“[A] system of free speech confers countless benefits on people who do not much care about exercising that right.  Consider the fact that, in the history of the world, no society with democratic elections and free speech has ever experienced a famine—a demonstration of the extent to which political liberty protects people who do not exercise it.”

— Cass Sunstein, Conformity: The Power of Social Influences

Nothing is easier than giving in to fear.

Fear—even justifiable fear—can be used by those in power as a pretense for further exertion of control over lives they already substantially influence.  History provides an abundance of examples.

In the present case, the heinous violence we saw at the U.S. Capitol on January 6th has opened the door for a reinvigorated effort by powerful public and private institutions to de-platform, de-monetize, and otherwise suppress speech.  Naturally, the proffered rationale is “safety,” and opportunists are predictably using that reasoning as a way to be as broad as possible in clamping down on speech they find objectionable.

I default to skepticism when facing these sorts of potential anti-speech shifts in cultural or legal norms.  That skepticism also explains why I agree with those who have misgivings over the vigor with which influential entities are restricting speech.  I find myself in the (eclectic, perhaps strange) company of the ACLU, German Chancellor Angela Merkel, and Glenn Greenwald, among others.

The worry here isn’t limited to Twitter’s erasure of President Donald Trump from its platform, which was followed in short order by every other meaningful social network.  These concerns also relate to the suppression of the pre-election New York Post story about Hunter Biden, as well as the selective and collusive destruction of the conservative-leaning Twitter alternative Parler—under the theory that it served to foment and coordinate the Capitol attack, even though, e.g., Facebook played at least as large a role.

This targeting based on politics is troubling enough.  Yet, it was the de-platforming of Trump that most strikingly prompted some of the same anti-speech arguments I’ve been discussing for years.  Specifically, critics dismissing free speech concerns by saying “Twitter (e.g.) is a private company, and can do what it wants.”

I agree.  But there is often a wide gap between “can” and “should.”

I extensively discussed this tension in a piece I wrote in 2014.  Succinctly, if an individual’s belief in free speech includes only that which resides within the strict metes and bounds of the First Amendment, that person is no more committed to free speech than a bigot who says, “but I haven’t violated the Equal Protection Clause because I’m not a state actor” is committed to racial equality.

The suppressive impulse is foolish for a number of reasons.  Take your pick: Free speech, in and of itself, has intrinsic value to a culture.  The best way to combat bad speech is with more speech, not less.  Suppressing speech will result in more radicalization, not less.

That last point is especially true in a nation in which the pandemic has deprived many people of any sort of “pressure-release valve” for nearly a year.  People have lost jobs, businesses, and, in many cases, most of the recognizable elements of their day-to-day lives.  To make matters worse, fewer avenues for pure entertainment exist, and many of the ones that remain been infested by politics to an unprecedented degree, compromising their previous ability to provide a much-needed escape.

The relentless, negative psychological impacts of this confluence of circumstances is incredibly potent, and we’ve only just begun to see the results.  Most pressing is the increased belief that political violence is justifiable, up to and including a willingness to dabble in such violence.  This should not come as much of a surprise, and the political climate of the country isn’t the sole ingredient: Americans who might not normally do any more than write a strongly-worded e-mail suddenly find themselves under tremendous, pandemic-fueled psychological strain.

Couple that strain with a feeling of being ignored by those in power, and acts that would have been unthinkable two years ago suddenly nestle firmly within an individual’s personal realm of possibility.

Those are points that connect all of the violent protests we’ve seen over the past nine months: disillusionment and desperation.  The feeling that using normal, lawful channels of protest or communication is totally pointless.  That sense of futility is another ingredient in this volatile mixture—an ingredient that links Antifa to fringe MAGA.

If we’re looking to assign blame, it should be obvious that our leaders have let us down.  Condoning or encouraging unlawful action should be anathema to any elected leader in a democratic republic.  We saw the opposite two weeks ago, prior to the violence in and around the U.S. Capitol, as leaders, including the president, riled up angry crowds with talk of a stolen election.  We also saw the opposite last summer, when several prominent mayors and other civic leaders in sizable cities across the country seemed more concerned with coddling vandals than they did with protecting businesses and public spaces from damage and violence.

My position has been consistent: if protests become violent and destructive, they must be stopped quickly, by force if necessary.  I don’t care what the underlying ideology of the unlawful activity is.  To be clear, we should absolutely try to diagnose what motivated violence or mass vandalism.  Finding that answer is important to understanding our communities and our nation.  But the nature of that motivation should be irrelevant as to our collective desire to prevent violence and destruction.

