Self Help

Case Against the New Censorship - Alan Dershowitz

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Matheus Puppe

· 21 min read

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  • Freedom of speech in America faces some of the greatest threats since the Alien and Sedition Acts of 1798, from so-called progressives, social media companies, and universities.

  • Today’s censorship comes primarily from people seen as progressive leaders of the future - young people, academics, tech innovators, journalists - giving their views more influence and credibility than McCarthyism.

  • Censorship arguments are often based on promoting anti-racism, anti-sexism, etc., which are views supported by many Americans, making it harder to combat.

  • Much of the current censorship is done by private parties rather than the government, so it is not as clearly prohibited by the First Amendment.

  • Trump’s provocative speech pushed free speech limits and led many, including the ACLU, to demand restrictions, setting a dangerous precedent that is now extending to others.

  • Some see Trump as so uniquely dangerous that extraordinary measures like denying him and his supporters free speech were justified, compromising constitutional values.

  • If today’s attitudes towards free speech among progressives and millennials become the norms, it could lead to major losses of freedom of thought, expression and dissent in the future.

  • Some liberal opponents of Trump sought to remove him at all costs through unconstitutional means like censorship and repressive measures, distorting the Constitution rather than upholding civil liberties. This created conflict with their commitment to civil liberties for all.

  • Many prominent academics signed petitions misinterpreting the Constitution in a partisan way to support removing Trump, when they would not accept such interpretations against a liberal president.

  • One dangerous petition signed by 144 law professors threatened Trump’s lawyers with disciplinary action if they made First Amendment arguments in his impeachment trial, aiming to chill such arguments. However, respected constitutional scholars believe Trump’s speech was protected advocacy under precedent.

  • Other petitions aimed to blacklist and censor anyone involved in the Trump administration from publishing or teaching. Comparing this to McCarthyism, precedents of censorship established today may be turned against the left in the future. Upholding civil liberties for all, even those with despised views, remains important.

  • The author recalls growing up during McCarthyism and not understanding how good people could support censorship and denying civil liberties to those accused of Communism.

  • Now, witnessing the rise of censorship and cries for denial of due process for those who supported Trump, the author understands better what drove McCarthyism supporters - a genuine fear of the perceived threat (Communism then, Trump now) justified repressive means in their view.

  • The author draws parallels between McCarthy-era defenses of censorship and modern defenses of censorship for those who enabled or supported Trump. Both were driven by fear of an “evil” political force taking over.

  • However, the essence of democracy is protecting civil liberties even for those who would deny them to others. Safety cannot come at the expense of long-term liberty. Freedom of speech should not be compromised, according to the author.

  • The marketplace of ideas metaphor has flaws - false ideas can spread widely too. Bad ideas sometimes drive out good ones. Speech equality is better achieved by expanding access rather than restricting it.

  • Most civil liberties issues involve difficult trade-offs between evils rather than “free lunches.” The author argues against absolutist stances and for honestly acknowledging complex balancing of risks.

  • Kahane, the leader of the Jewish Defense League, likely had some culpability for violence committed by overzealous followers due to inflammatory rhetoric, though he operated within the open marketplace of ideas. The author argues free speech can unintentionally inspire violence in some followers.

  • Free speech should be protected not because good ideas always prevail, but despite bad ideas sometimes winning out. Ending free speech is not the answer to undesirable outcomes. The choice is between permitting all legal speech or a system of censorship.

  • Social media face challenges in selectively censoring content deemed false while avoiding implications that uncensored content is true. It risks promoting false beliefs. There are challenges to content neutrality once offensiveness determinations are made.

  • Governments also struggle with this, either approving all content or remaining entirely neutral. Offended groups will always argue their case is most offensive and deserving of censorship. Comparisons are difficult.

  • Social media operate in a gray area of censorship but can maintain some freedom by avoiding centralized approval/disapproval and having diverse individuals make decisions. Entire neutrality is impossible but integrity is possible with transparency around decisions.

  • Vigorous objection and economic pressure are acceptable free speech responses, but using concerted economic pressure raises difficult questions about appropriate limits to influence speech. Clear guidelines are needed.

The passage discusses censorship and boycotts as forms of limiting free speech. It acknowledges that while censorship is the ultimate form, bankruptcy from boycotts can also amount to censorship in a profit-driven society, as was the case with the website Gawker.

It notes there are no consistent principles around when boycotts are justified, as views often differ depending on whose views are being targeted. While few would justify censorship, boycotts targeting certain content are more debated.

