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Will the First Amendment Die in the Aftermath of January 6?

I have gone about a week now without even opening Twitter, which makes me both mentally healthier as well as slower to post my thoughts on various issues.  But those who were reading me on Twitter earlier in the month know that I am far more worried about the reaction to the events at the Capitol on January 6 (J6) than I ever was about the events themselves.

We are experiencing a weird moment in history as a great number of people, IMO, are grossly over-reacting to what would have been called a “protest gone wrong”, a “riot”, or a “building occupation” in almost any other circumstances.  Instead, there seems to be a consensus to call the storming of the capital by a bunch of crazy painted selfie-taking, souvenir-hunting knuckleheads an “insurrection.”  Even moderates and free speech defenders (I am thinking of folks like Ken White at Popehat) — people who should know the dangers of using such inflammatory language to drive an exaggerated reaction — are using this term.  Folks online tell me that this was “Literally the definition of insurrection.”  In turn I would say that this is literally the first time the general public has used this term to describe … anything since the Civil War.  The Native Americans that took over Alcatraz weren’t described as insurrectionists.  The Bundies and the Branch Davidians weren’t insurrectionists.  Nixon wasn’t an insurrectionist.  The Antifa and anarchist folks declaring independent nations in the center of Seattle weren’t insurrectionists.  But by God the dude in the Fred Flintstone water buffalo hat was an insurrectionist.

Since I tend to criticize people for assuming single-dimension solutions to complex issues, I can think of multiple reasons why reactions to J6 might be exaggerated:

  • Some folks are nearly insane on any topic touching Trump.  I am going to write my retrospective on Trump later, but in short I consider him to be a bully with bad policy instincts who gathered followers by bullying folks on the Left that the Right doesn’t like.  He was a disaster for the dignity of the office and public discourse — though his opposition has some blame too for the latter — but (consistent with my contention that our system is robust to tyrants) who did remarkably little damage from an actual policy standpoint.  But given that the anti-Trump media has been incredibly harsh on perfectly peaceful Trump gatherings, a riot and occupation of the capital is going to send some folks into orbit.
  • There is a clear asymmetry in how the media covers protests from the Left vs. form the Right.  I believe I can state this as a fact without bias, particularly since I tend to be more sympathetic to the drivers behind 2020 Leftish protests and violence  than to the motives of the J6 rioters.
  • The US Capitol building obviously has special symbolic value, though I think this targeting is more a function of how dumb this J6 group was rather than any special evil on its part.  I think many, many other groups Left and Right might have tried this themselves if they thought it was possible.  But who believed that the Capitol police, which has more officers than some large cities just to cover about 4 buildings, would show all the defensive prowess of an NBA all-star game?
  • I do think that a lot of the overwrought response to this is because it happened inside the beltway.  If this happened in Portland (and a mini version seems to happen there most evenings), it might not make the news.
  • I hate to be cynical, but I do also think there is an element who have focused-grouped the “insurrection” word and inserted it in the narrative in order to prepare the ground for the maximum amount of ex post political retribution and speech restrictions.  These are the folks who are essentially emulating that greatest of all 20th century de-platforming events, the Reichstag Fire Decree.  The lesson from those events and many others in history:  Hang the actions of one mentally ill Dutchman with a lighter on all your tens of millions of political enemies.  Pretend every person of goodwill who disagrees with you is personally responsible for the actions of extremist yahoos.

So in response to all this I was going to write about an article Will Wilkinson wrote at the Niskanen Center the other day (I would describe both Wilkinson and Niskanen as Leftish but at least within sight of the middle of the road but both have had some of the quality of their work reduced over the last 2 years with what I consider an irrational level of Trump hatred).  Given this source from a long-time member of the libertarian community, I found this article he wrote hugely depressing (since I first read it, Wilkinson’s byline has been removed, probably for reasons we will get to in a moment).

I am going to leave aside the Trump impeachment stuff, which is a lot of the article.  I will just note the absolutely over-dramatic presentation and suggest there is a deep deep anger here that is simply not compatible with the policy role he wants to play.   I guess if you demanded I take a side, I would say that prosecuting your political enemies that you beat in the last election is a bad precedent.   Even the Republicans in Congress, after the unseemly “lock her up” campaign chants in 2016, managed to mostly avoid the temptation with Clinton and others.   Before I move on, I have to present this bit from the impeachment portion of his piece:

There is too much at stake to further delay mounting a trial, or to draw it out for days or weeks past Biden’s inauguration. There is no need for a lengthy Senate trial because the facts that justify impeachment and removal are not obscure.

It is interesting to see the Niskanen center parroting the words of every law-and-order Conservative demanding some dude get lynched because “we all know he’s guilty.”  I think it is clear to most folks that Trump was insufficiently diligent in restraining the fringes of his party.  But to convict Trump of  “[sending] his mob to the Capitol to make that threat vivid in the minds of legislators” is a stretch, and does actually need to be proved and not asserted.  I actually am not sure Trump is guilty of an act of commission for J6 — I see him more as the sorcerer’s apprentice, messing with forces he didn’t really understand and having it spin out of control.  Which is a good reason to get him out of office, but not necessarily sufficient for Congress to attempt a bill of attainder against Trump under the banner of an impeachment of a dude who is already gone.

But it is the part that followed that really depressed me, leaving me to wonder if there is any intellectual support for the First Amendment any more:

Blame for the insurrectionary riots cannot be laid entirely at Donald Trump’s feet. Many Congress members actively encouraged Americans to believe that the election was tainted by fraud, that Biden may not have been legitimately elected, and that our democracy could be irreparably harmed should he be allowed to take office. They should be held responsible for the dire consequences of propagating these lies. The worst offenders may merit official censure or worse. Most deserve to be abandoned by donors, saddled with strong primary challengers, and punished by voters at the ballot box.

