair to conclude that the pendulum has swung too far, but that doesn't mean we shouldn't be able to discuss the issues with an open mind and apply reason to solutions of the underlying problems. And, as I will explore, while we can certainly lay responsibility on the progressive left, we can't lose sight of the fact that the response we've seen from the political right is no less dangerous. Rather than systematically dismantling the DEI infrastructure, the reaction from the GOP has been equally destructive.
It's not surprising that just like our political system has exploited the culture wars to divide us, so too have nonprofit organizations – like BLM – used our division to exploit narratives and raise funding. Like everything else in the world, there are well-meaning conscientious actors trying to make the world a better place, and there are frauds and charlatans taking advantage of people's passions and exploiting them for their own benefit with ill intentions.
I think Alan Dershowitz does a fantastic job in summarizing the "problem" with the culture wars and why it's so hard to resolve this complex problem:
The new McCarthyism is more dangerous than the old McCarthyism. The old McCarthyism was clearly wrong it was going after the wrong people for the wrong things, but the new Mccarthyites, the new wokes, they favor women's rights, so do we, they favor gay rights, so do we, they favor transgender rights, so do we, they favor climate control, so do we, they favor reasonable gun control, they favor a decent Supreme Court, they're on our side, they just are taking it to a point where tolerance has disappeared, due process has disappeared, free speech has disappeared. Remember that the "hard left" never supported free speech, it was always free speech for me but not for thee, go back to the Frankfurt school and the people there, they never tolerated anything like that, and so now the intolerant hard left is taking over, but the reason they're so hard to defeat is because they're on the right side of so many issues whereas the hard right is not on the right side and so they are much easier targets.
I think that is one of the most profound insights into the problem of the "progressive movement" in America. On the issues, most liberal minded people agree! But the extreme wings of the duopoly have exploited our weaknesses and our biases to create outrage and intolerance. The duopoly created the culture wars to divide us to retain power and segments of the media exploit it to drive ratings and profits.
I think an article from the National Review — "Debbie Dingell’s Defense of Rashida Tlaib Is Farcical" — sums up the hypocrisy fairly well for me:
For more than a decade now, our universities, our media, our HR departments, and our celebrities have terrorized us with a bunch of vicious dogmas that, it turns out, they never believed in for a moment. In the name of “diversity” and “inclusion” and “equity” and any other abstract concept that might plausibly be recruited to the obscurantists’ side, Americans were asked to subordinate their freedom, their conversations, and their consciences to the personal preferences of a handful of unelected arbiters of taste. And then, one terrible day in October, a real barbarity was staged, and, within a few hours of the rules being applied to its apologists, the whole enterprise was revealed to be a brittle sham. Who among us could have predicted that?
Read the article and use the comments to tell me what you think.
For me, this is a complicated subject, and it should be for you, too. The idea of social justice is noble. But the implementation of “wokeness” and “cancel culture” is toxic — on both sides of the aisle. I caution you, don't believe the rhetoric on either side. We must all acknowledge that the DEI "bureaucracy" was implemented over decades, through multiple presidencies both Republican and Democratic!
Is it time to dismantle the system and rethink how we address these noble causes? Absolutely! But if you think the answer lies on either side of the political spectrum, I firmly believe you are wrong. It lies in the common sense middle, which is underrepresented in our government today.
As we start to discuss the culture wars in more detail, I want to be clear that I do not believe we should throw our hands up and be unwilling to understand the underlying issues of diversity, equity and inclusion that led to our current reality.
Despite what we're seeing around the country, I still believe diversity, equity and inclusion are important virtues.
That said, I'm not here to defend the way that DEI has been "weaponized" by the far left, which has indoctrinated our youth around an "oppressor/oppressed" framework that undermines the virtues of merit. It's clearly a perversion of our education system that feels like groupthink and doesn't foster the open dialogue and opposing viewpoints needed to improve our faltering democracy.
I believe that to ensure we have a thriving country, we must ensure we live in a society that embraces free speech, is liberal and rewards meritocracy. It's become abundantly clear that the way that culture wars have infiltrated our education system is the antithesis of those values. Oliver Wiseman's article in the Free Press titled "Stories About ‘Waking Up from Woke’. A political realignment in three acts" questions whether a change is upon us.
It is sometimes said of the pandemic that it accelerated preexisting trends: we were already living online more and more, reinventing the traditional 9 to 5, automating ever larger parts of the economy, and abandoning shopping malls. And the lockdowns simply turbocharged it all.
Might recent weeks be having a similar effect on our politics? Could outrage at the horrifying events in Israel, the global explosion of anti-Semitism, and the Hamas apologism on campuses and in newsrooms, crystallize into a big political upheaval?
Yesterday, Elon Musk, responding to a Free Press story on X, said that “people are waking up from woke.” Last week, a similar argument was made by Konstantin Kisin in our pages with his essay “The Day the Delusions Died.” He wrote that “many people woke up on October 7 sympathetic to parts of woke ideology and went to bed that evening questioning how they had signed on to a worldview that had nothing to say about the mass rape and murder of innocent people by terrorists.”
One person who has felt disenfranchised from the left for years is Seneca Scott, a black Oakland activist fighting for the future of his city. Scott is a former progressive who used to support defunding the police. But then he changed his mind. In 2020, “I realized how deep the damage was,” Scott tells David Josef Volodzko in a profile for The Free Press. Oakland’s leaders, “the people we had put in place . . . were just complete frauds.” Now Scott says he’s aiming to start a revolution in his city that will spread across the country.
It has become critically important that we explore the issues of cancel culture and wokeness to understand how to find common sense solutions for what divides us. Call me naive, but I still believe there are common sense solutions that can be employed to ensure underrepresented minorities are protected without empowering the tyranny of the minority.
