SPEECH 

What is "speech"?

The dictionary defines it as "the expression of or the ability to express thoughts and feelings by articulate sounds"; "the communication or expression of thoughts in spoken words"; "exchange of spoken words: conversation"; "something that is spoken: utterance"; "a usually public discourse: address"; and "a formal address or discourse delivered to an audience".

What does it mean to say something is "free"?

The dictionary defines that as "not costing or charging anything".

If you put the two together, "free speech" would be the "cost" free "expression of thoughts or feeling by articulate sounds" or "cost" free "spoken words", "conversation", "utterance[s]", "public discourse[s] or "formal address[es]".

Costs, of course, are two-way streets.  

Generally speaking, a cost is what an actor is charged for the privilege of doing or buying something. If he is charged nothing, he is doing or buying something for free. Costs, however, are also the charges imposed on others by our acts. In that sense, one's acts are free only if, in addition to not requiring payment by us, they also do not impose costs on others.

In the United States, conservatives like Vice President JD Vance and Elon Musk claim to be "free speech absolutists". But they really aren't. A free speech absolutist would protect speech if it was both cost free to the speaker and cost free to the receiver.  If that speech imposed costs or burdens on the receiver, he would be open to mitigating or eliminating those costs or at least balancing them against the cost-free rights of the speaker.  

Vance and Musk, however, are not free speech absolutists in that sense. 

Rather they are "cost-free-to-the-speaker speech" absolutists. 

The costs imposed on all others are ignored. 

Last week in Munich, Vance upbraided Europeans for violating his version of speech absolutism.  

Given its Nazi past, Germany's penal code makes it illegal to publicly deny the Holocaust, prohibits the dissemination of Nazi or neo-Nazi propaganda (including sharing swastikas and wearing SS uniforms), and criminalizes hate speech that assaults individuals based on their race or national, ethnic or religious background. 

Also in response to that fascist past, Germany's two major political parties -- the Social Democratic Party (SDP) and Christian Democratic Union (CDU) -- have for years adhered to a policy of not aligning with far-right parties like the current AfD (Alternative for Germany) to form any national government.  

This so-called "firewall" against AfD participation  has been erected in response to AfD's extremism. That extremism includes state party leaders who have embraced Nazi slogans, minimized Germany's Nazi past and trivialized the Holocaust. It also includes AfD's participation in a secret conference in 2023 in Potsdam that was attended by at least one Austrian neo-Nazi and called for the mass deportation of "non-assimilated" Germans. In 2017, ten AfD-ers were part of  a Facebook group that posted a meme of Anne Frank's face on a pizza box labelled "oven fresh". 

In his speech in Munich last week, Vice President Vance criticized Germany for refusing to listen to or allow participation in its affairs by right wing groups like AfD and specifically said "there's no room for firewalls."

The immediate reaction to his speech  from Germany was . . .

Disgust.

As The New York Times reported, German Chancellor Olaf Scholtz "accused Mr. Vance of effectively violating a commitment to never again allow Germany to be led by fascists who could repeat the horrors of the Holocaust."  As Scholz put it, "A commitment to 'never again' is not reconcilable with support for AfD". He was then joined in his criticism by Friedrich Merz, the CDU's candidate for Chancellor.

For Germans, any speech flirting with its Nazi past, minimizing the Holocaust or allowing its national government to include parties that associate with neo-Nazis is not free.  Contrary to Vance's claim that democracy requires space and respect for AfD, Germans understand that the kind of thought and speech either accepted or even tolerated by AfD could ultimately kill the post-Nazi democracy they have carefully created and preserved over the last now almost eighty years. 

They understand this because, in the 1920s and early 1930s, this was the kind of speech Hitler and his supporters used to create the political foothold that ultimately resulted in the Weimar Republic appointing him Chancellor.  

It was also the kind of speech that destroyed that republic once the Nazis assumed power.

Democracies can commit suicide.

In the 1930s, Germany's did.

And for that reason, today's Germans do not permit speech that could resurrect that atrocity.

Closer to home, Vance’s demand that Germany remove its restraints on AfD has been seconded by Elon Musk . . .

Who . . .

When not taking an illegal blowtorch to either federal employees or Congressionally sanctioned spending . . .

Has actually endorsed the AfD in its campaign to win Germany’s current federal election. 

This, however, is just another manifestation of Musk’s one-way version of free speech. 

And like Vance’s, it is a version that ignores the costs it imposes on the rest of us. 

In October 2022, Musk acquired Twitter.

Within hours of doing so, he reinstated the suspended account of the Great Britain's  neo-Nazi Britain First party. He also reinstated the account of Donald Trump . . .

Which Twitter's prior owners had suspended in the wake of the January 2021 insurrection and Trump's attempted coup.

