University of Washington
University lawprof Ronald K.L. Collins has been doing a First Amendment news column at Concurring Opinions, and for criminal defense lawyers, it’s a “must read” given the overlap of speech and crime that’s poked its nose under the tent. If you haven’t been following, we’ve gone beyond the place where conduct has been the target of criminalization, into the realm where speech and thoughts are the new targets of criminal prohibitionists.
While the cries of harms and fouls talk about the suffering of the victims and survivors, the actual target of laws sought and, too often, obtained, is the ideas that offend people. The only real trick has been how to couch speech and thought in terms of conduct, or of such severe harm, so as to blind those disinclined to critical thought so that they can join the team and rationalize away logic. Collins, whose column is usually limited to First Amendment news, decided that the time has come to deal with what has become obvious to anyone not utterly bound by their feelz.
Say goodbye to John Milton and his claims in Areopagitica (1644): “And though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse in a free and open encounter?”
The problem isn’t new. Few are. Of course, Milton can be easily dismissed today, given that he’s just another white European cis male. Ironic already, that the idea should be overshadowed by the slogans of dogma.
Bunk, all bunk! And why? The answer is because too often we no longer trade in ideas when they conflict with our ideologies; too frequently we no longer concern ourselves with having our thoughts accepted in the competition of the market if those thoughts cannot serve our ideologies; and who, pray tell, gives a Holmesian hoot about truth when it cannot be squared with our ideologies?
Time, effort, energy, words murdered by the millions, all for the purpose of promoting an ideology, no matter what. Pick your favored dogma, that one that makes you feel happy, then pound, and pound some more, and keep on pounding, to “prove” your ideology to be right.
Politicians make up facts; they deny truths; they evade tough questions; and they now say anything, no matter how bizarre or hypocritical, to appeal to our ideologies.
And if they appeal to our ideology, we love them dearly. Lies? Denials? Evasion? None of this counts if they mouth the dogma we adore.
So scrap the old Enlightenment ideal; forget the quest for Truth; discard all that Meiklejohnian idealism about free speech and an informed electorate; chuck all that aspirational Brennan-talk about the importance of the “unfettered interchange of ideas” as a way of “bringing about of political and social changes desired by the people”; and dump all that highfalutin free speech theory preached from the pulpits of the legal academy.
Here is where I have to take issue with Collins. The legal academy may Gertrude its way through free speech, but it doesn’t do anything but preach it. Indeed, the legal academy, save for a handful of prawfs who are immediately pigeonholed as conservatives for their failure to grasp the overarching demands of social justice that are so critical as to compel the mutilation of free speech ideals, has been at the forefront of suppressing speech and ideas. And between the collegiality and cowardice of prawfs, few have shown the fortitude to call out the liars and censors directly.
There first has to be “all that highfalutin free speech theory preached from the pulpits of the legal academy” before it can be dumped. Instead, the legal academy is replete with free speech deniers, determined to make their bones by pushing social justice while twisting the First Amendment into meaningless knots.
Dogmatism is ideology’s calling card. Where ideology reigns supreme, an open mind poses a clear and present danger to its stability. There is no trade in ideas with ideologues, there is only the demand that all opposing views surrender to the preferred creed.
An idea is a thought whereas ideology is an orientation. The two are very different. Whereas an idea can be tested, an ideology cannot, if only because its measure is not truth. Ideology cares not about science or logic or history or facts unless they are harnessed in its name. I D E O L O G Y trumps all.
Why don’t you see this? Why can’t others see that you’re right and they’re wrong, that your empty rhetoric, meaningless words, are all for the right cause because your ideology is the one that will save us?
My fear: The idea of our faith in ideas has passed. We have abdicated; we have moved on; today we trade in the marketplace of ideologies — the very place where ideas go to die.
The ultimate irony here is that those who truly believe in their religion wrap themselves in the comfort of believing that this is true of everyone who isn’t a member of the church of their feelings. If only they “got it,” they too would understand, would embrace the dogma, would support anyone, no matter how much a liar or denier, because the end goal of ideology is what matters. It’s all that matters.
Collins’ editorial is directed toward the inanity and hypocrisy, on both sides, of the political machinations surrounding the replacement of Justice Scalia. It’s certainly a fair and worthy target. But it’s an easy target, without a high price for criticism. Until scholars are willing to take on their own, and face the stiff cost of calling out their colleagues’ ideology, the marketplace of ideas will be selling nothing but dogma wrapped up in the pretty pink bow of scholarship.