Watching the "left" watching "liberals" and "conservatives" defend the rule of law against Musk/Trump. 

I think this is the last time I used the graphic.

Watching Israel and Zionism fall apart. The last colonial state and the last modernist utopia but one.

The people who should look themselves in the mirror, won't. 

---

I'm watching Israel and Zionism fall apart in real time, and all I can think about is the liberal consensus that defended them. That's not a defense of radicalism—Israel and North Korea are the last utopian projects—but the role of adversarialism, pessimism, negativity, denial.

Miyazaki hates Otaku.

updated a few time, this time at the top. It's all so fucking stupid.

The Idiot Tushnet, and co., restating his old argument.

The Supreme Court has unanimously held that Jackson Pollock’s paintings, Arnold Schöenberg’s music, and Lewis Carroll’s poem “Jabberwocky” are “unquestionably shielded” by the First Amendment. Nonrepresentational art, instrumental music, and nonsense: all receive constitutional coverage under an amendment protecting “the freedom of speech,” even though none involves what we typically think of as speech—the use of words to convey meaning. 

Jackson Pollock from 1952, 

Jackson Pollock, Blue Poles (Number 11)

Daniel Bell 20 years later. "Behind the chiliasm of modern man, is the megalomania of self-infinitization." 

Atomization, isolation and the illusion of absolute community. The low buzz and hum—the violence and warmth—of neurological overload. 

Lewis Carroll's conservative mathematical fictions.

I've said it all before 

[Weber] imagines an impersonal relation to the world. It’s a common trope of the literature of the period, but the impersonal in art and technocracy, though the product of the same events are very different things....  

By the time anything becomes known as an idea, it’s been around for awhile 

From rationalism to positivism to a world of shit.

---

Two from the NYRB

“There is a big secret about sex,” wrote Leo Bersani in 1987. “Most people don’t like it.” The same might be said of translation, which many readers secretly consider a necessary evil.

Translation is transliteration. It's a necessary evil. Utilitarianism turns practical necessity into the ideal, so its weaknesses are now "secrets". And another name for the file of women getting their model of sexuality from homosexual men. Post-feminism is pre-feminism on crank, and rationalism makes you stupid. Or the other way around. An asshole doesn't have a clitoris.  Call it female circumcision by category error.

In his films for children, Hayao Miyazaki has used the labor-intensive art of animation to study the major problem of adult life.

That was the subhead, but still. No fucking shit.

The director sticks to a deliberately vague line, one that could be applied to the most anodyne Disney venture, that all his films are about “how to live.” Few scholars or critics have done the work to penetrate this author’s statement. “What’s it about?” asked Nigel Andrews of Spirited Away. “Simple answer: Everything.” Ligaya Mishan writes that Miyazaki’s films seem to “thwart the Western mind.”

A world of idiots.

Miyazaki is the benign ruler of his domain. He's a master and treated as one by his employee/servants. He's a filmmaker and an artist. His wife "hasn't forgiven him" he says, for making her stop working as an animator. Nothing about any of this"thwarts the Western mind". There are many things in his work that are foreign to the Western mind, but French art is foreign to the English. You can't translate Rimbaud, Mallarmé, or Lady Murasaki, but there's nothing to translate in a painting—a material thing—or an image; the difference is in the perception by individuals and members of various groups. Japanese people understand Miyazaki in ways Europeans will not, but the thing absent perception is the same. 

Spirited Away is a film about children and the adults who care for them. Miyazaki's closest equivalent in the US is Maruice Sendak. In Europe it's Tove Jansson.

You will never understand the inner workings of another mind; all you have to work with is your perception of their actions, or the record or description of those actions by others, rendered in form. Proust is untranslatable; he could never be an English novelist; the past is another county. Acknowledging these things is the beginning of adulthood and intellectual life. We're ruled by big children in university chairs and editorial offices, and it makes me want to puke. 

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in re: the "Western mind". A commenter, Zina Hitz, on Leiter's post reporting the death of Harry Frankfurt

When I met him at Princeton I was already trained as a scholar in Greek philosophy. But I had not fully realized that I could use philosophy to think about my life or what t means to be a human being.

Princeton philosophy in the 80's

"My students were all obsessed with sex. Not the idea of sex, or the meaning of sex, but sex!"

Rakesh Bhandari comments about Frankfurt's discussion of 1st and 2nd order desires. Maybe Frankfurt will be remembered for teaching geeks that there's more to life than being geeks, the same transition Derrida played a part in. One of them would be amused. I still think I coined the phrase second-order curiosity, meaning the ironic awareness of an interest, as a way of explaining the problems of analytic philosophy. Autism is the model of first order curiosity: subtext, and other people, are irrelevant. "I'm a liberal"; "I'm a nice guy!" "Some of my best friends..." "I have an extended mind!"

Mathematics can't tell you why you wanted to be a mathematician. "Science can't even justify science." Steven Weinberg, whose philosophy justifies Zionism, as Leiter's does.

Bhandari, in the past, and recently.

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Two by Tushnet: one pushing his version of the "unitary executive" and another, on free speech and art, again. He belongs with the idiots above.

A few weeks ago, my family went on vacation in Copenhagen, where we ate at several top-of-the-line restaurants. My reaction to the meals? “How incredibly creative of the chef.”

A few weeks ago, my family went to DC, where we met with several top-of-the-line law firms. My reaction to the briefs? “How incredibly creative of the partners.”

Briefs are referred to as well crafted. "Lawyers are tradespeople!"

None of these cases are about speech; they're about the relation of speech to commerce. 

The idiot

A different example, with the same analytic structure, clarifies the problem. Switch from discrimination on the basis of religion to discrimination on the basis of race. Now the chef makes dishes to preserve white culture. An African-American comes to the restaurant, but the chef says, “Sorry, I won’t serve you because my message that these foods are preserving white culture would be diluted if people saw Black people eating at the restaurant.” We might say that the restaurant owner’s choice of a business model is his way of expressing himself: His expressive conduct is his expressive activity.

White Trash Cooking is a cookbook, and anyone can buy it. The KKK can open a restaurant, but it has to serve niggers, gooks, spics, and kikes. Equal access to the market, in a commercial culture: from Wickard vs Filburn to civil rights, the market takes precedence over social and private life. 

After Tushnet's open letter: 

—NBC, Alabama Republicans refuse to draw a second Black congressional district in defiance of Supreme Court.

—National Review[!], Harvard’s Mark Tushnet Wants Joe Biden to Become a Dictator

Tushnet is a famous opponent of judicial review, and now Alabama Republicans and supporters of the independent state legislature theory have heeded his call. On executive supremacy, Posner and Vermuele at least are consistent. And all of this and everything above, with the same paper-thin idea of language, and politics.

608.    No supposition seems to me more natural than that there is no process in the brain correlated with associating or with  thinking; so that it would be impossible to read off thought-processes from brain-processes. I mean this: if I talk or write there is, I assume, a system of impulses going out from my brain and correlated with my spoken or written thoughts. But why should the system continue further in the direction of the centre? Why should this order not proceed, so to speak, out of chaos? The case would be like the following—certain kinds of plants multiply by seed, so that a seed always produces a plant of the same kind as that from which it was produced—but nothing in the seed corresponds to the plant which comes from it; so that it is impossible to infer the properties or structure of the plant from those of the seed that comes out of it—this can only be done from the history of the seed. So an organism might come into being even out of something quite amorphous, as it were causelessly; and there is no reason why this should not really hold for our thoughts, and hence for our talking and writing. 

