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Michael Lewis: The Supreme Court Has Harmed the Culture of Free Speech by Deciding Too Much Stuff

Starting with Roe v. Wade, the bestselling author argues in Commentary, the high court has removed too many topics from legislative debate.

They'll let anyone on that cover! ||| CommentaryCommentaryAs mentioned here Saturday and Sunday, Commentary magazine recently published a big symposium on the question "Is Free Speech Under Threat in the United States?" I contributed a brief essay, as did a whole bunch of people who have written for Reason over the years. Here are links to their archives around these parts, in addition to some choice quotes from their Commentary commentaries:

Jonathan Rauch ("Free speech is always under threat, because it is not only the single most successful social idea in all of human history, it is also the single most counterintuitive"), Harvey Silverglate ("today's most potent attacks on speech are coming, ironically, from liberal-arts colleges"), Laura Kipnis ("Here I am, a left-wing feminist professor invited onto the pages of Commentary"), John Stossel ("On campus, the worst is over"), Richard A. Epstein, Cathy Young, Christina Hoff Sommers ("Silencing speech and forbidding debate is not an unfortunate by-product of intersectionality—it is a primary goal"), Jonah Goldberg ("God may have endowed us with a right to liberty, but he didn't give us all a taste for it"), and John McWhorter.

Additionally, many of these and other contributors to the symposium have been subject to Reason interviews, including Epstein, Silverglate, Stossel, Sommers, Goldberg, Ayaan Hirsi Ali, Kipnis, and Rauch, the latter two of which are embedded at the bottom of this post.

The symposium repeats many of the same themes, as the campus-centric excerpts above indicate. Many contributors noted the paradox between our widening legal speech freedoms (unanimously reinforced by the Supreme Court twice just today) and the shrinking intellectual support for the stuff. I for one was predictably inspired by Jonathan Rauch ("Every new generation of free-speech advocates will need to get up every morning and re-explain the case for free speech and open inquiry—today, tomorrow, and forever. That is our lot in life, and we just need to be cheerful about it"), and repulsed by Islam critic Pamela Geller ("The real question isn't whether free speech is under threat in the United States, but rather, whether it's irretrievably lost. Can we get it back? Not without war, I suspect").

But the biggest surprise argument I don't recall encountering before came from mega-bestselling author Michael J. Lewis, who argued that even a pro–First Amendment Supreme Court unwittingly harms the culture of free speech by taking too many issues out of the scrum of consequential public debate. Excerpt:

If free speech today is in headlong retreat—everywhere threatened by regulation, organized harassment, and even violence—it is in part because our political culture allowed the practice of persuasive oratory to atrophy. The process began in 1973, an unforeseen side effect of Roe v. Wade. Legislators were delighted to learn that by relegating this divisive matter of public policy to the Supreme Court and adopting a merely symbolic position, they could sit all the more safely in their safe seats.

Since then, one crucial question of public policy after another has been punted out of the realm of politics and into the judicial. Issues that might have been debated with all the rhetorical agility of a Lincoln and a Douglas, and then subjected to a process of negotiation, compromise, and voting, have instead been settled by decree: e.g., Chevron, Kelo, Obergefell. The consequences for speech have been pernicious....[A] legislature that relegates its authority to judges and regulators will awaken to discover its oratorical culture has been stunted. When politicians, rather than seeking to convince and win over, prefer to project a studied and pleasant vagueness, debate withers into tedious defensive performance.

I suspect Lewis is exaggerating here, but his argument is intriguing.

After the jump, some relevant Reason interviews on free speech:

Laura Kipnis, from May 2017:

And Jonathan Rauch, from November 2013:

Photo Credit: Commentary

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  • Crusty Juggler - Elite||

    Laura Kipnis ("Here I am, a left-wing feminist professor invited onto the pages of Commentary"

    Her section is fun because of how uncomfortable she feels being appreciated by the likes of Commentary and icky libertarians.

  • ||

    With our monocles hiding our rapey eyes.

  • Diane Reynolds (Paul.)||

    ...hiding our male gays. I mean male gaze.

  • ||

    Our mail gazelles?

  • Diane Reynolds (Paul.)||

    Regulatory agencies. Their proliferation has gone hand-in-hand with this phenomenon of the courts Deciding Everything.

    Legislators abdicate to the regulatory agency. If the agency oversteps, it's a court matter, not a legislative matter.

    For whatever the reason, America has become comfortable with 9 people deciding the future for 330,000,000 people scurrying about, trying to live out their lives. I don't know how to turn this around.

    That and Nina Totenberg wouldn't have a job if the SCOTUS retreated.

  • buybuydandavis||

    For whatever the reason, America has become comfortable with 9 people deciding the future for 330,000,000 people scurrying about, trying to live out their lives. I don't know how to turn this around.

