No one has done more than Popehat’s Ken White to teach me that cultural conventions can be nearly as important as legal ones in preserving liberty.
Here’s a recent example of what I mean: Your Criticism of My Holocaust Analogy Is Like Yet ANOTHER Holocaust.
That’s a post in which Ken applauds the massive ridicule of a pretty forgettable editorial that compared – what else? – liberal massive ridicule tactics to the kind of rhetoric that led up to Kristallnacht. Here’s Ken:
When Tom Perkins wrote his letter to the editor of the Wall Street Journal suggesting that very rich people are facing a "progressive Kristallnacht," the marketplace of ideas functioned as advertised. Tom Perkins said something very stupid, and was widely ridiculed as someone who had said something very stupid.
I read things like this and I wonder whether Mr. White means this entirely seriously.
First, is it really necessary to respond to every bit of overextended analogy one sees in the press? Mr. White wants us to think this one is special, but his reasoning is … well, not very convincing:
Perkins’ comment was self-serious and inflammatory enough to be slightly novel.
To someone who’s never been online, or attended a public school, maybe, but c’mon, there’s nothing novel about this to anyone born after 1965. People make overextended Hitler analogies with such frequency that there’s even a name for the meme.
Second, even if it were necessary to respond to every overextended analogy in the press, Mr. White’s deliberately ignoring the fact that that’s not what most respondents here are doing. Emphasis on the word most, obviously, since it won’t be hard to find a few pieces here and there that actually are complaining about the fact that the analogy was overextended. The lion’s share from the left, though, seem to come from people who are perfectly OK with an overextended analogy provided it (a) targets the "right" people and (b) comes from the "right" sources. No way to know for sure, of course, but what percentage of the people complaining about Perkins’ were just as worked up about Ward Churchill’s little Eichmanns statement? Not many, I’ll wager – and Churchill’s was even stupider. Hell, something that Ken chooses not to mention is that Perkins’ discussion of Danielle Steele in his editorial comes in the context of an editorial in the SF Chronicle earlier that week comparing a hedge around her house to the Berlin Wall.
Third, it’s impossible to overlook the fact that Ken is fighting a slippery slope argument with a slippery slope argument of his own. Here’s Perkins:
This is a very dangerous drift in our American thinking. Kristallnacht was unthinkable in 1930; is its descendant "progressive" radicalism unthinkable now?
And here’s Ken:
All of this silly rhetoric is itself free speech, of course. But it’s not harmless speech. It’s pernicious. Conflating speech and violence encourages citizens to think that speech should be controlled like violence. That’s not a abstract danger.
Notice that Perkins isn’t saying that a progressive Kristallnacht is inevitable or even likely, he’s just saying that there’s a trend of rhetoric in American society that might lead there, demonizing, as it does, a powerful minority. Is Ken right that it’s silly? Well, it seems pretty silly to me. For one thing, the Jewish insularity that so infuriated Hitler had real basis in a history of oppression; the wealthy in America are not similarly insular and were never similarly oppressed. For another (more important) thing, the economic conditions couldn’t be more different. The Nazis came to power the only way a radical fringe can: amidst a real national crisis. We’ll worry about "rich-baiting" when the US is suffering from economic and political instability on that scale, and we’re nowhere near that now. But you know, buried in what I just said is an admission that there really are people who want to punish the rich just for being rich. So, the danger Perkins has identified isn’t any more "abstract" than Ken’s supposition that merely writing an articles comparing speech to Kristallnacht could eventually lead to real restrictions on speech. Yes, there are people who want to restrict speech and are happy to conflate speech with violence to try to convince you to let them do that. Just as there really are people who are even now actively agitating for a violent uprising against the rich. Do we split this difference?
Fourth, I’m pretty sure that marketplaces work best when they’re an aggregate of individual people making informed choices and not when they’re mere bandwagon effects. So, a marketplace of ideas that "functioned as advertised" in a case like this would rather be one where people read the article, were unconvinced by it, and moved on. To the extent they rejected it explicitly, then it would be by presenting cogent arguments against it. What happened here wasn’t that. What happened here was something more like the Dungeons and Dragons scares, where people decide they don’t like something and won’t tolerate anyone else liking it either. Matt Yglesias, for example, repeated the argument like this: "Tom Perkins, rich venture capitalist and founding partner of Kleiner Perkins Caufield & Byers, really just coming out and saying that asking him to pay higher taxes is like genocidal anti-Jewish rioting orchestrated by Hitler." Which is of course nothing like what Perkins said. Yglesias, apparently, doesn’t want you to read what Perkins said, or talk about what Perkins said. He’d rather pretend Perkins said something else entirely and talk about that instead. Marc Andreessen calls him "the biggest asshole in the state." Oooh, insightful! The New Republic would rather make fun of his novel, and the best Ken White, for his part, can come up with is that it was "very stupid." That’s a lot of things, but it isn’t exactly comparison shopping.
Fifth, for someone who purports to like marketplaces, Ken only seems to see a narrow range of options.
In Europe, Tom Perkins might face official sanctions for saying the wrong thing about the Holocaust; here, he faces late-night jokes and insulting cartoons and the contempt of many. I like our way better.
Right, because those are the only two choices on the table? I think there’s at least a third one – which is where we neither have legal restrictions on speech nor do we have legal restrictions by proxy in the form of taboo ideas and public shaming. You know, the world where we not only don’t make laws like fascists, but we also don’t act like fascists. The world where ideas that are silly are just silly, and there’s nothing pernicious about them because thoughtful people have better things to talk about.
In short, if what you like about free speech isn’t just your legal right to it, but that it promotes a "marketplace of ideas," then there’s more to free speech than just the laws that protect it. It’s also a culture, a culture market by discussion and engagement rather than shouting and name-calling. Ken White is solid on the legal side of these things. What he doesn’t seem to get is that the law is just the foundation. A marketplace is healthier when it rejects ideas rather than excluding them.