609.    It is thus perfectly possible that certain psychological phenomena cannot be investigated physiologically, because physiologically nothing corresponds to them.

And John King, another former student, testifies to Wittgenstein's distaste for British (as opposed to American) movies precisely on the ground of their theatricality. "The Mill Road cinema . . . was the one he most favoured," King recalls, "and here he sat as far to the front as he could get, leant forward in his seat and was utterly absorbed by the film. He never would go to any British film; and if we passed a cinema advertising one he pointed out how the actors looked dressed-up, unnatural, unconvincing, obviously play-acting, while, in comparison, in the American films the actors were the part, with no pretence" ("Recollections of Wittgenstein," in Rhees, ed., Recollections of Wittgenstein, p. 71). 

Cooper's ability to project his personality onto his characters played an important part in his appearing natural and authentic on screen. Actor John Barrymore said of Cooper, "This fellow is the world's greatest actor. He does without effort what the rest of us spend our lives trying to learn – namely, to be natural."[88] Charles Laughton, who played opposite Cooper in Devil and the Deep agreed, "In truth, that boy hasn't the least idea how well he acts ... He gets at it from the inside, from his own clear way of looking at life."[88] William Wyler, who directed Cooper in two films, called him a "superb actor, a master of movie acting".[399]

In his review of Cooper's performance in The Real Glory, Graham Greene wrote, "Sometimes his lean photogenic face seems to leave everything to the lens, but there is no question here of his not acting. Watch him inoculate the girl against cholera – the casual jab of the needle, and the dressing slapped on while he talks, as though a thousand arms had taught him where to stab and he doesn't have to think anymore."[88]

Cooper's style of underplaying before the camera surprised many of his directors and fellow actors. Even in his earliest feature films, he recognized the camera's ability to pick up slight gestures and facial movements.[400] Commenting on Cooper's performance in Sergeant York, director Howard Hawks observed, "He worked very hard and yet he didn't seem to be working. He was a strange actor because you'd look at him during a scene and you'd think ... this isn't going to be any good. But when you saw the rushes in the projection room the next day you could read in his face all the things he'd been thinking."[174] Sam Wood, who directed Cooper in four films, had similar observations about Cooper's performance in Pride of the Yankees, noting, "What I thought was underplaying turned out to be just the right approach. On the screen he's perfect, yet on the set you'd swear it's the worst job of acting in the history of motion pictures."[401]

A novel is a thing crafted out of a plot, and judged as that. It's less an essay than a house. Language, as event and communication is an aspect of life. Philosophy and theology are parasitic on that. Literature, art, is both descriptive and formal. History, describing both art and the world, is observational and secular. 

Neoliberalism is telocratic now. But it always was, depending who was talking and when.

This is all so fucking stupid. Gabor's comments go with Farrell's so I could just as well add them to the later post

Libertarians and classical liberals famously claim to be opposed to state power. So why do some of them resort to it so readily?

No matter how many 'neoliberalism is dead, long live strategic cooperation' speeches Jake Sullivan makes, no country in the Global South can compete with these subsidies to capital. https://t.co/OL7H8z3ykp

— Daniela Gabor (@DanielaGabor) June 16, 2023

pic if twitter dies.

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And again. The best response to all of this is in the relation of Arendt and Trudeau.

more on MacIntyre here

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Updated again, and again, because I need to dot every fucking i.

"So you want to be a career soldier? Good for you. But remember that the longer you stay in uniform, the less you will really understand about the country you protect." 

A Marine colonel explains democracy to philosophers, who by the nature of their calling refuse to accept what it is.

The full quote is below.

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I forget how much I repeat myself. But that's all argument is at this point.

 

"jolifanto bambla o falli bambla

großiga m'pfa habla horem

egiga goramen

higo bloiko russula huju

hollaka hollala

anlogo bung

blago bung blago bung

bosso fataka

ü üü ü

schampa wulla wussa olobo

hej tatta gorem

eschige zunbada

wulubu ssubudu uluwu ssubudu

–umf

kusa gauma 

ba–umf" 

These arguments have only to be stated to be recognized as being widely influential in our society. They have of course their articulate expert spokesmen: Herman Kahn and the Pope, Che Guevara and Milton Friedman are among the authors who have produced variant versions of them. But it is their appearance in newspaper editorials and high-school debates, on radio talk shows and letters to congressmen, in bars, barracks and board-rooms, it is their typicality that makes them important examples here. What salient characteristics do these debates and disagreements share?

A few pages of MacIntyre and it's like reading a very serious 22-year-old going back over his past as a very serious teenager. 

One of those books that make you go "fuck me, I need to reassess everything". Essential.

And it gets worse.

Dunno if anyone's coined this, but the condition of late modernity is "Teloslos" - purposelessness

Rakesh Bhandari replies

Tied back to neoliberalism which can be understood as a critique of the telocratic state. From Raymond Plant, The Neo-liberal State, chap 1: "To use the terminology of Oakeshott, endorsed by Hayek, the state should be seen as nomocratic and not telocratic."

Hochuli 

More reason to despise neoliberalism

Bhandari 

The idea that the state should just be nomocratic and not telocratic seems absurd in the face of climate change: we have a common goal of a renewable revolution, and the state has a role to play. Neoliberalism obstacle to life. 

Definitions: Nomacracy the is rule of means; telocracy is the rule of ends. 

Absolutely no sense of history. I used to think Bhandari was better.

...What’s more, the graduates were no longer content to let the machinery of business determine the course of their lives. One man told Baltzell that before the program he had been “like a straw floating with the current down the stream” and added: “The stream was the Bell Telephone Company. I don’t think I will ever be that straw again.” 

"I saw the best minds of my generation destroyed by madness, starving hysterical naked, dragging themselves through the negro streets at dawn looking for an angry fix."

If we review Bentham’s contemporaries in search of a figure who might be seen as exemplifying the antithesis of the Benthamic view of life, many names might suggest themselves and might, in one context or another, be appropriate. Rousseau, Burke, Kant himself, Hegel – each of these would have a claim, though each might prove, on closer inspection, to have something at least in common with Bentham. There is, however, a figure – a man who was born less than ten years after Bentham and died less than five years before him – who may provide the requisite antithesis. William Blake, I suggest, both embodies that antithesis and proclaims the imperfection of Bentham’s understanding of happiness. 

Keynesianism was an ideology of mobilization, an intellectual project for winning the war. And there were Keynesians everywhere. German economists, aligned with the Nazi regime, made the same discoveries at the same time. They conducted extensive debates in 1943 and 1944 as to whether there was any upper limit to the debt that might constrain the final mobilization for Hitler’s Endsieg. It was dangerous to be a fiscal conservative in Hitler’s Germany, especially as the end approached. 

MacIntyre is a Thomist

Though unfamiliar to most scientists and the general public, the term expresses a cultural problem that caught my eye. It occurs in an article written by the late Protestant moral theologian Paul Ramsey in 1976 as part of a debate with a Jesuit theologian, Richard McCormick. McCormick argued that it ought to be morally acceptable to use children for nontherapeutic research, that is, for research with no direct benefit to the children themselves and in the absence of any informed consent. Referring to claims about the “necessity” of such research, Ramsey accused McCormick of falling prey to the “research imperative”, the view that the importance of research could overcome moral values.

That was the last time I heard of the phrase for many years, but it informs important arguments about research that have surfaces with increasing force of late. It captures, for instance, the essence of what Joshua Lederberg, a Nobel laureate for his work on genetics and president emeritus of Rockefeller University once remarked to me: “The blood of those who will die if biomedical research is not pursued will be upon the hands of those who don’t do it."