Put another way, if you denounced what happened last summer, you should denounce what happened on January 6th.  And vice-versa.

That apparently isn’t how many partisans and major media outlets (but I repeat myself) see the issue, though.  While the condemnation of the violence on January 6th has rightly been near-universal, there was a much greater willingness last summer to entertain the notion that, when people feel they have no other recourse, violence can be effective—perhaps even worthy of respect.

The media’s response to the riot at the Capitol has been markedly different.  No downplaying.  No obscuring the harrowing facts of the situation.  Instead, they have shined a much-needed light on the most sinister elements of these events.

For many of us, our reaction to that shift is simply, “What took you so long?”

We’ve been there for months, watching whole blocks of American cities be destroyed and controlled by mobs that did well over a billion dollars’ worth of damage.  There are serious secondary effects as well.  With law enforcement in these cities facing pressure from all sides, and the pandemic’s impact raging, murder rates have skyrocketed in metro areas across the country.

Now, with a backdrop of media and political hypocrisy, and a president they almost universally despise about to leave office, we’re seeing a decided pivot.  The crackdown on speech and speakers who are purveyors of unapproved views has begun in the wake of the Capitol violence, which provided the required casus belli.

Commentators horrified for four years by Trump’s anti-CNN remarks now call upon Biden to use government power to crack down on Fox and other right-leaning outlets in the name of stopping their “sedition.”  The Associated Press frames the ability of podcasters to speak freely (yes, including conspiracy theories) as a “loophole” to be closed by more Big-Tech suppression.

The Washington Post, coincidentally owned by Amazon’s Jeff Bezos, offered quick praise for the effectiveness of de-platforming in terms of stamping out “misinformation.”  Government officials, contradicting established First Amendment jurisprudence, argue that unsubstantiated claims about election fraud aren’t even protected speech, and warn that they will hold accountable those who say that the 2020 election was “rigged.”

Some go even further, suggesting some form of purity or loyalty test (or a purge) may be necessary for anyone who even fits the demographic profile of a typical Trump voter.  The idea is that such a person cannot be trusted not to commit an act of violence on Inauguration Day.  Further intensifying the rhetoric, this warning comes complete with the invocation of Indira Gandhi and Anwar Sadat, both of whom were victims of military assassinations.

All of this happens as language itself becomes more malleable to facilitate demonization.  “Capitol rioters,” “white supremacists,” “domestic terrorists,” “Trump supporters,” and “Trump voters” subtly come to be used almost interchangeably, emboldening those who call for punishment.

At the breakneck pace with which all things proceed in the Online Era, the scope of speech targeted for sanction has become ever-broader.  The latest—and most profound—proposed restraints aren’t confined to a few voices.  They now echo through the halls of the most elite institutions.

The New York Times published an op/ed last week written by Thomas B. Edsall, but quoting several prominent legal scholars.  The central debate is whether the First Amendment itself is obsolete.  One side, seemingly the side favored by the author, suggests that the amendment no longer works properly, thanks to the existence of the Internet, and, more specifically, the existence of Donald Trump.

The author writes, ” . . . Trump has provoked a debate among legal scholars over whether the once-sacrosanct constitutional protection of free speech has itself become a threat to democracy by enabling the widespread and instantaneous transmission of lies in the service of political gain.”

Emphasis mine.

The lengthy piece does offer a wide range of opinion from scholars on both sides of this issue.  However, the number (and prestige) of those lining up to say we need to massively reform the First Amendment would have been almost unthinkable even a few years ago.

The arguments scholars like Harvard law professor Lawrence Lessig and Columbia law professor Tim Wu are making form a new frontier of free-speech sentiment—sentiment that stands decidedly against the current understanding of the First Amendment.

While these legal scholars still focus on working within a First Amendment framework, the calls of many others don’t stop at speech suppression.  Some want to remove from office any legislator who raised an objection to certifying the election.  Others want to begin the process of “un-personing” Trump and those who worked with him or for him.  Others still, apparently not satisfied with the more than 200 case files already opened by the FBI on the Capitol rioters, want to create a whole new government agency—a secret police—to stop “white terror.”

Even if the government won’t create an American Stasi, fear not.  Plenty of people who have spent four years issuing scary warnings about fascism now proudly goad private citizens into simply performing as a volunteer secret police by making sure all Trump supporters are monitored, reported, doxxed, and more.

How did we get here?

The most important thing to remember is that we didn’t suddenly wake up on January 6th with a violent mob created by President Trump.  Like the progression of the pandemic, this is a point on a curve that long pre-dates Trump’s entry into politics.  The trajectory is toward darkness, but to pretend as though nothing led up to our current location on that curve is a mistake.

