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Like China, India’s Modi Is Engaged in a Massive Faith Cleansing of its Muslim Minority

Many people expected Prime Minister Narendra Modi’s landslide re-election victory this summer to spell trouble for India’s pluralistic democracy. But few appreciated just how much trouble. Last week, in two days flat, the Modi government pushed through both chambers of parliament the Citizenship Amendment Bill (CAB). This law uses a good cause as a Trojan horse to advance a radical faith-cleansing agenda that has more than a passing similarity with the shocking policies that China has deployed against its Uighur Muslim minority.

On the surface, CAB is a mass amnesty bill of the kind that pro-immigration advocates in America can’t even dream of. It amends India’s Citizenship Act to hand expedited citizenship—not mere legal status—to Hindus, Sikhs, Buddhists, Jains, and Christians from Pakistan, Afghanistan, and Bangladesh currently living in the country without authorization.

But it conspicuously leaves out Muslims. This means that the Ahamadiyyas, who belong to a reviled Islamic sect in Pakistan, are out of luck—as are the Rohingya from neighboring Myanmar. The omission of the Rohingya lends a lie to the official explanation for excluding Muslims, namely, that the bill is aimed at handing relief only to persecuted minorities in India’s neighboring countries, not members of the majority population. Myanmar is a majority-Buddhist country that has subjected the Rohingya minority to some of the most grisly bloodletting in modern times. Yet they didn’t qualify.

This kind of anti-Muslim discrimination isn’t the worst feature of the citizenship bill. What makes it even more abominable is that it lays the legal groundwork for a wholesale attack on the rights of India’s 140 million Muslim citizens, not just unauthorized Muslim refugees.

The Modi government has pledged to create a National Register of Citizens before the 2024 election that will contain the name of every man, woman, and child in the country who is entitled to be an Indian citizen. The eligibility criteria to get on the list is not entirely clear yet, but if the pilot in the state of Assam is any indication, all of India’s 1.3 billion residents will have to produce papers to show that they or their ancestors have lived in the country since before 1971.

This exercise will change the fundamental presumption of the Indian polity: Indians will now have to prove to their government that they’re entitled to citizenship rather than the government having to show them they’re not. An additional problem is that India is an exceedingly informal country where people, particularly the poor and illiterate, don’t bother to maintain meticulous records. In villages especially, people often don’t even know their birth dates, let alone keep birth certificates or passports going back generations. Nor do municipal governments bother with good record-keeping, making it incredibly difficult for people without means or connections to retrieve the necessary documents.

The upshot in Assam was that a whopping four million people—13 percent of the state’s population—were excluded from the NRC. This would have been no problem for Modi if the excluded were Muslims. Amit Shah, his home minister, whose brainchild this whole scheme is, calls Muslims termites and infiltrators and made an election promise to throw them into the Bay of Bengal. But as it happened, lots of Hindus in the state didn’t make the list either. If this happens nationally, the whole purpose of the exercise—boosting the already massive numerical strength of Hindus—would be defeated. Hindus are 80 percent of India’s population and Muslims only 14 percent. But in the paranoid Hindu nationalist mind, that is not enough of a guarantee of enduring Hindu dominance against the allegedly higher Muslim fertility rates.

That’s where the citizenship bill comes in. It will offer recourse to Hindus who are unable to prove their ancestry to get on the NRC, but not to Muslims in the same predicament. According to Indian Express‘ Harsh Mander, in Assam CAB will treat all Hindus who speak Bengali as refugees, even those born in India, so that they can qualify for its immunity. But Bengali-speaking Muslims will be excluded. Similar guidance will likely apply in other parts of the country. So Muslims whose Indian ancestry dates back eons will be rendered stateless, but Hindus—recent arrivals and those with longstanding roots alike—will be protected. This makes a mockery of the rule of law.

What are Modi’s plans for Muslims who can’t satisfy his stipulations?

Unless some other country agrees to take them, they’ll be evicted from their homes and communities and thrown into detention camps that his government has already started constructing around the country. This will affect literally every Muslim in the country. But the hardest hit will of course be poor Muslims who don’t have the money to buy off bureaucrats. Many of them may well prefer conversion to imprisonment. Either way, this will serve the faith-cleansing agenda of Hindu nationalists who for years have been offering mass reconversion ceremonies to Muslims.

If this seems like what China is doing to Uighur Muslims, that’s because it is. Beijing has reportedly thrown 1.5 million Uighurs—more than 10 percent of the country’s total Uighur population—into internment camps, where they are being subjected to brutal torture and political indoctrination against their own faith. But given India’s much larger Muslim population, the scale of Modi’s operation may well dwarf China’s.

The Hindu nationalists’ beef—so to speak—isn’t only with Muslims. As far they are concerned, India is meant only for indigenous faiths whose holy places reside on the Indian subcontinent, not in Mecca or Bethlehem. That would mean that India’s 65 million Christians don’t really belong in the country either. Violence against them is already rampant and rising.

The fact is that no group is really safe under a mentality that gets high from its powers of exclusion. It will always find ways to discriminate based on infinitesimally small differences and disagreements. Sikhs, who belong to a minority indigenous faith, have faced their share of violence in contemporary India. Nor is being a Hindu any protection. Hindu nationalists hate liberal Indians of any faith more than anyone else. It has become fashionable to dehumanize them as “libtards” and “sickularists,” and violence against them is also on the rise.

It may take a while before Modi and his fellow nationalists officially declare open season. Or it may happen quickly. (The fact that the government is responding with massive violence against anti-CAB protests that have broken around the country might suggest the latter.) After all, who would have thought 10 years ago that a country impatient for more liberalization and modernization would be staring at what might turn out to be the largest disenfranchisement drive in human history?

If Modi is possible in India, then anything is possible.

A version of this column originally appeared in The Week.

 

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Like China, India’s Modi Is Engaged in a Massive Faith Cleansing of its Muslim Minority

Many people expected Prime Minister Narendra Modi’s landslide re-election victory this summer to spell trouble for India’s pluralistic democracy. But few appreciated just how much trouble. Last week, in two days flat, the Modi government pushed through both chambers of parliament the Citizenship Amendment Bill (CAB). This law uses a good cause as a Trojan horse to advance a radical faith-cleansing agenda that has more than a passing similarity with the shocking policies that China has deployed against its Uighur Muslim minority.

On the surface, CAB is a mass amnesty bill of the kind that pro-immigration advocates in America can’t even dream of. It amends India’s Citizenship Act to hand expedited citizenship—not mere legal status—to Hindus, Sikhs, Buddhists, Jains, and Christians from Pakistan, Afghanistan, and Bangladesh currently living in the country without authorization.

But it conspicuously leaves out Muslims. This means that the Ahamadiyyas, who belong to a reviled Islamic sect in Pakistan, are out of luck—as are the Rohingya from neighboring Myanmar. The omission of the Rohingya lends a lie to the official explanation for excluding Muslims, namely, that the bill is aimed at handing relief only to persecuted minorities in India’s neighboring countries, not members of the majority population. Myanmar is a majority-Buddhist country that has subjected the Rohingya minority to some of the most grisly bloodletting in modern times. Yet they didn’t qualify.

This kind of anti-Muslim discrimination isn’t the worst feature of the citizenship bill. What makes it even more abominable is that it lays the legal groundwork for a wholesale attack on the rights of India’s 140 million Muslim citizens, not just unauthorized Muslim refugees.

