It appears that the president’s global celebrity status doesn’t advance the effectiveness of environmental scolding.  The Indian government rejected Secretary of State Hillary Clinton’s calls for legally binding carbon caps, lest such limits “undermine the economic growth that is necessary to lift millions more out of poverty.”

I’m sure some people in low-wage, high-energy jobs (e.g. manufacturing, mining, etc.) in the U.S. share the sentiments of the Indian government.

In another episode of There’s No Such Thing as a Free Lunch, we will quickly explore universal coverage legislation, which, though politically popular, is terribly expensive.

In the recent discussions for passing a national universal coverage plan, the president has noted correctly that any large health care system could reduce costs in numerous ways. For instance, a government system could rate the efficacy of different treatments to determine whether they are cost-effective. A government plan could also reduce costs by denying expensive treatments that only extend life by a few months. Also, paying doctors for outcomes, rather than services, (paying for the output, rather than the input) could reduce costs and potentially improve care. Finally, the size of any government plan gives the government great negotiating power to bargain down prices from pharmaceutical companies, hospitals and doctors.

Many of these items sound like health care rationing. In fact, they are, but as with any other limited resource, we can only afford as much health care as we’re willing to pay through tax hikes.

The New York Times recently carried an interesting op-ed advocating rationing.  The article poses some good questions that will have philosophers and ethicists arguing from their armchairs.  For instance,

You have advanced kidney cancer. It will kill you, probably in the next year or two. A drug called Sutent slows the spread of the cancer and may give you an extra six months, but at a cost of $54,000. Is a few more months worth that much?

Furthermore, does it matter if the patient is 85-years-old or 16-years old?  Some will immediately see a problem with a policy that makes distinctions like this in choosing to withhold care.  Ethically, many (I’m especially looking at you, Immanuel Kant) would be outraged that we would make such distinctions— or even any distinction— to choose to ration care.  One life is as equally worthy as another, they would say.  A rich country cannot issue a death sentence simply because care is deemed “not worth it,” they might add.

A utilitarian view would probably side with any budget analyst or any health agency head suffering from budget constraints.  Whatever provides the greatest overall benefit (to society as a whole) for the least cost is the ideal policy.  An extra month of life for an elderly person may not offset the additional tax burden (or commensurate government service reductions) to cover the cost.

However, if you’re the one being denied care under this policy, you probably won’t have much sympathy for the utilitarian view.  After all, you paid taxes to support this system and the entire pretext for this costly government program was to ensure that people wouldn’t suffer unnecessarily because of cost.

Once the program is grouped with other so-called entitlements, people will view it as, well, an entitlement.

Enough philosophy.  The reason the current reform proposals are doomed is that they will require too many sacrifices from too many powerful interest groups.  First, after years of scolding employers who provide little or no coverage for their employees, those employers who do provide superb coverage may now face a tax for doing the right thing.  Now, some in the House are proposing a tax hike on those making more than $280,000 annually.  The main problem with this, of course, is that many small businesses are sole proprietorships and the companies’ incomes are reported on the tax returns of their owners.  A tax hike on “the rich” will also hike taxes on many small-business owners.  A business tax hike, especially in this economy, could discourage small businesses from hiring.  A tough sell when the unemployment rate just topped 10%.

Furthermore, for true reform to actually reduce costs, any government plan will have to reduce payments to doctors and hospitals, who have both profited nicely from our current arrangement.  Massachusetts, with its universal coverage plan, is continuing to suffer escalating health care costs.  The commonwealth is now considering cutting payments to doctors and hospitals.  Opposition from the health lobby is muted for now:

Representatives of [health care] groups joined in a unanimous commission vote for the recommendations. But they made clear that their continued support might depend on devilish details, the kind that will determine whether their members are net losers and, if so, by how much.

Opposition will likely build as the costs become more evident.

On the national scene, the head of the Congressional Budget Office, the non-partisan Congressional agency tasked with calculating the costs of proposed legislation, testified that neither the House nor Senate bills impose the measures necessary for reducing costs.  The Post writes,

Although the House plan to cover the uninsured, for example, would add more than $1 trillion to federal health spending over the next decade, according to the CBO, it would trim about $500 billion from existing programs — increasing federal health spending overall.