But human nature certainly compounds the problem exponentially! So let's not throw the proverbial baby out with the bathwater. The pendulum will swing from left to right and then back again, as it always has. The question is: What is the path to ending this toxic politicization of people's suffering?
What is ‘wokeness’?
Ricky Gervais said the following about "wokeness" and it resonates.
Here's the irony. I think I am woke, but I think that word has changed. I think if woke still means what it used to mean, that you're aware of your own privilege you're trying to maximize equality, minimize oppression, be anti-racist, anti-sexist, anti homophobic — yes, I'm definitely woke. If woke now means being a puritanical, authoritarian bully, who gets people fired for an honest opinion or even a fact, then no, I'm not woke… fuck that.
What the progressive movement is doing to rewrite the English dictionary is hard to comprehend on so many levels. It strains credulity. When did we all become so frail? When did every word become offensive? For a long while, I was tolerant of this trend and simply chalked this up to a harmless way to add civility to discourse.
But let’s start with a definition of the word woke, which is defined as describing someone who has “woken up to the issues of social justice.” Ok. What is social justice? Social justice means equality for everyone without exception — in other words equality for people of color, equality for women, equality for LGBTQ+ people, etc.
So consider Dershowitz's analysis above. Is that really so hard for thoughtful, caring, common sense people to believe in? To be clear, I’m not calling for equality of outcomes but equality of opportunities, free from prejudices and including diversity in its broadest form: diversity of viewpoints, politics, ethnicity, race, age, religion, experience, socioeconomic background, sexual identity, gender and so on.
If not, tell me why.
Unfortunately, even the term “woke” is controversial and interpreted differently depending upon which side of the political spectrum you’re on.
On the left, to be woke means to identify as a staunch social justice advocate who’s abreast of contemporary political concerns — or to be perceived that way, whether or not you ever claimed to be woke yourself.
On the right, woke — like its cousin “canceled” — describes political correctness gone awry, and the term itself is usually used sarcastically.
From my perspective, it was best summed up for me by James Lindsey when, in discussing what he referred to as critical social justice, he referred to Wokeness as:
a toxic fusion of cherry-picked aspects of the many lines of thought just identified, each chosen for its practical utility in advancing its particular line of fundamentally anti-liberal activism.
Bari Weiss wrote a compelling editorial, "End DEI," in Tablet Magazine about the diversity, equity and inclusion "bureaucracy" embedded in our university campuses. I want to share this quote, discussing her experience with DEI when she was a student on campus:
What I saw was a worldview that replaced basic ideas of good and evil with a new rubric: the powerless (good) and the powerful (bad). It replaced lots of things. Colorblindness with race-obsession. Ideas with identity. Debate with denunciation. Persuasion with public shaming. The rule of law with the fury of the mob.
People were to be given authority in this new order not in recognition of their gifts, hard work, accomplishments, or contributions to society, but in inverse proportion to the disadvantages their group had suffered, as defined by radical ideologues.
Weiss advocates for ending DEI for good saying:
No more standing by as people are encouraged to segregate themselves. No more forced declarations that you will prioritize identity over excellence. No more compelled speech. No more going along with little lies for the sake of being polite.
She argues that DEI is undermining America. And she isn't wrong. As we will explore, this seemingly well-intentioned concept has been implemented in a way that is beyond illiberal — especially within college campuses.
On “Honestly,” Weiss gives a platform for Christopher Rufo and Yascha Mounk to debate DEI in "The Right Way to Fight Illiberalism." It's worth listening to.
So whether or not we should "end" DEI is tangential to my point. What I think we need to focus on is how our political leaders have allowed this to foster as a means to incite and divide us. The question for me is can we reign in the progressive left without the need to embrace an authoritarian, hard right response. I believe there are common sense solutions to ensure more opportunity for more people. It’s fine to condemn the illiberal left (which I do often), but overstating the threat, treating it like an extinction event for democracy, is both wrong and gives cover to these sorts of extreme measures on the other side. We need to find common sense solutions that will only be found if/when we shed the extreme rhetoric of left/right politics.
I believe that your view on “woke" and "cancel culture" is a matter of perspective. So let's explore that a bit.
Cancel culture: Is it a matter of perspective?
The hypocrisy of cancel culture is on full display in America on both sides of the aisle. We've talked above about DEI and how the left has institutionalized its woke agenda and in the paragraphs that follow we will discuss the perils of the DEI bureaucracy.
Just consider Harvard's mandatory Title IX training. According to the Free Beacon, in "Harvard Tells Students: 'Using Wrong Pronouns' Constitutes 'Abuse,'":
"Fatphobia" and "cisheterosexism" perpetuate "violence." "Using the wrong pronouns" constitutes "abuse." And "any words used to lower a person’s self-worth" are "Verbal Abuse." Those are just a handful of the things the school told all undergraduate students in a mandatory Title IX training session, according to materials reviewed by the Washington Free Beacon.
The online training, which all undergraduates were required to complete in order to enroll in courses, includes a "Power and Control Wheel" to help students identify "harmful" conduct. Outside the wheel are attitudes that "contribute to an environment that perpetuates violence," a voiceover from the training states, including "sizeism and fatphobia," "cisheterosexism," "racism," "transphobia," "ageism," and "ableism."
Inside the wheel are behaviors that the school says constitute "abuse" and could violate its Title IX policies. "We all have an essential role to play in creating a community that cultivates gender equity and inclusion," Harvard College dean Rakesh Khurana told students in a video introducing the training. "Completing this course is a critical step in establishing a shared understanding of the values here at Harvard College."