The Modi government has pledged to create a National Register of Citizens before the 2024 election that will contain the name of every man, woman, and child in the country who is entitled to be an Indian citizen. The eligibility criteria to get on the list is not entirely clear yet, but if the pilot in the state of Assam is any indication, all of India’s 1.3 billion residents will have to produce papers to show that they or their ancestors have lived in the country since before 1971.

This exercise will change the fundamental presumption of the Indian polity: Indians will now have to prove to their government that they’re entitled to citizenship rather than the government having to show them they’re not. An additional problem is that India is an exceedingly informal country where people, particularly the poor and illiterate, don’t bother to maintain meticulous records. In villages especially, people often don’t even know their birth dates, let alone keep birth certificates or passports going back generations. Nor do municipal governments bother with good record-keeping, making it incredibly difficult for people without means or connections to retrieve the necessary documents.

The upshot in Assam was that a whopping four million people—13 percent of the state’s population—were excluded from the NRC. This would have been no problem for Modi if the excluded were Muslims. Amit Shah, his home minister, whose brainchild this whole scheme is, calls Muslims termites and infiltrators and made an election promise to throw them into the Bay of Bengal. But as it happened, lots of Hindus in the state didn’t make the list either. If this happens nationally, the whole purpose of the exercise—boosting the already massive numerical strength of Hindus—would be defeated. Hindus are 80 percent of India’s population and Muslims only 14 percent. But in the paranoid Hindu nationalist mind, that is not enough of a guarantee of enduring Hindu dominance against the allegedly higher Muslim fertility rates.

That’s where the citizenship bill comes in. It will offer recourse to Hindus who are unable to prove their ancestry to get on the NRC, but not to Muslims in the same predicament. According to Indian Express‘ Harsh Mander, in Assam CAB will treat all Hindus who speak Bengali as refugees, even those born in India, so that they can qualify for its immunity. But Bengali-speaking Muslims will be excluded. Similar guidance will likely apply in other parts of the country. So Muslims whose Indian ancestry dates back eons will be rendered stateless, but Hindus—recent arrivals and those with longstanding roots alike—will be protected. This makes a mockery of the rule of law.

What are Modi’s plans for Muslims who can’t satisfy his stipulations?

Unless some other country agrees to take them, they’ll be evicted from their homes and communities and thrown into detention camps that his government has already started constructing around the country. This will affect literally every Muslim in the country. But the hardest hit will of course be poor Muslims who don’t have the money to buy off bureaucrats. Many of them may well prefer conversion to imprisonment. Either way, this will serve the faith-cleansing agenda of Hindu nationalists who for years have been offering mass reconversion ceremonies to Muslims.

If this seems like what China is doing to Uighur Muslims, that’s because it is. Beijing has reportedly thrown 1.5 million Uighurs—more than 10 percent of the country’s total Uighur population—into internment camps, where they are being subjected to brutal torture and political indoctrination against their own faith. But given India’s much larger Muslim population, the scale of Modi’s operation may well dwarf China’s.

The Hindu nationalists’ beef—so to speak—isn’t only with Muslims. As far they are concerned, India is meant only for indigenous faiths whose holy places reside on the Indian subcontinent, not in Mecca or Bethlehem. That would mean that India’s 65 million Christians don’t really belong in the country either. Violence against them is already rampant and rising.

The fact is that no group is really safe under a mentality that gets high from its powers of exclusion. It will always find ways to discriminate based on infinitesimally small differences and disagreements. Sikhs, who belong to a minority indigenous faith, have faced their share of violence in contemporary India. Nor is being a Hindu any protection. Hindu nationalists hate liberal Indians of any faith more than anyone else. It has become fashionable to dehumanize them as “libtards” and “sickularists,” and violence against them is also on the rise.

It may take a while before Modi and his fellow nationalists officially declare open season. Or it may happen quickly. (The fact that the government is responding with massive violence against anti-CAB protests that have broken around the country might suggest the latter.) After all, who would have thought 10 years ago that a country impatient for more liberalization and modernization would be staring at what might turn out to be the largest disenfranchisement drive in human history?

If Modi is possible in India, then anything is possible.

A version of this column originally appeared in The Week.

 

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Police Union Chief Claims That Lax Marijuana Enforcement Killed a College Freshman

Last week, an 18-year-old freshman student at Barnard College named Tessa Majors was stabbed to death in a Manhattan park. The New York Police Department (NYPD) believes the killer is a 13-year-old middle school student they have yet to locate. The police have talked to two other middle schoolers who were present at the crime.

Now the head of the Sergeants Benevolent Association, Ed Mullins, is attributing the death to New York’s lax enforcement of marijuana prohibition. He told a radio program:

What I am understanding is that [Majors] was in the park to buy marijuana….We don’t enforce marijuana laws anymore. We’re basically hands-off on the enforcement of marijuana. I understand the mayor made statements that this is surprising on how this can happen in New York City….I really have to question what world he’s living in to think that this is surprising, when we are watching the city slowly erode, with shootings, stabbings, an increase in homicides and, most importantly, a hands-off policing policy.

In such statements, you hear the dying echoes of what might be called the “Reefer Madness mindset,” in which devil weed is the source of all forms of evil and criminality, even when it remains illegal.

New York has a medical marijuana exemption but it is still prohibited under state law to sell, buy, transport, or grow marijuana. Since 2014, the NYPD has been instructed by Mayor Bill DeBlasio not to arrest most people found carrying or smoking pot, even when such use breaks “public view” laws that were routinely invoked to arrest people under the old “stop and frisk” procedures. Since August, possession of under two ounces of marijuana has been a non-criminal, ticketable offense in New York City.

The city’s violent crime levels have remained basically constant in recent years. Through the end of November, the city recorded 299 homicides, up from 275 over the same period last year. Overall, the crime rate was down 1 percent compared to last year. Homicides in New York City peaked at 2,245 in 1990 and this year’s rate remains on par with rates last seen in the early 1950s. New York’s current population is a record high of 8.6 million.

Regardless of the legal status of pot in the Big Apple, does Sgt. Mullins seriously believe that crime and violence around marijuana would increase if it could be purchased legally, like beer, wine, and whiskey? There are still stickups and shootings at corner delis and liquor stores, but no one attributes such crimes to alcohol’s legal status. A major 2017 study found that states on the border between the United States and Mexico that legalized medical marijuana saw decreases in violent crime between 5.6 percent and 12.5 percent. This fall, a study of crime in California and Washington state found that “legalizing recreational use of the drug appeared to have little to no effect on the number of violent and property crimes.” A 2013 study by Rand Corporation for the Office of National Drug Control Policy concluded that “marijuana use does not induce violent crime” and “the links between marijuana use and property crime are thin.”

The full story surrounding Tessa Majors brutal and senseless killing has yet to emerge—including definitive proof that she was trying to buy marijuana. But whatever details come out, it’s hard to see how they will support the idea that maintaining a black market in pot sales will somehow generate less crime and violence than a legal one.

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Police Union Chief Claims That Lax Marijuana Enforcement Killed a College Freshman

Last week, an 18-year-old freshman student at Barnard College named Tessa Majors was stabbed to death in a Manhattan park. The New York Police Department (NYPD) believes the killer is a 13-year-old middle school student they have yet to locate. The police have talked to two other middle schoolers who were present at the crime.

Now the head of the Sergeants Benevolent Association, Ed Mullins, is attributing the death to New York’s lax enforcement of marijuana prohibition. He told a radio program:

What I am understanding is that [Majors] was in the park to buy marijuana….We don’t enforce marijuana laws anymore. We’re basically hands-off on the enforcement of marijuana. I understand the mayor made statements that this is surprising on how this can happen in New York City….I really have to question what world he’s living in to think that this is surprising, when we are watching the city slowly erode, with shootings, stabbings, an increase in homicides and, most importantly, a hands-off policing policy.

