Discretion Has No Substitute: Lessons In Moving The Overton Window

Foro Opus Postulat Censor

For roughly six years, I served as Managing Editor and then Editor-in-Chief of Ordinary Times, the very pages you are presently reading. I enjoyed helping contributors develop their writings into the things we published. In so doing, I frequently had to grapple with people who had a pretty wide spectrum of opinions on various issues, often at odds with my own.

Along the way, I almost made a serious mistake. A men’s right’s activist had responded to a post, and expressed a desire to write his own post rebutting things he had read here. Without really thinking about it much, I expressed warmth to the idea, based on incompletely thought-through notions of making the freest possible forum for the freest possible exchange of ideas. I had confidence, you see, that the site’s commentariat would have been so deeply critical of whatever this guy was going to say, that would have been that.

The then Editor-in-Chief overrode me. He was characteristically polite but also very clear and firm: publishing something like that would have been off brand for us and we’d have lost much more than we’d gain by doing it. He was absolutely right to do this.

Why? First, it would have lent the site’s legitimacy to the men’s rights guy’s ideas even as we editors disclaimed them. They’d have been appearing on our pages, after all. Second, it would also have led to more folks like this guy showing up in comments and then submitting articles. After all, they’d have seen that this was a forum was friendly enough to them that they’d get aired. And third, it would have led to other writers and commenters and readers leaving, because they would feel the site was becoming less friendly to them. I figured all of this out, but only after I’d put my foot very close to inside my mouth.

Put all of that together, and simply including such a post would have shifted the Overton Window of ideas on the site. As I’ll refer to below, society in general has its own Overton Window of what’s acceptable and what isn’t for public discussion. I was very grateful for the guidance and I sure hope I incorporated that wisdom into other decisions I subsequently made at the helm here.

An editor’s job inherently involves deciding what ideas go into a forum and what doesn’t. Which isn’t quite the same thing as picking which side prevails. But it does mean picking which things are worthy of consideration and inclusion in the debate. You can’t include an idea now and exclude it later, any more than you can take the mercury out of a pond after you’ve let someone else pour it in. Well, you can take mercury out of a pond, but it takes a lot of effort, expense and specialized equipment, and the fish all die while you’re doing it.

Alquis Habet Decernere

You might object here, and say “No, we’re pretty much free speech absolutists! You can say anything about anything! Except maybe ‘no child pornography’.” Well, good. I agree there shouldn’t be child pornography. I trust we all can. Who decides what constitutes child pornography and what doesn’t? Someone has to read or look at whatever is being posted and make a judgment call. I can promise you: if you don’t have a rule against child pornography, and that rule doesn’t get policed in good faith, you’re inevitably going to wind up with someone offering child pornography. It’ll start with something that isn’t so awful and seem like it has a reasonable enough defense. But soon enough, you’re known as a child pornography site.

You may substitute whatever other evil you wish in the place of the phrase “child pornography,” and this paragraph will remain equally true. “Racism,” for instance.

Maybe you try to codfiy the ideas guiding those decisions as rules. Such rules are ultimately predictions of the necessarily case-by-case decisions you’ll have to make in that role, announcements of the guidelines you’ll consider. This can be done in good faith. But the decision has to be made in the specific instance. Just as it has to be done by the editorial boards of every media outlet, big or small. The rule will eventually reach a failure point because bad actors are endlessly ingenious about sneaking their bad content in.

And like the song says, if you choose not to decide, you still have made a choice.

Consider Twitter suspending Donald Trump’s account permanently. No government actor made Twitter do that; Twitter came to that decision on its own, after a significant public pressure campaign. Trump was still president at the time and was very upset by it. But the application of the rule required Twitter’s people to make a judgment. You can’t read the Twitter press release about it without realizing that they had to make a decision about what they were reading, the mental state of the author, and the consequences of both doing what they did versus the consequences of doing nothing and permitting Trump to continue doing what he had been. Someone had to make a decision and while Twitter’s Terms of Service helped them make that decision, they ultimately made a value judgment.