Here's the "Power and Control Wheel." Wow!
It's especially galling in the wake of Harvard's response to the rabid anti-Semitism that exploded on campus in the wake of Oct. 7. Hypocrisy of the highest order. More on that later.
But for a moment, let's consider how the right has embraced cancel culture with authoritarian vigor. As we will discuss, the GOP leadership takes exception to "cancel culture" but has no issue “canceling” anything it doesn't agree with.
Take a moment to consider the recent ruling striking down Florida's Stop WOKE Act. That opinion — as well as other rulings against Florida Gov. Ron DeSantis’ attempts to inhibit dissent — makes clear that he is just as willing as Trump to embrace the GOP’s authoritarian element and use state power to punish the GOP's enemies.
The Stop WOKE Act is the Orwellian scheme that DeSantis signed into law to muzzle the discussion of race and racism in classrooms and the workplace. As U.S. District Judge Mark Walker explains in his opinion,
The law officially bans professors from expressing disfavored viewpoints in university classrooms while permitting unfettered expression of the opposite viewpoints.
He dryly continued,
Defendants argue that, under this Act, professors enjoy “academic freedom” so long as they express only those viewpoints of which the State approves.
In attempting to curtail the discussion of political positions of which he disapproves, DeSantis is following in a long line of authoritarians who have attempted to paint dissent as dangerous and, therefore, unprotected.
In January 2023, the Florida Department of Education said it would not allow an Advanced Placement class on African American studies to be taught in the state's public schools. The class was developed by the College Board as one of its many classes high school students could take to gain college credits. The Department of Education said the class violates the Stop WOKE Act. The course (here’s the description) will be taught in 60 schools across the U.S. on a trial basis. Florida is the only state rejecting the course, according to the Wall Street Journal.
The Stop WOKE Act actually mandates teaching African American history, but limits the way ideas like capitalism, critical race theory and meritocracy can be discussed. This is truly state sanctioned censorship of free thought and free speech. If you look at Florida's "parental rights" bill (also known as "Don't say gay”), one common refrain from its supporters was that its main goal is to protect the innocence of children. Won’t there be third graders who might get confused? Five-year-olds who didn't need exposure to ideas about adult sexuality? Little girls who could be confused about their own gender by learning of trans adults?
All these questions are worth considering. Ultimately, at what age should a kid be taught about gender and sex? It’s not simple. But how do you justify Florida’s approach to limiting the study of race? These are juniors and seniors in high school who are applying for and electing to study advanced, college level classes. Most are surely old enough to drive. Many, in Florida, could enroll in the military or legally consent to sex. In some states, a lot of these students could buy a gun. But they can't handle reading Angela Davis? They can't read arguments for reparations or communism? Is this really what we are doing in the United States of America? And it’s gaining momentum. For example, the House passed a parental rights bill last year.
Who is the “snowflake” now? I'm sure you've seen how that term has become a politicized insult typically used by those on the political right to insult those on the political left. Can you see that the GOP are snowflakes of a different shape?
It's really all a matter of perspective!
As an aside, I find it funny/ironic that back in the 1860s, "snowflake" was used by abolitionists in Missouri to refer to those who opposed the elimination of slavery. So maybe it is fitting that this issue would come full circle.
Let’s use this recent example that makes my point: At Eastern Florida State College, a student’s “discomfort” caused cancellation of civil rights classes in 2023. In 1963, in the midst of the civil rights movement, two schools merged to create what later became Eastern Florida State College to provide postsecondary educational opportunities to the African-American residents of Brevard County. Can you imagine a world where Eastern Florida can’t teach civil rights? It’s absurd.
What it comes down to is Republicans are in favor of free speech as long as you agree with them, and the Democrats feel exactly the same way about their DEI agenda.
I canceled my subscription to The New York Times 20 years ago because of its over bias. That said, this article does a decent job of framing the issue. I’d welcome your thoughts on the article.
Frankly, I find what Trump and other leaders of the GOP are proposing on these issues is abhorrent and only confirm my bias that the GOP’s dogma is what’s wrong with the party and that structural bias does exist at an institutional level in this country. By the same token, the progressive left has implemented strategies and embraced dogmas that are equally abhorrent.
Unfortunately, common sense solutions are not being proposed by either party to address these concerns. This is why I believe it’s about your perspective on the particular issue, especially when it involves the exceptions referenced above.
What's your perspective?
LBGTQ+ rights
On this issue we also must levelset around the role the Church has played.
The Bible is the most widely read book in the history of the world, with 3.9 billion copies sold over the last 50 years.
I am a person of faith. I have faith in many things. But I’ve learned that one thing that we shouldn’t put our faith in is organized religion.
Far too many people believe the Bible is the literal word of god. That defies logic. Over the past 2,000 years, this sacred text has changed a great deal. Unfortunately, no "first edition" exists. What we have are copies, the first of which were made hundreds of years after the events supposedly took place. For the first 100 to 200 years, copies of the Bible were made by hand. This led to many errors, omissions, and — most importantly — changes.
To bring this home to the issue of our culture war, are you aware that the first time the word “homosexual” appeared in any Bible was in the Revised Standard Version published in 1946. That’s correct — 1946! That addition ignited the anti-gay movement among American conservative Christians. Like the inclusion of “under God” in the pledge of allegiance, and “in God we trust” on our money, the use of religion as a basis for discrimination should be anathema to all of us.
Like most of what divides us, it’s mostly a matter of perspective. Here’s my perspective: If you watched “The West Wing” you'll remember this scene. If you have never seen the show this is a poignant exchange. I find it so poetic in this context. Gotta love Aaron Sorkin.