"It’s War Communism in the war on disease. It’s Stalinism for the betterment of the race, and isn't that what Stalinism always was?" 

Trolley Problems and the doctrine of double effect. This time I'll quote the manuscript

The doctrine of double effect originates with Aquinas. We’re back to the authoritarianism of the Church and the research imperative. Utilitarianism doesn’t need to nit-pick about intention; it’s simple enough to say “I chose to kill 3 people to save 10”. But the focus on intention, the inner workings of the killer’s mind, denies full moral existence to those who’ve been killed, and I know of no study asking people to imagine themselves as the fat man and asking if they’re able to intuit a moral difference between being pushed by a man’s hand or by a turnstile with someone’s finger on the switch.

Utilitarianism is the logic of the military. 

So you want to be a career soldier? Good for you. But remember that the longer you stay in uniform, the less you will really understand about the country you protect. Democracy is the antithesis of the military life; it’s chaotic, dishonest, disorganized, and at the same time glorious, exhilarating and free — which you are not.

After a while, if you stay in, you’ll be tempted to say, “Look, you civilians, we’ve got a better way. We’re better organized. We’re patriotic, and we know what it is to sacrifice. Be like us.” And you’ll be dead wrong, son. If you’re a career soldier, you may defend democracy, but you won’t understand it or be part of it. What’s more, you’ll always be a stranger to your own society. That’s the sacrifice you’ll be making.

Democracy is absolutist about form and relativist about truth.

I began to find myself in a dangerous situation as an advocate. I came to believe in the truth of what I was saying. 

And “wealth” itself is an irrational concept. It is an almost mystical process, the setting of ethical values: Arising from the irrational, transforming the irrational to the rational, yet nonetheless it is the irrational that radiates from within the resulting form.

Life is pointless. If the relentless drive for growth and progress—forward motion for its own sake, a mass delusion, a telos in the void—means now that the only option is a mobilized military-Keynesianism, it's a pity. It really is. But that's why the Chinese Communist Party will save the world.

I used Ball and I should have used Schwitters, a better artist, and a comedian, mocking the imperial telocracies of Europe in 1916, and 2023.  I could have used Talking Heads, but I'll use Motörhead.

And now the liberal-woke-capitalist-powers-that-be have restricted the viewing of footage of the battles of Verdun and the Somme, to protects us. And even joking about it sounds like overkill.

16 years old when I went to the war,

To fight for a land fit for heroes,
God on my side, and a gun in my hand,
Chasing my days down to zero,
And I marched and I fought and I bled
And I died & I never did get any older,
But I knew at the time, That a year in the line,
Was a long enough life for a soldier,
We all volunteered,
And we wrote down our names,
And we added two years to our ages,
Eager for life and ahead of the game,
Ready for history's pages,
And we brawled and we fought
And we whored 'til we stood,
Ten thousand shoulder to shoulder,
A thirst for the Hun,
We were food for the gun, and that's
What you are when you're soldiers,
I heard my friend cry,
And he sank to his knees, coughing blood
As he screamed for his mother
And I fell by his side,
And that's how we died,
Clinging like kids to each other,
And I lay in the mud
And the guts and the blood,
And I wept as his body grew colder,
And I called for my mother
And she never came,
Though it wasn't my fault
And I wasn't to blame,
The day not half over
And ten thousand slain, and now
There's nobody remembers our names
And that's how it is for a soldier.

Sereny again

Into That Darkness 

Shortly before breaking off for lunch – when, I had been told, I would have to give him as much time as he wanted for his meal and rest – I told him that having listened to him for two and a half hours I thought I had better explain what I really wanted. He could then think about it and let me know after lunch whether he wanted to go on. I said that I knew inside out all the things he had said that morning; all of them had been said before by any number of people. And I didn’t wish to argue the right or wrong of any of this; I felt it was pointless. What I had come for was something quite different: I wanted him really to talk to me; to tell me about himself as a child, a boy, a youth, a man; to tell me about his father, his mother, his friends, his wife and his children; tell me not what he did or did not do but what he loved and what he hated and what he felt about the things in his life which had eventually brought him to where he was sitting now. If he didn’t want to do this, but preferred to go on in the vein of that morning’s recital, then I would listen to him, I said, to the end of that afternoon, go back to England, write a little something about the interview, and that would be the end of it. But if, after thinking about it, he decided to help me delve deeper into the past (his past, because things had happened to and inside him which had happened to hardly anyone else, ever) then perhaps we could find some truth together; some new truth which would contribute to the understanding of things that had never yet been understood. If this could be done I would be prepared to stay in Düsseldorf as long as he liked; days or even weeks. I told him, too, that he had to know from the start that I abhorred everything the Nazis had stood for and done, but that I would promise him to write down exactly what he said, whatever it would be, and that I would try – my own feelings notwithstanding – to understand without prejudice.

When I’d finished he didn’t say anything, only nodded. And when a moment later the guard came to take him back to his cell, he left the room with nothing but a small formal bow. I was not at all sure I’d see him again....

Stangl looked indefinably different when he was brought back to the little room on the second floor at 2 p.m. He had taken off his tie and unbuttoned the top button of his shirt, but he still looked spruce – that wasn’t it. He was as well shaved as he had been in the morning – had probably shaved again – yet he no longer looked quite clean-shaven, nor was his skin as taut and young-looking as before....

I’ve thought about what you said,” he told me at once, his voice slightly unsteady. “I hadn’t understood before – I hadn’t understood what you wanted. I think I understand now … I want to do it. I want to try to do it.…”

There were tears in his eyes before we even began to speak of his childhood. “I thought you just wanted – you know – an ‘interview’,” he said, emphasizing that loaded term. I had some English cigarettes and he took one – he was, I soon saw, a chain-smoker. “My childhood,” he began, shaking his head several times, “I’ll tell you.

"Did he perhaps think of you as his friend?" 

"No I don't think he would have dared to think of that. He was very respectful. He a provincial Austrian. I was a Hungarian aristocrat." 

This is just hilarious.

---

Sereny makes me laugh. She has a good hard understanding of the world. 

Q: This phrase the banality of evil, is that what you're talking about?

A: Ah.. I suppose so. I really dislike that um... sentence. You know, evil is a huge word. Actually there was nothing evil about Stangl.

Arendt's use of "banality" isn't the problem; it's the here use of the word "evil" Arendt could never stop being a philosopher. That was always her weakness. Sereny doesn't need to pretend. 

Earlier, laughing, putting her hand to her chest:"Remembering Stangl and to think of him as being fundamental is always funny." An empty suit, but the suit was a uniform. Deep down he's shallow. Her aristocratic contempt.

Watching Sereny I thought of Stengneth, and my own contempt grew even stronger. Sereny seconds Arendt in a way that Stangneth could never counter. Post-war German Zionism continues pre-war German anti-Semitism, a transition without a break.

Sereny was a journalist and Harris was a lawyer. Empiricism over rationalism

Sereny's description of Speer and Hitler would probably offend a lot of people if they paid attention. 

more

repeat: Judicial Review vs The Independent State Legislature Theory. 

Because I'm hearing this shit again.

The court is a political institution. The pretense that it isn't is why we're here now, and who should we blame for that?

Gardening is not a crime

"Dictatorships are so unfair!" 

