I used to live near a building in Washington DC that had the First Amendment carved into its massive stone facade. Walk through it enough times, and it sticks. “Congress shall make no law . . . abridging the freedom of speech . . . or the right of the people peaceably to assemble.”
Congress will not make Law. A bank, or a trade union, or a sports team, will often control what its staff can say on the public record. (Perhaps through a code of conduct.) As long as those employees can leave their jobs and speak freely as citizens, we do not consider this a violation of the Amendment.
Gary Lineker deserved to win his showdown with the BBC. But was it, strictly speaking, a free-speech issue? The problem was a corporation’s overzealous internal governance. and blame for political interference. It was not that their broad right to speak (to the extent that they have in Britain’s less codified system) was at risk. Put it this way. If he had tweeted something vague like “invade Norway”, no one would have minded if the BBC had reprimanded him. He can leave the bib and be ready to attack. As I cheered him on this past week, however, some of those cheering with me felt a fundamental right was at stake.
There are two high-profile threats to liberalism these days. One is populism. Another is the cultural left. Here’s a less-discussed third: ambiguity among liberals about what constitutes this denomination. This is the disease of success. Liberalism has been the dominant ideology in the West for so long that it is not taught or discussed from first principles. In fact, for most of us, it is less of a cult than a set of rote-learned phrases that are easy to recite, such as fragments of Shakespeare. “Free speech” is one.
Here’s another one. “Rule of Law”. I can’t be the only one who has lost all track of what this means now. One is about the interpretation process. State policy violates the rule of law when it is made arbitrarily, or applies retroactively, or targets individuals. So, government can be vile – abolishing welfare, for example, or demolishing parkland – and still under the rule of law. But there are “thick” definitions. Accordingly, the moral substance of policy is also important. The populists of the previous decade were often described as a threat to the rule of law. Sometimes by me. Why? A specific procedural breach? (If so, which ones?) or a form of generalized unpleasantness?
Look, I’m not telling everyone to go away, read their folk and be ready to discuss it next week in a group circle. It’s just that our society and my way of life are built on a philosophy that even smart people feel cloudy about. Were it ever to come under concentrated intellectual challenge, and not just the whining of Donald Trump or Jair Bolsonaro, would it hold up? Will we know what “it” is? Daniel Defoe meant that the English would fight “Popery” to the death “without knowing whether Popery was a man or a horse”. Sometimes, liberalism is defended with the same harsh ambiguity.
“We hold these truths to be self-evident. . . ”, begins another statement of the American establishment. Are there self-evident truths? Couldn’t a religious fundamentalist start a scripture with the same words? You see, the Enlightenment that thousands of newspaper columns have been dreading in recent times, creates confusion. Is it enlightened to subject all claims to empirical skepticism? Or believing in “natural” rights that require no proof? When the forces of anti-liberalism come to us, do we cite Hume or Jefferson?
Some of my fellow linewrights will pick on me on one thing. There is a comprehensive account of free speech. It would consider an employee bound by the Code to lack “real” or “effective” freedom. I will not sign up to this account. Also for an extended definition of the rule of law. That, indeed, for natural rights. And so perhaps there is a strategic genius in all this confusion. If liberals want to pin things down, it will expose, in full view of our ever more daring enemies, how little we agree on.
Email Janan janan.ganesh@ft.com
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