The dream of classic American liberalism is perfect procedure. Abstract principles that all sides accept as legitimate, thus avoiding an impasse or a violent clash between factions with incompatible worldviews. That dream is killing us.

In centrist liberal discourse (Democratic or mainline Christian), the worst sin is being “just like them,” a comparison that always happens at the level of methods, not ends. If “they” are fervently certain, we must be open-ended. If their policies are guided by prayer, mysticism, or tradition, we must be superior rationalists. And if they see America as a spiritual battleground between good and evil, we have to behave as though they’re our valued colleagues–even while they’re destroying the institutions of democracy.

What this means in practice is a permanent gig for hacks like NY Times opinion writer Pamela Paul to lament that the Left and the Right are both “censors” because…the state of Virginia is pursuing obscenity charges against queer YA books, but on the other hand, some booksellers aren’t pushing Abigail Shrier’s Irreversible Damage: The Transgender Craze Seducing Our Daughters? (For the record, not enough people are trying to seduce me. Cancel culture has gone too far.) The faux pas of excluding some ideas from respectable discourse outweighs any ethical inquiry into the impact of those ideas.

This search for a privileged vantage point above politics is just that–privileged. And it’s not even working. The Jan. 6 hearings have reminded us that the religious fascists helming the GOP will choose violence no matter what we progressives do, because their worldview is eliminationist and their commitment to democracy is only temporary and expedient. They literally do not believe that anyone except white Christian nationalists deserve civil rights.

As a corrective, let me share some thoughts from a book that changed my life: Stanley Fish’s essay collection There’s No Such Thing as Free Speech: And It’s a Good Thing, Too (Oxford University Press, 1994).

Fish’s central thesis is that free speech decisions are always made by balancing political interests in a dynamic, situation-specific way, whether we’re talking about true government censorship or private actors exercising discretion about what books to publish and what speakers to invite. “Speech, in short, is never a value in and of itself but is always produced within the precincts of some assumed conception of the good to which it must yield in the event of conflict.” (pg.104)

Conservatives in 2022 understand the instrumental nature of legal rights very well. Courts and elections are a means to an end. This is not the problem; Fish would say that everyone operates this way, whether they admit it or not. The problem is that the Right’s conception of the good is a dystopia for most people. When we throw down our own weapons and retreat to the superior ground of both-sides-ism, the most marginalized people suffer.

According to Fish, when we pretend that pure legal principles require a certain result, we’re being disingenuous, because legal concepts are created by people within a political system. You don’t find them in nature like rocks. “Speech” is defined in advance so that it includes “stuff we want to allow almost always” and excludes “stuff we want to regulate.” It’s a pragmatic decision masquerading as a command from on high. Important Supreme Court decisions happen when the culture has shifted away from the value-judgments embedded in prior cases’ definitions of speech, but the law hasn’t caught up.

By contrast, when we’re up-front about this pragmatic element, we have a basis to push back against “principled” decisions that throw marginalized people under the bus. We bring our opponents down to the level of politics that they were always already on, and make them defend that harm as something they chose to do.

Neutrality about the value and impact of protected speech, taken to an extreme, ends up undermining the free society that the First Amendment was supposed to preserve:

This is where the idea that there is no such thing as a false idea (and therefore no such thing as a true idea, like the idea that women are full-fledged human beings or the idea that Jews shouldn’t be killed) gets you: it prevents you, as a matter of principle, from inquiring into the real-world consequences of allowing certain forms of so-called speech to flourish. Behind the principle (that there is no such thing as a false idea) lies a vision of human life as something lived largely in the head. There is an entire book to be written about the stigmatization and devaluation of the body in First Amendment jurisprudence… (pg.126)

In a “rights regime”, a regime whose chief concern is to protect the autonomy of individuals, categorical analysis turns an indifferent and dismissive eye to the effects produced by the exercised rights… When the harms seem particularly grievous, as in the case of the Holocaust survivors [in Skokie, IL] who were told that they must endure a parade of Nazis marching through their neighborhood with the intent of disseminating anti-Semitic propaganda, the court will typically announce the regret with which it refuses a judicial remedy, and then solemnly declare that this is the price we must pay (one wonders exactly who the “we” are here) for living in a democracy. (pg.127)

…Modern First Amendment doctrine wishes to…ascend to an intelligibility that is hostage to no past whatsoever. It wishes, that is, to justify its actions from scratch, without reference to the views or interests of anyone who has ever lived. This is the impossible dream of liberalism… (pg.131)