Journalism at best is borderline sleaze. Hackwork is central to any any functioning society, and borderline sleaze is central to democracy, but whining does nothing.

all repeats

A rite of passage for all young provincial journalists is known as the death knock — going and knocking on the door of a house which has just lost a family member, preferably in horrific or embarrassing circumstances. At my Newcastle course we were taught the art of charming and sympathizing one's way across the doorstep, and the absolute necessity, while taking notes, of trying to remove, preferably but not necessarily by agreement, any photos of the bereaved from the mantelpiece. The job of getting these stories can be a horrible, soiling experience which puts people off reporting for life. 

objections to my article have been silly so far. i'm a journalist, not an american journalist. my job is not to serve as a propagandist for anybody, just to tell stories and my advantage is that i can tell stories that are hard to come by

any comparison to WWII or the nazis always shows a lack of imagination, but in this case also a lack of understanding. the whole reason why its important to have people like me, able to hang out with militias in somalia, afghanistan, iraq or lebanon, is because they are not a formal army of a formal state, with clear goals, structure, hierarchy etc. on the contrary, their motives are not known and diverse, often at odds, they take up arms for different reasons and as anybody remotely interested in COIN knows by now (except for sassaman perhaps), they do not put down their arms through force, unless you're willing to use force like the russians in chechnya (and that hasnt worked for the israelis), but instead their goals and motives must be understood, and eventually a political accord must be reached.

moreover, journalists regularly embed with the american military when it is conducting operations, attacks, killing. whats the difference?

imagine if that one taliban commander had not screwed up my plans to go with them when they conducted attacks, and i had seen that too. isnt that interesting? isnt it important to understand who they are? and most importantly, wouldnt it make for a fun read?

This one has really gone all over the place

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Of course. I should've guessed about the Tillmans piece. And then tweeting Joni Mitchell.

Twink death is terrifying pic.twitter.com/3tXGoBZNob

— Anton Jäger (@AntonJaegermm) March 26, 2023

John Waters sent a birthday card to a mutual friend on his 30th birthday:  "Don't worry, you're still chicken."

John Kelly is a very nice man, but being a "Performance Artist"—pretensions limiting his audience and career—he disables embedding. But Joni Mitchell is a fan, and so am I. Click on the link.

And now I've covered almost everything, including contradictions. Only to add that Kelly is a craftsman and a traditionalist. His performance is conservative in the best sense, and he belongs with Welles, O'Toole, and Milton, linked below. Waters on the other hand is a bit of a nasty piece of work. And Jäger can't come to terms with his conflicts.

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Jäeger and Leusder, Tooze and the rest of the younger generation of technocrats, earnestly engaged with "aesthetics" and "culture", always returning to romanticism, while elsewhere and seemingly unaware of the connection, expressing concern over and admiration for American individualism: Bowling Alone, and "the American experiment has just begun."etc.

Romanticism is the melodramatic longing of individualists for a mythical idea of community. Not recognizing or accepting that they're members of a group and following its codes, they form an intentional community, a subset of their group, an artificial imagined collective dedicated to aesthetics or politics, or a mixture of the two. The first absurdity—separating form from content, aesthetics from ethics—is compounded by the second: the joining of these supposedly separate things into a new unity. The result either way is kitsch, or close to it.

Technocrats as fans of art are just fans of themselves. 

Romanticism always begins in fandom and fantasy, the memory of the feelings another older artist's work brought out in the romantic poet's childhood. Thirty years ago I took a drum lesson from a working pro, a session player, who said I talked like someone who listened to music, not someone who played it. I want to think I got the joke immediately. When my father asked a room of freshmen how many of them wanted to be poets, half of them raised their hands. Then he asked how many wanted to write poetry.

Lon Chaney and a young Peter O'Toole. I'll post it a third time.

"Yes but the point is, surely… This is the point of blank verse, "The lady shall speak her mind freely, or the blank verse will halt for it."  Hamlet says this. You don't have to think; you think after the line, not before it, or not during. The line is the thought. This is the point of iambic pentameter."

Every time I hear the phrase "thought leader" I think of John Rawls.

Artists aren't individualists. The craft precedes the craftsman.  

I may have found a job I can work at if I need to till I die. A bench job is the closest I'll ever come to a desk job. But J.P. Morgan is sending me wealth management spam again, credit to the Norwegian not at Morgan who's handling my account; I may be able to retire after all. It's good having a billionaire for a stockbroker, even if he's working to make sure dividends cover my rent controlled apartment. Cultural capital is still the next best thing.

People pointing out that the Simpsons called the Michelangelo scandal should watch the episode.

---

Romanticism always begins in fandom and fantasy, the memory of the feelings another older artist's work brought out in the romantic poet's childhood.

Listening to the Hammerklavier as I do every once in a while and remembering that I laughed.

"A teacher of mine, Abe Ajay, an arch modernist, a friend of Ad Reinhardt who worked with him at The New Masses, used to complain that Beethoven ruined his music with images. 'All those wonderful notes and then... Birds!!'"

Beethoven like Marx, is sui generis. That's one way to cover my ass. But there is something to be said for being first to cross the a line. He doesn't refer to art; he uses art to refer to something else. That's in the manuscript. But also, now that I've checked, in The Classical Style, Rosen says he used art to refer to itself—as a modernist—which is the debate Rosen has with Brendel. That's in the manuscript too.

The first time I heard the Hammerklavier, I recognized a form—a historically and culturally specific set of arranged motifs—stretched up to the breaking point, but not over it. That tension is modernism. The moment of release is meaningless without what preceded it.

The Knight First Amendment Institute, again.  It's an absolute disaster for free speech doctrine.

Views on First, Episode Four

Social media platforms make more decisions about free speech every minute than the Supreme Court has made in more than 200 years. So the values and systems adopted by these corporate speech overlords matter a lot.  Guests Nicole Wong—former Google VP and Twitter exec—and Alex Stamos—director of the Stanford Internet Observatory and former Facebook chief security officer—tell the story of how Big Tech stumbled its way through developing systems of speech regulation, from the early laissez-faire days to the controversies of today. Turns out that speech regulation is hard.

Host Evelyn Douek, a "self-described content-moderation nerd"

For those of you who have been with us so far, you'll know that we've been thinking and talking a lot about how the First Amendment should adjust to the new challenges of the platform era.

Because adjusting the platforms to fit the First Amendment is unthinkable. 

And that shouldn't be a surprise. We're a First Amendment Institute and so we spend a lot of time thinking about the First Amendment and legal doctrine. But most of our free speech debates happen outside the courts. They're about norms and rules that are not legal or constitutional issues, but social ones. And increasingly, they're corporate ones. Because alongside the story that we've been telling about how tech platforms have collided with the First Amendment, there's another story about how tech platforms have collided with different understandings of free speech. And that's an important story because tech platforms are perhaps the most important speech regulators in the world. 

It's cued up; the speaker's Daphne Keller, previously here, and previously "Associate General Counsel for Google", now "Director of Program on Platform Regulation, Cyber Policy Center" at Stanford.

Keller

But the the so-called "must carry" provisions are a little different in the two laws and they're both long convoluted hard to read poorly drafted laws. I don't think the lawmakers thought I don't know thought about a future of anybody actually complying. I think it was just really fun for them to to draft these laws. So the Texas one, the key provision says that platforms can't discriminate on the basis of viewpoint when they remove or demote or demonetize or otherwise moderate content by their users. And I think what these legislators were thinking was you can't discriminate against you know Tucker Carlson you know stop censoring conservative voices. But really what it means to not discriminate on the basis of viewpoint, while this is somewhat debated on the details, but if you are leaving up anti teen anorexia videos then you have to also leave up the pro teen anorexia videos. If you're leaving up the anti-suicide videos you ['can't' makes sense in context] take down the pro-suicide videos. If you're leaving up the claims that the Holocaust is real you also leave up the claims that the Holocaust is not real, so there's just this very grim array of consequences from that rule requiring viewpoint neutrality.