In such statements, you hear the dying echoes of what might be called the “Reefer Madness mindset,” in which devil weed is the source of all forms of evil and criminality, even when it remains illegal.

New York has a medical marijuana exemption but it is still prohibited under state law to sell, buy, transport, or grow marijuana. Since 2014, the NYPD has been instructed by Mayor Bill DeBlasio not to arrest most people found carrying or smoking pot, even when such use breaks “public view” laws that were routinely invoked to arrest people under the old “stop and frisk” procedures. Since August, possession of under two ounces of marijuana has been a non-criminal, ticketable offense in New York City.

The city’s violent crime levels have remained basically constant in recent years. Through the end of November, the city recorded 299 homicides, up from 275 over the same period last year. Overall, the crime rate was down 1 percent compared to last year. Homicides in New York City peaked at 2,245 in 1990 and this year’s rate remains on par with rates last seen in the early 1950s. New York’s current population is a record high of 8.6 million.

Regardless of the legal status of pot in the Big Apple, does Sgt. Mullins seriously believe that crime and violence around marijuana would increase if it could be purchased legally, like beer, wine, and whiskey? There are still stickups and shootings at corner delis and liquor stores, but no one attributes such crimes to alcohol’s legal status. A major 2017 study found that states on the border between the United States and Mexico that legalized medical marijuana saw decreases in violent crime between 5.6 percent and 12.5 percent. This fall, a study of crime in California and Washington state found that “legalizing recreational use of the drug appeared to have little to no effect on the number of violent and property crimes.” A 2013 study by Rand Corporation for the Office of National Drug Control Policy concluded that “marijuana use does not induce violent crime” and “the links between marijuana use and property crime are thin.”

The full story surrounding Tessa Majors brutal and senseless killing has yet to emerge—including definitive proof that she was trying to buy marijuana. But whatever details come out, it’s hard to see how they will support the idea that maintaining a black market in pot sales will somehow generate less crime and violence than a legal one.

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Justin Amash: Impeachment Manager? Dems Want Former Republican Rep to Help Prosecute Trump

A group of Democrats in the House of Representatives reportedly wants libertarian-leaning legislator Justin Amash to be one of three impeachment managers. The Michigan congressman—who switched his party allegiance from Republican to independent back in July—has been a vocal supporter of impeachment proceedings against President Donald Trump while invoking nonpartisan and high-minded reasons for this support.

Now, “a group of 30 freshman Democrats, led by Rep. Dean Phillips (D–Minn.), has asked House leaders to consider [Amash] for the small group tasked with arguing its case for removing Trump in the upper chamber,” reports The Washington Post, which based its account on talks with “several Democratic officials.” More:

The thinking, according to these people, is that Amash would reach conservative voters in a way Democrats can’t, potentially bolstering their case to the public. He also would provide Democrats cover from GOP accusations that they’re pursuing a partisan impeachment; Amash is one of the most conservative members of the House and a vocal Trump critic.

“To the extent that this can be bipartisan, it should, and I think including Representative Amash amongst the impeachment managers is a smart move both for the country, for the substance and for the optics,” Phillips said, adding that Amash brings an array of qualifications: He’s an attorney, a constitutionalist and “the first and only member of the Republican conference, when he was a Republican, to show courage,” Phillips added.

House Speaker Nancy Pelosi (D–Calif.) would ultimately make the call and is expected to announce managers early this week, multiple Democrats said. Amash did not respond to a request for comment about whether he would accept such a position. But Phillips, who is in touch with Amash about the idea, said the lawmaker has agreed to consider it if asked.

The three impeachment managers picked by Pelosi “will effectively serve as prosecutors making the case to the Senate that Trump deserves to be removed from office over his alleged misconduct centering on the Ukraine scandal,” explains Politico.

Amash has not been directly involved in the House impeachment inquiry proceedings thus far.

Last week, the House Judiciary Committee officially approved articles of impeachment accusing Trump of abuse of power and obstruction of Congress.

Today, the committee released its full report, saying Trump “has realized the Framers’ worst nightmare” and “abused his power in soliciting and pressuring a vulnerable foreign nation to corrupt the next United States Presidential election by sabotaging a political opponent.”

The full House is expected to vote on the articles of impeachment on Wednesday or Thursday of this week, depending on how much time is taken up by debate.

FREE MINDS

A new ruling on Title IX, the law governing sex discrimination in public education, bodes well for rolling back government overreach. From Inside Higher Ed:

A three-judge panel of the U.S. Court of Appeals for the Sixth Circuit ruled that Michigan State University and one of its senior administrators cannot be held liable for student victims’ emotional distress after seeing their alleged perpetrators on campus because the interactions did not lead to further sexual harassment or assault, according to an opinion issued Thursday.

Legal experts said the decision is a narrow interpretation of the protections for victims of sexual misconduct under Title IX of the Education Amendments of 1972, which prohibits sex discrimination, including sexual assault, on college campuses.

More from Inside Higher Ed here. Decision here.

FREE MARKETS

The Hallmark Channel ran a commercial for the wedding company Zola which featured two women getting married and kissing. It then pulled the commercial amid complaints. It has now reinstated the commercial amid more complaints. (File under: The market works better than E.U.–style advertising standards boards at sorting this stuff out.)

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Justin Amash: Impeachment Manager? Dems Want Former Republican Rep to Help Prosecute Trump

A group of Democrats in the House of Representatives reportedly wants libertarian-leaning legislator Justin Amash to be one of three impeachment managers. The Michigan congressman—who switched his party allegiance from Republican to independent back in July—has been a vocal supporter of impeachment proceedings against President Donald Trump while invoking nonpartisan and high-minded reasons for this support.

Now, “a group of 30 freshman Democrats, led by Rep. Dean Phillips (D–Minn.), has asked House leaders to consider [Amash] for the small group tasked with arguing its case for removing Trump in the upper chamber,” reports The Washington Post, which based its account on talks with “several Democratic officials.” More:

The thinking, according to these people, is that Amash would reach conservative voters in a way Democrats can’t, potentially bolstering their case to the public. He also would provide Democrats cover from GOP accusations that they’re pursuing a partisan impeachment; Amash is one of the most conservative members of the House and a vocal Trump critic.

“To the extent that this can be bipartisan, it should, and I think including Representative Amash amongst the impeachment managers is a smart move both for the country, for the substance and for the optics,” Phillips said, adding that Amash brings an array of qualifications: He’s an attorney, a constitutionalist and “the first and only member of the Republican conference, when he was a Republican, to show courage,” Phillips added.

House Speaker Nancy Pelosi (D–Calif.) would ultimately make the call and is expected to announce managers early this week, multiple Democrats said. Amash did not respond to a request for comment about whether he would accept such a position. But Phillips, who is in touch with Amash about the idea, said the lawmaker has agreed to consider it if asked.

The three impeachment managers picked by Pelosi “will effectively serve as prosecutors making the case to the Senate that Trump deserves to be removed from office over his alleged misconduct centering on the Ukraine scandal,” explains Politico.

Amash has not been directly involved in the House impeachment inquiry proceedings thus far.

Last week, the House Judiciary Committee officially approved articles of impeachment accusing Trump of abuse of power and obstruction of Congress.

