Free Speech and Identity Politics

I think Arnold Kling is one of the most insightful bloggers around so I am pleased that he likes my latest Cato policy analysis. He remarks:

My worry is that American culture no longer supports free speech…But hurting someone’s feelings should not count as direct harm. Racist remarks or Holocaust denial may be uncouth, but in a culture of free speech they should be permitted.

I agree with Kling about extreme speech. I am not sure that the culture for free speech has changed all that much. We first learned in the 1950s that while Americans overwhelmingly supported the First Amendment in the abstract, majorities or significant minorities often opposed freedom of speech in concrete cases (like letting unpopular minorities speak). But beyond America’s general culture of free speech, things have changed. In the past elites supported free speech. Now I wonder if they do.

Some attribute the problems of free speech (especially among elites) to the rise of identity politics. In his excellent book Identity, Francis Fukuyama sees identity politics as the demand for public recognition of the dignity of each person’s inner self. That inner self should be authentic rather than imposed by society. Authenticity in turn implies connections to a group and to history. Speech that offends this dignity of the inner self contravenes identity politics.

America Is Nearly Alone on Iran Policy

The Trump administration continues to pursue an extremely confrontational policy toward Iran, and Washington finds itself increasingly alone in doing so.  Even most of the traditional European allies show little enthusiasm for the U.S. approach.  Indeed, many of them now are openly defying Washington’s wishes.  As I discuss in a recent National Interest Online article, such resistance has been building for some time, but the administration’s newest actions have intensified the opposition.

NATO governments are especially uneasy about Washington’s decision to deploy B-52 bombers, send an additional 1,500 troops to the Middle East, and take other steps in response to Israeli-provided intelligence that Tehran was planning attacks on U.S. forces.  Washington’s withdrawal last year from the Joint Comprehensive Plan of Action (JCPOA) regarding Tehran’s nuclear program already generated noticeable push-back from the other signatories to the agreement, including Britain, France, and Germany.  All three countries made it clear that they would not follow the United States to re-impose economic sanctions on Tehran.  Indeed, they and other European Union (EU) members openly sought ways that they could cushion Iran (and their own businesses) from the worst effects of the U.S. action.

The allies were annoyed again this year when the administration continued to insist that the European signatories withdraw from the JCPOA. Germany and other countries flatly refused.  In April, Washington exacerbated already serious transatlantic frictions when it eliminated some of the boycott waivers it had granted to EU firms.  Allied governments sharply criticized  that step and Washington’s other moves to tighten sanctions.  Iran soon stated that it would no longer abide by some JCPOA provisions and might resume enriching uranium. Tehran’s response confirmed some of the worst European apprehension about the probable consequences of Washington’s strategy.

Progress Toward Fuller Marijuana Legalization?

The fight for marijuana legalization received a boost yesterday as the House Appropriations Committee released a draft bill for fiscal year 2020 Financial Services and General Government funding that includes provisions to protect financial services providers who do business with the marijuana industry.

The key provision of the legislation is Section 633 which states:

“None of the funds made available in this Act may be used to penalize a financial institution solely because the institution provides financial services to an entity that is a manufacturer, a producer, or a person that participates in any business or organized activity that involves handling marijuana, marijuana products, or marijuana proceeds, and engages in such activity pursuant to a law established by a State, political subdivision of a State, or Indian Tribe: Provided, That the term ‘‘State’’ means each of the several States, the District of Columbia, and any territory or possession of the United States.”

The legislation also removes an existing appropriations rider which has blocked the District of Columbia from using local revenues to regulate the production and sale of marijuana, which was legalized by voters in a 2014 ballot measure.

The victory for marijuana advocates is not total, however. Forbes reports:

“The provision only applies to spending legislation covering the Treasury Department, however, and thus would not shield banks from any enforcement activities carried out by the Justice Department, which is funded under a separate bill. It is also attached to the annual appropriations process, meaning it would have to be proactively renewed year after year if it is enacted.”

While it may be premature to celebrate the inclusion of this pro-marijuana language in Treasury funding, positive steps continue to be made in the push for legalization.



Research assistant Erin Partin co-authored this blog post.

Tariffs Won’t Stop Illegal Immigration and Could Backfire

President Trump  announced that starting on June 10, the administration will impose a 5 percent tariff on all Mexican imports “until Mexico substantially stops the illegal inflow of aliens coming through its territory.” This tariff would escalate by 5 percent per month to an astonishing 25 percent “permanently” by October 1. This idea is a terrible policy. It will punish U.S. consumers with higher prices, and it could easily result in more illegal immigration.

Tariffs will undermine the Mexican economy and lead to more illegal immigration from Mexico.