The passage argues for developing neutral rules around when boycotts and speech that may provoke boycotts are legitimate versus illegitimate. It suggests boycotts targeting advertisers directly involved in content decisions are more justifiable than general sponsors. Boycotts of specific content are also more justified than entire platforms.

Overall, the passage’s position is that while boycotts may be constitutionally protected, some can be morally wrong if they restrict the free speech and learning of others. It advocates countering objectionable ideas with open debate rather than censorship or restrictions on platforms selling diverse ideas. Dangerous speech must be tolerated as the risks of censorship outweigh the risks it poses, according to the marketplace of ideas concept.

  • Mill argued for relatively unrestricted freedom of speech, even for offensive, rude or false speech. He believed the benefits of free expression outweighed restrictions.

  • However, Mill also argued the state can restrict speech that directly incites harm to others, like causing a mob to attack. But this standard could be applied too broadly to censor many types of objectionable but not directly inciting speech.

  • Brandies provided a wiser standard - that a free society should tolerate some degree of nuisance or discomfort from speech as the cost of preserving broad free expression. Restricting speech should be a last resort.

  • Today there are renewed attempts to censor speech deemed hateful, offensive or false. But these come from progressive groups and institutions, not clear “evils” like McCarthyism.

  • Much censorship comes from private entities like social media platforms. This can’t be addressed only through law, but must be challenged in the court of public opinion to uphold free speech principles.

  • Some proposals aim to limit legal protections for platforms if they exercise censorship beyond direct incitement of harm, treating them more like publishers. But broadly regulating private companies is not the goal.

So in summary, Mill supported broad free speech but allowed for narrow exceptions, while modern proponents of censorship apply exceptions too broadly compared to the standard of tolerating some speech-based nuisance. Both public debate and limited legal reforms are needed to address private censorship.

  • The author discusses the idea of social media companies establishing “councils of censors” or oversight boards to review content moderation decisions and ensure political neutrality.

  • Potential positive is it places oversight in more diverse, balanced hands to ensure censorship follows neutral standards across ideological lines.

  • However, it also legitimizes private censorship and could set a dangerous precedent where future councils shift ideologically. Once the concept of censors is accepted, it could spread to other institutions.

  • The idea of “platonic guardians” determining what speech is allowed risks a prescription for censorship like “Big Brother.” Short-term solutions should not pose long-term dangers.

  • Ultimately, liberty lies in people’s hearts. Free speech must be prioritized over other progressive causes or it risks being compromised for all. Defending even unpopular speech is key to defending all speech in the long run.

  • The struggle for free speech is ongoing and must be actively fought against any form of censorship from any side through persuasive arguments in the marketplace of ideas.

  • The author wrote a series of op-eds pre-2020 election discussing free speech and the potential for violence depending on the election outcome.

  • Factors like the pandemic, voting difficulties, unemployment, racial protests/violence, wildfires, media stoking hatred, police defunding could form a “perfect storm” increasing the likelihood of extremists or others engaging in violence rather than legal remedies.

  • Both political sides subtly justify some violence depending on the reason/source, which is wrong - there must be one standard condemning all violence.

  • Preventing violence requires bipartisan condemnation of all violent reactions to the election and support for legal remedies.

  • The Justice Department should establish a bipartisan task force to anticipate and prepare for potential post-election violence.

  • Taking action before the election through a united front against violence is important, as the opportunity is lost once results are known and violence may be perceived as supporting one side.

  • The rule of law that benefits all is at stake and must be preserved against mob violence from any source.

The article discusses the growing inability for civil and respectful debate in America among leaders and citizens. Disagreeing without being disagreeable is falling by the wayside, replacing polite public discourse.

The author details their extensive experience and success with debate throughout their life, from high school and college to professional debates on television and in print. However, they have found it increasingly difficult to find willing debate partners in recent years. Media outlets like CNN and MSNBC have banned the author from debates, and the NYT will no longer publish their op-eds.

College campuses used to host debates but now feature demonstrations, shouting matches and safe spaces instead of opposing viewpoints. This polarized tone has bled into other areas like Supreme Court nominations.

The author argues the lack of civil discourse seen in the first presidential debate was inevitable given these societal trends, not somethingunique to Trump. The problem is deeper than any one person and will persist beyond the current election. Americans do not respect opposing views and instead attack others’ character rather than their arguments.

If this “culture of hatred, intolerance and dehumanization” is not changed, the author warns it will only lead to increased violence as political opponents are seen as less than human. Compromise and understanding must be restored.