I wonder how religious zealots will respond to this report that Pope Francis has weighed in on the issue of criminalizing homosexuality. He condemned “unjust” legislation criminalizing same-sex relationships around the world, saying,
“being homosexual is not a crime,”
And, mark my word, if DeSantis were ever to win a GOP nomination for the presidency these issues will become a focal point of his national culture war.
Take for example, the fact that DeSantis fired Andrew Warren, the state prosecutor for Hillsborough County, Fla., for speaking out against the governor’s forced-birth abortion plan and his persecution of LGBTQ youth. In his ruling in favor of Warren, U.S. District Judge Robert Hinkle called DeSantis’s allegation against Warren “false.”
In the first 57 pages of the 59-page opinion, the court makes crystal clear that DeSantis went after Warren for his political affiliation and views, including his outspoken defense of his record as a reform prosecutor. Warren said in public remarks after the ruling that DeSantis’s conduct should send “shivers down the spine of anyone who cares about free speech, the integrity of elections and the rule of law.”
Is this really how we want our elected officials to comport themselves?
I think not. For another perspective, take a moment to read an interesting article from the Free Press entitled “Stop Saying Florida Isn’t Safe for Gay People. It’s Fine.”
Free speech, its limits and its consequences
Vox published a great story on free speech in America, "What the 2020 debate over free speech missed: Our fights over free speech have gotten more heated precisely because speech has never been freer." In it, the author writes:
Cancel culture, whatever you think of it, is a problem within free speech, not a problem of free speech. This is a paradox that stretches all the way back to the invention of democracy and rhetoric in Ancient Greece. The Greeks even created dueling conceptions of free speech — isegoria (the right of everyone to participate in public debate) and parrhesia (the right to speak without limits) — to highlight the conflicts that emerge within open societies. It’s worth noting that the Athenians could never manage these tensions and that’s partly why their democracy had the same familiar fights over ostracism and tribalism. (Socrates was canceled by the mob!)
Our discourse is as free as it’s ever been and as democratic as it’s ever been. And that’s a challenge we’ve never truly navigated before — not on this scale. The turbulence we’re experiencing now, viewed from 30,000 feet, is the latest example of a society wrestling with a contradiction at the heart of every democratic culture: It can’t function without an open communication environment, but that environment, because of its openness, is vulnerable to all sorts of internal pressures that can undermine the system from within.
I sometimes question how we will ultimately adapt our concepts of the First Amendment to meet the challenges of the world we are living in.
I advocate that our Founding Fathers could never have imagined the world we are living in today. The system has been corrupted and is the source of much of the rancor and divisiveness that we struggle with every day, and much of it is cloaked in the protection of the First Amendment. I want to be on the record that I believe that lies (especially from elected officials and the media) should not be protected speech.
Don’t get me wrong, I am 1,000% in support of free speech and of our free press. It’s the hallmark of a free society. But people don't fundamentally understand free speech. Free speech is not only about freedom to say what you want. It is also about the freedom for everyone to participate in speech, and to access the metaphorical public square. Moreover, not all speech is protected as "free speech" and, as I will discuss below, there are limits and consequences.
I want to borrow from Sorkin again, this time from “The American President.” This is the monologue that has always resonated with me:
America is advanced citizenship. You gotta want it bad, 'cause it's gonna put up a fight. It's gonna say, "You want free speech? Let's see you acknowledge a man whose words make your blood boil, who's standing center stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours. You want to claim this land as the land of the free? Then the symbol of your country can't just be a flag; the symbol also has to be one of its citizens exercising his right to burn that flag in protest. Show me that, defend that, celebrate that in your classrooms. Then, you can stand up and sing about the "land of the free."
Here's the full clip:
So while the ideas of different people and/or communities will often and quite naturally conflict, we should not attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable or even deeply offensive.
Yes, we share a responsibility for maintaining a climate of mutual respect. But concerns about civility and mutual respect can never be used as a justification for closing off discussion of ideas, however offensive or disagreeable those ideas may be to some members of our community.
The First Amendment protects what are commonly known as the Five Freedoms: freedom of religion, freedom of press, freedom of speech, freedom of assembly and freedom of petition. The amendment is the first of 10 changes to the Constitution known as the Bill of Rights, which was adopted in 1791. The First Amendment reads:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
This amendment gives Americans the right to express themselves verbally and through publication without government interference. It also prevents the government from establishing a state religion, and from favoring one religion over others. And finally, it protects Americans’ rights to gather in groups for social, economic, political or religious purposes; to seek changes from the government; and even to file a lawsuit against the government.
The freedom to debate and discuss the merits of competing ideas does not, of course, mean that individuals may say whatever they wish, wherever they wish. It’s beyond fair (and supported by court precedent) that we can restrict expression that violates the law, that falsely defames a specific individual, that constitutes a genuine threat or harassment, that unjustifiably invades substantial privacy or confidentiality interests, or that provokes violence.
Let's explore the Supreme Court's landmark decisions that restrict a citizen's First Amendment rights.
In its 1917 ruling in Schenck v. United States, the Supreme Court found that Charles Schenck could be found guilty of attempting to obstruct the draft because he handed out flyers to men urging resistance to the draft. Schenck was not protected by the First Amendment even though
in many places and in ordinary times, Schenck, in saying all that was said in the circular, would have been within his constitutional rights. But the character of every act depends upon the circumstances in which it is done.
Justice Oliver Wendell Holmes Jr. wrote:
[T]he words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.
The Knight First Amendment Institute at Columbia University revisited that decision:
The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. ... The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.
In 1969, Schenck was largely overturned by Brandenburg v. Ohio, which limited the scope of banned speech to that which would be directed to and likely to incite imminent lawless action (e.g. a riot).