Some provisions of the bill have the potential to trim spending further, [CBO head] Elmendorf said, but “the changes that we have looked at so far do not represent the sort of fundamental change, the order of magnitude that would be necessary, to offset the direct increase in federal health costs that would result from the insurance coverage proposals.”

That is because the fundamental change would require a politically impossible degree of arm-twisting from various interest groups, including doctors, pharmaceuticals, hospitals, private insurers, patients, and taxpayers.

The recent revelations that Councilmember Marion Barry (D-Ward 8 ) funneled a city contract to his on-again-off-again girlfriend (Mr. Barry canceling and renewing the contract in sync with the relationship’s woes) has brought about a need to strengthen the city’s ethics laws.  Though conflict-of-interest laws prohibit giving contracts or positions to member’s of an official’s own household (the law defines this as immediate family), there is no restriction against giving contracts to girlfiends or boyfriends, who may in fact share interests and advantages akin to those of legal family.

Though using public funds to enrich one’s boyfriend or girlfriend (or mistress— Mr. Barry, “standing moral compass of God” is still married to someone else, lest we forget), may not be illegal, but it is unethical.  Public faith in good government rightly erodes at the sight of people of questionable qualifications reaping public benefits simply for being in bed with the powerful (in this case literally).

Mr. Barry, when asked if he would award city money to a girlfriend, responded, “Unless the law changes, why not?”

Mr. Barry’s ethical lapses are frequent enough that such a remark should not come as a surprise.  During his mayoralty, crime in the District soared, schools soured to become some of the worst in the nation, and people fled the city just so they could receive decent government services.  In 1990 Mr. Barry was arrested and caught on camera smoking crack in a hotel room with a woman who was not his wife.  Recently it was revealed that Mr. Barry failed to file Federal tax returns for eight of the last nine years and had also neglected to file city tax returns.

No one who so carelessly disregards the tax law should be in a position to determine how public funds are spent.  Nobody is above the law and it is time the city codify this principle further.  We propose the city council enact the following law to ensure that anyone running for elected office in the city has filed all tax returns as required and does not owe any outstanding debts to the city.

WHEREAS equality before the law and obedience to the law are necessary for a fair and free society, two requirements listed below will be added to D.C. Code § 1 – 1001.02 defining “qualified electors.”  For the general election following the ratification of this bill, a “qualified elector” will be defined as a person who meets the existing requirements and

1. Who has filed all tax returns to the District government as required; and
2. Who is not delinquent in the payment of any taxes, fees, or judgments to the District government.

The District of Columbia Board of Elections and Ethics will certify these additional requirements.

Harry Jackson, flustered. Opposing civil rights is such hard work.

The bad part about direct democracy is that it empowers the tyranny of the majority to overrun the rights of unpopular minorities.

We have reported before that when the D.C. city council voted to recognize same-sex marriages performed elsewhere, the lone dissenting vote was cast by Marion Barry, who claimed to stand “on the moral compass of God” and opposed the legislation also out of what he claimed to be racial solidarity. Joining him in standing in the schoolhouse door was Bishop Harry Jackson, a District resident (more on that below) who is the pastor of a Maryland church.

Unhappy that the city council passed the civil rights legislation, Jackson threatened to bring the matter to a city-wide referendum, where, as we have noted before, it just might pass.  Jackson hit a snag earlier this week, though, when the city’s Board of Elections invalidated the proposed ballot question since it would deny civil rights to LGBT people, whom the city’s Human Rights Act protects from discrimination. City law wisely prohibits ballot referenda that contradict the Human Rights Act; human rights are not, and should never be, up for a popular vote.

Mr. Jackson is challenging the board’s decision in court, hoping an “activist judge” will side with him and let him put the discriminatory civil rights question on the ballot. Complicating the matter is whether Mr. Jackson has standing as a District resident to propose the referendum. As the Washington Blade has reported, Jackson and his wife own two houses (blessed are the poor?) in Montgomery County, Maryland, and neighbors claim they reside in one of those houses, a $1.1-million mansion. The Jacksons, however, claim neither home as their principal residence according to tax records. For the purpose of voting, Mr. Jackson claims residence in unit 630 in the tony Whitman condominium building in the Mount Vernon Triangle area of DC. Tax records show that a Mr. Joseph Honaker owns this one-bedroom condo and claims it as his primary residence. If these records all hold true, it would appear that Mr. Jackson shares a one-bedroom condo with another man.