It appears that some Republican members did more than amplify destabilizing falsehoods. Some may have actively planned to bring a mob to the Capitol steps with the intent of influencing the electoral count. If that is the case, they should be removed from Congress and face criminal prosecution.

However, it is essential that any such sanctions imposed on Congress members be grounded in a scrupulous, comprehensive accounting of the factors that contributed to the siege. This disaster was caused by the opportunistic deployment of lies for political gain. If we are to have any hope of restoring stable, functional, constitutional government, the process by which we investigate these events and mete out justice must be a model of careful, proper procedure.

Amy Zegart and Herbert Lin of Stanford University have developed a careful proposal for a commission on January 6, based on an extensive assessment of past commissions (including the 9/11 commission). Congress should expeditiously create such a commission and commit across the aisle to follow its findings, wherever they may lead.

Wilkinson can use words like “careful”, “thoughtful”, and “proper” all he wants but the fact is he is advocating asymmetrical punishment (even if the punishment is just the process) for what is fairly normal political invective.  Had Republicans called for a 9/11 commission to investigate Congressional Democrats who voiced support for riots last year that turned violent, I am positive Mr Wilkinson would have blown a gasket.  Raising questions of election fraud is well within the bounds of acceptable political discourse.  As often happens in politics, the discourse can become overheated, with words slipping from “potential fraud” to “illegitimate.”  But this again is fairly normal.  Why, we would have to go all the way back to the distant election of 2016 to see a similar example, where many many prominent Democrats argued Trump’s election was tainted by fraud (RUSSIA!) and he was illegitimate.  In fact, there were many protesters in DC on Jan 20, 2017 protesting exactly that and a number of them turned violent.  In fact, we might even cite Wilkinson himself, who has written similar things about Trump many times, including this in Vox:

Trump’s presidency has been dogged with doubts about legitimacy from the beginning. There’s a real possibility that he would have lost but for Russian interference. At this point, however, that in itself is not the biggest stain on Trump’s legitimacy.

This is the problem with all calls for speech limitation or retribution of some sort — they are always asymmetric.  My protest is entirely justified and important — yours is trivial and a super-spreader event.  My invective is “passion” while my enemy’s nearly identical invective is “violent and threatening.”   If nothing else, 2020 has been a giant lesson in the hypocrisy of our elites, both public and private.

Which brings us to the rest of the story, where someone turned the irony dial to 11:

Will Wilkinson is a vice president at the left-leaning Niskanen Center, a contributing writer at The New York Times, and someone who has frequently quarreled with me about so-called cancel culture. (I think it’s generally bad when people are fired, expelled, or dragged on social media for saying stupid or poorly phrased things they quickly come to regret; Wilkinson has suggested to me that I’ve made too much of this problem.)

On Wednesday, Wilkinson tweeted, “If Biden really wanted unity, he’d lynch Mike Pence.”

Lynching humor is virtually never a good idea, and this joke was especially badly executed. (Wilkinson said he was making a joke not at the former vice president’s expense, but in reference to the Capitol rioters who had expressed a similar sentiment. The joke being that this time it was the far right calling for violence against a Republican official rather than the left.)

Nevertheless, widespread outrage—some of it stoked by conservative news sites like The Federalist and The Daily Caller—ensued on social media. Wilkinson apologized, describing his tweet as a lapse in judgment.

“It was sharp sarcasm, but looked like a call for violence,” said Wilkinson. “That’s always wrong, even as a joke.”

Nevertheless, the Niskanen Center fired Wilkinson and made it clear that they did so explicitly because of the tweet. “The Niskanen Center appreciates and encourages interesting and provocative online discourse,” wrote Niskanen President Jerry Taylor in a statement. “However we draw the line at statements that are, or can in any way be interpreted as, condoning or promoting violence.”

I guess it would be sort of satisfying to react by saying that I was happy to see him hoist on his own petard, but really I am not.  I am not sure how we are going to do it but everyone has to just chill the hell out and accept speech as speech, and not as violence.   I am subscribed to Glen Greenwald’s newsletter because he is one of the few folks on the Left who is willing to call out this ridiculous anti-speech culture that is developing.  He has a good column on Wilkinson’s firing here, including:

So a completely ordinary and unassuming liberal commentator is in jeopardy of having his career destroyed because of a tweet that no person in good faith could possibly believe was actually advocating violence and which, at worst, could be said to be irresponsibly worded. And this is happening even though everyone knows it is all based on a totally fictitious understanding of what he said.

Greenwald does not say it, but it has become a habit of Trump critics to take his every statement and read it, no matter what the obvious meaning of the words, in the worst possible light.  While this is something folks have been doing in the editorial business since time immemorial, the migration of this pattern in the Trump era to the news division has been toxic.  It started way back at with the treatment of Trump’s Charlottesville comments — these actually surprised me as I for years had accepted that Trump had defended neo-Nazis as was portrayed on every news feed until I actually read his actual comments.  Trump wasn’t supporting nazis and Wilkinson wasn’t threatening the VP.  Any reasonable person reading either set of comments in context would agree, but we are living in a word dominated by post-modernist narrative.   Greenwald ends with this warning to both sides:

Unleash this monster and one day it will come for you. And you’ll have no principle to credibly invoke in protest when it does. You’ll be left with nothing more than lame and craven pleading that your friends do not deserve the same treatment as your enemies. Force, not principle, will be the sole factor deciding the outcome.

I will end with a few tweets from the same source, because I think he was been spot-on during the past few weeks:

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