This “emergency” standard was first laid out by Justice Louis Brandeis. As he wrote in 1927:
To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. ... Only an emergency can justify repression.
As Ilya Shapiro in "Where Free Speech Ends and Lawbreaking Begins" for the Free Press:
We shouldn’t weaken speech protections, which have made America not only the freest country in the world, but the most tolerant. But sometimes “speech” isn’t speech. Sometimes it rises to the level of conduct that prevents others from being able to live their lives. Right now we need people to discern the difference.
What the article highlights makes clear is that free speech doesn't mean you are free from consequences for your words.
When will everyone wake up to the reality that words matter? That words have consequences and when people or organizations — including media organizations and social media platforms — spread lies and vitriol they must be held responsible for the results of their incitement?
In another Free Press piece, "Even Antisemites Deserve Free Speech," the authors argue that:
First Amendment jurisprudence does not protect all speech. Tearing down posters in order to prevent others from seeing them, as some did at NYU, does not fall under its protections. And the government is empowered to restrict expression that has a tight and direct causal connection to specific harm.
Applying this standard, the modern court has unanimously protected even hateful, racist speech and advocacy of violence. Speech cannot be punished solely because its content or message is loathsome, even if it is vaguely feared to potentially contribute to harm. So the rallying cry, “There is only one solution,” as painful and morally abhorrent as it is, is protected.
The Court has recognized several context-based categories of speech that do satisfy the emergency principle, including intentional incitement to imminent violence. In addition, speakers may not issue “true threats”—speech that directly targets specific individuals with hateful, violent rhetoric, intending to instill a reasonable fear that the targeted individuals will be subject to violence. But these concepts are highly fact-specific, depending on all the circumstances in a particular situation.
As with most situations where we attempt to apply the law, the decision whether speech is protected speech is determined by the facts of the case. I believe we have reached a tipping point — perhaps even a boiling point — and it's time to reexamine what constitutes "protected" speech. Especially political speech. So unless and until the Supreme Court changes its interpretation of the First Amendment, we will have to continue to listen to lies and vitriol. But just because you can say whatever you want doesn't mean that you can't face the consequences of your words.
[Updated/Rewritten after 10/7]
The culture on college campuses
Let's explore the First Amendment in the context of the culture on college campuses.
In 2023, Bari Weisswrote a piece for The Free Press headlined "How to Really Fix American Higher Education":
My view is that, above all else, we must focus on returning American higher education to its original purposes: to seek the truth; to teach young adults the things they need to flourish; and to pass on the knowledge that is the basis of our exceptional civilization.
In the simplest of terms, it's hard to disagree with Michal Cotler-Wunsh who, when giving a speech at the U.N., said:
And so if university campuses just utilize that resource to educate—to educate all of their students in order to be able to know that they are engaging in what is today’s anti-Semitism, the modern mainstream form of anti-Semitism, then we will actually be doing what universities are supposed to be doing, which is teaching people how to think rather than what to think.
If you think we are at a unique moment in history, consider the height of intellectualism in 1930s Germany. In "The Treason of the Intellectuals," Niall Ferguson rightly states:
Anyone who has a naive belief in the power of higher education to instill ethical values has not studied the history of German universities in the Third Reich. A university degree, far from inoculating Germans against Nazism, made them more likely to embrace it.
He continued:
totalitarianism of the right and the totalitarianism of the left had fundamentally similar characteristics. In particular, they loved to impose Newspeak on those they subjugated.
And in discussing the lessons from German history, he says:
The lesson of German history for American academia should by now be clear. In Germany, to use the legalistic language of 2023, “speech crossed into conduct.” The “final solution of the Jewish question” began as speech—to be precise, it began as lectures and monographs and scholarly articles. It began in the songs of student fraternities. With extraordinary speed after 1933, however, it crossed into conduct: first, systematic pseudo-legal discrimination and ultimately, a program of technocratic genocide.
It's ironic Hamas' depraved terrorist attacks have brought an ugly reality that has been festering for decades into sharp focus. As Bill Maher so aptly stated, it has "opened our eyes to how higher education has become indoctrination." He hits the nail on the head in his commentary on this subject! It would be funny if it wasn't so appalling. This isn’t satire, folks. This is truth!
Andrew Sullivan wrote back in 2018 that “We All Live on Campus Now”:
I believe ideas matter. When elite universities shift their entire worldview away from liberal education as we have long known it toward the imperatives of an identity-based “social justice” movement, the broader culture is in danger of drifting away from liberal democracy as well. If elites believe that the core truth of our society is a system of interlocking and oppressive power structures based around immutable characteristics like race or sex or sexual orientation, then sooner rather than later, this will be reflected in our culture at large. What matters most of all in these colleges—your membership in a group that is embedded in a hierarchy of oppression—will soon enough be what matters in the society as a whole.
In "The Naked, the Dead, and the Ivy League," professor Thane Rosenbaum writes:
Some of America’s “best and brightest” shamelessly exhibited their support for a bloodbath, in all its inhumane splendor. Many wore masks, either because they knew the repugnance of their actions, or because they didn’t want to pay a price for their beliefs. I get it: The same people who would cancel anyone for misusing a pronoun, or wearing the wrong Halloween costume, or had a kind word for Republicans, didn’t wish to be held accountable for their convictions.
The journal Sapir published a chilling editorial titled, "Critical Race Theory and the ‘Hyper-White’ Jew." In describing how a student's illusions are shattered upon entering college, she writes about her college orientation:
Imagine you’ve just been accepted to college. You open your welcome packet. It contains the bestseller all first-year students are expected to read: Robin DiAngelo’s White Fragility. You flip to a random page and read, “Only whites can be racist.” You flip to another page where you read that to deny being racist is itself evidence of “white fragility.” You wonder what you’re supposed to do in order to not have “white fragility.”