The"very grim array of consequences" is the definition of free speech. So these go here.

A German-Israeli singer Nirit Sommerfeld taking part in a Klezmer concert in Munich got a letter from authorities that if she utters the word BDS or says anything they deem anti-Semitic, they will stop the concert. She is also the child of Holocaust survivors h/t @BartalYossi

— Mairav Zonszein מרב זונשיין (@MairavZ) September 28, 2019

Amnesty International, September 29,  2022

Beginning in August 2017, the Myanmar security forces undertook a brutal campaign of ethnic cleansing against Rohingya Muslims. This report is based on an in-depth investigation into Meta (formerly Facebook)’s role in the serious human rights violations perpetrated against the Rohingya. Meta’s algorithms proactively amplified and promoted content which incited violence, hatred, and discrimination against the Rohingya – pouring fuel on the fire of long-standing discrimination and substantially increasing the risk of an outbreak of mass violence. The report concludes that Meta substantially contributed to adverse human rights impacts suffered by the Rohingya and has a responsibility to provide survivors with an effective remedy.

Defend free speech but not incitement promoted by a global monopoly. It's so fucking obvious. For FB incitement is the model. It's the definition of engagement, and engagement is money. Balkin at this point just depresses me.

Two from Deborah Lipstadt, Recognize the name?

Donald Trump’s "Inadvertent Anti-Semitism"

Is Donald Trump a committed anti-Semite? I don’t think so. This is a man who is exceptionally proud of his daughter, a traditional Jew who is giving her children a solid Jewish education. His son-in-law, upon whose advice he increasingly leans, is an Orthodox Jew. This is not the profile of an anti-Semite. I also think that the comparisons between Trump and Hitler are way over the top.

"Jimmy Carter's Jewish Problem"

It is hard to criticize an icon. Jimmy Carter's humanitarian work has saved countless lives. Yet his life has also been shaped by the Bible, where the Hebrew prophets taught us to speak truth to power. So I write.

Lipstadt: "Anti-Zionism is anti-Semitism." Karl Popper was an anti-Zionist. Was he an anti-Semite? 

The Hill: "Legal experts say Fox News on shaky legal ground in Dominion lawsuit" 

A slew of internal communications and depositions taken by Dominion as part of its discovery process has left many legal experts warning that Fox could be on shaky legal footing.  

Dominion argues the vignettes contained in its court filings demonstrate how top hosts and executives at Fox knew the claims being pushed by Trump’s associates about Dominion were false but aired them anyway.  

“One just doesn’t see cases like this in defamation,” said Catherine Ross, a constitutional law professor at George Washington University who specializes in First Amendment issues.  

“Fox does not appear to have any plausible defense, particularly in light of what Dominion uncovered in discovery of real-time knowledge of falsity,” she said. 

I hope the lawyers bring down Fox and Facebook, because the law professors ain't doin' shit. Get the joke? 

The Knight First Amendment Institute 

The Knight First Amendment Institute defends the freedoms of speech and the press in the digital age through strategic litigation, research, and public education. Our aim is to promote a system of free expression that is open and inclusive, that broadens and elevates public discourse, and that fosters creativity, accountability, and effective self-government.

We've been here before. 

Heather Whitney, "Search Engines, Social Media, and the Editorial Analogy" 

Recommended to me by David Pozen, the editor of the series this essay is a part of, who didn't understand my question

Whitney's concerns about the "editorial analogy" are entirely about whether Google and Facebook have the right to free speech, not about scale and the ability to regulate public information. The only mention of Section 230 is about Yelp!

Whitney

Large consequences hinge on whether the various choices companies like Facebook and Google make are indeed analogous to editorial “speech.” The answer will partly determine whether and how the state can respond to current challenges ranging from the proliferation of fake news to high levels of market concentration to the lack of ad transparency. Furthermore, algorithmic discrimination and the discrimination facilitated by these platforms’ structures affect people’s lives today and no doubt will continue to do so. But if these algorithms and outputs are analogous to the decisions the New York Times makes on what to publish, then attempts to extend antidiscrimination laws to deal with such discrimination will face an onslaught of potentially insuperable constitutional challenges. In short, these companies’ deployment of the editorial analogy in the First Amendment context poses a major hurdle to government intervention.

She goes into the history of the editorial analogy in court, beginning with Zhang v. Baidu.com, Inc. where plaintiffs lost.

First, the Court noted that the government may not interfere with the content of private writers on matters of public concern. Second, the Court explained this rule is not restricted to the press but afforded to all individuals. 

The dominant search engine in a one-party state, under strict state censorship has "free speech", as judged by the courts in a putative democracy. This calls for an analysis of the court and judicial appointment, but she doesn't do that. 

With no attention paid to the claim that Baidu was acting on behalf of the Chinese government the court saw the relevant precedent as Miami Herald Publishing Co. v. Tornillo. There, the U.S. Supreme Court found unconstitutional a statute that required newspapers to provide political candidates a right of reply to critical editorials. The court in Baidu also saw Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston as an extension of Tornillo, equally applicable to Baidu. In Hurley, the Court ruled that requiring parade organizers to permit a pro-LGBT group to participate would entail unconstitutionally compelling the parade organizers to speak.

The parade in Hurley was nationalist pageantry. If Nazis have the right to march, then conservative Irish organizations have the right too. I doubt that anyone in there was flying the Union Jack. And the Miami Herald isn't exactly monopoly material.

next up:  e-ventures Worldwide, LLC v. Google, Inc, where it won again.

That Google’s actions were commercial and arguably anticompetitive did not matter. That Google was alleged to have made deceptive statements did not matter. On the contrary, the court expressly opined that Google’s free speech rights protect its listing and delisting decisions “whether they are fair or unfair, or motivated by profit or altruism.” The court’s conclusion that if Google’s results were speech, unfair competition laws could not apply is deeply problematic and difficult to square with the obvious fact that laws addressing unfair and deceptive advertising prohibit certain speech all the time. This conclusion underscores the editorial analogy’s powerful influence and what its successful use puts at stake. 

"This conclusion underscores the editorial analogy’s powerful influence". 

If a court decides that there was no incitement when a man is beaten to death after someone on stage points at him and screams "KILL HIM! KILL HIM!", does that show the "powerful influence" of the doctrine of free speech, or maybe influence of another sort?

The writing is observational, not critical. I'd want to know the judges' history. I'd want to know where and how to put pressure not within the justice system but outside it. But she turns it into a philosophy lecture. At the time of writing, Whitney was a PhD candidate in philosophy

Introducing a description of the weaknesses of the editorial analogy. 

Take the action of eating a sundae without permission. If I work at the ice cream shop from which I took that sundae, a reprimand from my employer might be merited. But say instead that I’m a professor. We likely think that it would be absurd for my employer to reprimand me for eating a sundae without permission. In both cases I did the same thing — ate a sundae without permission — but additional facts change what treatment we think that same action merits. Put simply, even when A and B have some similarities, there can be relevant dissimilarities between them that renders treatment y appropriate for one but not the other.

This is lemonade from lemons, but she's enjoying herself. Puzzles are fun.

In response to Volokh's Google-sponsored paper defending Google's first amendment rights, she finds ways to argue that Google's not a publisher. She even resorts to citing J.L Austin, and Stanley Fish. But since the charge of abuse of raw power has has been rendered moot for now at least, this is the best she thinks she can do. She writes pages making the argument that choices made by stores are not speech. 