Mexico’s exports—$195 billion to the United States—account for 38 percent of its GDP. Imposing a 25 percent tariff would make trade with Mexico unprofitable. For context, the U.S. currently has a 25 percent tariff on pickup trucks which virtually bans foreign-made pickups, as only 0.23 percent of U.S. pickups are foreign-made. An end to U.S.-Mexico trade would trigger mass layoffs in Mexico—particularly in northern Mexico. Consequentially, the Mexicans that are unemployed due to Trump’s tariffs would look to the United States for work, increasing illegal immigration and exacerbating the very problem Trump aims to ameliorate.

Indeed, President Trump is so focused on stopping immigration from Central America, which has now overtaken Mexican illegal immigration, that he has forgotten that for nearly a century, Mexicans dominated those flows. A 5 percent tariff by itself would be more than double the pre-North American Free Trade Agreement (NAFTA) tariffs, so Trump is effectively terminating NAFTA in less than 2 weeks, which would devastate the Mexican economy. This would undoubtedly cause layoffs and create Mexicans looking for work north of the border again.

While NAFTA initially may have led to more illegal immigration as Mexico’s economy adjusted, its economy has now grown to the point that Mexican immigrant population in the United States has remained flat for almost a decade, and the illegal population from Mexico has fallen by 1.5 million, meaning that more Mexicans are leaving the United States than entering it. If Trump effectively terminates NAFTA with his tariffs, a reversal of these immigration trends is a very real possibility.

The threat of Mexico closing the border will keep illegal immigration from Central America high this summer.

In normal times, illegal immigration slows in June when temperatures reach dangerous levels and falls until February. Indeed, history shows that apprehensions fall 24 percent on average from May to July. But if Central Americans believe that Mexico might suddenly close the Guatemala-Mexico border, they will likely come to the border regardless of the additional risks—undoing the seasonal pattern of illegal immigration.

We know that immigrants react to the threat of border closures. In late 2016, Trump’s election disrupted this seasonal pattern as immigrants rushed to the border to beat his inauguration based on the (unfounded) fear that Trump would end asylum. Then, in October, Trump threatened to “close the border”, but his threat only scared immigrants to migrate before the seemingly imminent border closure. Indeed, 2018 and 2019 are the only two instances in which January apprehensions were higher than the previous May’s numbers since 2003. June 2017 was the first time on record that numbers rose in June. With the more effective transportation network now, it’s entirely possible that Trump could again break these seasonal patterns and keep illegal immigration higher than it would have otherwise been.

Mexico could retaliate on immigration in a big way.

The Mexican government is already helping carry out D.C.’s agenda south of the U.S. border. Since FY 2014, the Mexican government has apprehended 692,476 Central Americans. It has stopped fast-tracking humanitarian visas for Central Americans traveling into Mexico. It is accepting thousands of Central Americans back into its country while they wait for asylum hearings north of the border. It has attempted to set up a migrant “containment” belt with federal forces at the Isthmus of Tehuantepec—the shortest point in Mexico. It is intercepting migrants trying to reach legal U.S. ports of entry. President Trump doesn’t appreciate these efforts, but he would regret it if Mexico loosened its policies to punish him for his tariffs.

The United States is unlikely to receive any major concessions from Mexico.

So far, Mexico has not promised to fulfill any of Trump’s latest demands, and it’s difficult to imagine why they would. Trump keeps moving the goalposts and is demanding that Mexico control not just its own actions with respect to enforcement, but also the actions of Central Americans.

Moreover, Trump has already tried to force Mexico to adopt a “safe third country” agreement that would allow him to boot Central Americans requesting asylum back into Mexico without a hearing. But the internal politics in Mexico will never allow it to allow nearly 500,000 Central Americans to be deported back to its northern cities. Tijuana already experienced major protests last year over homeless Central Americans who the U.S. blocked from crossing. Mexico will not accept a deal where the United States makes Central American migration 100 percent their problem. It will bet, hopefully correctly, that the White House really doesn’t want to end trade with Mexico, just as it didn’t want to “shut down” the border with Mexico earlier this year.

Shallow Fakes

We live in a Manichean political world where every person and institution is said to be either good or evil. Facebook used to be in the good column; since November 2016, they are listed among the evil ones, oddly by both left and right. The truth: Facebook is a tremendously successful and innovative business that nevertheless makes mistakes. But beyond making its users happy, Facebook also does good. By defending free speech, for example, at a difficult time.

The case may be familiar to you. (The fact that the case is likely familiar to you is important as we shall see). Recently, someone created a distorted video of House leader Nancy Pelosi (D-CA). Many thought the distortions suggested Pelosi was drunk. She was not. The video warped her image for political purposes (or perhaps, just for fun). More bluntly, the speech in question – the edited video – was a lie.

The question is not whether political speakers lie. They do and always have. Of course, everyone believes their team upholds truth while the other team lies. As Morrisey sang, “Everyone lies, nobody minds.” Well, everyone minds the other team’s lies and somehow ignores their own.