You dutifully read the book.
Your first day arrives. You decorate your room with pictures. Your favorite is the one of you and your extended family in Israel when you were little. Your cousins live in Tel Aviv and you love visiting them. You hang a hamsa above your desk. Your roommate seems nice.
The theme of orientation is “Campus Inclusion.” The first thing you learn about is “microaggressions.” The associate dean of Diversity, Equity, and Inclusion explains that perpetrators of microaggressions are often unaware of the harm they’re causing. They can even have good intentions. But as the handout says, “almost all interracial encounters are prone to microaggressions.”
You were looking forward to meeting people from different backgrounds. You didn’t realize it would be so fraught — you don’t want to perpetrate anything. It never would have occurred to you that asking someone where he’s from could be a microaggression. Or that saying “I believe the most qualified person should get the job” is. Even saying “America is a melting pot” is on the list.
As Yascha Mounk, a liberal fed up with campus illiberalism, explained in a pithy X thread."
But part of protecting free speech is to punish students who violate the rules that make free speech possible for everyone else.
This includes punishing those who violently disrupt talks—and it also includes punishing those who tear down fliers depicting children kidnapped by Hamas.
The answer to this moment isn’t to give up on a culture of free speech on campus. It’s to enforce the rules that sustain it in an impartial manner.
Amen! If you haven’t read “The Identity Trap” by Yascha Mounk, I highly recommend it. It’s incredibly insightful into the complex history of the ”wokeness” and the DEI “bureaucracy. I think this except from the Amazon review sums it up nicely
In The Identity Trap, Mounk provides the most ambitious and comprehensive account to date of the origins, consequences, and limitations of so-called “wokeness.” He is the first to show how postmodernism, postcolonialism, and critical race theory forged the “identity synthesis” that conquered many college campuses by 2010. He lays out how a relatively marginal set of ideas came to gain tremendous influence in business, media, and government by 2020. He makes a nuanced philosophical case for why the application of these ideas to areas from education to public policy is proving to be so deeply counterproductive—and why universal, humanist values can best serve the vital goal of true equality. In explaining the huge political and cultural transformations of the past decade, The Identity Trap provides truth and clarity where they are needed most.
The Foundation for Individual Rights and Expression, arguably one of the most prominent group championing free speech, summarized the state of affairs on our college campuses as follows:
Free speech on campus is under continuous threat at many of America’s colleges, pushed aside in favor of politics, comfort, or simply a desire to avoid controversy. As a result, speech codes dictating what may or may not be said, ‘free speech zones’ confining college free speech to tiny areas of campus, and administrative attempts to punish or repress campus free speech on a case-by-case basis are common today in academia.
The Jewish Journal, in its article "The Naked, the Dead, and the Ivy League," does a fantastic job highlighting the hypocrisy of the progressive movement.
The satirical news site The Babylon Bee pretty much hit the nail on the head in a single headline: “Harvard Student Leaves Lecture On Microaggressions To Attend ‘Kill The Jews’ Rally.”
Bari Weiss does an incredible job in her article "Campus Cowardice and Where the Buck Stops." In it she writes:
Contrast what colleges will tolerate with what they won’t. Microaggressions are met with moral condemnation. Meanwhile, campuses will tolerate—even glorify—the wanton murder of Jews—actual violence. Indulge in this at UCLA and you can get extra credit.
The Atlantic summed it up for me:
Progressives who once argued that free speech is violence now claim that violence is free speech.
In discussing how to diversify thought on college campuses, an editorial in the Washington Examiner titled "DEI is on the run" asserts:
Diversity, equity, and inclusion, or DEI, in higher education was deceptively sold as a set of policies designed to promote "the fair treatment and full participation of all people," particularly groups that "have historically been underrepresented."
But DEI offices have proved to be epicenters of division and ideological conformity, stirring hostilities and imposing an intolerant monoculture. … Universities nationwide use mandatory diversity statements to enforce ideological conf ormity in disciplines as varied as physics, history, and psychology.
While it may be true that we can remake the DEI system, I tend to agree with Abe Foxman and David Harris, two former longtime leaders of the Anti-Defamation League and American Jewish Committee, respectively, when they state that the DEI bureaucracy "cannot be fixed." In discussing whether to urge universities to remake the DEI infrastructure to better incorporate Jews, they assert that DEI is
based on a faulty premise — that racism is a function of oppressed and oppressors [and] that all white people are oppressors and all people of color [are] oppressed.
The results are bias, illiberalism, reinforced, legitimized and institutionalized anti-Semitism in many institutions. It has built a huge funded bureaucracy which is today difficult to change or amend. Efforts by communal Jewish organizations to include the Jewish community or soften its impact on anti-Semitism have failed. It cannot be fixed, it needs to be scrapped and replaced by a vigorous implementation of our civil rights laws that are color blind, and apply equally to all. If necessary some civil rights laws can be amended and strengthened. DEI was developed to eliminate bias but sadly it created bias.
Anti-semitism
This one is personal for me. So I will state upfront that I have a bias and I find myself leaning further towards the right side of the aisle when it comes to anti-Semitism. It's complicated because I struggle with whether I agree that we should "cancel" anyone, even if they speak vile antisemitic statements. As I said at the start of this discussion, cancel culture is a matter of perspective.
I started writing Fairness Matters in October 2022. Almost exactly one year later, in October 2023, we began to witness the results of what I've been writing about finally boiling to the surface.
