Conservatives are false friends of free speech

True friends of free speech support the first amendment even when they’re deeply offended.

Desert Botanical Gardens, Phoenix, Arizona. Arizona. © Dave DuBay

I’ve been an ardent supporter of free speech since high school when I first became interested in politics.

In the 1980s free speech was considered a liberal issue. Conservatives—especially the Christian Right—frequently tried to ban books. Even Judy Blume novels.

The left wing free speech movement, however, which was born at the University of California Berkeley in the 1960s, died at Berkeley in 2017.

Free speech becomes a conservative issue

Today it’s not uncommon for people to think I’m a conservative because I support free speech. I’m neither conservative nor liberal/progressive.

With progressives disinviting not only conservative speakers but even centrist or left of center freethinkers—and others shouting down anyone they disagree with rather than engaging in thoughtful dialogue—conservatives have been vocal about the importance of free speech.

Meanwhile, progressives have increasingly argued against free speech. It’s popular to claim that hate speech is not free speech. But that only shows progressives’ ignorance of the first amendment.

Free speech is a guarantee that you will be offended. So expect it. Deal with it. You’re an adult.

And remember, defending free speech doesn’t mean you agree with what’s being said. You can’t agree with everyone, but you can defend everyone’s right to free speech.

Yelling fire in a crowded theatre

People also like to repeat the cliche that you can’t yell fire in a crowded theatre. This comes from Supreme Court Justice Oliver Wendell Holmes’ 1919 opinion in Schenk v. United States.

But Justice Holmes was wrong. Schenk was a challenge to the Sedition Act of 1918 which made protesting US involvement in World War I illegal. Many socialists, including Eugene Debs, were thrown in prison for anti-war protests.

The first amendment does indeed protect public opposition to war and criticism of the government in general.

Besides, being anti-war is in no way comparable to yelling fire in a crowded theatre. And if you did yell fire then your crime isn’t what you yelled but rather the bodily harm you caused to people who subsequently panicked.

You hurt my feelings

Progressives today, however, defend the “yelling fire” argument by claiming that free speech hurts their feelings, and therefore speech (and even open dialogue) is violence even when no bodily harm occurs.

These are the same people who wonder why they can’t win elections.

More to the point, you’re contradicting yourself if you support the “yelling fire” argument while also supporting Colin Kaepernick kneeling during the national anthem. Kaepernick has hurt many people’s feelings, and that’s the same as violence according to progressives and their predecessor, Justice Holmes.

But progressives only oppose speech they disagree with. They quickly abandon their alleged principles when someone says something they agree with.

And so conservatives hold themselves up as paragons of American liberty.

Not so fast

As it turns out, conservatives also support free speech only when they agree with what’s being said and abandon their principles when someone says something they disagree with.

It’s as wrong to say Ann Coulter should be deplatformed as it is to say NFL players who kneel during the national anthem should be fired.

Are you offended when football players kneel? Get over it. Free speech means you will be offended from time to time.

But it gets worse. Republicans control all three branches of government. The first amendment doesn’t apply to private universities or companies like Google even if ethically they have a responsibility to uphold American values like free speech.

After all, free speech is the cornerstone of human rights. Without it all other human rights are at risk.

Government officials and agencies, however, are legally bound by the first amendment. Yet President Trump called for the FCC to revoke NBC’s license because he doesn’t like what the media says. To its credit the FCC rebuked the president. Revoking NBC’s license would be unconstitutional and unAmerican.

That the most powerful conservative in the world—Donald Trump—is so disdainful of free speech, American liberty, and the United States Constitution—and that so few conservative proponents of free speech chose to denounce Trump—shows that conservatives are false friends of free speech.

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Abortion & the limits of personhood

Personhood is an abstract concept. Most people’s concerns are mundane.

© Dave DuBay

The National Review ran a thought provoking article about abortion and the limits of the personhood argument.

In a nutshell, pro-choice advocates typically say a fetus is not a person while pro-life advocates say a fetus is a person.

