Libertarian, free speech specialist lawyer/blogger Ken White has some news for the anti-Brett Kavanaugh fanatics who are claiming that he will lead an evil Republican plot to take away our civil rights. In a Popehat post titled “You”ll Hate This Post on Brett Kavanaugh”, —which tells you a lot about his readers, don’t you think?—Ken demonstrates that he. unlike the reflex foes of President Trump’s distinguished nominee to replace Justice Kennedy on the Supreme Court, has done his home work, and has made a fair and objective analysis of Kavanaugh’s record on the crucial Constitutional issue of free speech.
His conclusion?
“In conclusion, Kavanaugh’s work on the D.C. Circuit show a judge strongly protective of free speech rights, and part of the trend of applying free speech doctrines both to classic scenarios and to government regulation. His stance on telecommunications and elections laws will get him painted as part of the “weaponize free speech” movement by results-oriented thinkers. He’s strong on First Amendment limits on defamation law and his approach to anti-SLAPP statutes do not, as some have suggested, signal that he wants to make defamation cases easier. But though he might help upset applecarts by applying the First Amendment to regulatory schemes, and will not uphold broad speech restrictions, he will likely not overturn doctrines that make it hard for individuals to recover for speech violations.”
This won’t make any difference to “the resistance,” of course, or Chuck Schumer, or your Facebook friends who have never bothered to read a single one of the judge’s opinions but just know he’s a heartless, Nazi monster since he was appointed by one. But whatever Ken White is, he is not partisan, or political, and like me, he correctly regards the freedom of speech as the cornerstone of our democracy, and dedicated protectors of it —like Ken—as ethics heroes.
By the way, I love his post. I wonder how many Democrats and progressives have the integrity to accept it. Being a defender of free speech may be just one more reason for the Left to fear Brett Kavanaugh.
Ethics Alarms 
I am not a 1st amendment wonk, so I don’t understand 100% of the arguments here, but I do feel protecting the 1st amendment is one of the most important things we (and especially the Supreme Court) need to do. It is one of the rights currently under fire and that many these days seem to feel is obsolete.
So this post is very encouraging.
I suspect this post will make the Anti-Kavanaugh Democrats only more fervent in their opposition to him. The progressives of today are against pretty much the whole of the Bill of Rights.
I think there should be more elucidation on how the Supreme Court will treat civil asset forfeiture…that quiet injustice that is a perennial but ignored problem across the culture that no side of the aisle seems to eager to address.
And I’d like more clarification on exactly what ‘chevron deference’ is, since that term has been used more times in the last week than it has in the entire history of mankind.
(Well, the libertarian factions of the GOP and the libertarianish factions of the DNC occasionally mention address the problem)
Hear, hear ! What a blight on our beautiful system of justice that is !
It seems surreal that such a patently evil practice could have this kind of longevity here.
This is one of those areas I think Trump could make a lasting, positive contribution. I think Trump should gather the DEA, Marshalls, and ICE and unleash them on California. Every pot dispensary is violating Federal law. They should seize the dispensaries, the inventory, and all the assets of every employee. They don’t even need to press charges. The victims of this enforcement won’t press the issue in court because they would be facing a possible 5 years in jail and up to a $1 million fine for each count. As the agents swept through California like locusts, sucking up valuable real estate, finding criminal illegal aliens, and ending pot-entrepreneurs’ dreams, a cry would go up for this to stop. Of course, it is perfectly legal. This is exactly how civil asset forfeiture was intended to work. The only way to stop it would be to change the law. Good
The problem is, Democrats, particularly progressive Democrats, object to the following elements of Kavanaugh’s positions, at minimum:
1 Campaign finance reform position — Progressives reject the concept of corporate personhood because it overcomes their advantage of union political activity.
2 Defacing government property &msdash; Progressives think that this is their right, if not in the name of free speech, in the name of art.
3 Commercial speech — Progressives think all corporations are evil, and by extension, all speech they produce.
4 Government speech — I can’t imagine the progs being happy with the government, when it’s not in progressive hands, being able to fund the message it chooses. Discrimination, you know.