For Musk, this was just the beginning.

After he purchased Twitter in 2022 and re-branded it as X in 2023, the amount of disinformation and hate speech  on the site went up dramatically. Hate speech went up by half, transphobic and homosexual slurs by more than 60%. There are now three times more anti-Black tweets than there were pre-Musk. In November 2023 the EU stopped advertising on the site given the rise in hate speech on it, and in Ireland, as other social media took down hate speech that X refused to eliminate, the Prime Minister called for incitement to hatred legislation. 

In response, Musk said "the Irish PM hates the Irish people." 

Musk's one way view of free speech is enhanced in his specific case with the "more for me but not for thee" bonus that comes with being the billionaire owner of a large social media platform.

In July 2024, Musk endorsed Trump for president. In November, a study by the Queensland University of Technology in Australia found that, after that endorsement, Musk's posts on Twitter received 138% more views and 238% more retweets. Because these increases "outpaced the general engagement trends observed across the platform" (or, in other words, were much higher than any trend then associated with Trump or Musk generally), they suggested "algorithmic bias" (a suggestion confirmed by The Wall Street Journal and The Washington Post). The only thing that made this bias suggested rather than proven was the limited data to which the research team had access.

"More for me but not for thee" is the bonus awarded speech by those with money.  

It was created in 1976 when the Supreme Court in Buckley v. Valeo equated money with speech and was enhanced in 2010 when the Court in Citizens United eliminated the ban on corporate campaign contributions. Together, these two decisions have resulted in speech monopolies. Corporations and the billionaires that own Facebook, Instagram, Twitter and major mainstream media outlets like The Washington Post get to buy or control as much speech as they want.

The rest of us get to buy only as much as we can afford.  

The First Amendment to the Constitution states that "Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people to peaceably assemble and to petition the government for a redress of grievances." 

Though America (unlike Germany and many other European countries) takes an expansive view of the kind of speech protected, and a more or less total view of the kind of political speech protected, the Founders did not necessarily accept that view. During the Revolution, James Madison promoted the prosecution of Loyalists and the burning of their pamphlets, and while Madison was generating the Bill of Rights, Thomas Jefferson wrote him proposing this for the First Amendment:

"The people shall not be deprived or abridged of their right to speak, to write or otherwise to publish anything but false facts affecting injuriously the life, liberty, property, or reputation of others or affecting the peace of the confederacy with foreign nations."  

This would have imposed a limitation on the scope of protected political speech.

One reason this limitation did not make it into the actual text of the First Amendment was Madison's fear that moving beyond a statement of  "simple, acknowledged principles" would have made ratification more difficult. Madison wanted to avoid disputes that might arise later (and presumably be resolved later as well). 

Another reason, however, is that the architecture of political speech in the 18th century was relatively simple. There were printing presses, pamphlets, some newspapers and public meetings or assemblies. There wasn't telegraphy, television or the internet and the cost of participation was de minimis.  Simple principles would do because the universe of likely speech was relatively small and monopolized by no one.

None of that is true today. 

In fact, the contrary is the case. 

The philosophical foundation for America's expansive view of free speech is the view that truth and falsehood compete in a marketplace of ideas for which no regulation is needed and any imposed likely to do more harm than good.  Vance and Musk support that view and believe (falsely) that it is (or should be) shared by western democracies generally. 

In truth, however, instant mass communication through the internet on various social media and other platforms is now routine and a handful of billionaires (among them, Musk himself)  control those outlets. And the consequence of their world of one-way free speech and the Supreme Court's of monetized speech is a uniquely dysfunctional marketplace of ideas. 

The speech protected is largely the billionaire's own, whether that billionaire is Elon Musk, Jeff Bezos, Mark Zuckerberg . . .

Or Donald Trump. 

And truth does not always get to compete in that marketplace.  

In fact, as the accession of Trump . . .

The debased acquiescence of Musk, Zuckerberg and Bezos. . . 

And the historic example of Weimar Germany . . .

Prove . . .

It can easily be overwhelmed.

CHAOS, COMEDY AND CORRUPTION IN TWENTY-FIRST CENTURY AMERICA

The political hills and valleys of the last twenty-five years have been a confusing sight to behold.  

Today is February 5, 2025.

It is also my 25th wedding anniversary.

As it turns out, things have worked out better for me than for the country.

On February 5, 2000, Bill Clinton was President and Al Gore was Vice President. The country was at peace. the economy was humming, there was no deficit,  the right to choose existed and peace in the middle east was still possible. Among the actual "firsts" the year would occasion, there were -- in addition to my second marriage (which can only happen once) -- the following:

The first NYC subway series (between the Mets and Yankees) since 1956; 

The first civil union law protecting same sex couples (kudos to Vermont); 

The first patient receiving a totally artificial heart that beat and pumped blood (the Jarvik heart); 

The first crew visiting the international space station; and 

The first presidential election since 1888 in which the winner (George W. Bush) received fewer votes than the loser (Al Gore).