Joining Mr. Jackson in his battle against civil rights is Rev. Walter E. Fauntroy, former D.C. Delegate to the House of Representatives, former city councilman, and civil rights activist (until now); Rev. Dale E. Wafer, pastor of the Harvest Church in Northeast; Melvin Dupree; Sandra B. Harris, a real estate agent with Cosmopolitan Properties in Shaw; Dr. Patricia Johnson, dean of a local Christian liberal arts college; and Bobby Perkins, Sr., pastor of World Missions for Christ Church in Shaw.  Even if Mr. Jackson is not a bona fide resident, that still doesn’t necessarily stop the ballot referendum since one of these other residents could carry the torch of discrimination.

Nobody knows how the court will rule (our guess is that they will defer to the Board of Elections,  City Council and city attorney), but it is truly shocking to see such strident opposition to civil rights in a supposedly liberal city, where over 90% of the electorate cast ballots for Barack Obama.  Eternal vigilance is the price of liberty.

Iranians protest the recent election results.

In the 2004 documentary Control Room, an Al Jazeera producer explains that rumor and conspiracy theory often pass for journalism in the Middle East. If a water main breaks in Damascus, he explained, the papers there will find a way to blame Israel or America. Indeed, Western observers often note how casually conspiracy theories are taken as actual truth, but the recent election in Iran shows that suspicion and whispers are not solely the province of the Middle East.

The re-election of Iran’s president Mahmoud Ahmadinejad has sparked an outcry not only in Iran, but in many other countries, where the media seem quick to assume the vote was rigged. How could it be, these outlets demanded to know, that a majority of the Iranian public would re-elect an angry, right-wing demagogue, who carries little support among Iranians who live in the West an appear on CNN? The elite papers asked the same question after George W. Bush beat John Kerry in 2004. So disconnected and self-assured are these editors, that they arrogantly dismiss another inconvenient possibility: that a majority of Iranian voters actually prefer Ahmadinejad.

Too many outlets have been quick to accept the opinions of Ahmadinejad’s opponents, including Iran’s well-off, Tehran’s students, and well-to-do Iranian émigrés, who proclaim that the re-election victory was a complete fraud. If one were to listen only to these opinions, one might get a skewed view of the world. Americans living abroad overwhelmingly voted absentee for John Kerry, but the preference of jet-setting ex-pats does not a democratic majority make!

Two think-takers published their Iranian opinion poll in today’s Post proving that Ahmadinejad does command wide support throughout Iran. Furthermore, those questioned openly expressed  supposedly seditious opinions, such as the view that their government is too secretive and that the Supreme Leader should be elected. If those polled were willing to say these things to strangers on the phone, they certainly must have felt comfortable to express their presidential preferences freely.

We are not fans of Ahmadinejad, but Westerners should end their condescending disbelief and face the possibility that a majority of Iranian voters have a different view of what’s best for Iran.

Bishop Harry Jackson, who, while a District resident, is the pastor of a Maryland church and is pushing to put civil rights up to a popular vote. The Post reports that he is going to try to bring to a referendum the city council’s near-unanimous vote to recognize same-sex marriages performed elsewhere.  (Councilman Marion Barry, claiming to stand “on the moral compass of God”, was the lone dissenter)

Though we have worried before that such a referendum might pass, the city council could avoid a ballot measure altogether by inserting the marriage language into the city’s human rights code. According to existing statues, the District’s human rights code is not subject to voter referenda— this is wise, as civil rights should never be put to a popular vote.

However, even if Mr. Jackson fails to get the question on the ballot and even if such a question were rejected by the electorate, Congress could always intervene.  In fact, Reps. Jim Jordan (R-Ohio) and Dan Boren (D-Oklahoma) have introduced a bill to prevent the city council from recognizing same-sex marriage.

It’s unlikely such a bill would pass.  Soon the District will be added to the list of American juridictions that have ended marriage discrimination.

Gov. George Wallace stands in the doorway of the University of Alabama, refusing a Federal order to desegregate the school.