It feels like we've lost our shared moral compass. It feels like a war for our way of life. The same war that took more than 3,000 innocent American lives on 9/11, one that too many thought was over, as Bari Weiss said at the Federalist Society on Nov. 10, 2023, “came, hideously, across the border from Gaza into Israel on that Shabbat morning a month ago.”
She continued powerfully:
The difference between 9/11 and 10/7 was that the catastrophe of 10/7 was followed, on October 8, by a different kind of catastrophe. A moral and spiritual catastrophe that was on full display throughout the West before the bodies of those men and women and children had even been identified. People poured into the streets of our capital cities to celebrate the slaughter.
In the context of 10/7 vs. 9/11, she states that anti-Semitism is not the "whole answer" because, as she rightly surmises, it's a symptom of a larger problem:
When anti-Semitism moves from the shameful fringe into the public square, it is not about Jews. It is never about Jews. It is about everyone else. It is about the surrounding society or the culture or the country. It is an early warning system—a sign that the society itself is breaking down. That it is dying.
It is a symptom of a much deeper crisis—one that explains how, in the span of a little over 20 years since Sept 11, educated people now respond to an act of savagery not with a defense of civilization, but with a defense of barbarism.
Her speech is quite powerful and absolutely worth your time.
While I believe Weiss makes a lot of very valid points about the ideology that has infiltrated the West, I believe there are a great many things that have led us to this moment in America. I will attempt to address a few of the core issues, including the ideology that she warns so eloquently about.
Let's look at what happened to Ye (f/k/a Kanye West). His anti-semitic rants on X/Twitter led to an increase in violence and hate with alt-right groups and several Black celebrities, which further fanned the flames. Incredibly, despite Ye’s statement that Adidas will never end his contract, the company put the integrity of its brand above all else. And it cost the business nearly $200 million in annual profits! That is a true commitment to its values, and many of my friends on the right were celebrating this version of cancel culture.
Or course, Trump's penchant for fanning the flames of anti-Semitism undermines and taints some of the good he has done in the Middle East (more on that later). Take for example his pre-Thanksgiving dinner with Ye and Nick Fuentes — a repellent, hateful, anti-Semitic, Holocaust-denying, racist, misogynist, homophobic white supremacist and self-identified incel who praises Adolf Hitler and Vladimir Putin, supports the Taliban, advocates assaulting women who “get out of line,” says the civil rights movement was a mistake, and who, just two days before the Jan. 6 riots at the Capitol, publicly suggested killing legislators who were unwilling to overturn the results of the 2020 election. He also called the deadly attack on democracy “awesome” and “refreshing.”
As much as I hate the New York Times for its biases and double standards, Bret Stephens remains worth reading. He wrote a great opinion piece, "Thank Ye Very Much," about the pervasiveness of anti-Semitism.
I have a hard time getting my head around why everyone doesn’t see that cancel culture is all about perspective! Are you persecuted or not? If you are … then guess what!
I posted this image on Facebook of the protesters in Time Square holding up Swastikas alongside a picture of young children waving Swastika flags in 1934 in Germany.
A friend of mine commented:
Hate to say it I know how you feel brother but too bad a guy like Trump isn’t the president right now. He would shut that down real quick. Although not in a polished way.
I responded as follows:
Really. That is the most tone deaf thing you can say to me right now. I have friends and family in harms way. There are racists walking the streets and demonstrating on college campuses. That immoral incompetent stoked this fire. He gave a voice to racists and skin heads and just called Hezbollah "very smart”. He’s not fit to be in any office let alone POTUS.
As I've discussed throughout this project, the heart of the problem is dogma and ideology. Hate seems to emanate from the extreme ideologies on both sides. I know folks on the hard right think they are so different from those on the hard left. But they are not. They are two sides of the same coin. They are BOTH grievance-driven.
They both ground themselves in "us vs. them" mentalities and leave little room for common ground. The point will not be found on either end of the political spectrum or in any extreme dogma.
To drive the point home, please read the, opinion piece published by Democratic Rep. Ritchie Torres of New York titled "Democratic Socialists are ‘indoctrinating’ young Americans with anti-Israel hate in ‘moral monstrosity.’" Those words of moral clarity came from a Democrat.
This isn’t red or blue. It’s purple.
This isn’t about my side or your side. It’s about common sense and fairness and what's in our best interests.
This is about truth over lies, morality over depravity, common sense over extremist dogma.
Ultimately, it’s about unity vs. division.
Right now — in America — the extreme dogmas drive the conversation and are intimidating the silent majority.
For decades, I have longed for moral clarity and leadership from both sides and rarely found it. For everyone who wants to believe the rhetoric that your party has the answer, I can tell you unequivocally that you won't find the answer in the Democratic Party or the Republican Party. They aren't looking for answers. All they care about is staying in power!
And, under no circumstances will the answer be found in the political or religious extreme dogmas.
As such, if you're looking for solutions you won't find them in a Trump, a Vivek or a DeSantis but in a more common sense centrist like Nikki Haley. It won’t be found in a Bernie Sanders or an Elizabeth Warren but in a common sense bipartisan congressman like Dean Phillips (if you're unfamiliar with Phillip, here's a great interview on the All-In Podcast and another on Honestly). Sadly, absent a miracle, we will be facing a rematch between Biden and Trump.
But in the end, it's the system that isn't working. Until politicians are accountable to the majority of common sense people in the middle and no longer beholden to their political party, which is controlled by their vocal minority at the fringe, we won't solve the problems.
So if we are unfortunate enough to be faced with a horrible choice of selecting between Joe Biden or Donald Trump, we will have to choose wisely! We are at a crossroads that was the inevitable consequence of our broken political industrial complex.
