From Classroom to Courtroom

By Kevin D. Williamson

Sunday, April 03, 2016

I spent part of the week speaking on several college campuses in Texas, and my subject was free speech and the threats against it on campus and beyond. The students were in the main shocked and dismayed at the revitalization of censorship as a political ideal and by the widespread support for censorship among so-called liberals. Most of them were genuinely unaware of just how far and wide the war against free expression currently ranges.

This is strange, because the war on free speech starts on campus.

In March of 2014, Professor Lawrence Torcello of the Rochester Institute of Technology, the seal of which appears alongside the definition of “second-rate” in many dictionaries, published a short article online calling for the criminalization of what he calls “climate denial,” meaning the holding, perpetuating, and, especially, the financial support of heretical ideas about global warming. A few articles were written criticizing the article, and the response was the expected one: “It’s just one crank nobody professor from some second-rate philosophy department publishing a blog post, don’t make such a big deal about it!” Professor Torcello subsequently denied that he had argued what he plainly does argue, namely that legal protections for free speech should not encircle those who dissent from the received dogma of global warming. “Misguided concern regarding free speech,” he wrote, should be no impediment to imposing criminal sanctions on those whose activism “remains a serious deterrent against meaningful political action” on the issue.

We’ve taken this ride before: An obscure academic writes something loony. We withstood “feminist physics” and “queer algebra,” and we’ll get through this, too.

Unless we don’t.

Shortly after Professor Torcello’s tentative exploration of criminalizing political disagreement, Gawker published an article by Adam Weinstein bearing the straightforward headline: “Arrest climate-change deniers.” Building on Professor Torcello’s argument, Weinstein called explicitly for the imprisonment (“denialists should face jail”) of those working to further particular political goals (“quietist agenda posturing as skepticism”) on climate change. Never mind that protecting people and institutions attempting to further a political agenda is precisely the reason we have a First Amendment. Weinstein dismisses the First Amendment out of hand, with the expected dread cliché: “First Amendment rights have never been absolute. You still can’t yell ‘fire’ in a crowded theater. You shouldn’t be able to yell ‘balderdash’ at 10,883 scientific journal articles a year, all saying the same thing.”

Yelling “balderdash” at the conventional wisdom has a very long and proud tradition. (Not that it should matter to this debate, but I suppose I should here note for the record that I hold more or less conventional views on climate change as a phenomenon but prefer mitigatory policies to preventative ones.) The name “Elsevier” is not beloved on college campuses (the modern company is a publisher of academic journals and sometimes is criticized for its pricing), but it is to that company’s spiritual ancestor, the Dutch printing house of Lodewijk Elzevir and his descendants, that we owe the publication of, among other articles of samizdat, the works of Galileo, at that time under Inquisitorial interdict. (The story of Elzevir’s 1636 covert mission to Arcetri to meet with Galileo and smuggle his manuscripts to Amsterdam, a city that was then as now a byword for liberality, would make a pretty good movie.) It isn’t that it’s likely that our contemporary global-warming critics are doing work as important as Galileo’s: It’s that no one knows or can predict, which is the practical case for free expression, which should be of some concern even to our modern progressives, self-styled empiricists and pragmatists who reject the moral case for free expression.

I raised some alarm about the Gawker article at National Review, and once again the response was the predictable one: “It’s just Gawker, and it influences no one possessing any intelligence. No sensible person takes Adam Weinstein seriously.” That is all true enough, but it is not only or mainly the intelligent and the sensible who move the world of public policy. We have Kennedys to consider.

