Free Speech Rites

I am trying to figure out what I think about the case of Mahmoud Khalil, the anti-Israel and, yes, pro-Hamas activist arrested and threatened with deportation by the Trump administration. Nick Catoggio had a good rundown of how to think about this legal and political Rorschach test. Is Khalil an unjustly persecuted “free speech martyr”? Is he a terror-supporting radical deserving of deportation? 

I’m still waiting for this to work through the courts, but I will say that instinctually my answer to these questions is, “Maybe he’s both?”

I think I know what a “free speech martyr” is. It’s someone who is persecuted, punished, or prosecuted for exercising their free speech rights. Google the term and you’ll get lots of stories about these revered figures in American life. If you don’t think they’re revered, why is there such a thriving cottage industry around debunking or denying someone this sacred status? “Alex Jones is No Free Speech Martyr,” “Telegram Founder Pavel Durov Is Not a Free Speech Martyr,” nor is Tom Cotton, Tucker Carlson, Milo Yiannopoulos (remember him?), and so on. 

There are two concepts here that leach too much importance from the other. I get why free speech is important. I don’t think there’s any need, at least right now, to make the fulsome case for free speech rights and free speech protections. Suffice it to say, free speech—particularly free political speech—is essential to liberty and good government generally. Free speech in other realms is essential, too. Free speech is essential to the fields of science and medicine. If you can’t tell the truth, you can’t do scientific and medical stuff. Free speech is part of the intangible infrastructure that makes healthy markets work. Buyers, sellers, producers all need facts, disclosures, advertising, warning labels, etc. to work efficiently, by which I mean many things, including un-corruptly. And free speech is essential for religion, the arts, and education. 

I’m not a “three cheers for free speech” guy, but I am definitely a passionate “two-and-a-half cheers for free speech” guy. 

All I mean by that is that while I would draw the outer boundaries of free speech rights a little more narrowly than the free speech absolutists do, I’m also a “this narrow and no narrower” guy. In this I am a Burkean. If you want to summarize Burke’s philosophy pithily, you might be accused of having boutique desires. But I’m cool with that. The essence of Burkeanism is that any principle taken to an extreme reaches the point of diminishing returns or outright folly. I’m a passionate defender of parental rights, but we can all imagine scenarios where “parental rights” cannot be a defense of horrific, cruel, or criminal behavior. Every right can extend into edge cases. The edge cases don’t invalidate the core right, they just illuminate the areas—hence the “edge”—of how far they can be extended without running into problems. Every critic of gun rights understands this dynamic—about gun rights. They just don’t necessarily recognize that this is true for other rights as well. 

The really problematic term here is “martyr.” Originally, a martyr was someone who died, often horribly, for refusing to renounce their Christian faith. In modern usage it’s someone punished or victimized for their beliefs. 

Now, as a rule—like, I think it should be a serious rule, as in a law—I am against punishing people for their beliefs. Or to be more accurate, I’m against the state punishing people for their beliefs. I’m okay, with all of those Burkean stipulations applying, with people in the private sector penalizing other people for their beliefs. I mean, we don’t have it written down, but I can say with some confidence that we have a policy of refusing to hire Nazis here at The Dispatch. We have no such policy about banning Shriners, Mennonites, Masons, or Mormons. That would be rank unjustified bigotry as far as I am concerned. But I think refusing to hire Nazis is, for want of a better phrase, utterly justified bigotry. 

According to most definitions, justified bigotry is something of an oxymoron. The Cambridge Dictionary defines bigotry as “having and expressing strong, unreasonable beliefs and disliking other people who have different beliefs or a different way of life.” The thing is, I think it’s perfectly reasonable to dislike Nazis, pedophiles (and Nazi pedophiles!), racists, etc. Is it bigoted to be bigoted against bigots? I don’t think so. But we don’t really have a good vocabulary for this sort of thing. I mean, yes, we have the words to describe this point—I’m using some of them right now. But they’re not buzzwords, catchy transgressive catchphrases, that people immediately grasp and invest with import and agreement. 

If I go on CNN later today and say I’m for “prudent, morally informed, and reasonable discrimination” people will look at me like I lit my fart on fire. 

One word that does have buzz and fashionably transgressive power: Victim. Victimhood is seen as heroic in our culture. Many on the right love to complain about the cult of “victimology” or “victimhood” on the left. And, depending on the specifics, they’re often correct. But of course, the right has its own classes of victims and cultivates resentment over their persecution, real or perceived. White men, Christians, Donald Trump, “deplorables”—the list is really quite long. René Girard had a word for this stuff: “victimism,” which “uses the ideology of concern for victims to gain political or economic or spiritual power.” The culture war, broadly speaking, is a contest over which groups of people deserve the status of “victim” in part to build a coalition of victims, and in part to cast the other side as the victimizers. If you can pull off both, you attract more people to your coalition and harden their commitment to it, and you demonize your opponents. 

In our superficially secular culture, Christian concepts still have a lot of punch. Martyr is one of those concepts. It takes the preference for victimized classes of people and creates a poster boy, or girl, for them. Martyrs reify abstract grievances by putting a human face on them. 