Political speech comprises lies, truth, and much uncertainty. Who should decide which speech falls into which category? Not the elected officials and unelected bureaucrats we call “the government.” The First Amendment and the courts preclude the government from determining truth (and lies). Elected officials want to be popular and win re-election; speech critical of them works against attaining those goals. Elected officials tend to see such criticism as “lies.” I would if I were an elected official. So would you. The incentives are terrible. Censorship would be a natural response. Hence we have a First Amendment, an unnatural state-of-affairs undergirded in the United States by fifty years of tradition, that is, of judicial doctrine.

So who separates truth and lies (and the in-between) in our unnatural state of free speech? Listeners, citizens, and voters. That’s our democratic faith, or our liberal faith, or whatever you want to call it. It’s a real source of national pride, our unnatural state of speaking freely. It’s a foundation of any American nationalism worth honoring.

But people do lie, and the lies can have terrible consequences.  True enough. But our liberal faith and our unnatural state have an answer to lies: more speech. Consider the Pelosi incident. More speech revealed the lie in the video almost immediately. It is true that humans are lazy or uninterested and ignore the revelations of “more speech.” Or they seek only information that confirms their hatred and prejudices. In other words, listeners, citizens and voters often fail to live up to the demands of our liberal democratic faith. To remedy that failure shall we thus turn to “truth seeking” politicians who are too often thin-skinned and ambitious?

With social media we have a third player involved, the companies (above all, Facebook) that own and oversee these platforms for speech. The companies have a right to, and sometimes do, suppress speech on their platforms. The answer to their mistakes in this regard is…more speech. But the companies also rise to the occasion at times by defending our democratic faith in free speech. In the wake of the Pelosi incident, Facebook decided to leave the Pelosi video up on its platform. Monika Bickert, their head of content moderation at Facebook, affirmed that those who heard and saw the video should decide its truth or falsity. The alternative would have been Facebook taking down the video in the name of truth (and against lies). There are many problems with that alternative, not least Facebook would find itself fighting with, or subordinate to powerful politicians like Ms. Pelosi. So the company left the ultimate judgment to citizens and voters. They followed, in short, the American way.

But many people apparently do not like leaving judgments about truth to “more speech” and to Americans. Bickert was pilloried. For her part, Ms. Pelosi said Facebook acted as “willing enablers of the Russian interference in [the 2016] election.” To be blunt again, she accused Facebook of treason.

But Monika Bickert was the real American here, at least judging by our long tradition of free speech and respect for the intelligence of citizens and voters. That tradition is under fire. Perhaps it always has been. But we might wonder if our political class is abandoning freedom of speech.

Many on the right have decided that Carl Schmitt is correct when he wrote “politics is constituted by the distinction between friends and enemies.” The tech firms are perfect “enemies” for the populist right: filled with “woke” young people, located in California, and using technology few understand. The left has been abandoning free speech for a long time because “the corporations started winning” First Amendment cases. They also often judge constitutional rules by their effects on friends and enemies. In the name of that harsh doctrine, both right and left are abandoning the older faith that Americans have the right and the ability to discern truth from lies.

But there are still genuine conservatives and real liberals out there who believe in free speech. Last week Facebook paid a hefty price to be their friend.

This piece also appears at Tech Dirt.

Natural Rights vs. Human Rights: The State Department’s New Commission on Unalienable Rights

Yesterday afternoon we learned from Politico that the State Department had just “quietly published” in the Federal Register a notice that the department intends to establish a Commission on Unalienable Rights. Its aim, as the notice states, is to

provide the Secretary of State advice and recommendations concerning international human rights matters. The Commission will provide fresh thinking about human rights discourse where such discourse has departed from our nation’s founding principles of natural law and natural rights.

The Politico report goes on to cite human rights activists and former State Department officials worrying “that talk of the ‘nation’s founding principles’ and ‘natural law’ are coded signals of plans to focus less on protecting women and LGBT people.” And critics note also, correctly, that “the Trump administration’s record on human rights so far is spotty at best.”

Still, properly undertaken, this commission could help correct confusions at the core of modern human rights thinking and policy, many of which were highlighted in a new book we featured at a Cato forum a year ago, Aaron Rhodes’ The Debasement of Human Rights: How Politics Sabotage the Ideal of Freedom. Shortly thereafter, Dr. Rhodes and I summarized those issues with a piece at National Review.

In a nutshell, the modern human rights movement took shape in the aftermath of World War II, with the creation of the United Nations and the drafting of the U.N.’s 1948 Universal Declaration of Human Rights. As we wrote in the National Review piece:

Arising from political compromises between post-war progressives and some of the world’s worst tyrannies, the UDHR bows simply to “inherent dignity,” making no mention of natural law or natural rights. To be sure, it lists rights in that tradition. But it goes on with a list of so-called economic and social rights — to jobs, housing, “periodic holidays with pay” — which today dominate human-rights debate and practice.