The subsequent developments are relatively well known: Robert F. Kennedy Jr., speaking at a large climate-change march in New York, called for the imprisonment of those holding impermissible views on global warming and those who with their financial resources support and spread such views. New York attorney general Eric T. Schneiderman opened a case against Exxon, and the attorneys general of Massachusetts and the U.S. Virgin Islands announced their intended participation in this inquisition. (Al Gore was present at the announcement.) Schneiderman’s prosecution, in the words of the New York Times, would focus on “the company’s funding, for at least a decade, of outside groups that worked to dispute climate science.” This is straight from Professor Torcello. The goal of course is to bully institutions, corporations, and particularly donors and the nonprofits sustained by them. Torcello: “The charge of criminal and moral negligence ought to extend to all activities of the climate deniers who receive funding as part of a sustained campaign to undermine the public’s understanding of scientific consensus.” Kamala Harris, the California attorney general who is seeking a Senate seat, announced an identical investigation of her own. The Obama administration has referred the federal question to the FBI for possible prosecution; currently, progressive strategists are pushing for prosecution under the RICO law, a racketeering statute used to prosecute sprawling organized-crime syndicates.

“The First Amendment,” Schneiderman proclaimed, “does not give you the right to commit fraud.” Which is of course true. It is also true that the invocation of “fraud” in this instance is something very close to fraudulent. But once the censors work up a head of steam, it is difficult to stop them. This week, Senator Elizabeth Warren bemoaned the fact that businessmen have “become accustomed to saying whatever they want about Washington policy debates,” and she is pressuring the Securities and Exchange Commission to file fraud charges against businesses that lobby against regulations that they believe would hurt them. Senator Warren charges that the businesses in question exaggerate the costs of regulations when lobbying against them in public and do not do so when communicating with investors and shareholders — which is to say, she wants to make a felony out of what amounts to at most hyperbole or political spin.

These would-be censors are all Democrats, it should be noted, professed liberals at that.

The First Amendment was expressly designed to protect political speech, the right to criticize one’s government and its actions. The Supreme Court blessedly has reminded such aspiring Torquemadas as Senator John McCain and President Barack Obama of this from time to time, the most famous recent example being in the Citizens United decision. Among the fiercest critics of Citizens United is Hillary Rodham Clinton, which is no surprise: At question in the case was whether the federal government, acting under the guise of “campaign finance” regulation, could censor a movie about Mrs. Clinton — a film that cast her in a poor light and hence constituted “electioneering” subject to federal regulation. Mrs. Clinton is unsure of her own mind on many subjects, but she is quite positive in her belief that Mrs. Clinton should have a very strong say in writing the rules under which Mrs. Clinton may be criticized and under which unwanted and untimely criticism may be a federal crime.

There has been a great deal of daft argument about this, including the insistence by some on the left that the idea that corporations can enjoy civil rights is a modern right-wing innovation. But if the First Amendment prevents the federal government from censoring the New York Times, then whose rights are being protected if not those of the New York Times, which is a corporation? With the death of Antonin Scalia, whose purported right-wingery made him one of the great free-speech champions of his age, the so-called liberals believe, not without some reason, that they now have an opportunity to enact federal censorship rules to suppress political criticism.

In the wake of Citizens United, Senator Harry Reid led an effort in the Senate — backed by every single Democratic senator — to repeal the First Amendment and thereby enable federal censorship of political criticism. That fact — the fact that one of our two major political parties has made gutting the Bill of Rights and suppressing political speech one of its top priorities — should be the central debate of the 2016 election. But it isn’t, to our national shame.

Lodewijk Elzevir risked his life and the possibility of torture to defy the Inquisition and bring out the works of Galileo. We Americans, who have as our cultural capital a city that once pridefully declared itself the New Amsterdam, and who arrogate unto ourselves through our president the grandiose title “Leader of the Free World,” won’t even stand up to a couple of creaky old grandmas, the great minds who brought you the Hulk Hogan sex tapes, and a couple of peon lawyers in Albany and Sacramento. If Areopagitica were a new Greek porn star, we might rouse ourselves to bother for a moment about the prospects of government censorship. But free speech as a principle? Of course, unless we don’t like it. The Founders knew that liberty is never really popular, and that it cannot be entrusted to elected officials who must answer in the end to the demos, which is why they put the first liberties first, right there in the First Amendment. If we are willing to let a low-rent carny like Harry Reid take those liberties away from us, or a sanctimonious old crook like Hillary Rodham Clinton, or Elizabeth Warren, the most wooden Indian of them all, then maybe we didn’t deserve those first liberties in the first place.