There was a Supreme Court case -- I'm too busy to look up which one -- in which the Court said there was a significant difference between "First Amendment values" (I believe the term came from one of the parties' briefs) and the First Amendment. The unsuccessful plaintiffs were trying to sell the idea that some nice, speech-enhancing idea they wanted the government to adopt was actually required by the First Amendment. They failed.
Lots of things that would enhance a "culture" of free speech are not required by the First Amendment and many such things are not only not required by the First Amendment, they are forbidden by it. Free speech, whether legal or cultural, is a complicated notion not resolved by slogans. It is also, as a matter of historical and social fact, not an especially popular one.
Let's take the idea that "private companies can do whatever they want," whether you're for or against it. First, it isn't quite true. The government can, and does, forbid private companies to put up Help Wanted signs that say "No Irish need apply" and First Amendment challenges have lost. But it largely is true. And would you have it any other way? If so, what happens to the free speech rights of the private companies themselves? Must they say things, or platform others to say things, that they don't wish to say or be associated with? Maybe there would be more speech in such a world, but not more free speech.
And much social pressure that inhibits free speech is, itself, free speech. Many years ago, when I was working on a major free speech case, someone sent me a memo pad with the printed heading: "Free speech means you can say what you like -- and everyone else can laugh at you." There is no "first speaker" privilege. Anyone who says anything must be prepared for others to disagree. Perhaps they are wrong, unenlightened, and censorious, but wrong, unenlightened, censorious speech is, itself, free speech. Freedom of speech is not freedom from all its consequences. It has always taken guts to say unpopular things, and moving out of small-town America to the sinful big city where you can say what you like and be what you are -- or at least more freely than you could in East Bumf**k -- is a well-documented historical phenomenon and, by now, a literary cliche. As Dr. Gottlieb told Dr. Arrowsmith in Sinclair Lewis's novel, you can't have both freedom and the rewards of popular slavery.
The law can let people talk and prevent interference, and in America it largely does; but nothing can make people listen.
If ditching the performative, stupid and grifty elements of DEI; not (I emphasize -NOT-) the genuine substantive areas where DEI overlaps with our many other principles about helping and protecting minorities and other disadvantaged groups; why the fish should we not do that?
You assume that blatant philosophical inconsistency and shame have more force than they do. The self-proclaimed originalists rarely do originalism in any rigorous or consistent way. Indeed, they rarely do it at all. They, like almost everyone else, are cafeteria originalists. The only potentially interesting question is whether they are cynics or merely believe their own press clippings.
Maybe you can explain why you think your comment makes sense. Like most of us here, I am a "member" of the body politic, and care very much about the rules of that club. I am not a member of a variety of other clubs, like the Roman Catholic Church, the Rotary Club, or the Grosse Pointe Garden Club, which have rules that I might think silly, and might even oppose, if I had to adhere to them. But since their silly rules have nothing to do with me or my interests, or those of people I care about, I don't bother myself about them. If that's "privilege," it's not a definition I know anything about. Unless minding one's own business is "privilege."
Is there some sort of connection between your first and second paragraphs?
Are you under the impression that anyone whose name ends in a vowel is a member of the Catholic "club"? Or that, to the extent that you're asking a non-member whether he happens to agree with what the club boss says on something other than club rules, some non-club-related identity is relevant? If the Pope says "X," and X is a matter of club rules (e.g. who can be priests, what age you have to be to receive communion, whether you can eat pork), non-members are well-advised not to bother themselves about it. If X is a matter of general moral argument (abortion, capital punishment, treatment of migrants, whether you can eat meat at all), non-members can agree or disagree with the Pope just the same as they can agree or disagree with some random social media pundit.
It's certainly "another thing," but what kind of thing is it? You're pointing out that a religious leader, purporting to rely on the word of some God, has said something you agree with and hoping that what the religious leader is saying will get some traction. People who care what the religious leader has to say may find it compelling; people who don't, won't. And the problem is?
"Invoking God" is pretty much the job description of a religious leader. Maybe that sounds silly to those of us who don't believe that there is a God or that the religious leader in question has some pipeline to the God being invoked, so we don't have to take the invocation seriously. But we can't really ask them to play by our rules.