If any individual or organization who satisfies this “conveys a wide range of information” criterion is deemed analogous to newspaper and book publishers for First Amendment purposes, then we have misunderstood how liberal political theory and free speech theory work. At the heart of liberal political theory is the idea that everyone is free to live according to their own ideals, so long as doing so does not unduly interfere with other people’s ability to do likewise. 

And that's the Panglossian optimism of liberal political theory. The actual justification for freedom of speech is that the government can't be trusted to judge. 

Freedom of speech follows from freedom of inquiry. "Academic freedom predates free speech." as the openly elitist Eric Rauchway says, and so  he defends its primacy even now. This is the reason Brian Leiter and so many others oppose freedom of speech for the masses. (Lehrfreiheit, Krieger, and The German Idea of Freedom.) Liberal political theory is the equivalent of Kantian private reason, the reason of managers.

Liberal political theory is anti-political, because all philosophy is anti-political. Politics is vulgar. "Democracies have freedom of speech not because governments grant it but because the government is not granted the power to take it away." Every lawyer who works in criminal law knows why you represent people you know are guilty. If the cops can fuck the criminals they can fuck anybody. What's that got to do with liberal political theory? 

I repeat that again and again because it's something legal theorists, descending from the anti-democratic origins of philosophy, and Weber's "sovereign", can't accept.

Whitney 

A bookstore selects which books to sell. Wouldn’t we say that its selection of those books is itself speech? And if so, doesn’t that show that curating other people’s speech is necessarily speech itself? Once again, I think the answer is no. First, I hesitate to grant the premise — that we would call a bookseller’s book selections an independent instance of protected speech. I say this because in cases where the state has banned the sale of protected speech, the Court has invoked either the First Amendment rights of speech creators or would-be speech buyers. 

I'm going to open a bookstore. I'm going to name it BUÇH࿕࿕TREME (with the C as a sickle and T as a hammer—this is the best I could do). I'll stock nothing but the best: The Protocols of the Elders of Zion and Mein Kampf, The Complete Diaries of Theodor Herzl and the poetry of Avraham Stern; the complete works of Sayyid Qutb and Pol Pot;  Collected works of The Communist Party of Peru, and Decision of The Central Committee of the Chinese Communist Party Concerning the Great Proletarian Cultural Revolution; The Turner Diaries and the novels of Saddam Hussein, in a boxed set with a case. There's a lot more out there. It would take a lot of work. I'll call it conceptual art. Maybe I could get funding.

This goes back to Tushnet—see the mention of Hurley—and legal scholars who see law as more than a blunt instrument. Law oversimplifies everything out of necessity. Most lawyers understand that, but academics don't. Lawyers keep their arguments as simple as possible because their prime interest is winning. A pornographic book store is probably not going to open next to a high school, but if all his books are banned he's out of business. 

Second, and more fundamentally, even if a bookseller’s choice of which books to sell counts as speech, that still does not show that (1) every time an entity curates third-party speech that curation is itself speech, 

This is the key. Global monopoly is untouchable so she needs a way to get government to regulate speech on the platforms, out of sincere concern for our well-being without. But government serves its own interests. In 2013, after 65 years, the ban on US government propaganda directed at US citizens was repealed. Another mark of change.

And Whitney seems to take reps and corporate lawyers at their word. And her use of "we" and "our" is just annoying.

When we diagnose what went wrong with regard to fake news, we need not conclude that Facebook made the mistake of trying to be too neutral. Instead, we can realize that our (and their) previous conception of what “neutrality” entailed — not privileging certain news sources and treating all sources of “news” the same — was wrong. Facebook, and the rest of us, learned that treating fake news sites on a par with the Wall Street Journal and the New York Times is saying something very not “neutral” about how we should treat information from those sites. Just recently, Facebook announced that it will once again rank news sources, but this time it plans to do so based on user evaluations of those sources. We can debate this method as well, but it represents yet another attempt by Facebook to figure out what “neutral” means and then do it.

Finally, like Google, Facebook and Twitter were asked during recent congressional hearings how they “respond to . . . the growing concerns that [they] and other Silicon Valley companies are putting a thumb on the scale of political debate and shifting it in ways consistent with the political views of [their] employees?” Facebook General Counsel Colin Stretch replied, “Senator, again, we think of ourselves as a platform of all ideas — for all ideas and we aspire to that.” Stretch then discussed training given to prevent bias in its employees, saying, “We want to make sure that people’s own biases are not brought to bear in how we manage the platform.” Responding to the same question, Sean Edgett of Twitter insisted that “our goal and . . . one of our fundamental principles at the company is to remain impartial.”

They would would say that, wouldn't they?"

Her paper is dated Feb 27, 2018

July 2018, in the Guardian: Is Facebook a publisher? In public it says no, but in court it says yes 

Facebook has long had the same public response when questioned about its disruption of the news industry: it is a tech platform, not a publisher or a media company. 

But in a small courtroom in California’s Redwood City on Monday, attorneys for the social media company presented a different message from the one executives have made to Congress, in interviews and in speeches: Facebook, they repeatedly argued, is a publisher, and a company that makes editorial decisions, which are protected by the first amendment. 

If Facebook is a publisher if can be sued for the actionable libel and slander it publishes. But it can't be because of Section 230

Whitney goes through other analogies: law schools, shopping malls, fiduciaries and company towns. She forgets the obvious: the only thing Facebook sells is users' data. And it feeds them crap that reinforces what biases they have. If "the town square" is owned by a corporation, then public space has been privatized. If there are no first amendment rights in the town square, the people have to take it back. Some knots can't be untied; they have to be cut. 

Amnesty International, September 29,  2022

Beginning in August 2017, the Myanmar security forces undertook a brutal campaign of ethnic cleansing against Rohingya Muslims. This report is based on an in-depth investigation into Meta (formerly Facebook)’s role in the serious human rights violations perpetrated against the Rohingya. Meta’s algorithms proactively amplified and promoted content which incited violence, hatred, and discrimination against the Rohingya – pouring fuel on the fire of long-standing discrimination and substantially increasing the risk of an outbreak of mass violence. The report concludes that Meta substantially contributed to adverse human rights impacts suffered by the Rohingya and has a responsibility to provide survivors with an effective remedy.

Whitney's last paragraphs. 

Democratic ideals are invoked by many influential First Amendment scholars to explain and defend U.S. free speech doctrine.¹⁹⁷  Building on this tradition, the democratic participation theory of free speech says that speech must be protected in order to ensure “the opportunity for individuals to participate in the speech by which we govern ourselves.”¹⁹⁸  How do we decide what counts as “speech” using democratic participation as our normative reference point? We cannot construe the ideal too broadly, such that all parts of social life are part of the project of self-government, for in encompassing everything, the ideal would prioritize nothing. Instead, the ideal of democratic participation requires us to conceptually divide society into two domains: public life, where we act as citizens cooperating in collective self-governance, and private life, where we act independently in the service of our own projects. For free speech principles grounded in democratic participation, “speech” denotes whatever forms of communication are integral to collective self-governance. Of course, there will be complications at the margins, but the basic implications of the democratic participation theory are discernible all the same. Free speech principles are not meant to immunize all communication against legitimate regulatory aims. They are meant to support the project of collective self-government by safeguarding the communicative conduct that is essential to that project’s realization.