So here’s my problem. We don’t really have a term for free speech assholes. If you’re victimized for exercising your free speech rights, there’s this sudden collective agreement to ignore the actual speech and make the issue solely about free speech. I am struggling to think of many cases where the public debate over “free speech martyrdom” allowed for ample acknowledgment that the victims were bad people. The only obvious one is the case of the Skokie Nazis (though the Westboro Baptist Church, the Church of Satan, and various Koran-burners do come to mind). Very few defenders of the Skokie Nazis defended their actual ideas or turned them into heroes. 

It strikes me as a sign of cultural, intellectual, and moral decay that so few people today are willing to do the hard work of disentangling the issues the way so many did during that episode. I don’t mean nobody is willing to hold the two ideas simultaneously. Our heroic friends at the Foundation for Individual Rights and Expression (FIRE) do a good job on this front, as do many lawyers, like our Advisory Opinions crew. But at the level of broad political discourse and debate, the tendency is to declare that the moment you’re a “free speech martyr” you’re not only right on the law, but you’re the good guy. 

Persecution imbues the persecuted with heroic status. We saw this with Trump, of course. But I’m tired of talking about that guy. We see it with Andrew Tate, a grotesque gargoyle lionized because he supposedly says brave things (when he’s not beating women or trafficking girls). Tucker Carlson’s whole schtick is that he must be right because the “establishment” dislikes him. Julian Assange, Ward Churchill, Candace Owens, Milo Yiannopoulos, Noam Chomsky, Max Blumenthal, Alex Jones, Robert F. Kennedy Jr., Ilhan Omar, Cynthia McKinney, David Duke: the list of people who have benefited from free-speech washing of their fairly appalling ideas or dishonest speech. 

And I think we can add Mahmoud Khalil to the list. As a legal matter, I’m inclined to agree that the Trump administration is overstepping. But I don’t think it’s clear-cut, either. Which is why I am waiting for this to go to the courts. 

But you can already see the left, parts of the anti-Trump right, and broad swaths of the mainstream media trying to turn Khalil into a free speech martyr and therefore somehow heroic. The Democrats on the Senate Judiciary Committee seem to be all in on the martyrdom of Khalil. The op-eds and reportage in this vein are being churned out at an exponential rate. 

Look, I think the cliché “I may disagree with what you have to say but will defend to the death your right to say it” is often one of the lamest ways to buy bravery on the cheap. But that doesn’t mean it’s necessarily wrong. But if you’re going to preen about your defense of the indefensible, you have a moral and intellectual obligation to say the speech is indefensible. Instead, the heroic defenders of free speech treat the actual content of the speech as irrelevant. Now, again, it might be irrelevant to the legal arguments about free speech, but it’s not irrelevant to the kind of society we want to live in, and what kind of speech we want to valorize. 

Many of the dumbest conversations in American politics today involve some variation of the assumption that if you can “trigger” the right people by saying something terrible, then it’s worth saying it. 

I think calling Mahmoud Khalil a “free speech martyr” is grotesque. When we say “Christian martyr” we’re implying that someone endured torment and persecution for his Christian faith. But when we say “free speech martyr”—or simply use the logic encompassed in that phrase—we’re suggesting that someone is being tormented or persecuted for the cause of free speech.

If you think Khalil was organizing and protesting for free speech rights, you’re a moron. Or to be more generous, you’re changing the subject to something more defensible. “I can’t defeat you on the battlefield of defending Hamas, so let’s move over there to that sunny spot where the argument is all about free speech.”

Hamas is not in favor of free speech. They torture and execute Palestinians who criticize them. Hamas supporters are not in favor of free speech. If you don’t believe me, try waving an Israeli flag or wearing a Star of David around them. The group Khalil worked for—Columbia University Apartheid Divest (CUAD)—wasn’t fighting for free speech and non-violence. At one point CUAD did apologize for the statements of one member, Khymani James, who’d declared “Zionists don’t deserve to live” and “Be grateful that I’m not just going out and murdering Zionists.”

The only problem? They retracted the apology and took down all of those statements after such peaceful rhetoric aroused blowback. So they fell back on the practice of victimism.

“The anti-blackness and queerphobia that Khymani experienced, and continues to experience, from neo-liberals, neo-liberal media, and fascists is disgusting,” CUAD wrote in an Instagram post, apologizing for its apology. When victimism is the name of the game, you can’t distance yourself from someone being condemned by neo-libs even if he endorses, you know, murder. (And, frankly, the apology was hard to square with CUAD’s stated support for the “total eradication of Western Civilization.”)

You know who else endorsed murder? The Skokie Nazis. 

So why not call Mahmoud a “Skokie Nazi”? I know he’s not a Nazi and not from Skokie. But what I mean is we need a phrase that conveys the idea that some people—Skokie Nazis, Hamas supporters, the Klan, alt-right goons, etc.— may be edge cases for free speech, but they’re also pushing indefensible and, often, anti-free speech agendas and ideologies. 

Yes, they may have free speech rights to protect them, and that’s fine. But just as “martyr” no longer means “died for Christ” or “suffered for his faith,” being called a Skokie Nazi doesn’t mean you’re an actual Nazi. It just means you’re a terrible person, or a person with terrible ideas, hiding behind free speech rights—rights you’d never confer on others if you were in power.