The International Institute for Democracy and Electoral Assistance in Stockholm puts out an annual report evaluating the health of global democracy. This year, the Institute put another country on its list of backsliding democracies, adding the United States for the first time ever. The assault on voting rights and Trump’s success in cultivating a significant minority of Americans willing to ziptie up the Vice President drove the report’s conclusions. At least backsliding democracies historically recover all the time, right? Right?
If a society is judged by its legal system — which seems like a fair measure for a nation of laws and not people — it’s hard not to shine a light on the country’s top-ranked law school when lamenting America’s decline. If authoritarians gain purchase in this country, it’s worth checking out what the institution charged with producing the latter-day Thomas Mores got up to over the last decade or so. Even those hideous Star Wars prequels made a point of juxtaposing the collapse of the Republic with a narrative that the Jedi were a fundamentally broken institution by that time.
If George Lucas can see it, why can’t Yale Law School?
This doesn’t require getting into Skull and Bones conspiracies. It doesn’t even rest upon Sam Alito and Clarence Thomas turning their degrees into wrecking balls aimed at democratic institutions from voting rights to organized labor. Yale graduates have put a lot of red in its democratic ledger, but it’s the current climate that makes it such an apt reflection of a declining democracy.
Dean Heather Gerken wrote the Yale community a couple weeks ago to apologize for the school’s handling of the “trap house” controversy, which deserves an apology but not for any of the reasons she’s actually apologizing. This is the controversy where the Federalist Society sent out an email leveraging a number of racial stereotypes and the school tried to have everyone make nice by gratuitously giving the organization a mealy mouthed way out.
Of course the FedSoc gang and a coterie of media enablers cried murder most foul that Yale would launch such an assault on “free speech.” It’s fashionable to take the “contrarian” view that racist party invitations are the most important battleground of our era. Tinker had protesting the Vietnam War, today’s defenders of freedom have “demeaning other people.” Same thing!
As another Yale Law student group correctly responded, “what the actual fuck!”
Because it’s not a free speech issue and the effort to recast it as one is just another instance of the hacking free speech. Recasting the virtue of allowing unpopular speech as a demand to privilege unpopular speech, up to and including a demand that counter-speech be squelched. And just like computer hacking, it relies upon well-meaning and exploitable actors — in this case attorneys and journalists — to embrace the premise that it’s a societal good to swallow this slightly redefined right.
In other words, a group of folks willing to unswervingly defend a concept is ripe for uncritically defending another concept with the same branding.
Nobody was being punished in this incident, even though the fact that this came from a recognized student group more than justified sanctions on the group. The complaint the FedSoc gang has right now is that after refusing to the school’s offer to lend its support to an empty apology, the school described the email as racist.
But that’s how free speech is supposed to work! You can say what you want, and everyone else can call you out on it.
Yet, the idea that the school would backtrack and swallow this whining isn’t surprising. Back in 2017, Dean Gerken tried to argue that free speech required students to refrain from vocally protesting racists based on a warped brand of professionalism that required those with the least power in an exchange to sit back quietly and dutifully absorb whatever nonsense came from the lectern. As we pointed out then, this shifted the meaning of the freedom to marginalize counter-speech.
Viewed in this context, the defense of racist speakers and the school’s initial effort to quell dissent over the FedSoc email by encouraging everyone else to just take it on the chin are entirely consistent: everyone can say whatever they want and never face more than the most muted and polite criticism.
An outspoken defender of liberal democracy and open society, Karl Popper, wrote of the paradox of tolerance: that tolerance demands the intolerance of intolerance. In 1945 — right after some relevant stuff went down — Popper laid out the nightmare scenario where a society’s tolerance of all viewpoints becomes an open invitation for the intolerant to thrive and, ultimately, squash tolerance itself. To Popper, societies should welcome unpopular speech to the extent it can be countered by rational counter-speech, but cautioned that intolerance will over time try to prevent this dialogue.
The running complaint is that even acknowledging that the email contained racist stereotypes amounted to an improper assault on freedom that the school must retract! When that’s being accepted as a premise, rational counter-speech is in real trouble. Which means real trouble for the country at large.
Because another thing the bad Star Wars movies got right is that this is how democracy dies. Not the hamfisted part about “thunderous applause,” but the part about it falling at the well-intentioned urging of the most gullible character in the series.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.