Civil rights advanced today in the District of Columbia in spite of Marion Barry, who cast the lone vote in opposition to the city’s recognition of same-sex marriage.  The former mayor, drug convict, habitual tax-cheat, and overwhelmingly re-elected councilman from Ward 8 justified his vote with an outrageous claim of racial solidarity:

What you’ve got to understand is 98 percent of my constituents are black and we don’t have but a handful of openly gay residents.  Secondly, at least 70 percent of those who express themselves to me about this are opposed to anything dealing with this issue. The ministers think it is a sin, and I have to be sensitive to that.

That’s completely irrelevant. Mr. Barry believes that civil rights should be up to the popular vote, though he, of all people, as a former civil rights activist, should know how morally problematic that is.  Individual rights (especially the right to equal protection) are for individual citizens to have and not for others to take away; this is the absolutely essential foundation of a free constitutional democracy.

Furthermore, contentious civil rights never pass on popular vote— if they did, they wouldn’t be contentious.  The purpose of federal civil rights laws and Constitutional rights is to prevent the tyranny of the majority from abridging the rights of unpopular minorities.

Mr. Barry, completely oblivious to the fact that his very same arguments have been used to justify racial segregation, disenfranchisement, and discrimination, predicted alarmingly that the council’s vote would provoke a “civil war.”

The language of civil war was also a favorite of Gov. George Wallace (pictured above), who infamously promised “segregation now, segregation tomorrow, segregation forever,” in his inaugural speech standing at the same exact spot where Jefferson Davis was sworn in as president of the Confederacy.  Whereas Mr. Wallace decades later repented for his dreadful segregationism, Mr. Barry (yet again) has no shame.

After the 2004 election, some asked what’s the matter with Kansas? After this incident and after noticing that Mr. Barry was re-elected to the council with an astonishing 91% of the vote, we wonder, what’s the matter with Ward 8?

President Obama’s recent decision on the torture memos (to release the memos, but not to prosecute the authors), though dissatisfying to many, is politically a good compromise.  It partly addresses the need for accountability for Executive Branch abuses by exposing public officials and their support of torture.  The president’s decision not to investigate and prosecute further, though not the ideal solution to upholding the rule of law, will spare the country and Congress from a protracted political argument that would prove to be a needless distraction.

Though some in the administration have justified the end of the torture policy as a way to deprive al-Qaeda and its sympathizers of a recruitment tool, it’s hard to believe that suicide bombers are recruited to their cause solely because of a far-off country’s limited violation of the Geneva Conventions.  That said, it is hypocritical for the former vice-president Dick Cheney to demand the full release of all the memos that might suggest the efficacy of torture.  During much of his tenure, he defended the administration’s secrecy as necessary for national security.  How quickly he changes his mind when it suits his political opinion.

Even if CIA records reveal the efficacy of torture (we believe the CIA can probably torture information out of a suspect provided they find the right suspect), that does not make it right.  Mr. Cheney’s utilitarian argument for torture is wrong: we cannot sacrifice human rights in the pursuit of terrorists.

We agree with the president’s decision—certainly a difficult decision for him—to move on.

"Marriage is not a right." Bishop Harry Jackson of Beltsville's New Hope Christian Church voice his own interpretation of civil rights.

We wrote before of the fact that an astonishing 70% of black Californians voted for Proposition 8, which prohibited same-sex marriage.  We also wrote before that when we extrapolate the California results and apply them to the District, a similar city ballot question would pass if one considers income, education, or race.*

Just a few weeks ago, to our surprise, the city council unanimously passed a bill to recognize same-sex marriages performed in other states. That very same day, the Vermont legislature stole much of the media thunder by overriding the governor’s veto and legalizing same-sex marriage in the Green Mountain State.  Nonetheless, it was a bold move for Washington, a city whose every decision can be vetoed by a Congress looking to make a statement. The issue of marriage is usually portrayed in the media as a religious-secular struggle and another side of the issue rarely discussed: race.

The relationship between race and opinion on same-sex marriage— a relationship so quietly whispered it dare not speak its name!— has come out of the closet in DC, a city that votes overwhelmingly Democrat and is also 56% black.

Several area churches (all predominantly black and some of them suburban) spent part of Tuesday protesting the city council’s recent decision and lined up outside the Wilson Building on Freedom Plaza to voice their displeasure. (See the Post’s video of the event)

Bishop Harry Jackson (pictured above) of the New Hope Christian Church— which is outside the District— recently penned his own opinion on the matter in Newsweek lamenting his own “robbery” at the city council meeting by those dastardly “equality vigilantes”!