It wouldn't surprise me if that was what's behind this, but a President has always been able to say what he damn pleases and can make what he says the "position of the United States." The "position of the United States," however, is merely that, a "position."* It isn't law, and isn't a license to disregard what is law.
*Just the other day, I was talking with a lawyer who kept saying "our position is..." I told him that may be his "position," but if push came to shove he'd have to come up with a reason that a court would buy it, and he hadn't given me one.
Anyone for whom DEI is a top 25 issue is either not a serious person, or very serious indeed, and pushing an agenda that they dare not openly advocate in polite company.
WTF does that even mean? It goes without saying that, in legal proceedings, the position of the United States on what the law is or should be is presented by DOJ, under the direction of the AG and, ultimately, the President. Outside of legal proceedings, nobody speaks for the United States in any way that matters. If a rogue AUSA does something stupid in court, he or she can be fired. If the United States Attorney for the Western District of East Bumf**k mouths off at a bar association dinner, he or she can be slapped down. Is this EO a solution in search of a problem?
I don’t really have a say in what theories that physics chooses to pay attention to. Or college courses choose to teach…I guess theoretically I could, at least for public colleges, but I think physics should probably figure that out itself.
Likewise, we don’t really have a say in what theories sociological and political scientists pay attention to. However…they do not actually pay attention to critical race theory, they barely pay attention to critical theory at all.
A point that, in a sane world, would not need to be made.
Unless he lucks into a crowded field of candidates with minuscule name recognition (Andrew Cuomo is licking his chops), this deal will guarantee that Adams loses. Then what?
*Comment archive for non-registered commenters assembled by email address as provided.
On “Open Mic for the week of 2/17/2025”
There was a Supreme Court case -- I'm too busy to look up which one -- in which the Court said there was a significant difference between "First Amendment values" (I believe the term came from one of the parties' briefs) and the First Amendment. The unsuccessful plaintiffs were trying to sell the idea that some nice, speech-enhancing idea they wanted the government to adopt was actually required by the First Amendment. They failed.
Lots of things that would enhance a "culture" of free speech are not required by the First Amendment and many such things are not only not required by the First Amendment, they are forbidden by it. Free speech, whether legal or cultural, is a complicated notion not resolved by slogans. It is also, as a matter of historical and social fact, not an especially popular one.
Let's take the idea that "private companies can do whatever they want," whether you're for or against it. First, it isn't quite true. The government can, and does, forbid private companies to put up Help Wanted signs that say "No Irish need apply" and First Amendment challenges have lost. But it largely is true. And would you have it any other way? If so, what happens to the free speech rights of the private companies themselves? Must they say things, or platform others to say things, that they don't wish to say or be associated with? Maybe there would be more speech in such a world, but not more free speech.
And much social pressure that inhibits free speech is, itself, free speech. Many years ago, when I was working on a major free speech case, someone sent me a memo pad with the printed heading: "Free speech means you can say what you like -- and everyone else can laugh at you." There is no "first speaker" privilege. Anyone who says anything must be prepared for others to disagree. Perhaps they are wrong, unenlightened, and censorious, but wrong, unenlightened, censorious speech is, itself, free speech. Freedom of speech is not freedom from all its consequences. It has always taken guts to say unpopular things, and moving out of small-town America to the sinful big city where you can say what you like and be what you are -- or at least more freely than you could in East Bumf**k -- is a well-documented historical phenomenon and, by now, a literary cliche. As Dr. Gottlieb told Dr. Arrowsmith in Sinclair Lewis's novel, you can't have both freedom and the rewards of popular slavery.
The law can let people talk and prevent interference, and in America it largely does; but nothing can make people listen.
"
If ditching the performative, stupid and grifty elements of DEI; not (I emphasize -NOT-) the genuine substantive areas where DEI overlaps with our many other principles about helping and protecting minorities and other disadvantaged groups; why the fish should we not do that?
How many votes would it swing?
"
Wait and see.
"
I'm starting a new Jaybird Bingo Card. This is a contender for a square.
"
Well, that certainly clears things up.
On “Musk vs Gore”
You assume that blatant philosophical inconsistency and shame have more force than they do. The self-proclaimed originalists rarely do originalism in any rigorous or consistent way. Indeed, they rarely do it at all. They, like almost everyone else, are cafeteria originalists. The only potentially interesting question is whether they are cynics or merely believe their own press clippings.