That last first was a precursor of sorts.

A warning of the darker days that would emerge over the course of the next quarter century. 

In 2000, Bill Clinton's extracurricular activities were among the reasons Bush II was able to claim the moral high ground and beat Al Gore. Sixteen years later, however, X-rated bragging about grabbing was ignored by the voters. And eight years after that, not even an adjudication of sexual assault could get in the way of Trump's return to the White House. 

In that same period, a similar hypocritical path was travelled on the issue of voting.

Or, more precisely, on the issue of vote- counting.

In 2000, America's electorate did not decide the presidential election. Instead, in stopping the vote count in Florida and enjoining that state from manually curing an almost certain undercount for Gore, the Supreme Court did. In 2020, by way of contrast, America's electorate did get to decide the election. This time, however, the party that stole the election  through litigation in 2000 tried to steal it through insurrection in 2020. 

History tells us this effort failed.  

The insurrection was stopped.

Biden won and took office. 

But did it fail? 

For four years, the principal insurrectionist lied about the result.

In 2024, that insurrectionist was allowed to run again. 

This time he won.

Do the voters care that their president is a sexual predator?

Do they care that their president is fine with coups in his favor?

Some do. 

More than half apparently do not.

Or, at the very least, they do not care enough.

Because they have allowed it.

When I was young and overwhelmed, I made lists. I tucked them in books and from time to time unfolded them to either check off an item or cross one out. I checked off the items on the list which amounted to chores or jobs I had completed. I crossed out those which had resolved themselves -- those irrational fears that had evaporated . . . 

Or even the rational ones which good luck or a generous friend (or God) had miraculously resolved.

Sometimes the list was short.

Sometimes it was long.

If America made such a list today . . .

It would be long

Here it is.

1. J6 Pardons 

2. Fired J6 Attorneys

3. Investigating the FBI's J6 investigators.

4. Fired Inspectors General.

5. Impoundment.

6. Federal Employee Buy outs.

7. Musk's Digital Coup.

8.The End of USAID.

9. Greenland.

10. Panama.

11. Tariffs.

12. Gaza

13. The Cabinet of Fools

This is a baker's dozen of problems and potential catastrophes.

All crying out for confrontation on any citizen's to do list.

I'm one of the 75 million Americans who voted for Harris and can confidently say . . .

We are already tired of  this shit.

What to do?

In my list-making days, I discovered there was utility in paring the list down, in reducing it to a more manageable size. I also discovered there are a number of ways to do this. One is to know when your problem has really become someone else's.  Another is to recognize general solutions that solve a number of problems. A third is to laugh.

For purposes of relief, let's start with the comedic stuff.

Over the weekend Trump threatened 25% tariffs against Mexico and Canada and on Monday, as the actual point at which they were to take effect was about to arrive and markets were tanking, Trump caved and postponed them for thirty days. Both Canada and Mexico had made it clear they would respond with their own tariffs on American imports. And Trump's plan was universally derided for the significant inflation it would cause . . . 

And the unnecessary ill will it immediately bred.

(At an NHL game in Ottawa over the weekend, fans booed when the Star-Spangled Banner was sung. At an NBA game in Toronto, they did the same. Canada is the country that saved Americans who otherwise would have been taken hostage by Iran in 1979 and then secreted them to safety. It's pretty much impossible to piss Canadians off. Trump, however, managed to do so.)

Like all bullies, Trump punches down. 

He only picks fights with those who are weaker. 

Canada is causing America no problems at all. Contrary to Trump's claim, the amount of fentanyl passing through Canada is negligible; you could fit it in one suitcase. For its part Mexico is aggressively trying to combat the problems that pass through its borders and over ours. Nevertheless, and true to form in this case, two of our friendliest allies and biggest trading partners were to be saddled with 25% duties while China, which is causing problems ranging from the widespread theft of intellectual property to the illegal production of all the precursor chemicals needed to manufacture fentanyl, and against whom strategic tariffs have bipartisan support, was slapped with only a 10% surcharge.

Like most confronted bullies, Trump also (and usually) loses.  

In this case, he packaged his last-minute decisions to pull back as the result of concessions made by Canada and Mexico.  Those putative concessions, however, had nothing to do with his tariff threat. Mexico said it would deploy troops to its northern (our southern) border it had promised to send in 2021 and are already there, and Canada promised to implement a border plan it had approved back in December.  

In short, Trump got nothing.