I felt robbed and disenfranchised as I observed “equality vigilantes” setting up an unjust concept of civil rights.

Mr. Jackson seems to have his own peculiar interpretation of civil rights.  In the Post video above, he states:

Marriage is not a right.  Brothers and sisters can’t get married. People who are related can’t get married.  You can’t marry a three-year-old.  There are parameters that are for the benefit of the society about marriage.

Wrong.  In Loving v. Virginia, the Supreme Court ruled that marriage is a basic civil right.  To deny a civil right on account of sex (that is, to disqualify a woman from marrying another woman solely because she is a woman) requires a compelling state interest.  Some states have decided there is such an interest, some have found there is not.  Nonetheless, in American jurisprudence marriage is a civil right.

Mr. Jackson, who, as the Post’s Marc Fisher has noted, has strong connections to the national conservative movement, continues, “I’d rather be politically courageous than politically correct.”  That’s a noble sentiment, for sure, but it is certainly possible to be selfishly courageous, too.

Lynne Breece, a District resident and a bystander at the event, offered some hope that not everyone shares Mr. Jackson’s views:

As a black woman, I know a lot about discrimination on both ends, and I know what it feels like.  And for us, of all people, black ministers to use the pulpit to oppress another minority and then to cloak that bigotry using the bible! This happened to black people!

Indeed, though Dr. Martin Luther King cited scripture to demand equality, Jim Crow supporters and defenders of slavery never hesitated to quote the good book either.

Councilman Marion Barry, who didn’t show up to vote on the bill, but who previously promised to vote for same-sex marriage, managed to make it to the rally and profess his new-found opposition.  Why the change of heart?  Barry provided a great gem of a quotation:

I am a politician who is moral.

Dream on!

Even with Barry’s opposition, the rest of the council and the mayor have all voiced support for eventual same-sex marriage licensing in the city.  Messrs. Barry and Jackson notwithstanding, justice and fairness shall overcome someday.

Just when you thought citing the bible for political purposes was solely the province of the Right, our quick perusal today of Leviticus turned up these verses:

And if a stranger sojourn with thee in your land, ye shall not vex him.

But the stranger that dwelleth with you shall be unto you as one born among you, and thou shalt love him as thyself; for ye were strangers in the land of Egypt: I am the LORD your God. (19:33-4)

If there’s a so-called “Defense” of Marriage Act, based largely on prejudices inspired from odd passages from Leviticus, shouldn’t there also be an accompanying amnesty statute for illegal immigrants?

“George Bush doesn’t care about black people.”

So said Kanye West in the aftermath of Hurricane Katrina when hundreds of poor, mostly black, residents of New Orleans were stranded in the Superdome and atop flood houses in the Big Easy.

No matter, with the election of Barack Obama, surely the Federal government now attends to the best interests of disadvantaged minority populations, right?  Not always.

In 2004 Congress passed the District of Columbia School Choice Incentive Act, providing vouchers of up to $7,500 for low-income children in the District to attend private schools. Since the District’s public schools are among the worst in the nation and considering that poor parents love their children, too, it’s no surprise that parents jumped on the opportunity with such enthusiasm that the program developed a waiting list. A recent U.S. Department of Education study found that children in the program scored about the same in math and slightly more in reading.  Nonetheless, voucher parents were much more satisfied with their chosen schools than public school parents were with their schools.*

The voucher program operated with the strong support of the mayor, the District’s “state” superintendent, and the low-income parents of the voucher recipients (90% black, 9% Latino), who finally got the chance to give their children what their neighbors Mr. & Mrs. Obama give to their children: a quality private education.  The parents were happy and the kids’ performance improved modestly.  In an era when the Treasury hands out hundreds of billions of dollars to shoddy banks and failed carmakers, certainly the voucher program’s modest success was worth the paltry $15 million annual cost.

Not so fast!  Enter the teachers’ unions and their partner-in-disparity, Eleanor Holmes Norton, D.C.’s non-voting Delegate to the House of Representatives.  She made clear her opposition to the program, telling the Post, “…the Democratic Congress is not about to extend this program.”

With Democratic majorities in both houses and at the behest of the teachers’ unions, Congress, fresh from passing $410 billion budget bill, callously failed to renew the voucher program.