Unlike natural rights to freedom, which require only that we be left alone, these economic and social rights, if rights at all, are not universalizable. They’re created by legislatures, requiring endless redistributive schemes. And as demand for them grows, governments grow and liberty yields. More sinister still, the original compromises that elevated these rights to the status of human rights have enabled totalitarian regimes to sit at the human-rights table. After 70 years, a toxic hypocrisy poisons the debate. Russia, China, Cuba, Islamic theocracies, even North Korea boast about their often illusory economic and social programs as evidence of human-rights compliance and their own legitimacy.

We have here, in short, a textbook example of how confused thinking, coming out of the Progressive Era, has led to confused policy, and worse. In fact, the Politico article notes that Kiron Skinner, Secretary of State Pompeo’s director of policy planning and the commission contact listed in the Federal Register notice, “drew criticism recently for seeming to suggest that China, a rising power, is such a fundamentally different culture from the United States that arguments about human rights may not have much effect in dialogue with Beijing.”

But there is truth in that suggestion. As I showed in a chapter on China’s Constitution in Cato’s 1998 book, China in the New Millennium, unlike in the natural rights tradition, which begins with the individual, the socialist tradition—and, in fact, progressivism too—begins with the group, its agenda carried out, in countries like China, through the Communist Party. On that understanding, “human rights” are not innate and unalienable but rather are a function of that starting point. Thus, as I wrote in that chapter, “a careful reading of [the Chinese Constitution] will show that the ‘law’ provides virtually no protection for individual rights, notwithstanding its use of the language of rights.” Indeed,

Article 51 sets out a general defeasance clause: “Citizens of the People’s Republic of China, in exercising their freedoms and rights, may not infringe upon the interests of the state, of society, or of the collective.” Given that those “interests” are boundless in principle, and vague besides, any claims that individuals might have against the state can always be trumped as a matter of constitutional law. It should hardly surprise that the Constitution elevates the interests of the state above the rights of the citizen. After all, the whole point of the Constitution is to order affairs—including the affairs of individual citizens—toward the goal of building socialism. Given that all-encompassing end, it stands to reason that individuals should not be permitted to act in ways that might compromise the end. In fact, when they do, their acts are branded as “counterrevolutionary” and subject to suppression (Article 28).

If this new commission can refocus America’s human rights thinking and policy on America’s first principles, grounded in our unalienable natural rights, the implications are far reaching, not only for the rest of the world but for America itself.

Yet Another Excuse to Raise Tariffs

Back in March, I wrote: “The Trump administration seems to be looking for every possible excuse to raise tariffs.” Yesterday they found another one. As the Washington Post reports:

President Trump on Thursday said he would impose a 5 percent tariff on all goods entering from Mexico unless it stopped the flow of illegal immigration to the United States, a dramatic escalation of his border threats that could have sweeping implications for both economies.

The White House plans to begin levying the import penalties on June 10 and ratchet the penalties higher if the migrant flow isn’t halted. Trump said he would remove the tariffs only if all illegal migration across the border ceased, though other White House officials said they would be looking only for Mexico to take major action.

After the 5 percent tariffs are imposed on June 10, the White House said it would increase the penalties to 10 percent on July 1 and then an additional 5 percent on the first day of each month for three months. The tariffs would stay at 25 percent “until Mexico substantially stops the illegal inflow of aliens coming through its territory,” a statement by the president said.

The President’s statement makes clear that this action is taken pursuant to the International Emergency Economic Powers Act. You can learn all about that statute in a good CRS report here. This is not something I’ve studied in depth before, but at first glance, it looks like the statute gives the president broad authority, making a court challenge to this action difficult; it also allows Congress to terminate a president’s action through a joint resolution, if Congress were so inclined (the reaction from members of Congress today is going to be really interesting).

As for the immigration part, these actions seem like a bad approach to me, but I’m sure my Cato immigration colleagues Alex Nowrasteh and David Bier will have more to say. With regard to trade policy more broadly, Trump is opening another front in his (many) trade wars. Acting White House Chief of Staff Mick Mulvaney seemed to be trying to minimize the prospects of trade damage when he said this: “These are not tariffs as part of a trade dispute. These are tariffs as part of an immigration problem. USMCA is a trade matter and completely separate.” But the reality is that these tariffs create a brand new trade dispute, and they will make passage of the USMCA (the renegotiated NAFTA) very difficult in Mexico, with good reason: What exactly is the point of a trade agreement to eliminate tariffs if a trading partner is going to impose tariffs anyway?

Perhaps the overarching trade policy lesson here is simply this: Trump really likes tariffs. It’s not a particularly deep lesson, but it’s a lesson nonetheless.