This will likely be a recurring theme in Trump 2.0, a reprise perhaps of the various unfulfilled "infrastructure weeks" in his earlier term.  To this, however, must also be added Trump's twitter-visions on Greenland and Panama and Gaza.  None of them will become American states or territories or (in the case of Gaza) latter-day occupation zones (`a la Berlin after World War II) in the next four years. Nor will Trump use military force against a NATO ally (Denmark, which owns Greenland) or a party to a treaty we signed decades ago (Panama) or in Gaza (which would be insane). 

Trump is barely willing to fight wars that need fighting and do not cost American lives (e.g., Ukraine).

I doubt he will fight ones that are unnecessary and would be costly in ways that can't be counted.

That does not mean he will not forever tweet and boast and threaten.

He will.

Empty rhetoric is his specialty.

So just laugh

Call it Greenland week.

Or Panama week.

Or Gaza week

Or better yet . . . 

Granaza week.

That leaves two sets of problems on the list that cannot be laughed away (2 through 6 and 7 through 8) and two items (1 and 13) which will plague MAGA more than the rest of us going forward.

The solution to the first set is litigation on the one hand and mobilization on the other. Any civil service employee who is fired can sue the government.  I expect many will. Some already  have (see below). Similarly, impoundment, buyouts, ending the Agency for International Development, or any refusal to cut Treasury checks, sharing of personal identifying information or use of digital access to abolish statutorily established and sanctioned departments, divisions or expenditures is illegal. 

In her Letters From an American on Tuesday, Heather Cox Richardson noted that Trump's billionaire apparatchik, Elon Musk, has "taken control of the US Treasury payments system" and "claims to have been cancelling those transactions he thinks wasteful." According to Richardson, he then "went on to the General Services Administration" and told "regional managers . . . to begin ending the leases on federal offices."  SBA employees report Musk has "gotten into that agency's human resources, contracts and payment systems" and, says Richardson, "By this afternoon Musk people were digging into the data of the Department of Education with an eye to dismantling it from the inside". This morning, Richardson's Letter cited  a report that one of Musk's 25-year-old engineers "had the privilege to write code on the programs for the Bureau of Fiscal Services that control more than 20% of the US economy".

What could possibly go wrong?

All of this is more than suspect.

Most of it is also illegal.

And the lawsuits have already begun.

Last week, the National Treasury Employees Union filed suit to stop  Trump's Executive Order removing federal employees from civil service  protection.  On Monday, Trump's initial spending freeze or impoundment was enjoined by the federal District Court in DC as that case proceeds through the courts. Also on Monday, three employees unions sued Trump for violating federal privacy laws by allowing the Treasury to share data with Musk and his twenty-something data nerds, and eleven state attorneys general warned federal employees not to take Trump's buy-out offers seriously. As they put it, the "offers are nothing more than the latest attack on federal workers and the services they provide" and "are not guaranteed". On Tuesday, anonymous FBI agents filed a class action to stop Trump from publicizing their names and firing any agents who investigated the J6 cases. Previously, state AGs had also sued to stop Trump's spending freezes and a Rhode Island federal judge had granted a temporary restraining order doing so.

Trump, the so-called disrupter who now runs the second branch of government, has created the impression of endless action over the course of the first two weeks of his latest presidency. 

Given his moves, however, the busiest branch over the next four years will not be the Executive.  

It will be the Judiciary.

There are those who think judicial decrees will not matter, that Trump will simply ignore them. Maybe so (at which point revolution will be the only alternative). But he hasn't in the past. He has been contemptuous of courts and used either the office he held or was running for to protect that contempt from the consequences it would otherwise meet.  But he hasn't ignored the orders and the greater threat is that the Supreme Court will endorse his dictatorial impulses. Two weeks ago, I asked The New York Times publisher A.G. Sulzberger if he thought New York Times v. Sullivan would survive this Supreme Court. His laconic "we'll see" was not inspiring.  

Stay tuned. 

In the meantime, two problems will not go away and will plague Trump 2.0 every day going forward.

The first is the pardons issued the J6 insurrectionists.

The second is his Cabinet of Fools

Two-thirds of Americans despise the J6 pardons. Every time Trump yells law and order, we will yawn.  He is and forever will be the guy who pardoned cop killers.  He is also the only president who orchestrated an attempted coup, pardoned his fellow coup-plotters, and then (eventually) fired the patriots who prosecuted the coup in the first place.

That will never change.

Meanwhile . . .

Bobby Kennedy still thinks vaccines may cause autism.

Tulsi Gabbard cannot recognize a traitor.

Kash Patel's enemies list is in print.

And sooner or later . . .

You just know . . .

Pete Hegseth will take a drink.