The larger lesson is: in any forum, someone has to decide who gets to speak and who doesn’t. Hopefully, that someone makes the best decisions they can under the circumstances then in place. Pre-announced rule or no, it’s going to come down to a case-by-case judgment call, which will inevitably involve assessing the content of what someone says, having to say “no,” and then weathering the second guesses and accusations of bias that will inevitably follow.

There is no way around this. Not if you’re an unpaid editor of a mid-tier blog like Ordinary Times, not if you’re the CEO of Twitter, not if you’re a dean of a law school like we’ll discuss in a moment, and especially not if you’re an editor of the New York Times.

Fabulas Plena Errorum

A statement from the Gray Lady’s editorial board on the subject of tolerance of varying ideas has very recently made some national waves. Over the weekend, the editorial board of the New York Times used their own forum to speak on their own behalves, publishing an editorial, “America Has A Free Speech Problem.”¹ They fear that Americans are too intolerant of hearing ideas other than ones they already like, and disruptive of the expression of those other ideas, to a degree that free speech itself has become stifled:

For all the tolerance and enlightenment that modern society claims, Americans are losing hold of a fundamental right as citizens of a free country: the right to speak their minds and voice their opinions in public without fear of being shamed or shunned.

This social silencing, this depluralizing of America, has been evident for years, but dealing with it stirs yet more fear. It feels like a third rail, dangerous. For a strong nation and open society, that is dangerous.

How has this happened? In large part, it’s because the political left and the right are caught in a destructive loop of condemnation and recrimination around cancel culture. Many on the left refuse to acknowledge that cancel culture exists at all, believing that those who complain about it are offering cover for bigots to peddle hate speech. Many on the right, for all their braying about cancel culture, have embraced an even more extreme version of censoriousness as a bulwark against a rapidly changing society, with laws that would ban books, stifle teachers and discourage open discussion in classrooms.

If anything, I think the Times is soft-pedaling its bothsidesism in that last quoted paragraph. Conservatives today are attempting to legislate away or discourage discussions of contemporary issues of sexuality and race in ways overtly aimed at stifling liberal points of view. Campaigning against the academic expression of particular ideas about race and power structures in America is how Glenn Youngkin got elected Governor of Virginia, for instance, and he’s making good on his campaign promises as best he can, as well.

But the Times does seem to focus more on liberal suppressions of speech than conservative censorship. And to its credit it doesn’t call for legislation, but a change in norms such that there be more tolerance of different points of view. So I will too, mostly.

Consider the recent story of Ilya Shapiro. He’s is a prominent conservative legal thinker, a professor at Georgetown University law center, and a scholar-in-residence at the Cato Institute. Probably thoughtlessly, he complained on Twitter that President Biden’s following through on a campaign promise to nominate a Black woman to the U.S. Supreme Court would overlook many qualified candidates and result in a “lesser” nominee.² The reaction on Twitter was immediate, swift, and harsh, and quickly spread to the real world. Shapiro was placed on administrative leave by Georgetown Law very quickly, and while it’s doubtful, he might lose his job at Georgetown. In now-deleted tweets, Shapiro wrote: “I apologize. I meant no offense, but it was an inartful tweet. I have taken it down.” and said he’d made an “admittedly poor choice of words.” But to this day he hasn’t withdrawn his criticism of President Biden restricting his candidate pool to only Black women. About a month later, Professor Shapiro was shouted and clapped down when asked to speak at a Federalist Society forum at UC Hastings School of Law about the nomination in a prolonged student demonstration that wound up disrupting the event to cancellation. The students, when challenged by the school’s administration in the moment, responded (among other things) that they were exercising their own rights to speak freely in criticism of Shapiro, indicating that they felt his ideas were not worthy of inclusion in the mix of ideas that were debated at their law school. Was this arrogating the role of “editor” to themselves? Perhaps.

Liber Sum Et Fugerem

The potential for misuse, particularly by cynical partisan actors, is obvious. But maybe private speech disruptive of other private speech isn’t always a bad thing.