Today, the committee released its full report, saying Trump “has realized the Framers’ worst nightmare” and “abused his power in soliciting and pressuring a vulnerable foreign nation to corrupt the next United States Presidential election by sabotaging a political opponent.”

The full House is expected to vote on the articles of impeachment on Wednesday or Thursday of this week, depending on how much time is taken up by debate.

FREE MINDS

A new ruling on Title IX, the law governing sex discrimination in public education, bodes well for rolling back government overreach. From Inside Higher Ed:

A three-judge panel of the U.S. Court of Appeals for the Sixth Circuit ruled that Michigan State University and one of its senior administrators cannot be held liable for student victims’ emotional distress after seeing their alleged perpetrators on campus because the interactions did not lead to further sexual harassment or assault, according to an opinion issued Thursday.

Legal experts said the decision is a narrow interpretation of the protections for victims of sexual misconduct under Title IX of the Education Amendments of 1972, which prohibits sex discrimination, including sexual assault, on college campuses.

More from Inside Higher Ed here. Decision here.

FREE MARKETS

The Hallmark Channel ran a commercial for the wedding company Zola which featured two women getting married and kissing. It then pulled the commercial amid complaints. It has now reinstated the commercial amid more complaints. (File under: The market works better than E.U.–style advertising standards boards at sorting this stuff out.)

QUICK HITS

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via IFTTT

A Few More Thoughts On Impeachment

I am grateful for Orin Kerr’s response to my post on impeachment. Years ago, it was fairly common for law professors to respond to each other on legal blogs. In recent years, this sort of discourse has tended to wither away. I largely blame Twitter, which promotes instant, rapid-fire responses. These sorts of exchanges are seldom constructive, and quickly devolve into time-wasting flame wars. People reinforce those they agree with, and drag those they disagree with. We can do better. Orin does better. He disagrees with me, quite vigorously, but does so with reasoned discourse. Thanks Orin. Indeed, I sent Orin two drafts draft of this post in advance to hear his thoughts, and happily incorporated his feedback.

I think our positions are closer than they may appear. First, let me clear up a few points. I do not think an act must be criminal for it to be impeachable. I do not think the enumerated constitutional standards of criminal procedure extend to the impeachment process. There are some norms of due process that ought to be complied with but the strictures of the 5th and 6th Amendments are not controlling.  I do not think that an article of impeachment based on “abuse of power” is void because that term is vague. Nor do I think that the term “abuse of power” is novel, or without precedent. Historically, there have been many articles of impeachment that use that phrase. In short, an article of impeachment premised on an “abuse of power” could be proper, as an original matter, even if the President was not on notice in advance of the precise contours of the offense. I also concur with co-blogger Jon Adler: the term “High Crimes and Misdemeanors” is not an inkblot. And, as far as my research suggests, the first article of impeachment is consistent with that original meaning. 

I hesitate only slightly here because under the Framers’ design, the propriety of an article also turns, at least in part, on policy considerations. The decision to impeach does not depend solely on whether the President’s conduct rose to the level of a high crime or misdemeanor. The decision to impeach, like all decisions to prosecute, is premised on other factors beyond whether the specific elements of the offense were satisfied. In other words, not all impeachable offenses must lead to articles of impeachment (Several of the law professors who testified suggested that the word “shall” in the Impeachment Clause imposes a duty to impeach whenever the President commits such a high crime or misdemeanor. I do not think the word “shall” had such a mandatory meaning at the time of the framing.) Members of the Judiciary committee sued the President more than two years ago for violating the Foreign Emoluments Clause, but opted not to bring such an article of impeachment. Certain pragmatic considerations enter into any decision about whether to impeach.

Another important consideration concerns what precedent will be established. And precedent, not original meaning, was the focus on my earlier writing. I worry about the precedent that will be set by an article based on an “abuse of power.” There are several policy reasons to pause before proceeding down this route. First, an offense defined only after the act fails to provide the accused with any notice of possible wrongdoing. Second, the accused can then charge, perhaps rightfully, that this offense was synthesized with the purpose of simply getting him. Third, members of the public can believe, perhaps rightfully, that the impeachment proceeding is merely a political attack, rather than any process grounded in established law. This argument isn’t precisely premised on the prohibition of ex post facto laws or bills of attainder, but it has similar backing: the House determined that the President’s conduct was an “abuse of power” after he engaged in it. None of these concerns exist when impeachment is tied to a pre-existing, well understood offense. If the House managers wanted to follow that path, they could have included a free-standing bribery charge or a free-standing charge that he intentionally and unlawfully sought to withhold appropriated funds from Ukraine, or both.

These dynamics accordingly create additional burdens that the House must satisfy to substantiate an article based on an “abuse of power” standard, where there are no underlying criminal allegations. And this additional burden occasions certain risks to the process itself. Stephen Griffin articulated this premise on Balkinization:

The articles of impeachment submitted today are arguably the first in American history not to be grounded ultimately in allegations that the president committed a federal crime or other violation of law.  This single fact creates unique opportunities and challenges for both parties going forward.  For Democrats, it means they do not have to worry about whether the established facts satisfy the technicalities of a crime such as bribery or obstruction of justice.  For Republicans, it creates the opportunity to respond by demanding clear criteria for the somewhat abstract offense of “abuse of power.” For example, haven’t all presidents abused their power to some extent?  Democrats have the corresponding challenge of defending their criteria as specific and arguing that Trump is different from past presidents. They go some distance toward doing this in the first article by referring to “the integrity of the United States democratic process.”

The precise novelty of this claim might be nuanced, but the Johnson, Nixon, and Johnson articles all alleged specific violations of law. It is far easier to persuade the public that an article of impeachment is proper, if the claim is based on a well-worn criminal violation that is routinely prosecuted or which has supplied the basis for prior successful impeachments. That is, a crime that has elements and requirements that have been liquidated by judicial, as well as congressional precedent. The public is familiar with the elements of bribery and obstruction of justice. For example, the Mueller report spent considerable time developing each of the three elements of obstruction, when deciding whether the President ran afoul of the law. (Ultimately, Special Counsel Mueller did not make any recommendation.) This approach relies on established law and puts would-be wrongdoers on notice. Such precision is a long-standing feature, not a bug, of how the impeachment process has been carried out to date. In contrast, the House has launched an impeachment based on a newly crafted-political “crime.” 

But here, we are left with an allegation of “abuse of power.” Persuading the public that these allegations rise to the standard of a high crime or misdemeanor, in theory at least, is more difficult than persuading the public that one of the two enumerated offenses (i.e., bribery and treason) is a high crime or a misdemeanor. I say in theory, because at this juncture, I doubt there are many minds that are not yet made up. But Griffin’s point stands: there are additional challenges, and risks by going down the road suggested by the House majority. And this sort of article departs from modern, if not all prior impeachment practice. The burden to justify this expansion rests with those advancing the articles, not those defending against them.

A recent article in the New York Times highlights how opponents of impeachment can view the “abuse of power” allegation as merely political:

Yet Republicans view the current episode through the opposite lens, saying that the Republican-led impeachment of Mr. Clinton was fully justified while the action against Mr. Trump is purely political and unsupported by the evidence.
“President Clinton committed a crime, perjury,” Representative Steve Chabot, an Ohio Republican who voted to impeach Mr. Clinton in 1998, said Thursday as the House Judiciary Committee drafted articles of impeachment against the president. “This president isn’t even accused of committing a crime.” . . . .

On Thursday, Representative Kelly Armstrong, Republican of North Dakota, recited a litany of past presidents of both parties who had drawn charges of abusing their power but were not impeached, and cautioned his colleagues that impeachment was becoming “the new normal.”