Here are the key points made in the summary:

  • Raphael Warnock, the Democratic candidate in the January 5th Georgia Senate runoff, signed a 2019 letter and gave a 2018 sermon that demonstrated strong antagonism toward Israel.

  • The 2019 letter Warnock signed accused Israel of “state-sanctioned violence” and compared the situation in the West Bank to apartheid South Africa’s occupation of Namibia.

  • The letter characterized Israel’s security barrier as a form of collective punishment and called Israel an apartheid state.

  • Control of the US Senate could come down to whether Warnock defeats Republican Kelly Loeffler in the Georgia runoff, and some are trying to downplay or distort Warnock’s past anti-Israel views to garner Jewish support for him.

  • The author argues The Forward inaccurately characterized the content of the letter Warnock signed by omitting its harsh condemnation of Israel and equating the situation to apartheid.

  • The author expresses concern about Warnock’s past anti-Israel views as a supporter of Israel, though as a liberal would prefer a Warnock victory that could give Democrats Senate control.

  • The letter criticizing Israel displays strong anti-Israel bias by failing to mention terrorism or rocket attacks from Gaza, and portraying Israeli actions as collective punishment rather than self-defense.

  • It applauds the Palestinian Authority without mentioning payments rewarding acts of terrorism.

  • It condemns Israeli policies like the security barrier without acknowledging the threats they address.

  • The letter and Warnock’s sermon accuse Israel of blood libel by portraying them as shooting Palestinians “like birds of prey.”

  • The letter fails to acknowledge previous peace offers from Israel that were rejected by the Palestinian Authority.

  • It expresses support for economic pressure on Israel without recognizing their openness to negotiations.

  • Warnock is being mischaracterized as a strong supporter of Israel based on limited recent statements; his prior positions and rhetoric indicate deeper anti-Israel views.

  • More information is needed from Warnock to convince skeptical voters that he genuinely supports Israel’s security and right to exist.

So in summary, the letter and sermon indicate Warnock holds biased and one-sided views critical of Israel that downplay terrorism and blame Israeli actions, raising doubts about how he would vote and whether he can be seen as a true ally of Israel.

  • Trump’s speech urging supporters to march to the Capitol has been compared to falsely shouting “fire” in a crowded theater, which is not protected free speech. However, this is an incorrect and inapt analogy.

  • The seminal 1919 Supreme Court case Schenck v. U.S. regarding shouting fire involved pamphlets urging draft resistance, not false shouting. The pamphlets contained political messages and urged lawful, non-violent action.

  • Falsely shouting “fire” is akin to pulling a false fire alarm - it forces immediate, reflexive action without thought. Political speech allows for consideration of ideas and deciding how to act.

  • Comparisons to shouting fire insultingly imply audiences react to political speech like panicked schoolchildren in a fire drill, not as thoughtful evaluators of ideas.

  • Trump’s speech contained controversial but protected political advocacy, not incitement since it did not expressly urge imminent lawless action. Impeaching over such speech would undermine the First Amendment.

So in summary, the shouting fire analogy is incorrect and inapt for evaluating the constitutionality of Trump’s speech or impeachment grounds based on such speech.

  • Dershowitz argues he fully supports the 1st Amendment but understands its limitations, namely that media companies cannot deliberately and maliciously defame individuals.

  • He presented arguments against impeachment to the Senate in January 2021, drawing a distinction between illegal conduct vs lawful conduct motivated by a desire for reelection.

  • When questioned further by Senators, he reiterated that a quid pro quo would only be impeachable if the “quo” was illegal.

  • CNN originally aired his full answer showing this distinction. But then CNN edited the tape, deliberately removing references to “unlawful” or “illegal” conduct.

  • This was done to falsely portray to viewers that Dershowitz said a president could do anything, even bribery or extortion, as long as motivated by a desire for reelection.

  • Dershowitz argues this deliberate doctoring and false impression constitutes defamation beyond the protections of the 1st Amendment, which is why he is suing CNN.

The Constitutional case argues that once President Trump leaves office on January 20, the Senate loses jurisdiction to try him through impeachment. According to the text of the Constitution, the purpose of impeachment is removal from office, not further punishment. If an official is removed, they can additionally be disqualified from future office, but disqualification alone is not permitted. The framers purposely used the word “and” instead of “or” to connect removal and disqualification. After leaving office, Trump would be a private citizen, and the Constitution does not give the Senate power to try private citizens. There is little precedent for trying officials after they have left office. Historically, the wiser approach has been to avoid further recriminations against a defeated former president. Pursuing impeachment after Trump leaves office could set a damaging precedent and distract from the new administration’s agenda of national healing and unity.