5 Net neutrality — Given the progressive freakout when NN was overturned by the FCC, this needs no exposition. Kavanaugh’s position would be universally loathed by the Left.
6 Limited to text and history — Again, this needs no exposition of progressive loathing.
7 Unions — His finding that a casino could call the cops on protesters is clearly racist, by progressive “reasoning.” Because calling the cops on any non-white, non-Asian person is always racism.
Perhaps on the other two points, I could argue that the Left would be mostly neutral, or at least not automatically hostile. But on the rest, Kavanaugh is completely at odds with progressive thinking.
Glenn Logan wrote, “3 Commercial speech — Progressives think all corporations are evil, and by extension, all speech they produce.”
When you come across folks that appear to think that way, feel free to share some of the content of this.
Corporate personhood is not relevant to campaign finance. Really. Anyone who says otherwise hasn’t actually read the Citizens United decision. Of course, every single progressive I’ve talked to is convinced otherwise.
I otherwise approve of your comment.
Well stated
Something that Ken White touched on very early in his blog is something that I think deserves an in-depth ethical evaluation.
This has been bothering me a lot since the first time I read it and now I’m hearing it used openly in conversations as if it’s fact; the “conservatives are weaponizing the First Amendment” narrative has got to be the most classic example of mass *psychological projection* as a defense mechanism that has ever presented itself in modern times. These *hypocritical* claims are becoming wide-spread and on a scale that I’ve never before seen in my lifetime.
We have seen the political left, social justice warriors, #MeToo movement, and the anti-Trump resistance “weaponizing the First Amendment” for years and the practice has grown worse over the last couple of years. It’s become absolutely clear to me that the left is now fully consumed in their use of weaponized free speech against anything and everything they oppose, without their weaponizing of the First Amendment their core *Rhetorical ABC’s* would be useless. Based on their actions, it’s my opinion that the political left fully believes that they have the Constitutional right to weaponize their free speech to protect their “settled ideology”, what ever that is, and destroy the individual rights of those they oppose by bullying society as a whole into preventing any opinions from being shared that opposes that “settled ideology”.
I’m a big free speech advocate; however, in regards to “weaponizing the First Amendment” the question that hounds me day in and day out is…
When does you exercising your individual right to free speech to intentionally deny me the ability to exercise one or more of my individual Constitutional rights become intentional infringement and therefore unconstitutional?
If there’s a legal answer to that question, I’d like to read it.
*Psychological projection* “is a defense mechanism people subconsciously employ in order to cope with difficult feelings or emotions. Psychological projection involves projecting undesirable feelings or emotions onto someone else, rather than admitting to or dealing with the unwanted feelings.”
*Hypocrisy:* the practice of claiming to have moral standards or beliefs to which one’s own behavior does not conform; pretense.
*Rhetorical ABC’s* are the rhetorical tactics of Attack, Bastardize and Condemn. Attack: Attack the messenger and ignoring the message. Bastardize: Misrepresent or corrupt meanings of words or statements and attack that instead. Condemn: Demonize the opposition; evil must be destroyed.
I really don’t like that definition of hypocrisy. I know it is the main one, but I dislike it for the very reason that all good people are hypocrites. If I have sufficient standards for moral and ethical behavior, I will fail to achieve them. That is why all good Christians are hypocrites. People’s standards and moral aspirations should be something to strive for, even if they are never fully achieved. The only way to not be a hypocrite is to have no standards at all. There are a lot of times that I feel this is the Progressive position “I may be a Communistic, hateful, bigoted, intolerant bully…but at least I’m not a hypocrite!”.
I think the real problem is when you are willing to condemn others for the same failures you have yourself. I do not necessarily have a problem with striving hypocrites. I do have a problem with those who will condemn others for reasonable failings.
Michael R. wrote, “I think the real problem is when you are willing to condemn others for the same failures you have yourself.”
I challenge you share my comments that show that I’m a hypocrite in a similar way as what I talked about, for that matter show me I’m a hypocrite using any of my comments.
Michael R. wrote, “I do not necessarily have a problem with striving hypocrites.”
That sounds a little like a rationalization to me.