“In the history of our country, the party who is not in the White House has accused the White House of abuse of power,” Mr. Armstrong said. “It started 200 years ago, it will continue into the future, except now, congratulations, it will be impeachment every single time one party controls the House of Representatives and the other party is in the White House.”

I developed this theme in an Atlantic essay:

The Senate is heading into uncharted territory. Once articles of impeachment are completely decoupled from any clearly articulated offenses, the burden of charging a president with “abuse of power” is significantly reduced. Moreover, any president who refuses to comply with what he sees as an improper investigation can be charged with “obstruction of Congress.” This one-two punch can be drafted with far greater ease than were the articles of impeachment presented against Presidents Andrew Johnson, Richard Nixon, or Bill Clinton. Without question, Congress can convict a president for conduct that is not criminal. This process is not bound by the strictures of the United States code. Moreover, Congress can begin impeachment proceedings for conduct that is inconsistent with the president’s duty to faithfully execute the laws. This inquiry, though subjective, is a necessary feature of the American constitutional order. But the predicates of the Trump articles will set a dangerous precedent, as impeachment might become—regrettably—a common, quadrennial feature of our polity.

I think the standards set by the House’s proposed articles will make impeachment far easier, even in cases where the allegations are far less severe. 

Finally, a brief comment on the President’s alleged motives. The House report concluded that “Impeachable abuse of power can take two basic forms.” The articles have not alleged the first path: that the President’s exercise of authority “exceeds the President’s constitutional authority or violates legal limits on that authority.” The articles could have predicated conviction on Trump having violated either the statute authorizing military aid to the Ukraine or the Impoundment Control Act of 1974, but didn’t. The articles could have predicated conviction on Trump committing all of the traditional elements of bribery–an offense spelled out in the Constitution–but didn’t. The House impeachers have publicly framed the article as “abuse of power.” 

I flag an issue that does give me some pause. Despite not leading with an article based on bribery, the article references bribery and unlawfully conditioning an appropriation. It is not clear to me, at least, whether the House intended to include a separate claim of bribery, or whether the allegation of bribery is offered as evidence that there is an abuse of power. It is also not clear to me whether the conditioning of an appropriation is unlawful, or if that act is offered as evidence of abuse of power. What exactly are the charges against the President? If the bribery charge or unlawful conditioning claims cannot be substantiated, independently, on what basis can the abuse of power claim be substantiated? In other words, if we are really talking about bribery or a statutory violation, why did the House use the framing of “abuse of power.” I think the House is trying to have their cake, and eat it too. That is, they’re trying to avoid charging the President with a specific crime that may be difficult to convict, but still accusing the President of committing those crimes. An acquittal in the Senate would not necessarily acquit the President of the alleged conduct, because it was never precisely charged.

In this first category–where the President’s exercise of authority “exceeds the President’s constitutional authority or violates legal limits on that authority”–the President’s motives are irrelevant. Additionally, these offenses are well-defined. The President, and everyone else, is on fair notice that such acts could give rise to impeachment. There can be no reasonable claim that the offense was only defined after the fact. For example, the general thrust of my criticism would not be relevant if the House included an article premised on bribery. I doubt the technical elements of the offense could be satisfied. But there is absence of notice; allegations about unfairness fade. 

The House, however, chose the second path: the articles alleged that the President “engag[ed] in potentially permissible acts but for forbidden reasons (e.g., with the corrupt motive of obtaining a personal political benefit).” It is commonplace for Presidents to ask foreign governments to conduct investigations. What renders this request different, the articles contend, is that the object of that investigation was to injure the President’s political rival. And impeachment will turn on an assessment of the President’s motive. A corrupt motive would, according to the proponents of impeachment, transform a “permissible act” into an “abuse of power.” Effectively, they contend that otherwise legitimate presidential actions taken with a corrupt motive are, by definition, not faithful executions of the law. (I discussed that theory here.) The article now turns on what was in Trump’s head. If he had proper motivations, then there was no impeachable offense. Such an article sets an important, and risky new precedent: going forward, I fear that many presidential actions with potential consequences to the party not in the White House will be seen as corruptly motivated, and thus subject to impeachment. 

There are some other areas of difference between Orin and me, but I will leave it here for now. 

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A Few More Thoughts On Impeachment

I am grateful for Orin Kerr’s response to my post on impeachment. Years ago, it was fairly common for law professors to respond to each other on legal blogs. In recent years, this sort of discourse has tended to wither away. I largely blame Twitter, which promotes instant, rapid-fire responses. These sorts of exchanges are seldom constructive, and quickly devolve into time-wasting flame wars. People reinforce those they agree with, and drag those they disagree with. We can do better. Orin does better. He disagrees with me, quite vigorously, but does so with reasoned discourse. Thanks Orin. Indeed, I sent Orin two drafts draft of this post in advance to hear his thoughts, and happily incorporated his feedback.

I think our positions are closer than they may appear. First, let me clear up a few points. I do not think an act must be criminal for it to be impeachable. I do not think the enumerated constitutional standards of criminal procedure extend to the impeachment process. There are some norms of due process that ought to be complied with but the strictures of the 5th and 6th Amendments are not controlling.  I do not think that an article of impeachment based on “abuse of power” is void because that term is vague. Nor do I think that the term “abuse of power” is novel, or without precedent. Historically, there have been many articles of impeachment that use that phrase. In short, an article of impeachment premised on an “abuse of power” could be proper, as an original matter, even if the President was not on notice in advance of the precise contours of the offense. I also concur with co-blogger Jon Adler: the term “High Crimes and Misdemeanors” is not an inkblot. And, as far as my research suggests, the first article of impeachment is consistent with that original meaning. 

I hesitate only slightly here because under the Framers’ design, the propriety of an article also turns, at least in part, on policy considerations. The decision to impeach does not depend solely on whether the President’s conduct rose to the level of a high crime or misdemeanor. The decision to impeach, like all decisions to prosecute, is premised on other factors beyond whether the specific elements of the offense were satisfied. In other words, not all impeachable offenses must lead to articles of impeachment (Several of the law professors who testified suggested that the word “shall” in the Impeachment Clause imposes a duty to impeach whenever the President commits such a high crime or misdemeanor. I do not think the word “shall” had such a mandatory meaning at the time of the framing.) Members of the Judiciary committee sued the President more than two years ago for violating the Foreign Emoluments Clause, but opted not to bring such an article of impeachment. Certain pragmatic considerations enter into any decision about whether to impeach.

Another important consideration concerns what precedent will be established. And precedent, not original meaning, was the focus on my earlier writing. I worry about the precedent that will be set by an article based on an “abuse of power.” There are several policy reasons to pause before proceeding down this route. First, an offense defined only after the act fails to provide the accused with any notice of possible wrongdoing. Second, the accused can then charge, perhaps rightfully, that this offense was synthesized with the purpose of simply getting him. Third, members of the public can believe, perhaps rightfully, that the impeachment proceeding is merely a political attack, rather than any process grounded in established law. This argument isn’t precisely premised on the prohibition of ex post facto laws or bills of attainder, but it has similar backing: the House determined that the President’s conduct was an “abuse of power” after he engaged in it. None of these concerns exist when impeachment is tied to a pre-existing, well understood offense. If the House managers wanted to follow that path, they could have included a free-standing bribery charge or a free-standing charge that he intentionally and unlawfully sought to withhold appropriated funds from Ukraine, or both.