    Prediction - if Trump appoints another Supreme, the Left starts writing articles about the evils of judicial authoritarianism. Because another justice from Trump might just give a pretty solid majority for constitutionalists. And nothing says authoritarianism like following the constitution.

  • EscherEnigma||

    For whatever the reason, America has become comfortable with 9 people deciding the future for 330,000,000 people scurrying about, trying to live out their lives.
    I'm not sure about "comfortable", but what it comes down to is "what choice do I have"?

    Go down the list of big decisions from the SCOTUS. Every single big decision saw a lot of talk, debate, and legislation, before it ever got to the SCOTUS. Whether we're talking Griswold v. Connecticut, District of Columbia v. Heller, or Windsor v. United States, they were debated.

    And there was always folks left behind saying "this just isn't right". Petitioning their Legislative and Executive branches having failed, why shouldn't they seek justice from the Judicial branch?

    So I'm not sure anyone is ever "comfortable" having something decided by the SCOTUS. But when you have people that feel they've been wronged, and have been unable to get relief elsewhere, what would you have them do?

  • Scarecrow Repair & Chippering||

    If he thinks it started with Roe v Wade, he's history-agnostic.

    If he thinks the court should let the majority rule when it comes to constitutional matters, he's no friend fo the rule of law. (Regardless of whether Roe v Wade was decided correctly or not.) Go dig up Robert Bork and have some cucumber sandwiches.

  • Rich||

    "Free speech is always under threat, because it is not only the single most successful social idea in all of human history, it is also the single most counterintuitive."

    "The single most counterintuitive"? That is quite a statement.

  • Diane Reynolds (Paul.)||

    Eh, there is an argument that letting people say whatever they want is a threat to the stability of the Republic. You and I know that it's not, but again, arguable that position and understanding was reached via intellectual rigor.

    There's also the dangerous-freedom vs comfortable-slavery angle. Lots of people are more comfortable with the latter than the former.

  • buybuydandavis||

    Freedom is counterintuitive to idiots.

    All powerful centralized state - what could possible go wrong?

  • Deep Lurker||

    I'd say that the idea of a free-market economy is the most counterintuitive one. For free speech, there's at least an intuition that "I'll let you speak your mind, if you let me speak mine" is "fair."

    The problem that free speech faces is not that it's counterintuitive, but that the arguments against it are intuitively appealing.

  • EscherEnigma||

    The problem with a Free Market isn't just that it's "counter-intuitive". It's that the costs are localized and direct, while the benefits are often indirect and globalized.

  • Libertarian||

    I know we're overdue for a correction, but I can't help it. The Dow hit 21,530 today:

    "If the question is when markets will recover, a first-pass answer is never."

    -- Pual Krugman

  • ||

    When did the Conscience of a Progressive say that?

  • Careless||

    A few hours after the election was called for Trump

  • Juice||

    The funniest part was that futures were tanking at that moment, but recovered by market open and the actual stock market rallied without declining the way futures did.

  • Libertarian||

    Indeed. IIRC, futures were down about 800 points. But that was 2 or 3 a.m. Krugman, depressed from the election results, was probably on his second bottle of Mogen David by then.

  • ||

    Ha!

    Too funny.

  • Marty Feldman's Eyes||

    I suspect Lewis is exaggerating here, but his argument is intriguing.

    Regarding his obsession with congressional oratorical tradition (wtf) maybe, but otherwise he's absolutely right. The "pass this ambiguous piece of garbage and let the courts sort it out while we take a victory lap" absolutely hurts the country. There is such a long disconnect between our votes and the resulting laws that it strains the concept of self governance.

  • rudehost||

    And yet if Michael Lewis had his way and this was left to congress we would likely have restrictions on speech today. Michael Lewis seems to be somewhat of a proggy so this is probably what he wants. I wonder if he thinks abortion should be dealt with by congress too? I would wager not.

  • ||

    I see his point. Why are matters of freedom - an inalienable right that shouldn't be threatened - being ultimately decided by the courts? It suggests up to that point 'society' wasn't doing its job where liberty is concerned.

    As noted, it shouldn't be left to nine people to decide. From what I read up to now SCTOUS has been consistently pro-1A but what happened *if* it reverses direction?

  • ||

    happens

  • Scarecrow Repair & Chippering||

    Who else is going to knock down unconstitutional laws?

  • Juice||

    States could nullify. Juries could also, but that's less likely.

  • ||

    I didn't construct my argument well and was meant to merely point out I understood his point as using the courts as a means to an end when probably many of those issues could be handled well before hitting the courts.