If, like me, you think Jake and Elwood are heroes in that scene (maybe you’d disagree with driving a car at people in real life), then you’re going to have to admit the maybe-uncomfortable truth that there is some degree to which you too are willing to put up with private disruption of other private peoples’ speech. We like that Jake and Elwood stopped the Nazi rally, because we don’t like Nazi speech, and we like that the Blues Brothers humiliated the Nazis. That’s okay, because these are Nazis.

Leaving aside the method used to silence the opponent, how are Jake and Elwood any different than the law students? The most tempting way of distinguishing them is to say Ilya Shapiro is not a Nazi, that all he’s guilty of is saying something that was widely seen as bigoted against Black women which might not be good but isn’t Nazi-level stuff. And he might have at least a partial defense to consider, if only he were to be given the opportunity to explain himself. Making such a contrast requires basing your judgment on the content of Shapiro’s speech. In other words, you are deciding what speech is acceptable and what isn’t.

As the Foundation for Individual Rights in Education wrote about the issue generally:

Critics are correct to point out that Americans have a right to shun and shame. Public humiliation, social ostracism, and character attacks often do constitute free speech. They are allowed, and should remain so. But the question isn’t whether they’re legal: It’s whether they’re desirable, whether they foster a culture in which we’d like to participate, whether they should be encouraged or discouraged, incentivized or disincentivized.

Should we shun and shame Nazis? I think so and I hope you do too. Once upon a time (forty-two years ago, to be exact), this was such an easy, commonplace notion that the writers and producers of a mass market comedy movie accepted it as a cultural given that Nazis would be universally accepted as the butt end of jokes.

Should we shun and shame Ilya Shapiro? Maybe you want to say that’s a tougher call, but also a question that might defensibly be answered “yes” after the awfulness of his original remarks and his subsequent failure to meaningfully retract and apologize for them. ³ So if you think Professor Shapiro earned his obloquy, then what happened at UC Hastings is not meaningfully different from Jake and Elwood breaking up the Illinois Nazi rally: one private actor, motivated by moral outrage, disrupting a different private actor’s speech.

Nihil Nova Sub Sole

At the threshold, this isn’t anything new. When I was a student in the 1990s, the worry was about something called “political correctness,” which was, so far as I can tell, basically synonymous with what is today labeled “cancel culture.” Express “politically incorrect” ideas, young conservatives were warned, and you will be hugely unpopular. If you are in college, your grades will suffer and your university might even suspend or expel you. You will not get offered a job or you will lose the job you have. All for the sin of being conservative.

Go back a generation before that. I had it on good authority from my parents, who were college students in the late sixties, that being a Young Republican for Nixon on your typical college campus in 1968 was not a good route to general popularity with your peers or a lot of approval from the majority of your instructors. After Kent State, you could forget about it. You’d have been limiting your dating pool to other Young Republicans for Nixon.

Go back a generation before that. William F. Buckley, Jr. wrote about the power of shunning and criticism from fellow students and instructors that conservatives faced on campus in God and Man at Yale, which was published in 1951.⁴ For the sins of criticizing Communism and not concealing his own Christianity, Buckley felt as though he were repeatedly subjected to mockery from behind the lectern and social exclusion from his peers. Sound familiar?

This isn’t new. The Times suggests that what is new is social media catalyzing the phenomenon of people ridiculing and shunning opinions they don’t like and the people who hold them. The apps on our phones have moved us closer to a Panopticon in which everything everyone says or does is recorded for posterity and analyzed critically by one’s enemies and therefore fodder to ridicule and shun us. That’s probably hyperbolic, but there’s likely some truth there too.

We haven’t always named it “cancel culture,” but this is something we’ve dealt with in our society since at least not very long after the end of the Second World War. If it’s a problem at all.

In Circulo Non Potest Quadrari

The FIRE editorial gets to the basic problem that can’t be solved, not by the Times or anyone else. There is no construction of freedom of speech that can, in a principled way, give you the right to speak but deny me the right to respond, react, criticize, mock, shun, and maybe even interrupt and disrupt. Indeed, if the purpose of free speech is to facilitate robust debate, then I must speak my disagreement and moral offense. I need not associate myself with you or others who agree with you and indeed, I am legally free to encourage others to shun you as well. Setting legal obligations aside, if what you say is sufficiently awful, I may feel morally compelled to criticize and shun you.