These dynamics accordingly create additional burdens that the House must satisfy to substantiate an article based on an “abuse of power” standard, where there are no underlying criminal allegations. And this additional burden occasions certain risks to the process itself. Stephen Griffin articulated this premise on Balkinization:

The articles of impeachment submitted today are arguably the first in American history not to be grounded ultimately in allegations that the president committed a federal crime or other violation of law.  This single fact creates unique opportunities and challenges for both parties going forward.  For Democrats, it means they do not have to worry about whether the established facts satisfy the technicalities of a crime such as bribery or obstruction of justice.  For Republicans, it creates the opportunity to respond by demanding clear criteria for the somewhat abstract offense of “abuse of power.” For example, haven’t all presidents abused their power to some extent?  Democrats have the corresponding challenge of defending their criteria as specific and arguing that Trump is different from past presidents. They go some distance toward doing this in the first article by referring to “the integrity of the United States democratic process.”

The precise novelty of this claim might be nuanced, but the Johnson, Nixon, and Johnson articles all alleged specific violations of law. It is far easier to persuade the public that an article of impeachment is proper, if the claim is based on a well-worn criminal violation that is routinely prosecuted or which has supplied the basis for prior successful impeachments. That is, a crime that has elements and requirements that have been liquidated by judicial, as well as congressional precedent. The public is familiar with the elements of bribery and obstruction of justice. For example, the Mueller report spent considerable time developing each of the three elements of obstruction, when deciding whether the President ran afoul of the law. (Ultimately, Special Counsel Mueller did not make any recommendation.) This approach relies on established law and puts would-be wrongdoers on notice. Such precision is a long-standing feature, not a bug, of how the impeachment process has been carried out to date. In contrast, the House has launched an impeachment based on a newly crafted-political “crime.” 

But here, we are left with an allegation of “abuse of power.” Persuading the public that these allegations rise to the standard of a high crime or misdemeanor, in theory at least, is more difficult than persuading the public that one of the two enumerated offenses (i.e., bribery and treason) is a high crime or a misdemeanor. I say in theory, because at this juncture, I doubt there are many minds that are not yet made up. But Griffin’s point stands: there are additional challenges, and risks by going down the road suggested by the House majority. And this sort of article departs from modern, if not all prior impeachment practice. The burden to justify this expansion rests with those advancing the articles, not those defending against them.

A recent article in the New York Times highlights how opponents of impeachment can view the “abuse of power” allegation as merely political:

Yet Republicans view the current episode through the opposite lens, saying that the Republican-led impeachment of Mr. Clinton was fully justified while the action against Mr. Trump is purely political and unsupported by the evidence.
“President Clinton committed a crime, perjury,” Representative Steve Chabot, an Ohio Republican who voted to impeach Mr. Clinton in 1998, said Thursday as the House Judiciary Committee drafted articles of impeachment against the president. “This president isn’t even accused of committing a crime.” . . . .

On Thursday, Representative Kelly Armstrong, Republican of North Dakota, recited a litany of past presidents of both parties who had drawn charges of abusing their power but were not impeached, and cautioned his colleagues that impeachment was becoming “the new normal.”

“In the history of our country, the party who is not in the White House has accused the White House of abuse of power,” Mr. Armstrong said. “It started 200 years ago, it will continue into the future, except now, congratulations, it will be impeachment every single time one party controls the House of Representatives and the other party is in the White House.”

I developed this theme in an Atlantic essay:

The Senate is heading into uncharted territory. Once articles of impeachment are completely decoupled from any clearly articulated offenses, the burden of charging a president with “abuse of power” is significantly reduced. Moreover, any president who refuses to comply with what he sees as an improper investigation can be charged with “obstruction of Congress.” This one-two punch can be drafted with far greater ease than were the articles of impeachment presented against Presidents Andrew Johnson, Richard Nixon, or Bill Clinton. Without question, Congress can convict a president for conduct that is not criminal. This process is not bound by the strictures of the United States code. Moreover, Congress can begin impeachment proceedings for conduct that is inconsistent with the president’s duty to faithfully execute the laws. This inquiry, though subjective, is a necessary feature of the American constitutional order. But the predicates of the Trump articles will set a dangerous precedent, as impeachment might become—regrettably—a common, quadrennial feature of our polity.

I think the standards set by the House’s proposed articles will make impeachment far easier, even in cases where the allegations are far less severe. 

Finally, a brief comment on the President’s alleged motives. The House report concluded that “Impeachable abuse of power can take two basic forms.” The articles have not alleged the first path: that the President’s exercise of authority “exceeds the President’s constitutional authority or violates legal limits on that authority.” The articles could have predicated conviction on Trump having violated either the statute authorizing military aid to the Ukraine or the Impoundment Control Act of 1974, but didn’t. The articles could have predicated conviction on Trump committing all of the traditional elements of bribery–an offense spelled out in the Constitution–but didn’t. The House impeachers have publicly framed the article as “abuse of power.” 

I flag an issue that does give me some pause. Despite not leading with an article based on bribery, the article references bribery and unlawfully conditioning an appropriation. It is not clear to me, at least, whether the House intended to include a separate claim of bribery, or whether the allegation of bribery is offered as evidence that there is an abuse of power. It is also not clear to me whether the conditioning of an appropriation is unlawful, or if that act is offered as evidence of abuse of power. What exactly are the charges against the President? If the bribery charge or unlawful conditioning claims cannot be substantiated, independently, on what basis can the abuse of power claim be substantiated? In other words, if we are really talking about bribery or a statutory violation, why did the House use the framing of “abuse of power.” I think the House is trying to have their cake, and eat it too. That is, they’re trying to avoid charging the President with a specific crime that may be difficult to convict, but still accusing the President of committing those crimes. An acquittal in the Senate would not necessarily acquit the President of the alleged conduct, because it was never precisely charged.

In this first category–where the President’s exercise of authority “exceeds the President’s constitutional authority or violates legal limits on that authority”–the President’s motives are irrelevant. Additionally, these offenses are well-defined. The President, and everyone else, is on fair notice that such acts could give rise to impeachment. There can be no reasonable claim that the offense was only defined after the fact. For example, the general thrust of my criticism would not be relevant if the House included an article premised on bribery. I doubt the technical elements of the offense could be satisfied. But there is absence of notice; allegations about unfairness fade. 

The House, however, chose the second path: the articles alleged that the President “engag[ed] in potentially permissible acts but for forbidden reasons (e.g., with the corrupt motive of obtaining a personal political benefit).” It is commonplace for Presidents to ask foreign governments to conduct investigations. What renders this request different, the articles contend, is that the object of that investigation was to injure the President’s political rival. And impeachment will turn on an assessment of the President’s motive. A corrupt motive would, according to the proponents of impeachment, transform a “permissible act” into an “abuse of power.” Effectively, they contend that otherwise legitimate presidential actions taken with a corrupt motive are, by definition, not faithful executions of the law. (I discussed that theory here.) The article now turns on what was in Trump’s head. If he had proper motivations, then there was no impeachable offense. Such an article sets an important, and risky new precedent: going forward, I fear that many presidential actions with potential consequences to the party not in the White House will be seen as corruptly motivated, and thus subject to impeachment. 

There are some other areas of difference between Orin and me, but I will leave it here for now. 

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Was This the Decade We Hit Peak Free Speech?

Speech has never been freer than it was in this decade. But only if you take a broad view of what free speech means, and only if you look at the right parts of the decade.