The assumption is that personhood equals rights, and this is central for the right to choose or the right to life.

Philosophy professor Berny Belvedere summarizes the arguments of Judith Jarvis Thomson and Don Marquis, siding with the latter. Thomson argues that abortion is morally permissible even if a fetus is a person while Marquis argues abortion is immoral even if a fetus is not a person.

Thomson seems to view a fetus as a foreign imposition on a woman’s body, so even if a fetus is a person abortion still could be justified as a type of self-defense.

Marquis argues that killing in general is wrong because it robs someone of their future. This future is actual, not potential, because the future will unfurl unless someone intervenes. Fetuses, even if they’re not persons, also have futures. Therefore, abortion is no different from murder.

Belvedere addresses some objections to Marquis’ argument. Is killing a bug wrong? No, because qualitatively a bug doesn’t have a future in the same sense as a human being. Is euthanasia wrong? Belvedere concedes it is not (within this framework, at least) because the dying person has no future.

This is rather abstract, and I think it helps to bring it down to concrete cases:

  • What about rape or incest? Thomson’s view that a fetus is a foreign imposition seems strong here. Marquis’ position is less tenable. An abortion robs the fetus of its future. But disallowing an abortion robs the rape victim of her future (even though she’s still alive).
  • What about the mother’s life being in danger? Avoiding the truncation of someone’s future is impossible here, so who decides if the fetus’s future takes precedence—the woman or the government
  • What if the mother isn’t financially or emotionally ready for motherhood? The argument that she’ll still have a future—but it will be greatly altered—applies here too (though it’s weaker).
  • What if there are no extenuating circumstances, the mother is entirely capable of motherhood, but just doesn’t feel like having a baby? The fetus as a foreign imposition could still be used, though it may sound callous or selfish. And because an abortion would clearly diminish the fetus’s future more than the woman’s future, Marquis’ argument seems to be stronger.

But the personhood debate is unlikely to settle the abortion debate. What is personhood? How do we define it? Can we achieve consensus on this definition? What about those who fail to meet that definition or lose personhood status?

I’m pro-choice because ultimately I think our most intimate choices belong to us and not to the government.

Rights are things that belong to us—our opinions, speech, religion (or lack thereof), our bodies, our property, etc.—and government serves two primary roles regarding this.

First, our rights limit government. Our rights tell government what it can’t do. For example, the Bill of Rights says things like, “Congress shall make no law…”

Second, government must protect our rights against those who refuse to recognize other people’s equal rights. That’s why the government can lock you up for stealing other people’s stuff.

But what do we do when alleged rights conflict?

Obamacare mandates that insurance cover birth control for women (but not men), and that employers buy insurance for their employees.

Religious business owners, however, say forcing them to provide birth control coverage violates their religious rights.

Many women, on the other hand, say they have a right to birth control.

Women’s right to use birth control is not being attacked, however. The question is who pays for it. But there’s no right to have someone buy something for you.

But if your religion prohibits you from getting mixed up with birth control then you have the right not to be forced into an action you disagree with.

While conservatives will likely agree with me on problems of the birth control mandate—and progressives will likely become irate—the same framework leads me to conclude that abortion is a woman’s choice because the government cannot compel her to act in a way that is not of her choosing.

A final aside. What if scientists invent an artificial womb and can extract a fetus in a manner no more invasive that an abortion? Safe haven laws already allow women (but not men) to walk away from parenthood with no legal or financial repercussions.

In such a case, could a woman end her pregnancy but have no legal right to say whether the fetus will be destroyed or implanted in an artificial womb? My answer is that the woman would have no more right than the doctor to decide the fetus’s fate.

What’s a right? What’s not?

Carefree, Arizona

Philosophical basis for rights

The Declaration of Independence gives us a general theory of rights, and the Constitution provides specifics. Liberty is inherent to the individual. So rights are about things that belong to you, such as your views, your chosen path, and your life.

It’s about knowing what’s your and what’s not yours. Your rights don’t belong to those in authority, so protecting your rights means prohibiting the government from doing certain things.

