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If this life be not a real fight, in which something is eternally gained for the universe by success, it is no better than a game of private theatricals... But it feels like a real fight--as if there was something really wild in the universe which we are needed to redeem - Wm. James

Writing up that last post reminded me of another useful consequence of a Pragmatic worldview. The admission that are all of our ideals and institutions are of human origin, and thus mutable, also implies that we can take nothing for granted. I think taking the accomplishments of the New Deal and the 60's for granted is a big part of what allowed our civil society to deteriorate to the level of the current political situation.

After 1968, or 1972 at the latest, the American Left in many ways declared victory and went home, ceding the field to the forces of the radical Right, who were willing and increasingly able to move heaven and Earth in attempt to roll back those gains. They needed to be fought tooth and nail the whole way, but really we only began to see some real fight and commitment return to the Left with the Clinton impeachment, and we didn't have anything like what was called for until very recently.

A lot was accomplished in the era from FDR to LBJ, and American liberals could be justifiably proud of that legacy, but to make good on it they needed to stay in the trenches and fight for it. No social or political ideal or arrangement can endure unless there are many people who continue to actively value and embody it, and who are willing to make a lifelong commitment to defend it. Positive social change, though plenty difficult in its own right, may well be the easy part of the equation in comparison to the long slog of consolidating the change and vigilantly defending it from reactionary forces.

I hope we've learned that lesson in the wake of what happened from Nixon through Dubya, but I wish that our country and our world didn't have to be put through all of this hell in the first place. If a large portion of the people who made up the mass social and political movements of the 60's had committed themselves to the long and messy political process of defending what they just had worked so hard to accomplish, instead of moving to the suburbs to have kids, or taking up disco and cocaine, or becoming high-rolling investment bankers, or whatever the hell they did after they disappeared from the public stage and let the Silent Majority wreck everything they had just built, we wouldn't be in this mess.

And yes, I'm a little bitter. I've got another post brewing about how the 60's and many of the Boomers went wrong. I think a lot of the problems that led to the dissolution of those movements were inherent to their structure, ideology, and culture from the beginning. If things are indeed turning again, I hope we will do better and be wiser and more committed and practical this time around.

I'll start this out by saying that I come from the position of a pretty strong free speech zealot. I'm a card-carrying ACLU member, and so on. But, there's a lot of confusion going on out there lately about what freedom of speech really is and means.

Free speech is a right of individuals and groups in relation to the state, not in relation to each other. This is something that the people who are kneejerking about the proposed or actual moderation of comments on web forums and blogs in response to the recent hateful and scary attacks on feminist bloggers should keep in mind. Allowing unfettered speech might be a good principle to try to uphold personally or as a community, but nobody has a right to be jerk or a bigot with impunity on anyone else's website or in any community's forum, any more than they have a right to spam someone else's site or forum. You delete spam, don't you? That's speech too, albeit often of a rather dadaist and puzzling variety.

And especially now that public outlets for anyone's speech are essentially free and fungible, even the principle of allowing unfettered speech is pretty weak. If someone wants to say hateful or bigoted things in relation to something I write, they can start up a blogspot blog for free and link/rant to their heart's content, and I can't and won't do anything to stop them unless they defame me or threaten me with violence. But I'm sure as hell not going to invite them to do it in my own sandbox that I'm paying for and maintaining and that carries my name and represents my identity to the larger world.

Reading this post at Slacktivist reminded me that these confusions about speech also extend to hate crime laws. The first big problem is a misapprehension of what hate crime laws actually do. Hate crime laws do not ban hateful speech. If they did, I would oppose them. The KKK and the Nazis can still have their marches and hand out their literature and run their websites, and I'll fully support their right to do so, though I'll also support my and everyone else's right to shout them down and/or ignore them. Again, they have the right to appear in the public square and say their piece without government interference, but the community has a right to express their opposition as well. If the community breaks other laws in trying to suppress their speech, such as by threatening or doing violence to them, then they're in the wrong, but vigorous opposition within the law is covered just as much under the 1st Amendment as the hateful speech being opposed.

As for the more nuanced issues regarding speech, thoughts, crime, and punishment: Hate crimes do indeed concern speech and thoughts, but only insofar as they pertain to motive, intent, and culpability for a crime. Consider the varying degrees of culpability involved in different scenarios in which a pedestrian is run down by a car: Someone who has a heart attack and runs down a pedestrian is less culpable than someone who accidentally does so, who is less culpable still than someone who is drunk and does so, who finally is less culpable than someone who makes and executes a plan to do so. As soon as you act on your thoughts to harm others, those thoughts become a part of the context and the evidence by which the nature of your crime and the degree of your guilt is measured, and it's hard to argue that the punishment is for some sort of "thoughtcrime," unless you think that either state of mind, thoughts, and speech should be inadmissable as evidence in any crime, or that everyone who thinks or expresses hateful or bigoted thoughts is inevitably going to act on them and should be preemptively charged.

So how is it any different to add another category to the above scenarios: someone who makes and executes a plan to run down a black man to send a message to others like him that they are not welcome or safe in a neighborhood, or to run down someone in front of an abortion clinic to scare others who might try to get an abortion? The murder is already a crime, and hate crime laws add in the possibility of an additional crime of attempting to terrorize a whole class of people, if said intent can be proven to the jury.

Something I don't quite get about conservatives who oppose hate crime laws is that they are often very much in favor of extra punishment for violence-as-speech when said violence is overtly political, which is called terrorism. Setting off a bomb and killing people is a crime already, so why add an extra punishment for the speech or intent part? That's the same logic as "assault is a crime already, so why add an extra punishment if the violence was intended to send a message to a particular minority?" And of course, it bleeds together at the margins. Was the KKK at the height of their power a domestic terrorist organization? I would say yes. They participated in and fomented violence intended to terrorize everyone else into accepting their preferred political and social arrangement. Their individual acts could be seen as hate crimes today, but when they became pervasive enough, it amounted to terrorism. When hate-motivated violence expands from individual cases to a broader social environment, it thus becomes political and pretty much indistinguishable from terrorism.

Now, there are some scenarios that are a little more exclusive to speech. You can probably be charged with a hate crime under some statutes for, say, burning a cross on a black family's yard. But, not all speech is protected. Credible threats of violence constitute assault under most assault laws (hence the distinction between assault and battery) and in the context of American racial violence, it is not hard to see a burning cross on your lawn as a credible threat of violence. In the very odd but I suppose possible case in which it wouldn't be, well, that's why we have prosecutors with leeway and jurys of our peers who have to be convinced beyond reasonable doubt.

So, to sum it up, speech is free, but not free as in beer, and lots of folks would do well to take that into account.