There is an argument that says free speech isn’t just a matter of stopping direct government censorship, nor of keeping the state from indirectly chilling what we say. True freedom of expression, the theory goes, requires a broader culture of free speech—a society where art, information, and commentary face fewer restraints of all kinds, not just the restraints that have the government’s guns behind them.

Now, I’m not crazy about conflating the concept of free speech with those bigger, messier social questions. But they are undeniably linked—a culture hostile to open expression is surely more likely to pass legal limits on speech—and those big social questions are worth thinking about in their own right. So let’s roll with it. If by “free speech” you mean the capacity and willingness to speak, not just a shield from the institutions that could forcibly stop you from speaking, then the early to mid 2010s arguably saw the freest speech in history.

As the decade dawned, it was cheaper and easier than ever before to create and transmit a text, an image, or an audio or video recording. That transmission, in turn, had a bigger chance of reaching an audience. People didn’t waste that opportunity: Both the volume and the variety of widely available speech exploded. Whole new media ecosystems appeared. Budding musicians did an end run around the record labels, sketch comics did an end run around cable TV, and YouTube DIYers did an end run around licensed plumbers and repairmen. In the political world, the Overton window widened and a flood of oddball ideological tribes poured in—some of them rather unappealing, but that’s how it goes with unfettered expression.

That in turn provoked a backlash, and for the last several years we’ve seen a series of efforts to clamp down on all that uncontrolled chatter. There have been heightened calls for censorship from the left, right, and center, sometimes directed at new sorts of speech (bots, code for printing weaponry) but usually aimed at targets that feel familiar (sex-work talk, terrorist propaganda, hate speech, marchers wearing masks), sometimes so familiar that they’re moldy (pornography, Russian subversion). Beyond that, there was a broader feeling of brittleness around all that unfamiliar or unpleasant expression; even critics who would never call for censorship sometimes went overboard when attributing ill effects to speech they disliked. Meanwhile, the biggest conduit for all those emerging ecosystems of expression—the internet—seemed to be growing not just more censored but more centralized, more surveilled, more controlled. That was true not just in purely online spaces but in the dissident movements that at times use cyberspace to organize and communicate. Around the world, it became clear that it wasn’t just protesters who were imitating and adapting each other’s tactics; the regimes that they were protesting watched and learned from each other too.

All of that raises the question: Did we just witness Peak Free Speech? Will the first half of this decade be remembered not just as a time when speech was less fettered than ever before but as a time when it was less fettered than it will ever be again?

Freedom vs. Tolerance

I may have rushed too quickly past the question of what a “culture of free speech” is supposed to be. It’s not a term that everyone uses the same way. The people who throw around that phrase often claim, or at least assume, that certain sorts of speech are more conducive to open expression than others. Some of them suggest that speech should be more civil; others think it ought to be more oppositional. Most of them want the speech, or at least the speakers, to be tolerant of other points of view.

But freedom and tolerance simply aren’t the same thing. Both are valuable, but they’re often going to be in tension with each other.

Civil libertarians need to be clear-eyed about that. Speech has always included gossip, shaming, and other tools for enforcing conformity. In the past those sorts of speech may have been confined to a single village or middle school, but now they have a global reach. Some testy “free speech” debates of the last decade have really just been battles between different collections of culture warriors, each circulating misleading screenshots as they try to shout the other side down. That may look like illiberal intolerance, but it also looks like a lot of lively speech. It’s not a sort of speech that I like, but some form of it has always been a part of public life and it isn’t likely to go away anytime soon.

The more important issue, at least as far as the future of free speech is concerned, is whether the institutional environment makes it easier or harder for intolerant people to muffle the speech they don’t want to hear. And this is where the most significant change happened. From the ’70s through the ’00s, America’s electronic media grew ever more decentralized and participatory. Not so in the ’10s, as the social media services that made publishing so quick and easy also brought more of that publishing under consolidated corporate control. The result was the difference between getting kicked off an email list and getting kicked off a social media network: Both may be cases of a private association exercising its right not to give you a platform, but one has a much bigger impact than the other when it comes to whether your voice is heard.

This didn’t mean we reverted to the bad old days of just three big TV networks, or even to the 500-channel universe of the late cable era. It was still ludicrously easy by 1990s standards to get a homemade piece of media in front of a substantial audience. But it was also more likely that your homemade media would suddenly be obscured. That might be because you broke a platform’s rules; it might be because an algorithm mistook your photo of a nude sculpture for pornography and improperly assumed that you had broken a rule; it might be because you were mass-reported by the sorts of assholes that the rules were supposed to address. (Time and again, a social media company would create a system that was supposed to keep out the bigots and trolls who harass people, only to learn that the bigots and trolls had found a way to turn the system itself into a tool for harassment.) The result was more Brazil than 1984: a control apparatus full of leaks and loose wiring.

Governments encouraged the process, passing mandates that fostered both the proliferation of rules and a sloppy sort of enforcement. Germany, for example, started implementing a law last year that informed platforms that they had just 24 hours to take down “obviously unlawful” hate speech or face a steep fine. Inevitably, this combination of stiff penalties and narrow time windows prompted companies to suppress first and ask questions later, even if that meant excising speech that didn’t actually violate the law. (In one infamous example, the nominally anti-racist statute was used to remove some anti-racist satire.) That’s bad enough for the Germans, but in a global internet decisions made by the government of Germany—or any other wired nation, from Britain to China—can affect what people around the world can see.

Centralized platforms make the task that much easier. As Declan McCullagh wrote in Reason this year, they offer “a single convenient point of control for governments eager to experiment with censorship and surveillance.” A culture of freer speech might require a technology of freer speech—a more decentralized internet with fewer chokepoints, one built around protocols rather than platforms.

The Global Spring

All that said, there is one big reason to think the pendulum may already be swinging back in speech’s direction. This year saw an astonishing level of public protest around the globe, adding up to a revolutionary moment on par with 1968. Unrest has swelled everywhere from France to Hong Kong, from Chile to Indonesia, from Iran to Ecuador, from Haiti to Spain. Such movements have already brought down governments in Algeria, Iraq, Lebanon, and Sudan. In Bolivia, mass protests preceded the ousting of leftist president Evo Morales and then more mass protests greeted the new right-wing regime of Jeanine Áñez. Here in the U.S., last year saw the biggest strike wave in more than three decades, and we may be on track to top that in 2019.

These movements have been sparked by a wide variety of grievances. Their supporters come from a wide variety of ideologies. They use a wide variety of tactics, not all of them limited to nonviolent speech and assembly. It would probably be hard to find someone who backs every single one of them. But put together, they represent a surge in people’s willingness not just to speak out but to take risks to do so. That too represents a sort of culture of free speech, even though many of these regimes have reacted to the unrest with a repression that does not remotely resemble free speech in the legal sense.

Those movements are learning from each other, too: When one of them figures out a way to evade censorship, surveillance, or police assaults, the others take heed. (We live in an era when Hongkongers can be recorded neutralizing tear gas in the summer, videos of the technique immediately circulate on social media, and by October protesters in Chile are doing the same thing.) After a decade of authoritarian governments adjusting themselves to the ways protesters organize themselves on- and offline, the momentum is with the dissidents again as they find ways to adjust their tactics in return.

A decade that began with the rise and fall of the Arab Spring is concluding with a Global Spring. And while that could conceivably end with the most vicious clampdown of all, it’s also the best reason to hope that what looked like Peak Free Speech was really just a temporary speech recession.

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Was This the Decade We Hit Peak Free Speech?

Speech has never been freer than it was in this decade. But only if you take a broad view of what free speech means, and only if you look at the right parts of the decade.