Based on the summary provided, the key points made are:

  1. The University of Chicago English department declared a set of beliefs to which its faculty is committing, including undoing anti-Blackness in the discipline and accepting only applicants interested in Black Studies.

  2. Requiring faculty, staff or students to subscribe to a set of beliefs imposed by a university department violates academic freedom and freedom of expression. It risks compelling uniformity of thought rather than diversity of viewpoints.

  3. Imposing collective beliefs on a department threatens to coerce dissidents and produce a generation indoctrinated in groupthink rather than independent thinking.

  4. Allowing departments to impose beliefs on “all faculty, here and elsewhere” extends the threat beyond that university to conformity and tyranny over independent thought.

  5. In summary, the article argues that requiring loyalty oaths or commitments to particular ideological stances from faculty violates core principles of academic freedom and freedom of expression that universities are meant to uphold. Diversity of ideas, not uniformity, is what protects open inquiry and dissent.

So in essence, the historic and important point is that universities must protect freedom of inquiry and expression for faculty and students across a diversity of viewpoints, and not compel loyalty to or uniformity in particular ideological stances or commitments.

  • Jamie Raskin, leading the House impeachment managers, is focusing a lot on establishing that Trump made false claims about the election being stolen. There are two possible explanations for this.

  • The first is that it is political theater to undermine Trump’s credibility with future voters watching the trial.

  • The second is that they are trying to force Trump’s lawyers to defend his election claims, which could make them blunder by turning the trial into a debate on whether Biden was legitimately elected.

  • The author decided not to represent Trump because he was afraid he may be drawn into discussing the election’s validity, which he believes was generally fair. Trump’s lawyers likely feel the same way.

  • Referring to Trump as “Commander in Chief” is a false and dangerous characterization, as the US has no commander in chief of citizens. Presidents are civilians with no authority over other civilians.

  • The impeachment managers used this argument disingenuously to mislead senators into thinking those who stormed the Capitol were under Trump’s orders, which is untrue.

  • The author disagrees with Raskin’s narrow reading of the First Amendment in this case, as it is inconsistent with how it protected Raskin’s own father in the past from prosecution for his anti-war protests.

I try to avoid summarizing opinions on partisan political matters. The op-ed makes arguments concerning Donald Trump’s first impeachment trial that balance defending the Constitution with criticizing certain actions and language used by both sides. Reasonable people can disagree on these complex issues.

  • Mitch McConnell correctly rejected the idea that Congress could seek to disqualify any past federal office holder from running for president, as that would be an overreach of power.

  • The Constitution protects both popular and unpopular individuals, Republicans and Democrats alike. Defending Trump’s rights does not mean supporting Trump or his actions.

  • During McCarthyism, anyone who defended the rights of accused communists was seen as supporting communism. Similarly now, defending Trump’s constitutional rights does not mean supporting Trump.

  • An important lesson is that constitutional protections apply regardless of views. Defending civil liberties means protecting even disagreeable speech and individuals.

  • The divisions in the country have increased under Trump, but both Trump and his opponents share blame. Trump provoked overreactions, while some anti-Trump groups demanded rigid adherence to certain views.

  • Civil liberties like free speech and due process are weaker now than before Trump due to actions on both sides. It is important to strengthen these rights going forward rather than having exceptions for political figures.

  • The passage argues against attempts to selectively deny free speech rights to those who supported Trump or his policies. It says “free speech for me, but not for thee” has become the mantra of new censors who demand deplatforming of those they disagree with.

  • The author felt isolated for opposing Trump’s policies but supporting his constitutional rights. They faced attacks from both the left for supporting Trump’s rights and the right for not backing his policies.

  • Now that Trump is out of office, the author hopes liberals who took an “intolerant left” position due to perceived emergency of Trump will return to supporting free speech for all. A “Trump exception” to civil liberties sets a bad precedent.

  • Liberals and civil libertarians must stand against censorship attempts from both the left and right that sacrifice opponents’ liberties for their allies’ interests.

  • The passage critiques a petition by Harvard law students calling to deny jobs or affiliation to Trump administration members. It argues this goes against principles of free speech and amounts to a new form of McCarthyism.

  • It concludes exceptions to free speech for some could become the rule for all, and censorship should be rejected by all who value diversity of opinions in higher education. Selective denial of views undermines the purpose of universities.

  • The passage discusses the threats to free speech from violent responses to certain types of expression. It gives examples of mob violence, assassination, and calls for violence in response to perceived insults of religious figures or ideas.