It’s a mistake not just because it ignores culpability that predates last week, but, even more importantly, it ignores where all of this might go next.

This was a process.  Fringe MAGA didn’t get us here by themselves.  That’s why the biggest mistake we can make is to think that everything will snap back to “normal” once Trump leaves office.  Even if Trump disappeared from the face of the Earth on 1/21/21, we would still have a long road back.

Many of those pushing for these new restrictions certainly don’t understand that.  Their behavior makes that plain.  If they ever imagined these types of tactics could be used against them, and not just by them, they would not broach the subject.  If they comprehended that Trump is both a cause and a result of our cultural decay, they would grasp that he is neither the alpha nor the omega.

Our problems didn’t start on November 4th, and they won’t end come tomorrow.  Arriving at the dark moment of January 6th required years of undermining of public trust through inflammatory, self-serving partisanship, and a media that, by and large, was only too happy to follow suit—sometimes in service of their own agendas, sometimes in a pure desire for clicks.

Take, as an example, the questioning of the legitimacy of electoral outcomes.  Many of us said that this trend was deeply damaging four years ago and two years ago. Strangely, the media tended to lionize people making claims of illegitimacy then, rather than identifying them as themselves pushing unending conspiracy theories and dangerously eroding confidence in institutions necessary for government and society to function properly.

At long last, the media has come around on that topic, just as it has on violent protests, but only when the ones committing the bad (and escalated) behavior were people they would rather demonize than lionize.  And that swing of the pendulum brings with it the inevitable, myopic attempts to leverage a tragedy to constrain rights—usually by demonizing a segment of the population.  Again, history is replete with examples.  Some very recent.  Some decidedly not.

Finally, once the anti-speech precepts slip from the hands of legal scholars into those of activists, these arguments will become far more blunt and clumsy.  Soon, we’ll be told that people who advocate for free speech or other principles are against democracy—not to mention dangerous.  The “Trump Army” video comes close to doing that already.  And those making these arguments will demand your support.

Not request.  Not persuade.  Demand.

You don’t want to be anti-democratic, do you?

You want to be safe, don’t you?

You aren’t on the side of the domestic terrorists, are you?

You’re not a white supremacist, are you?

Prove it.

That is why you must support efforts to silence people and extinguish ideas that all right-thinking people find distasteful, they’ll say.  That is why you must report your neighbor for wearing the wrong hat or listening to the wrong podcasts, they’ll say.  That is why those who financially or otherwise supported Trump must be punished for the rest of their lives, they’ll say.

I wonder what happens when they are no longer in power.

But don’t worry.  For now, many of the people who will help determine what ideas go into the trash pile and what villains need to be deprived of their ability to make a living are some of the folks who told us that George W. Bush was Hitler.  So, although we may not be able to trust them to apply these rules in an even-handed way, fear not.  It’s all for a greater, more enlightened good.

All sarcasm aside, there is no path forward if we continue to listen to people—politicians, commentators, tech moguls, journalists, entertainers—who speak or act as if one half of the electorate is evil or un-American.  There is no future in it.  And it is particularly challenging if we continue on this trajectory before we resolve the pandemic.

To those who have created these problems, know that restricting speech—even yours—will just make all of this even worse, especially if these restrictions are enforced selectively.

But also know that, if you tell people over and over and over that they are helpless, oppressed victims, they may start to believe you.  If you tell people over and over and over that a system is rigged against them, they may start to believe you.  If you tell people over and over and over that they are monsters or terrorists because of their beliefs (or, worse, their ethnicity), they may start to believe you.

The more they believe you, the further along our society moves along that ruinous trajectory.

And the decision to do any of the above, or to restrict rights, shouldn’t depend on whether someone votes the same way you do.  You should see these acts for the moral failings that they are, no matter the political circumstances.

Like I said, there is often much space between “can” and “should.”

The window for remaining a United States is closing.  The longer the pandemic rages, the faster that window closes.  But the power to stop the dissolution resides in all of us, together.

To use that power, we must stop looking upon large swaths of our fellow Americans with suspicion.  We cannot call for rights to be restricted, especially based on politics.  And free speech, as always, must be chief among those rights if we are to maintain a functional society capable of self-governance.

Lastly, we should stop buttressing every disingenuous call for “unity” with some punitive act against our ideological opponents.  Trying to achieve unity through punishment and score-settling is folly that will only lead to despair.

My best hope is that we can soon reach a turning point in the pandemic, and that we make it through the next few days, weeks, and months without any other major incidents of violence or unrest.

That is my hope.

My fear is another story.

But I will not give in to it.

May our great nation do the same.