There is an argument that says free speech isn’t just a matter of stopping direct government censorship, nor of keeping the state from indirectly chilling what we say. True freedom of expression, the theory goes, requires a broader culture of free speech—a society where art, information, and commentary face fewer restraints of all kinds, not just the restraints that have the government’s guns behind them.

Now, I’m not crazy about conflating the concept of free speech with those bigger, messier social questions. But they are undeniably linked—a culture hostile to open expression is surely more likely to pass legal limits on speech—and those big social questions are worth thinking about in their own right. So let’s roll with it. If by “free speech” you mean the capacity and willingness to speak, not just a shield from the institutions that could forcibly stop you from speaking, then the early to mid 2010s arguably saw the freest speech in history.

As the decade dawned, it was cheaper and easier than ever before to create and transmit a text, an image, or an audio or video recording. That transmission, in turn, had a bigger chance of reaching an audience. People didn’t waste that opportunity: Both the volume and the variety of widely available speech exploded. Whole new media ecosystems appeared. Budding musicians did an end run around the record labels, sketch comics did an end run around cable TV, and YouTube DIYers did an end run around licensed plumbers and repairmen. In the political world, the Overton window widened and a flood of oddball ideological tribes poured in—some of them rather unappealing, but that’s how it goes with unfettered expression.

That in turn provoked a backlash, and for the last several years we’ve seen a series of efforts to clamp down on all that uncontrolled chatter. There have been heightened calls for censorship from the left, right, and center, sometimes directed at new sorts of speech (bots, code for printing weaponry) but usually aimed at targets that feel familiar (sex-work talk, terrorist propaganda, hate speech, marchers wearing masks), sometimes so familiar that they’re moldy (pornography, Russian subversion). Beyond that, there was a broader feeling of brittleness around all that unfamiliar or unpleasant expression; even critics who would never call for censorship sometimes went overboard when attributing ill effects to speech they disliked. Meanwhile, the biggest conduit for all those emerging ecosystems of expression—the internet—seemed to be growing not just more censored but more centralized, more surveilled, more controlled. That was true not just in purely online spaces but in the dissident movements that at times use cyberspace to organize and communicate. Around the world, it became clear that it wasn’t just protesters who were imitating and adapting each other’s tactics; the regimes that they were protesting watched and learned from each other too.

All of that raises the question: Did we just witness Peak Free Speech? Will the first half of this decade be remembered not just as a time when speech was less fettered than ever before but as a time when it was less fettered than it will ever be again?

Freedom vs. Tolerance

I may have rushed too quickly past the question of what a “culture of free speech” is supposed to be. It’s not a term that everyone uses the same way. The people who throw around that phrase often claim, or at least assume, that certain sorts of speech are more conducive to open expression than others. Some of them suggest that speech should be more civil; others think it ought to be more oppositional. Most of them want the speech, or at least the speakers, to be tolerant of other points of view.

But freedom and tolerance simply aren’t the same thing. Both are valuable, but they’re often going to be in tension with each other.

Civil libertarians need to be clear-eyed about that. Speech has always included gossip, shaming, and other tools for enforcing conformity. In the past those sorts of speech may have been confined to a single village or middle school, but now they have a global reach. Some testy “free speech” debates of the last decade have really just been battles between different collections of culture warriors, each circulating misleading screenshots as they try to shout the other side down. That may look like illiberal intolerance, but it also looks like a lot of lively speech. It’s not a sort of speech that I like, but some form of it has always been a part of public life and it isn’t likely to go away anytime soon.

The more important issue, at least as far as the future of free speech is concerned, is whether the institutional environment makes it easier or harder for intolerant people to muffle the speech they don’t want to hear. And this is where the most significant change happened. From the ’70s through the ’00s, America’s electronic media grew ever more decentralized and participatory. Not so in the ’10s, as the social media services that made publishing so quick and easy also brought more of that publishing under consolidated corporate control. The result was the difference between getting kicked off an email list and getting kicked off a social media network: Both may be cases of a private association exercising its right not to give you a platform, but one has a much bigger impact than the other when it comes to whether your voice is heard.

This didn’t mean we reverted to the bad old days of just three big TV networks, or even to the 500-channel universe of the late cable era. It was still ludicrously easy by 1990s standards to get a homemade piece of media in front of a substantial audience. But it was also more likely that your homemade media would suddenly be obscured. That might be because you broke a platform’s rules; it might be because an algorithm mistook your photo of a nude sculpture for pornography and improperly assumed that you had broken a rule; it might be because you were mass-reported by the sorts of assholes that the rules were supposed to address. (Time and again, a social media company would create a system that was supposed to keep out the bigots and trolls who harass people, only to learn that the bigots and trolls had found a way to turn the system itself into a tool for harassment.) The result was more Brazil than 1984: a control apparatus full of leaks and loose wiring.

Governments encouraged the process, passing mandates that fostered both the proliferation of rules and a sloppy sort of enforcement. Germany, for example, started implementing a law last year that informed platforms that they had just 24 hours to take down “obviously unlawful” hate speech or face a steep fine. Inevitably, this combination of stiff penalties and narrow time windows prompted companies to suppress first and ask questions later, even if that meant excising speech that didn’t actually violate the law. (In one infamous example, the nominally anti-racist statute was used to remove some anti-racist satire.) That’s bad enough for the Germans, but in a global internet decisions made by the government of Germany—or any other wired nation, from Britain to China—can affect what people around the world can see.

Centralized platforms make the task that much easier. As Declan McCullagh wrote in Reason this year, they offer “a single convenient point of control for governments eager to experiment with censorship and surveillance.” A culture of freer speech might require a technology of freer speech—a more decentralized internet with fewer chokepoints, one built around protocols rather than platforms.

The Global Spring

All that said, there is one big reason to think the pendulum may already be swinging back in speech’s direction. This year saw an astonishing level of public protest around the globe, adding up to a revolutionary moment on par with 1968. Unrest has swelled everywhere from France to Hong Kong, from Chile to Indonesia, from Iran to Ecuador, from Haiti to Spain. Such movements have already brought down governments in Algeria, Iraq, Lebanon, and Sudan. In Bolivia, mass protests preceded the ousting of leftist president Evo Morales and then more mass protests greeted the new right-wing regime of Jeanine Áñez. Here in the U.S., last year saw the biggest strike wave in more than three decades, and we may be on track to top that in 2019.

These movements have been sparked by a wide variety of grievances. Their supporters come from a wide variety of ideologies. They use a wide variety of tactics, not all of them limited to nonviolent speech and assembly. It would probably be hard to find someone who backs every single one of them. But put together, they represent a surge in people’s willingness not just to speak out but to take risks to do so. That too represents a sort of culture of free speech, even though many of these regimes have reacted to the unrest with a repression that does not remotely resemble free speech in the legal sense.

Those movements are learning from each other, too: When one of them figures out a way to evade censorship, surveillance, or police assaults, the others take heed. (We live in an era when Hongkongers can be recorded neutralizing tear gas in the summer, videos of the technique immediately circulate on social media, and by October protesters in Chile are doing the same thing.) After a decade of authoritarian governments adjusting themselves to the ways protesters organize themselves on- and offline, the momentum is with the dissidents again as they find ways to adjust their tactics in return.

A decade that began with the rise and fall of the Arab Spring is concluding with a Global Spring. And while that could conceivably end with the most vicious clampdown of all, it’s also the best reason to hope that what looked like Peak Free Speech was really just a temporary speech recession.

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