With those clarifications in place, the pertinent question for our purposes is which sorts of ostensible “speech” — be it algorithmic outputs in the form of rankings, listing decisions, trending topics, and so on — help the project of democratic self-government and which do not? At this moment, we can certainly appreciate how troll armies, fake accounts, and bots can be anathema to these projects. The economic decisions that companies like Google make in determining which ads to run or whether to privilege their own products against rivals like Yelp and TripAdvisor are, as I said, commercial and need not be seen as worth protecting as “speech” for the sake of democratic self-governance, at least across the board.¹⁹⁹ That’s not to say that these decisions should necessarily be regulated but instead to show why, under democratic participation theory, they could be, without running afoul of the First Amendment.

The “thinker-based” theory, recently developed by Seana Shiffrin, identifies “the individual agent’s interest in the protection of the free development and operation of her mind” as the normative keystone of free speech. Whereas other theories situate the value of the thinker in relation to extrinsic ideals or desiderata, this theory identifies a direct and non-contingent link between the value of mental autonomy and the justification for the protected status of communicative conduct. Again, however, not all communication is privileged under such a theory. If we prioritize the “fundamental function of allowing an agent to transmit . . . the contents of her mind to others and to externalize her mental content,” then we will need to have special protections for people sharing all of this “content” with others. This is part of what makes Shiffrin’s theory distinctive: The expression of thoughts about politics and government does not occupy an exalted position relative to the expression of thoughts about everyday life. But crucially, what is especially protected in this theory is not communication as such but the communication of the thought of individuals. And this will tend to assign a less privileged status to much commercial communication. So when we revisit our key questions — whether programs that synthesize, organize, rank, and transmit third-party communication to users are implicated in “the fundamental function of allowing an agent to transmit the contents of her mind to others” — the diagnosis is mixed, as in the previous case.

One interesting consequence of the thinker-based theory is that, unlike the democratic participation theory, it sug- gests that facilitation of everyday online chatter by search engines and social networks may be as much a part of the case for protecting (some of) their operations as their role in facilitating political discourse. But as with the democrat- ic participation theory, much of what these programs do — including running ads and allowing for the creation of bot armies and the spread of fake and inflammatory news — will likely fall outside the scope of free speech coverage by the lights of this normative approach.

CONCLUSION

In debates over tech companies and free speech coverage, neither the gravity of the policy stakes nor the complexity of the things being compared has dampened the willingness of courts and scholars to use ten- uous analogies in charting the way forward. Most everybody seems to agree that search engines and so- cial media platforms should be covered by principles of a free press, if and to the extent that the reasons underlying our protection of the press apply to them. But the point of this paper is that casual analogical methods—observing that both types of things “convey a wide range of information” or “rank and organize content”—do not tell us whether or to what extent they do. There are multiple plausible analogies that might be used, each with different First Amendment implications, and none tells us whether the normative considerations underlying free speech coverage for the one apply to the other. But if those normative considerations are inapplicable, the reason to extend coverage disappears.
---

197 Alexander Meiklejohn, Free Speech and Its Relation to Self-Government 22–27 (1948); Robert Post, The Constitutional Conception of Public Discourse: Outrageous Opinion, Democratic Deliberation, and Hustler Magazine v. Falwell, 103 Harv. L. Rev. 601 (1990).

198 James Weinstein, "Participatory Democracy as the Central Value of American Free Speech Doctrine", 97 Va. L. Rev. 491, 491 (2011).

199 See supra notes 37–38 and accompanying text.

But this too might change. In what Yelp’s vice president of public policy described as the “most significant enforcement event in consumer tech antitrust” since the action against Microsoft in 2000,³⁶ Google was fined a record-breaking €2.4 billion by European regulators in June 2017 for abusing its market dominance by giving an illegal advantage to its own products while demoting rivals in its comparison shopping service, Google Shopping.³⁷ While EU actions do not ensure any movement domestically, they can bring to light information that further tarnishes Silicon Valley’s reputation and thus contributes to the erosion of the basis for its companies’ exceptional treatment to date. Within the United States, moreover, Yelp and TripAdvisor have repeatedly argued that Google deliberately diverts users searching for their sites to Google-owned alternatives. Google has said that some of these results are the result of bugs, but its competitors argue otherwise.³⁸ It is at least possible that a major (and well-funded) lawsuit in the United States — and with it, a vigorous battle over First Amendment coverage, the editorial analogy, and unfair competition laws — may yet materialize.
---

36 Klint Finley, Google’s Big EU Fine Isn’t Just About The Money, Wired (Jun 27, 2017), http://www.wired.com/story/google-big-eu-fine. 

37 Josie Cox, "Google Hit with Record EU Fine over 'Unfair' Shopping Searches", Independent (June 27, 2017), http://www.independent.co.uk/news/business/news/google-eu-fine-latest-competition-shopping-searches-prepare-online-european-commission-results-a7809886.html.

38 Mark Bergen, "Google Says Local Search Results That Buried Rivals Yelp, TripAdvisor Is Just a Bug", Recode (Nov. 24, 2015), http:// www.recode.net/2015/11/24/11620920/google-says-local-search-result-that-buried-rivals-yelp-tripadvisor. now Vox and archive.org

200 Seana Valentine Shiffrin, "A Thinker-Based Approach to Freedom of Speech", 27 Const. Comment. 283, 287 (2011). See generally Seana Valentine Shiffrin, Speech Matters: On Lying, Morality, and the Law (2014). 

"It is at least possible that a major (and well-funded) lawsuit in the United States — and with it, a vigorous battle over First Amendment coverage, the editorial analogy, and unfair competition laws — may yet materialize."  

There's no conflict between the "editorial analogy" and antitrust. That's why "media concentration" is an issue. But Whitney isn't against media concentration. It makes it the government's job easier. 

This is all just a fucking joke. And it gets worse. Remember: "Academics, though it sounds odd to say it, don’t take ideas seriously."

Shiffrin, Speech Matters: On Lying, Morality, and the Law. The blub at Princeton University Press

To understand one another as individuals and to fulfill the moral duties that require such understanding, we must communicate with each other. We must also maintain protected channels that render reliable communication possible, a demand that, Seana Shiffrin argues, yields a prohibition against lying and requires protection for free speech. This book makes a distinctive philosophical argument for the wrong of the lie and provides an original account of its difference from the wrong of deception.

Drawing on legal as well as philosophical arguments, the book defends a series of notable claims—that you may not lie about everything to the “murderer at the door,” that you have reasons to keep promises offered under duress, that lies are not protected by free speech, that police subvert their mission when they lie to suspects, and that scholars undermine their goals when they lie to research subjects.

Many philosophers start to craft moral exceptions to demands for sincerity and fidelity when they confront wrongdoers, the pressures of non-ideal circumstances, or the achievement of morally substantial ends. But Shiffrin consistently resists this sort of exceptionalism, arguing that maintaining a strong basis for trust and reliable communication through practices of sincerity, fidelity, and respecting free speech is an essential aspect of ensuring the conditions for moral progress, including our rehabilitation of and moral reconciliation with wrongdoers.

Somewhere on this page I think I've posted a clip from or a trailer for Liar Liar.  But it's fitting that Princeton was also the publisher of Brennan's Against Democracy.

I'm going to end with a restatement of the only argument for free speech I've ever taken seriously, the only argument my parents took seriously, and which no one above even mentions. It's the opposite of liberal political philosophy. Ira Glasser is a few years younger than my parents. He started later at the ACLU, and he was there as the rot set in. He may have even been responsible for some of it, but this is good.

"Why we must fight for the right to hate"

In my experience, everyone supports the right to freedom of speech, as long as it’s their own speech or the speech of people they agree with. But most speech falls outside that category. Most people would ask: why support the right of people to say things you hate, or fear or that you regard as dangerous?