Michael R. wrote, “I do have a problem with those who will condemn others for reasonable failings.”
I take that as you have a problem with me condemning others for the failures I mentioned; you’re welcome to your opinion.
Taken in context with our little conversation I have to ask, do you really think what I wrote about is a “reasonable failing” of the political left, social justice warriors, #MeToo movement, and the anti-Trump resistance in that we should just rationalize it away because it should somehow be expected?
So, a recovering alcoholic, who is trying not to drink, but relapses once, is condemned. The person who believes it is wrong to lie, but does occasionally, is condemned. The person who believes life is sacred, but is called to war and kills for their country is condemned. The person who believes in being a good example for their children, but fails every once in a while, is condemned. All these people are hypocrites. I believe almost anyone who strives to be a good person is a hypocrite, if you want to be strict about it. That is my issue with the term. People use it to exclude others, and as such, you can exclude almost anyone.
It appears I may have offended the one perfect human in existence. If so, my apologies. You have challenged me to prove you are a hypocrite. Well, I am do not care to delve into your every thought and deed. You search yourself and see if you have ever lied, been unkind, hated someone irrationally, violated the law, eavesdropped, gossiped, or done any number of things that most people think are wrong, but occasionally do and tell themselves they won’t do again. Again, I don’t know you, and maybe you haven’t and you are a much better person than I. I can honestly say that I am not perfect and have done many things I don’t think are right. I try not to do them and don’t think it is right that I did them, but I am not going to kid myself and think that I am perfect. Is it a rationalization, or an observation of human nature?
Michael R.,
I’m going to be honest; I think it’s very clear that you are unethically rationalizing these things when the unethical individual acts should be “condemned”; look back at this conversation, condemned is your word not mine.
Michael R. wrote, “You have challenged me to prove you are a hypocrite. Well, I am do not care to delve into your every thought and deed.”
Your implication was that I was showing that I’m a hypocrite and I didn’t as you to “delve into my every thought and deed” I challenged you to “share my comments that show that I’m a hypocrite in a similar way as what I talked about, for that matter show me I’m a hypocrite using any of my comments”. You haven’t done that.
Thanks for the chat.
Michael R. wrote, “I really don’t like that definition of hypocrisy. I know it is the main one, but I dislike it for the very reason that all good people are hypocrites.”
Well by all means let’s change the definition so you aren’t somehow offended by it.
What the heck do you think the definition of hypocrisy should be? That’s a real question, I expect an answer.
Words have meaning, bastardizing those meanings is wrong.
Michael R. wrote, “The only way to not be a hypocrite is to have no standards at all.”
This is a morally/ethically bankrupt statement.
Doesn’t hypocrisy require cognizance and intent as well as failing? In short: “Do as I say, not as I do,” incorporates cognizance and premeditation.
People who periodically unintentionally or regretfully fail are not hypocrites because they don’t actually desire or premeditate their failing. Further, they have no intention of repeating it.
Hypocrites, like Honey Badger, don’t give a fudge.
Am I missing something?
I think the important thing to remember is that hypocrisy isn’t always wrong or evil, moral and ethical failings are a part of the human condition, and forgiveness is an enabling virtue for a reason.
We’ve been conditioned to think that hypocrisy is automatically evil, but does that mean we can’t tell our kids not to experiment with drugs if we did it? Also, does it force us to assume that transparency about our youthful moral failing is automatically better, but it could undermine our perceived moral authority and foment the outcome we are trying to avoid.
Recall François de La Rochefoucauld; “Hypocrisy is the tribute vice pays to virtue.” I think this is the perfect explanation of how to view hypocrisy. We often use hypocrisy as a weapon against our political and ideological foes, but it is also the voice of experience gotten the hard way, and that experience is too valuable to leave unused because of a perception of hypocrisy.
We all fail to live up to our own expectations, and the expectations of others that we accept as just and fair. That failure often gives us the voice of experience, but that voice can be hypocritical by definition. We just have to know that going in. Where hypocrisy becomes truly wicked is when the unrepentant person is willing to allow himself things, and uses it as a weapon against others while condemning them for doing the very same thing.
Thanks for the considered cogent response.