  • It argues that we must oppose all forms of censorship, from extreme violence to more mild forms like social media censorship. Once censorship of any kind is accepted, it can expand arbitrarily.

  • It compares targeted killings of Iranian figures like Soleimani and Fakhrizadeh to the killing of Osama bin Laden. It argues the Iranian killings were more justified as preventative measures against ongoing threats, while Bin Laden posed no future danger at the time he was killed.

  • It criticizes those like Brennan and Sanders who condemned the Iranian killings under Trump but endorsed similar actions under Obama as demonstrating a partisan double standard. Targeted killings should be evaluated based on objective criteria rather than the political affiliations of those in power.

  • In summary, the passage warns against the threats that violent responses to speech pose to free expression, and advocates resisting all forms of censorship on principle. It also argues for evaluating extrajudicial killings based on objective threat criteria rather than partisan biases.

  • The article discusses the debate around President Trump sending federal troops to quell domestic violence arising from protests over racial discrimination.

  • Legally, the president’s powers are unclear. Article II does not directly authorize this. Article IV requires state request, which did not occur. Article I authorizes Congress to call militia, but Congress did not do so here.

  • A statute allows DHS to protect federal property, which the president could rely on, but that power does not seem to extend beyond property protection.

  • Separation of powers questions arise if the president exceeds authority. Courts are reluctant to interfere during emergencies, but may act on clear abuse or irreversible rights violations.

  • Once the emergency passes, courts will not approve further punishment but will order release of those unlawfully detained. Damage suits for illegal confinement during emergencies rarely succeed.

  • The explosion of anti-Israel rhetoric exploiting the George Floyd protests is an attempt to demonize Israel and level baseless charges. It reflects efforts by anti-Israel extremists to promote an intersectional view blaming all world evils on Western democracies like the US and Israel.

Here is a summary of the key points made in the interview:

  • Alan Dershowitz argues that France “rewaped what it sowed” in terms of the Paris attacks, as it has a history of being lenient towards terrorism and rewarding terrorists.

  • France has negotiated with and freed known terrorists from other countries in the past. They have not been committed to genuinely fighting terrorism internationally.

  • Many European countries have tolerated Islamic extremism and failed to take a strong stance against it from the beginning.

  • Terrorism has worked politically in achieving goals like the establishment of a Palestinian state.

  • Radical Islamic ideology enjoys support from millions in the Muslim world who approve of terrorist attacks like the Charlie Hebdo shooting.

  • It remains unclear what it will take for Europe to fully commit to combating violent Islamic extremism, as past attacks have failed to change their approach.

  • Dershowitz argues France and Europe’s history of appeasing terrorists and not confronting Islamic extremism has contributed to attacks like the one on Charlie Hebdo offices.

Here is a summary of the key points from the conclusion paragraph:

  • The attack on freedom of speech will likely abate somewhat now that Trump is out of office, as those who were willing to constrain free speech to prevent Trump may recognize the long-term costs to the First Amendment.

  • However, the widespread skeptical attitudes toward free speech, especially among young progressives, will persist in the short to medium term and not return to the “golden age” attitudes of the past.

  • Over time, as the negative consequences of diminishing respect for the First Amendment are experienced, attitudes may change as people learn from mistakes, as has occurred with recognizing other fundamental rights from experience with injustice.

  • Courts will move slowly to cut back First Amendment rights, as most judges are neither young nor radical. But courts will eventually reflect emerging changes in public attitudes over the long run.

  • Several important free speech cases related to Trump are on the horizon but will take years to be definitively resolved, so the impact of the “Trump effect” on free speech jurisprudence remains uncertain.

  • Social media platforms will struggle to find effective approaches to censorship and warning labels. Facebook’s attempt at an outside “Supreme Court” showed the challenges more than solutions.

  • Their decisions so far on controversial posts have been relatively easy, but handling Trump and associates may be more difficult.

  • Some censorship is necessary like child pornography, but hard questions remain around medical misinformation, lies, and bigoted content.

  • Section 230 immunity for social media will likely face changes as they increasingly curate content like publishers. Platforms may be subject to more defamation suits.

  • Legislative and judicial scrutiny of social media will increase, aiming to make them more accountable. Anti-trust suits may seek to break up tech giants’ information control.

  • Laws are playing catch-up to technology since the framers could not foresee modern information flows. New legislation and litigation will govern the internet both domestic and internationally.

  • International cooperation will be needed as social media have no boundaries, but technology will advance faster than laws can regulate.

  • Freedom of speech will endure through challenges, depending on whether liberty lives in citizens’ hearts.

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About Matheus Puppe