The Bill of Rights stops the government from telling you that you can’t say certain things, that you can’t worship a certain god, or that you can’t own a gun. And the government can’t declare you guilty of a crime unless guilt has been established through due process. The ninth amendment says that your rights are not limited to the ones specifically mentioned in the Constitution. And the fourteenth amendment clarifies that the law protects everyone equally.

Civil Rights

In other words, rights are about not taking things away from you. This goes for civil rights too. The Civil Rights Act of 1964 says equal protection under the law means businesses can’t deprive you of equal access to public accommodations because of race, sex, etc.

It’s important to note that the Civil Rights Act doesn’t require businesses to give anyone a job. Instead, civil rights means that if a business chooses to create a job then they must respect each applicant’s equality under the law.

Rights vs entitlements

But saying the government must give you something (or mandate that someone else must give you something) is qualitatively different from saying you can’t be prohibited from doing something. Just because something is an entitlement rather than a right, though, doesn’t mean the government shouldn’t do it. But it does mean that unlike rights, the government doesn’t have to do it.

By entitlement I mean a government benefit, not someone who wants special treatment. Health insurance is a good example. Healthcare is an entitlement, not a right, because healthcare is about what someone gives you.

The government mandating that private companies must provide an insurance product is problematic, though. If the government decides that everyone should have health insurance as an entitlement then it would be more straightforward if the government provided it directly – by giving everyone Medicare, for example.

Other cases

Because health insurance is not a right, the government can’t prohibit business owners like Hobby Lobby from refusing to provide insurance coverage for birth control, which violates their religious beliefs. It would be different if Hobby Lobby chose to provide insurance that included birth control for some employees. Then equal protection would create a case for giving every employee equal access. But if Hobby Lobby chooses not to provide coverage for birth control to anyone then the government can’t force them to violate their religious principles.

Same sex marriage, on the other hand, is a right. The government can’t stop you from marrying the person you choose. And equal protection under the law reinforces that.

But what about gay wedding cakes? This is a civil rights issue. It’s the baker’s choice to offer services to the general public – the government isn’t mandating that the baker start a business. Refusing to comply with equal access under the law is no different from a restaurant refusing to seat an African-American customer.

Where do human rights come from?

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Phoenix, Arizona

Are human rights government creations? Or do human rights pre-exist government – being derived from nature – with government tasked with protecting those rights?

These are important questions because the answers weigh heavily on what rights we have and whether they can legitimately be taken away.

If we have free speech only because the government says we do then we don’t really have the right to free speech because the government can just as easily take this right away.

On the other hand, if human rights are natural rights then the government cannot legitimately deprive us of these rights. But what’s the basis for saying human rights arise from nature?

The Good

These questions have come to the forefront because the perspective of Supreme Court nominee Neil Gorsuch gives us clues about how he might rule on various issues.

Reason.com says the debate centers on the question, “What is the good?” One position is that life is inherently good. Another is that human flourishing is the primary good, and human rights are necessary for this flourishing – what Thomas Jefferson called the “pursuit of happiness,” or what the ancient Greeks called eudaimonia (which is often translated as happiness even though that doesn’t fully capture it).

This matters, Reason goes on to say, because if life is inherently good with no further explanation needed then abortion and assisted suicide are not rights. But if human flourishing is the good, and life is in service to this flourishing, then a woman’s flourishing gives her the right to choose.

Stoicism and human rights

What would ancient Stoic philosophers think of this debate? That’s hard to say. Eudaimonia is important in Stoicism. But eudaimonia cannot be achieved unless we live virtuous lives. So for Stoics, virtue is more important than happiness.

Natural rights wasn’t a concept in the ancient world, however. Had it been, ancient Stoics might have connected natural rights to justice, which they saw as part of Nature. Perhaps they even would have claimed Logos as the source – the providential universal reason that orders all things.