  • rudehost||

    Yes they could but the courts are an extra layer of defense. There is nothing to prevent voters from holding congress accountable for attacks on the first amendment today but they don't. Getting the courts out of it is unlikely to provide new incentives for them to hold congress accountable tomorrow. I don't feel particularly good about stripping away what has been the only effective bulwark against attacks on the first amendment on the theory that the American people can be trusted to defend icky people who say things they don't like.

  • EscherEnigma||

    I'm curious what SCOTUS case you have in mind where it wasn't tried politically before hitting the courts. Off the top of my head, all I can think of are the semantic ones that no one saw coming (like that oxford comma case a month or two back).

    Any time you get to one of the important cases, it's an issue that was debated to hell and back, including in legislatures, before ever hitting the courts.

  • ace_m82||

    The 1st and 2nd amendments are there for a reason.

    And the 6th. And the 9th. And the 10th.

  • Greg F||

    As noted, it shouldn't be left to nine people to decide. From what I read up to now SCTOUS has been consistently pro-1A but what happened *if* it reverses direction?

    Start with McCain-Feingold. Then see:

    MCCONNELL V. FEDERAL ELECTION COMM'N (02-1674) 540 U.S. 93 (2003)

    McConnell lost what should have been a 1A victory.

  • Sevo||

    "….[A] legislature that relegates its authority to judges and regulators will awaken to discover its oratorical culture has been stunted. When politicians, rather than seeking to convince and win over, prefer to project a studied and pleasant vagueness, debate withers into tedious defensive performance."

    I don't have any problem with this argument, but it is totally irrelevant to any discussion regarding freedom of speech.

  • Tony||

    Is there any evil aborted fetuses aren't responsible for?

    I think that's what the argument was.

  • Diane Reynolds (Paul.)||

  • Tony||

    There's nothing worst than someone trying to impose his cultivated musical taste on others. Except Hitler, maybe.

  • Libertarian||

    She's been out of the headlines for a few weeks, so for those of you who are missing her, I give you Lena Dunham:

    "You don't need a father–so many families work so many ways–but if you have one he better werk," the 31-year-old actress tweeted Sunday . . .

    http://dailycaller.com/2017/06.....ium=Social

  • Juice||

    he better werk

    Or he better sashay away.

  • Juice||

    But the biggest surprise argument I don't recall encountering before came from mega-bestselling author Michael J. Lewis, who argued that even a pro–First Amendment Supreme Court unwittingly harms the culture of free speech by taking too many issues out of the scrum of consequential public debate.

    Well, some issues shouldn't be part of consequential public debate. Some (I'd argue for many) issues should not be decided for you by the majority of politicians picked by whoever decided to vote on election day. That's why judges strike down laws from time to time, because the target of the law should not be subject to the whim of the so-called majority.

    Also, these issues and policies aren't being "punted" to the courts by legislatures and regulators. Legislatures and regulators are overstepping their bounds, so bad laws have to be challenged in the courts by the people the bad laws harm. With that said, there may well be some cases of legislators and regulators creating laws in such a way that they intentionally harm someone so they the law will be challenged in court and "figured out" but I'd need to see an example before I believe it.

  • buybuydandavis||

    Since then, one crucial question of public policy after another has been punted out of the realm of politics and into the judicial.

    The gaslighting is strong with this one.

    Mean old politicians are *forcing* the judiciary into unconstitutional judicial authoritarianism.

  • DenverJ||

    Quiet, you.

  • josh||

    I don't think Lewis is suggesting that the courts shouldn't play their given constitutional role, but simply that we need better politics that doesn't set the court's up as a strawman/scapegoat figure when things don't go the way people want. We already see it, where pols call judicial activism on every decision they don't like, further undermining the branch of government that needs credibility the most. It's an argument I wouldn't have expected either, but am very much sympathetic to. There's a reason I always liked him.

  • Calunk||

    I think there may have been a mistake for this article. This is not the same Michael Lewis who wrote Moneyball and The Big Short. This is Michael J Lewis who is a professor and not a mega best selling author

  • Bra Ket||

    Rights are anti-democratic by definition. There's really no good way to prevent a majority from getting what it wants sooner or later, regardless of the system of govt. Though govts, including ours, are always so warped and corrupt that it's a constant struggle to protect our rights even from small-but-powerful groups who do not have a majority behind them. So in that sense, more public debate does seem like a positive thing, to expose the stupidity of these interest groups.

  • Fuck You - Cut Spending||

    Legislators were delighted to learn that by relegating this divisive matter of public policy to the Supreme Court and adopting a merely symbolic position, they could sit all the more safely in their safe seats.

    The seats are only "safe" until election time. Of course, the less controversial you are - aka the emptier your suit (and skull) - the better your chance of retaining your seat.

    It really does speak to the need for term limits for Congress. (And against the idea of popular election of Senators.) I don't hold the ballot box with high regard, but certainly the lack of term limits does the ballot box no favors.

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