For my friends who still believe that Trump is a better choice than Biden, I want to call attention to the fact that the GOP has played politics over much-needed funding for Israel. ln November 2023, the GOP had the opportunity to pass a bill to provide $14.3 billion in aid to Israel but instead doomed the bill by including a "poison pill" that required cuts to the IRS to fund the aid, knowing it would never pass the Senate. And then, funding for Israel was again held up in connection with the February 2024 efforts to pass a bipartisan border bill that included funding for Ukraine and would have provided $14 billion for Israel. Trump killed that bill to ensure that he could politicize the border in the upcoming election. When the GOP attempted to pass a standalone funding bill to support Israel, it died in retribution. (Eventually, Congress did pass a foreign aid bill, but one that did not included funding for border security.)
It's too frustrating to watch as our politics superseded national security. That said, I do acknowledge that Biden's full-throated initial support for Israel has wavered as the war in Gaza has progressed. As I discuss in "Lets talk about Biden," he has not proven to me that he has the strength of leadership to anchor the Democratic Party in the common sense middle.
In "The Arc of the Covenant," Walter Russell Mead discusses the almost forgotten story of left-wing support for Zionism:
There is another problem with using or attempting to use, moral judgment as the decisive criterion for foreign policy choices: it is much easier and more common for human beings to feel strongly about moral issues than to judge wisely about them. In the 1940s and 1950s, for example, support for Israel in both the United States and Western Europe was a cause favored by the political left. For the progressives and social democrats of that era, the Jewish people were the most prominent victims of the fascist and obscurantist right. Antisemitism was the mark of Cain branding religious and political conservatives as, at heart, fascist sympathizers, and deep sympathy for the Jewish people was a mark of leftist virtue. Not only had the Jewish people suffered under the Nazis, the Jews had also accepted the 1947 U.N. vote to partition Palestine into Jewish and Palestinian states. The Arabs, on the other hand, had rejected the U.N. vote. Worse still, the leader of the Palestinians, the Grand Mufti, had been closely allied to Adolf Hitler and supported his campaign to exterminate the Jewish people. Other Arab leaders were either royal puppets of the British (like the kings of Iraq, Egypt, and Jordan), whose opposition to Israel reflected British imperial interests as much as any Arab nationalist aspiration, or they were, as the left at the time saw things, bigoted lslamist clerics opposed to all forms of enlightenment and modernity. For twenty years liberals and progressives in the United States, and their allies in Europe, attacked the more pro-Arab American Republicans for cynically preferring Arab oil wealth to the cause of human rights and Israel.
In recent decades, the left has shifted to a different narrative, one in which Zionism is a form of European and American racism and neocolonialism. The Jews of Israel were no longer seen as desperate refugees from a Europe that sought to exterminate them, but as a vanguard of Western domination. The dispossession of the Palestinians was the consequence of Israeli brutality in the war of independence, not of the Palestinian rejection of the U.N. partition plan. As Israeli politics has shifted away from the social democratic left toward a more nationalistic and pro-capitalist right since 1980 and as Israeli settlements in the West Bank have proliferated, the leftist critique of Israel has sharpened.
By imposing an unjust occupation on the Palestinian territories, and by building Israeli settlements on Palestinian land beyond the 1949 dividing line, Israel was said to be doubling down on bad behavior. To sympathize with Israel was increasingly seen as a sign of racism, sympathy for imperialism and support for anti-human systems of domination and oppression. Much of the American right meanwhile, has embraced a version of the old leftist narrative that justifies Israel and makes support for it a moral imperative.
As mentioned earlier in citing Dershowitz's argument about meritocracy, Mead similarly asserts:
A major reason is that many if not most of these Jew-haters subscribe to the doctrine of “intersectional” identity politics and victim culture, which holds that some groups of people are oppressed and others are oppressors. The “oppressed” can never be held responsible for bad things they may do; the “oppressors” can never be victims of the “oppressed” or of anyone else. The haters believe that the Jews are all-powerful, that they drive capitalism and thus control the levers of world power which they manipulate in their own interests and against those of everyone else.
Let me conclude this section by saying that I believe the culture wars have been manufactured (or at least allowed to fester) because they help the duopoly maintain power. If we can reform the system and get our elected officials to put country before party, then we will return to more civil productive discourse and we should settle on common sense solutions to ensure fairness and equality without inciting violence against a disenfranchised minority.
We need to regain our moral center as a nation in order to combat the culture wars on both sides! We need the silent majority to regain its voice in American politics so we can find common sense solutions to the problems we face as a nation.
This is a time when everyone needs to learn to reject extremism within both parties! It’s time to abandon not only left wing progressive ideologies, but also right wing religious ideologies! It’s all dangerous and we must coalesce in the middle!
We must embrace truth over lies! We must stop one of the most corrupt and morally bankrupt propaganda machines in history. We must embrace our ideals and find our moral footing. No more lies. No more hate. Wake up, everyone, before it’s too late!
I believe that unless and until we end this rancor in America, we will continue to slide into dysfunction both at home and around the world.
Do you remember learning about Martin Niemöller (1892-1984), a prominent Lutheran pastor in Germany? In the 1920s and early 1930s, he sympathized with many Nazi ideas and supported radical, right-wing political movements. But after Hitler came to power in 1933, Niemöller became an outspoken critic of his interference in the Protestant church. He spent the last eight years of Nazi rule, from 1937 to 1945, in prisons and concentration camps. Niemöller is perhaps best remembered for his postwar statement:
First, they came for the socialists, and I did not speak out—because I was not a socialist. Then they came for the trade unionists, and I did not speak out—because I was not a trade unionist. Then they came for the Jews, and I did not speak out—because I was not a Jew. Then they came for me—and there was no one left to speak for me.
As goes America, so goes the world!