...The speech that social-justice advocates hate is not the same as the speech that Donald Trump hates. And if it became legal to ban hateful speech, it could just as easily be Trump and people like him, rather than social-justice advocates or people like me, who would most often be in a position to decide whose speech was hateful enough to ban.

Speech restrictions are like poison gas: they seem like a good idea when you’ve got the gas and a deserving target in sight. But then the wind shifts and blows the gas back on you.

In 1974, in England, the National Union of Students succeeded in getting racist speech banned on university campuses. One of the groups supporting the ban was an organisation of Zionist students. In 1977, the NUS decided that Zionism was a form of racism, and banned Zionists from speaking on campuses.

The wind had shifted.

Unless you’re an autocrat, and confident of holding power forever, you don’t want the government having the power to decide whose speech to ban. Because sooner or later, it will be yours.

That's not liberal optimism; it's political realism in the context of principle. And it's not Judith fucking Shklar. 

Leiter pretends to understand—he's lying—or he's more of an idiot than I thought.

This is a version of what I think is the most plausible defense of free speech, [linking to his argument against free speech] namely, distrust of government to figure out which speech actually lacks value.  Of course, it depends on an empirical premise:  namely, that a blanket rule prohibiting suppressing speech based on its content will, in fact be observed by fascists--or, more precisely, that when a judiciary is acclimated to such a rule, they will stick to it were a fascist in power.  I wish I could be confident that is true, but I'm hopeful that in a large country, with a fairly independent judiciary, it will be.

The premise is that a free people, being vigilant, knowing that vigilance is their own responsibility, will choose freedom. Taleb would say they had "skin in the game". A free people takes the plural, which is why liberalism fails: liberal individualism leads to its opposite.

"It is the common fate of the indolent to see their rights become a prey to the active. The condition upon which God hath given liberty to man is eternal vigilance; which condition if he break, servitude is at once the consequence of his crime and the punishment of his guilt."

"What's needed is an argument in defense of the need for citizens in a democratic state to be able to be all kinds of wrong, all kinds of confused, creepy, conflicted, desirous, weepy or hate-filled, so that they may be able to learn to understand and outgrow their childishness. The choice is between a community of adults with a minority of the inveterately childish and criminal or a community of children ruled by moralists and crime lords."

The vigilance of the people. Liberals don't want an educated populace and that's why we don't have one.

Beginning in the 1950s and blossoming since 1961, a major scholarly controversy has sucked The Federalist into its gravitational field: What was its role in the great shift from republicanism to liberalism in American political thought? These complex bodies of ideas and practices have almost no direct links to today’s Republican party or modern American liberalism; moreover, these terms have become so vague that many historians have abandoned both words as useless.

There's a reason there are riots now in France. The French have some sense of the ideals of a republic. I could keep annotating, Weber, Lawrence, Tocqueville, Montesquieu, Arendt. You get there if you if you follow the links.

A repeat visitor spent too much time looking for references to legal scholars of "law and literature".  I haven't read much and I'm not interested in people who've built careers defending the obvious. Their defensiveness weakens their arguments.

Interpretation of law originates in the interpretation of religious law. It's all the interpretation of texts.

The two posts that refer specifically, from 2010 and 2012. 

Another more generally—one of many—from 2020

Something I haven't said before. Watching the Jan 6th crap you heard legal analysts compliment the government briefs as well crafted. Think what that means.

 "Whaddaya wanna to do about it, asshole?" The words of one of the greatest trial lawyers in the history of this fucking country.

Solum at Balkinization. I added the links. I have to laugh

A third wave of progressive originalism is now well underway.  Justice Jackson is already the de facto leader of a group of scholars, lawyers, and judges who understand the dangers that judicial supremacy and living constitutionalism pose to democracy and equality—given the reality that conservative justices will dominate the Supreme Court for at least a decade or two.  Justice Jackson’s originalism is a direct and forceful response to the conservative justices’ increasing reliance on a selective mix of history, tradition, and precedent to undermine the original meaning of the Constitution’s text, while claiming to be “originalists.”

Ironically, the fiercest critics of progressive originalism are not conservatives.  Instead, it is progressives themselves who have gone on the warpath.  Prominent examples include “Originalism is Bunk,” by Ruth Marcus of The Washington Post, “Worse than Nothing,” a slender monograph by Erwin Chemerinsky, and “Resisting Originalism, Even When ‘Done Well,’” a post on the Yale Journal of Regulation’s Notice and Comment Blog by Lisa Heinzerling.  What these critics and their many supporters share is an opposition to Justice Jackson’s embrace of originalism’s progressive potential, both as a counter to conservative living constitutionalism and as the key to unlocking the emancipatory power of the Fourteenth Amendment.

Solum, in 2003.

[T]he distinction between high politics and low politics .... [is a] conjuring trick. If the universe consists of decisions that are either high politics or low politics, then it's all politics. But it isn't all politics. The crucial distinction is not between political decisions that favor your ideology and those that favor your party. It isn't even between political decisions that are based on general principles you believe in and those which adopt principles you abhor to get to the results that you like. The crucial distinction is between decisions that are based on the law--on things like texts, history, and precedent--and decisions that are based on politics.

Solum, 2022

Douglass’s devastating criticism of Dred Scott was simple: it is the public meaning of the constitutional text and not the racist intentions of some of its authors that must be treated as the binding source of constitutional law. 

What's the public meaning of the 14th Amendment?

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

"[I]n 1867 Congress passed a law providing relief for “freedmen or destitute colored people in the District of Columbia,” to be distributed under the auspices of the Freedmen’s Bureau. Of particular importance in the late 1860s was the Bureau’s operation of schools for blacks, to the point that black children in the South were often better educated than their white counterparts."

[See the link for Justice Jackson, below.]

repeats 

I think this is when I emailed Balkin telling him he was always far too polite, and he replied defending honey over vinegar.  11 years later we got "Why are Americans Originalist?" and Kill'em with Kindness, all too coy by half.

And of course the new originalists are now defending Judicial review!

Originalism is a rhetorical device. That liberals now embrace it while conservatives oppose it is just more proof. Supreme court justices are political appointees, and Jackson is another lightweight, mediocre mind. Solum's not much better.

Old reference, with a new link this time. 

"The Persons Case and the living tree theory of constitutional interpretation."

On 18 October 1929, the Judicial Committee of the Privy Council ruled that women were legally eligible for appointment to the Senate of Canada. The judgment was written by Lord Sankey, the reform-minded Lord Chancellor appointed by Labour Prime Minister Ramsay MacDonald. Lord Sankey departed from a long line of cases and proclaimed an organic and progressive theory of constitutional interpretation. The British North America Act, 1867 (2) had, according to Lord Sankey, planted in Canada "a living tree capable of growth and expansion within its natural limits." This allowed him to rule that "the exclusion of women from all public offices is a relic of days more barbarous than ours."

The Privy Council's decision, popularly known in Canada as the "Person's Case", was a bold legal step that reverberates to this day as a proclamation of equality and universal personhood, and as a guiding principle of constitutional interpretation.

Koppelman is still struggling to find ways to back away from previous commitments

And one more rom Balkin. A symposium on Tanya K. Hernández, Racial Innocence: Unmasking Latino Anti-Black Bias and the Struggle for Equality. 

The only "racial innocence" is the innocence of white narcissists, and wannabes, and every author at Balkinization who claims rights to land in the Middle East. Many Latinos are racist. They'll tell you that themselves.

  

Back and forth, again and again.