The other day, Ken White at Popehat created a laundry list of tropes about free speech.  While some may nitpick it around the edges, it’s remarkably good as it debunks the mindless cesspool of feelings about speech that has overtaken actual thought.  Charles C.W. Cooke connects this to a survey at YouGov.

YouGov’s latest research shows that many Americans support making it a criminal offense to make public statements which would stir up hatred against particular groups of people. Americans narrowly support (41%) rather than oppose (37%) criminalizing hate speech, but this conceals a partisan divide. Most Democrats (51%) support criminalizing hate speech, with only 26% opposed. Independents (41% to 35%) and Republicans (47% to 37%) tend to oppose making it illegal to stir up hatred against particular groups.

Support for banning hate speech is also particularly strong among racial minorities. 62% of black Americans, and 50% of Hispanics support criminalizing comments which would stir up hatred. White Americans oppose a ban on hate speech 43% to 36%.

And, as Radley Balko noted on the twitters, Americans have historically shown a desire to repeal the Bill of Rights, in no small part demonstrating that they were unfamiliar with the fact that the crazy ideas about which they were being surveyed came, in fact, from the Bill of Rights.

In one specific example from Popehat, Ken addresses one of the more prominent marketing pitches that has made significant, as reflected by the survey, headway into the American consciousness.

In the United States, “hate speech” is an argumentative rhetorical category, not a legal one.

“Hate speech” means many things to many Americans. There’s no widely accepted legal definition in American law. More importantly, as Professor Eugene Volokh explains conclusively, there is no “hate speech” exception to the First Amendment. Americans are free to impose social consequences on ugly speech, but the government is not free to impose official sanctions upon it. In other words, even if the phrase “hate speech” had a recognized legal definition, it would still not carry legal consequences.

This is not a close or ambiguous question of law.

While the characterization of “hate speech” as an “argumentative rhetorical category” is accurate, as it’s not only undefined (as are so many marketing catch phrases that have consumed the American discussion), but not a legal question at all, what it reflects is a value judgment and has been subsumed in media as a legal question.

This, turning back to Cooke’s analysis, is tantamount to repealing the First Amendment, which is itself a value judgment made soon after the independence of the United States of America.

And that’s where the American discussion becomes embroiled in a fundamental problem.  There are often good, sound, even strong, arguments in favor of differing positions on an issue.  There may be two sides; there may be more. Our inclination toward binary solutions is another manifestation of our simplistic approach.

There are also shallow, foolish, stupid arguments.  What tends to distinguish logical, rational arguments from the stupid ones is that the former require thought.  The latter, not so much.  And therein lies the problem.

Thinking makes people’s heads hurt, and that makes them sad.  It’s so much easier to just feel one’s way though a difficult choice and, once arriving at the answer that feels right, stick with it, logic be damned.

A few days ago, Marco Rubio asserted his campaign theme, that nothing matters if we aren’t safe.  This immediately drew a response, that nothing matters if we aren’t free. If people were to be asked which of these are correct, they would likely say both. We love freedom. We love safety. We want to have both.  Who wouldn’t?

This is the conundrum of competing values.  As with the national motto of France, liberté, égalité, fraternité, they are all values that matter to good people. But they are conflicting values.  A little more liberty requires a little less equality.  It’s not that people who love liberty hate equality, but rather that there is a trade-off between the two, such that one person’s freedom to do as he pleases comes at the expense of another person’s right to be equal despite the other person’s liberty.

When it comes to the law, the Constitution makes some of these choices for us, at least in the sense of how the law values certain rights over others.  The right to free speech, as noted by Ken, trumps the demand that hurtful speech be criminalized.  You may disagree with the value judgment, that freedom is more important than hurtfulness (and that word is used in its most extreme sense), but the Constitution forecloses the issue. The choice has been made.

In another trope, Ken writes about how appeals to authority, the use of voices wrapped up in the ascribed credibility of scholarship, are used to promote values as if they were law when they are quoted by the media offering descriptive views, what they feel the law ought to be, rather than what the law is.

It may be a disingenuous use of their position, but it is nonetheless repeated and spread to an American people who are not experts in law, and thus feel safe in relying on the views of people who have titles confirming their credibility.

This isn’t to say that someone else’s value judgments are better than yours. There is no political perspective that is right, whereas all others are wrong. It’s just a choice, a clash of views about which value should be predominant on a particular issue at a particular time.

But to realize that all you are doing is choosing the value that makes you feel better requires you to think.  This, I fear, has been lost in the confusion, where the strength of one’s convictions, the adoration of passion over thought, has become a virtue in itself.  It’s easy to feel righteous about your beliefs, basking in the glow of certainty that whatever deeply held feelings you have are right and just.  It’s much harder to think.