If we ran our elections the way we run many of our public schools, there would be civil rights investigations and lawsuits to match.  Instead, when public-sector mediocrity denies poor children their right to a decent education, thereby reducing their future life opportunities, the Right doesn’t much bother with an issue it never noticed anyway and the Left willfully averts its eyes toward its well-heeled funders.  If voting patterns still hold true, the beneficiaries of these programs would vote overwhelmingly Democrat anyway; the G.O.P. has nothing to gain, the Democrats have nothing to lose.  Sadly, the children have much to lose.

In noting the disparities in the quality of public education in America, Rev. Al Sharpton, in a rare moment of clarity, stated why public education continues to fail millions of Americans:

The people standing in the schoolhouse doorway now are people we thought were our friends, liberals wearing suits not bibb overalls, principals and teachers who want to uphold the status quo — condescending bigots who perpetuate a system we know is profoundly unequal.

Conservatives typically don’t make public education their issue, except when it comes to biology (evolution), health (sex), and school prayer.  Liberals typically advocate the use of government power to equalize social opportunity and even equalize social outcomes.  Even though one would normally expect the Left to advocate policies that best benefit marginalized populations, the Democratic party still knows that both money and ballots talk: the nation’s two big teachers’ unions, the National Education Association and the American Federation of Teachers, support Democratic candidates with massive investments, volunteers, and votes.  When the interests of the unions conflict with the interests of disadvantaged children of color, the former constituency holds the trump card.

Tellingly, Ms. Norton also told the Post several months ago, “We have to protect the children, who are the truly innocent victims here.”  Indeed they are.

We never thought we’d agree so ardently with Joseph Stiglitz, but he appears to be among the few voices on the Left willing to call out President Obama on the flimsier elements of his economic plans.

We have noted before (to deaf ears, alas!) that the Obama Administration is no stranger to Wall Street.  Not only did Wall Street types donate twice as much to his campaign than to McCain’s, but Mr. Obama then hired Larry Summers as his chief economic adviser.  Before returning to Washington, Mr. Summers, as we noted earlier, “earned” a princely $5.2 million advising the hedge fund D. E. Shaw one day a week for the past two years.  (Talk about lavish executive pay!)

Anyway, Stiglitz, too, has pointed out the blatant conflict of interest in the administration:

“America has had a revolving door. People go from Wall Street to Treasury and back to Wall Street,” he said. “Even if there is no quid pro quo, that is not the issue. The issue is the mindset.”

Stiglitz is also critical of the administration’s stimulus package, since only a fraction of it is destined to be spent in 2009.

If there’s one thing New York Times columnist Tom Friedman likes more than name-dropping, it’s churning out puzzling metaphors.  Two of his book titles, The Lexus and the Olive Tree and The World is Flat, illustrate this pastime of his— the former book comparing financial regulatory frameworks to computer software.  We doubt how helpful it is, though, to compare one complicated abstraction to another and expect the general reader to better understand global finance, but his books sell well.

After many rhetorical misses, Friedman finally makes a hit in contrasting today’s geopolitical problem children (Iran, Afghanistan, Pakistan, North Korea).  Using a metaphor of pulleys and levers, Friedman divides these four countries into two groups: those who promise to “pull levers”, only to find the levers breaking off the wall (Afghanistan, Pakistan), and those who grope around with much fanfare only pretending to pull levers (Iran, North Korea).

Candidate Obama rightly criticized President Bush for hiding the costs of the Iraq War through supplemental appropriations bills, rather than including the costs in the normal budget.  Alas, Mr. Obama is pulling yet another page from Bush book: though Mr. Obama recently included Iraq spending costs in his latest $410 billion budget, he has quickly come back for more, proposing his own $83.4 billion supplemental to fund operations in Iraq and Afghanistan as well as a few international aid programs.

Though there’s nothing necessarily wrong with requesting supplemental funding, the president’s request raises two concerns.  For one, requesting this money a mere month after Congress passed his buget makes one wonder why his budget analysts didn’t foresee these new costs and just include them in the original budget.  What’s more likely is that the president just wanted to send to Congress a bill with a lower bottom line so as to appeal to moderate Democrats and GOP deficit hawks (who only now have found fiscal religion).

Secondly, it’s hypocritical for the president to critcize his predecessor for a practice that he, himself, readily adopts once in office.