There oughtn’t be a rule against doing that, FIRE correctly argues; but maybe, they ask, there ought to be a norm about punishing people too hard for dissenting?

Turns out, there already is. It’s called the Overton Window. Here, I refer to the generalized, macro-level Overton Window that exists for society as a whole. There’s a range of ideas that are generally considered acceptable for public discourse, and will generally be tolerated even by people who disagree with them. And then there are ideas that are out of that range. It turns out that when people advocate for ideas within the Overton Window, other people will tolerate their doing so, even if they disagree. It’s when you push the envelope and go past what’s within the generalized understanding of the acceptable range of things people might disagree upon that you’ll start drawing pushback:

Conservative: I have been censored for my conservative views

Me: Holy shit! You were censored for wanting lower taxes?

Con: LOL no…no not those views

Me: So….deregulation?

Con: Haha no not those views either

Me: Which views, exactly?

Con: Oh, you know the ones

— Andrew Lawrence (@ndrew_lawrence) October 11, 2018

There’s plenty of room in contemporary culture for lots of conservative ideas. And liberal ideas. The Times seems to think the window should widen in both directions at the same time so we have more conservative conservative ideas and more liberal liberal ideas and everyone will at least listen politely before respectfully stating the reasons they disagree and I am… skeptical that such a thing is possible.

At some point down that road, ideas begin to lack a broad enough base of popular support that they are not in the mainstream. And guess what, those ideas are going to be received critically. Because they’re not popular. If we are seeing a lot of people react to others’ ideas with outrage, one explanation for that phenomenon is that at least some of the ideas prompting those reactions really are outrageous.

No norm of “respecting free speech” can make the unpopular popular, because norms are, by definition, the common understanding of how to distinguish that which is generally acceptable from that which is generally not acceptable. That which is outside the Overton Window will, by definition, never be popular.

You can create rules that force people to not disrupt others, no matter how outrageous their ideas are. This is an imposed tolerance. Imposing “tolerance” requires making and enforcing a rule of some sort, even if it’s only a cultural norm. Which, inevitably, is a tool that will be used to favor one side or the other of a given disagreement and almost always the one that is likelier to provoke outrage.

Let’s go back to God and Man at Yale, a plea for tolerance of conservative ideas at Yale University written a then-recent graduate who experienced Yale’s late 1940s version of today’s “cancel culture” firsthand. Here’s a summation of its prescriptions, offered by a great admirer of the book, which I quote here because he gives us a rather more cogent recital of what Buckley recommended change at Yale than Buckley himself wrote.

First, pure academic freedom was a mirage, he claimed, for Yale would (quite rightly) never allow an anthropologist to teach theories of Aryan racial superiority. Thus, the question was not whether academic freedom should be restricted, but to what extent. Second, romantic notions to the contrary notwithstanding, truth does not always win out in the free marketplace of ideas. Both Italy and Germany, Buckley observed, had the option to elect democratic leaders or authoritarians, but both chose the latter rather than the former. If we indeed know that democracy is superior to totalitarianism, then we have a duty to defend and advance this truth rather than to maintain a falsely “open” question. In sum, Buckley argued, Yale should restrict academic freedom such that Christianity and political freedom are always upheld. [Emphases added]

The idea that “pure academic freedom [is] a mirage” is not fundamentally wrong, by the way; there does need to be some sort of regulation, if only as to time, place, and manner of speech, in order that orderly speech can occur at all.

But implicit in Buckley’s recommendations was the notion that someone should elevate “Christianity and political freedom” above the level of that which could be openly questioned. He called for the rules and norms to not just tolerate his ideas but to favor them. Even a defense of the book can’t get around the fact that Buckley’s prescription for intolerance of his favored set of ideas was to restrict others’ freedom in such a way that his own⁵ might expand. That’s not “tolerance.” That’s “my side wins,” or at least “my side gets extra points.”

And if you’re not going do it by making a rule or a law, and instead by trying to change cultural norms, then your plea is really: make those other people think more like I do.

Sorry. The editor already allowed you in the forum in the first place. Persuasion is your job.