On “Open Mic for the week of 2/17/2025”
Maybe you can explain why you think your comment makes sense. Like most of us here, I am a "member" of the body politic, and care very much about the rules of that club. I am not a member of a variety of other clubs, like the Roman Catholic Church, the Rotary Club, or the Grosse Pointe Garden Club, which have rules that I might think silly, and might even oppose, if I had to adhere to them. But since their silly rules have nothing to do with me or my interests, or those of people I care about, I don't bother myself about them. If that's "privilege," it's not a definition I know anything about. Unless minding one's own business is "privilege."
"
Well, that certainly clears things up.
"
Is there some sort of connection between your first and second paragraphs?
Are you under the impression that anyone whose name ends in a vowel is a member of the Catholic "club"? Or that, to the extent that you're asking a non-member whether he happens to agree with what the club boss says on something other than club rules, some non-club-related identity is relevant? If the Pope says "X," and X is a matter of club rules (e.g. who can be priests, what age you have to be to receive communion, whether you can eat pork), non-members are well-advised not to bother themselves about it. If X is a matter of general moral argument (abortion, capital punishment, treatment of migrants, whether you can eat meat at all), non-members can agree or disagree with the Pope just the same as they can agree or disagree with some random social media pundit.
"
I don't have an opinion about the rules of a club of which I am not a member. Orthodox Jews don't eat pork? No skin off my nose and more bacon for me.
"
The Supremes have been hard at work on this for about 50 years.
"
It's certainly "another thing," but what kind of thing is it? You're pointing out that a religious leader, purporting to rely on the word of some God, has said something you agree with and hoping that what the religious leader is saying will get some traction. People who care what the religious leader has to say may find it compelling; people who don't, won't. And the problem is?
"
"Invoking God" is pretty much the job description of a religious leader. Maybe that sounds silly to those of us who don't believe that there is a God or that the religious leader in question has some pipeline to the God being invoked, so we don't have to take the invocation seriously. But we can't really ask them to play by our rules.
"
You tell us.
"
So whom?
"
Typo or Freudian slip?
"
It wouldn't surprise me if that was what's behind this, but a President has always been able to say what he damn pleases and can make what he says the "position of the United States." The "position of the United States," however, is merely that, a "position."* It isn't law, and isn't a license to disregard what is law.
*Just the other day, I was talking with a lawyer who kept saying "our position is..." I told him that may be his "position," but if push came to shove he'd have to come up with a reason that a court would buy it, and he hadn't given me one.
"
Anyone for whom DEI is a top 25 issue is either not a serious person, or very serious indeed, and pushing an agenda that they dare not openly advocate in polite company.
"
WTF does that even mean? It goes without saying that, in legal proceedings, the position of the United States on what the law is or should be is presented by DOJ, under the direction of the AG and, ultimately, the President. Outside of legal proceedings, nobody speaks for the United States in any way that matters. If a rogue AUSA does something stupid in court, he or she can be fired. If the United States Attorney for the Western District of East Bumf**k mouths off at a bar association dinner, he or she can be slapped down. Is this EO a solution in search of a problem?
On “From Vox: How Democrats should respond to Trump’s war on DEI”
I don’t really have a say in what theories that physics chooses to pay attention to. Or college courses choose to teach…I guess theoretically I could, at least for public colleges, but I think physics should probably figure that out itself.
Likewise, we don’t really have a say in what theories sociological and political scientists pay attention to. However…they do not actually pay attention to critical race theory, they barely pay attention to critical theory at all.
A point that, in a sane world, would not need to be made.
On “Open Mic for the week of 2/17/2025”
So that's not an alternative.
"
No. The NYC Charter lays out the line of succession. First in line is the Public Advocate, then the City Comptroller.
"
As opposed to whom? Trump and Putin?
On “The USAID Fight Is About Power, Not Spending”
Who is paying what price?
On “Open Mic for the week of 2/10/2025”
Unless he lucks into a crowded field of candidates with minuscule name recognition (Andrew Cuomo is licking his chops), this deal will guarantee that Adams loses. Then what?
*Comment archive for non-registered commenters assembled by email address as provided.