In his 2007 book Freedom for the Thought That We Hate, legal scholar Anthony Lewis chronicles the  history of the First Amendment’s protection of free speech.  Though the amendment was ratified in 1791, it wasn’t until the 20th century, that the Supreme Court ever overturned a law as a violation of free speech.  Though the history of America’s broad speech protections is younger than we might think, these protections are products of the Enlightenment spirit— that the elevation of knowledge and rationality are the keys to human flourishing.  (French author Michel Houellebecq disagrees, but that’s another matter.)

Lewis drew the title of his book from Oliver Wendell Holmes’s dissenting opinion in U.S. v. Schwimmer (1929):

[I]f there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought — not free thought for those who agree with us, but freedom for the thought that we hate.

Since popular opinions need no protection in a democracy, the First Amendment’s raison d’être must be the protection of unpopular opinions— including the thought that we hate.

In previous times, including the times of Holmes, the hated thoughts included pacifism and communist sympathy.  Congress and states banned various expressions they deemed seditious, usually limiting the political debate that the more philosophical Founders had likely wanted to foster.  In more recent times, contentious speech is typically the opinions and rantings of racists and bigots convinced that society is far too tolerant of this or that group.  (How ironic that the intolerant demand tolerance of their own opinions!)

Though we have lamented speech restrictions before at the University of Maryland, in the supposedly libertine Netherlands and in holier-than-thou Canada, the slow repeal of free expression in western democracies is on the march.

An op-ed in the Washington Post’s Sunday Outlook section chronicles the slow disintegration of speech protections in many western countries as the concern for multicultural tolerance conflicts with the more xenophobic views on the European fringe.  The author lists some troubling cases:

• French actress Brigitte Bardot has been convicted four times in France for demeaning Muslims and gays.
• A 15-year-old Briton was arrested for holding up a sign stating, “Scientology is not a religion, it is a dangerous cult”.
• An Austrian legislator narrowly avoided jail, but was fined, for accusing Mohamed of pedophilia.
• A Dutch cartoonist, as we wrote earlier, was arrested for drawing cartoons denigrating fundamentalist Muslims.
• Italian prosecutors launched an investigation into an Italian comedienne for insulting the pope.
• A British political aide was arrested for anti-Semitic rants directed at a TV in a gym.
• A xenophobic Dutch parliamentarian was denied entry into the U.K. for espousing anti-Muslim opinions deemed too dangerous.

Yes, many of these controversial views are blatantly racist, mean, and (more importantly) specious, but that doesn’t warrant their restriction.

Anthony Lewis, though on the Left, actually thinks America’s First Amendment protections might be too broad.  He believes the state is justified in squelching the incendiary recruitment speech of Islamic radicals, even if these radicals do not call for immediate lawlessness.  Their ability to persuade alienated young men inclined toward eventual violence warrants state intervention, he writes.

We disagree, however, and are curious as to whether Mr. Lewis would extend this interventionism to non-Muslims who speak to alienated groups.  Under Mr. Lewis’s reasoning, one could argue that Martin Luther King, though decidedly non-violent, should have been muzzled (well, more so than he was).  Such a speech restriction could open the door to the prosecution of anyone demanding significant socio-political change, as there are surely unrestrained elements of any otherwise legitimate movement.

Furthermore, determining what is controversial is easy, but it is indeed too easy.  If one could unleash the local prosecutor simply on the grounds that one feels “offended”, we will have to hire more prosecutors, as there are infinite opportunities to take offense, and enough delicate sensibilities to feel offended.  Don’t like that someone called same-sex marriage unnatural?  Call the prosecutor!  Don’t like that gay-right supporters call you a bigot?  Call the prosecutor!

The Left and Right will find ways to litigate and counter-litigate every provocative utterance out of the public realm.

There is plenty of despicable speech, no doubt, but any attempt to regulate it— to determine what is legitimate and what is not— could easily lead to capricious and unfair restrictions, where the well-counseled quash the obscure bloggers, where political parties sue newspapers for their opinion pages, and where courts rule that emotions trump truth.  A speech regime will cause many more problems than it fixes.

The best response to blatant nonsense is an articulate rebuttal exposing lies and reinforcing the truth.  Justice Louis Brandeis, who sat on the court with Holmes, famously wrote that sunlight is the best disinfectant.