Propellentibus Fenestra

If you think one person excluding another’s ideas from a forum of debate is “censorship,” you’re right about that, at least in a way. Thing is, someone is going to decide what goes into the forum at all and there’s no way to avoid that. So who gets to be the editor?

It’s easy to imagine that the editors of the New York Times consider themselves well-qualified and even experienced in that role. And maybe that role involves being able to take the measure of the generalized Overton Window and using it to exclude things outside of it. But really, are the Gray Lady’s editors any better suited for that role than… me? Or maybe a panel of me and my various predecessors and successors as Editors of Ordinary Times?⁶

I, at least, have learned the lesson that you can’t stand up in front of the law students at UC Hastings and say “You students need to be quiet so Professor Shapiro can speak,” without also saying “Professor Shapiro ought to be able to speak and that means you ought to listen to him,” which in turn unavoidably means you have already decided, “Professor Shapiro’s ideas are worthy of inclusion in this debate.” And that will be your push on the Overton Window, not Shapiro’s. Because yes, the Overton Window is motile: as the culture evolves over time, what is considered acceptable and unacceptable will also change. Which is why you should consider what direction you’re really pushing it towards, even if it’s only a little tiny push you’re capable of.

You could say, for instance, “Even Nazis get to speak. Your challenge is figuring out a way to accommodate abhorrent speech like theirs while dissociating yourself from them.” But that’s wrong. That’d be the mistake I almost made a few years ago. That gives the Nazi at least some of your stature, and you won’t be getting it back. Meanwhile, you’ve shifted the Overton Window in his direction, by simply saying that the rest of us have to listen to him when we try to heckle. At some point, the Rule of Goats takes effect. Now you have to get the mercury out of the pond. 

You could have avoided that problem by recognizing that you were being asked to present ideas outside of the Overton Window and it therefore was going to be at best risky. People are always going to react badly to things that they feel like are outside of the range of what’s acceptable. Sorry, you can’t do anything about that. That’s human nature, and I promise that you will not defeat it.

1. It does not escape my notice that this editorial has already been the subject of a lively discussion here.
2. The actual nominee, Judge Ketanji Brown Jackson, is in no sense of the word a “lesser” nominee than the Democratic choice Shapiro thought would have been Shapiro’s preference, Judge Brown’s colleague on the D.C. Circuit, Judge Sri Srinivasan. Both are exceptionally smart, well-reputed judges.
3. I’m a big one on offering grace to people who apologize for their mistakes. In my opinion, “I apologize. I meant no offense, but it was an inartful tweet. I have taken it down,” is not an adequate apology because it doesn’t acknowledge the reason why the tweet was bad or attempt to remedy the damage done. One extra sentence, along the lines of “I should not have implied that Judge Jackson is a ‘lesser’ nominee; she is well qualified to serve should she be confirmed,” would have made a lot of difference, to me anyway. Doesn’t help that he’s also taken down this purported apology, thus retracting it.
4. Meanwhile, think about how terrifying it would have been to have been an actual Communist in the days with Ronald Reagan ratted out his colleagues to the House Un-American Activities Commission. That wasn’t just shunning and not being able to get a date. Losing your job is a bit more severe than not being invited to the good parties. Take a moment to imagine what confronted a younger Thurgood Marshall, then still an NAACP attorney traveling to places like rural Mississippi to bring voting rights cases, also a form of free expression guaranteed by the Constitution, in towns where the judge, the sheriff, the mayor, and the chairmen of both of the local political parties all belonged to the same Klavern. Marshall faced rather more dire consequences than the silencing of his viewpoint. Even today, teachers are being threatened with lawsuits for asking questions about a student’s well-being based on their sexuality, and there’s great debate about whether teachers can and should discuss such matters at all despite this being a significant part of contemporary debate.
5. Note that Buckley presumes that “democracy” was the same thing as “political freedom” and his understanding of what these things were was, at least at the time, highly questionable.
6. Such a gathering would be quite the lively party, especially after a few cocktails. When my predecessor and I get together for drinks, the conversation is always interesting. Maybe we ought to gather more of us together one day…