I wrote earlier that this idea of Logos isn’t as popular with Stoics today because modern science makes it hard to justify. Instead, I suggested that the elusive “theory of everything” – the underlying principle of the universe from which every other scientific principle follows – might be the closest we can come to Logos. But this is not a conscious or providential force – it’s an impersonal force of nature.

So a modern Stoic who rejects the ancient view of Logos can’t argue that natural rights exist as an objective scientific principle.

What I’m left with is my opinion that human rights pre-exist government because every person must have rights in order for human flourishing to be possible. While my position lacks an objective, scientifically provable standard, I argue that the same is true for those who disagree with me.

We are a tribal species. But it doesn’t have to be our downfall.

Us vs. them is human nature. Human rights, equality & democracy are the answers.

Us versus them is one of the most common themes in politics, history, IMG_0472sports, business, music – in human nature in general. But people also can be amazingly generous, compassionate, and cooperative.

In the 1970s E.O. Wilson proposed sociobiology to explain this contradiction. We’re a super social species, and just as adaptations to the environment drive our physical evolution, adaptations to the demands of our social group drive psychological evolution. In other words, our social behavior has biological roots.


Today’s social groups are like the tribes of the past.


But this social behavior has its limits. In The Social Conquest of Earth Wilson notes, “We have created a Star Wars civilization, with Stone Age emotions, medieval institutions, and god-like technology.”

Social skills are key to human survival. The most socially cohesive tribes surpassed less adept tribes. And today’s social groups are like the tribes of the past. But cooperation, while valued among members of the ingroup, is valued far less with the outgroup. Often there’s violence.

And we mustn’t forget about competition within a tribe for power and social status. Psychologist Jonathan Haidt likes to quote a Bedouin saying: it’s me against my brother; me and my brother against our cousin; and me, my brother, and our cousin against the stranger. The more distant our connection the less you matter to me.

This is why Wilson tells us that human beings seem to be of two minds: self-sacrificing and viciously selfish, altruistic and self-interested, peacemakers and warriors, empathic and uncaring, and so on.


The more distant our connection the less you matter to me.


I don’t think argue pure altruism exists. Evolution ultimately is about the perpetuation of an individual’s genes, so it all comes down to self-interest. But there’s narrow self-interest, or competition, which is win-lose; and there’s broader self-interest, or cooperation, which is win-win.

Both cooperation and competition can be good. But narrow self-interest is our default. And this can be problematic. Our shared humanity (and shared DNA with other species) means we’re closer to others than we often think. But failing to realize this leads us to think that others don’t matter, and we can do whatever we want to them. This is how rape, murder, genocide, torture, and any number of horrible things happen.

Human societies have tried to solve these problems. It took us thousands of years, however, to figure out that democracy, equality, and universal human rights are essential to mitigate the dark side of human nature.


Religion fuels tribalism, but atheism is just another tribe.


And we can do better still. Religion fuels tribalism, but atheism is just another tribe to contend with. What can we do about this? Wilson suggests:

  • Challenging the claims of those in power that they speak for God, are God’s special representatives, and have exclusive knowledge. This includes challenging the alleged special status of the pope and even the Dali Lama.
  • Acknowledging that we are solely responsible for our actions, which includes how we treat others, animals, and the earth.
  • Accepting that science is the best method we have for discovering objective truth about the world.

To this I would add that we should try to figure out what encourages cooperation, and what encourages competition. After all, competition is often good. Competition drives us toward something better. But competition can get out of hand. Where is the line, and what leads to us crossing it?


We need democracy on a global scale, and a universal bill of human rights.


We need democracy on a global scale. There are still too many undemocratic countries. And most corporations are not democracies even though there’s no reason why corporations can’t be run more democratically.

I don’t advocate a strong world government, however, because that would be too big of a temptation for a would-be dictator. But we could have a universal bill of human rights that we would strive for all nations to amend into their national constitutions.

Religion, Secularism, & Atrocity

Religious atrocities are central to the atheist critique of religion. Christians often respond with a litany of atheist atrocities such as mass murder by communist regimes. 

Even when religion or anti-religiousness is directly to blame, we must ask: What does this prove? That one is better than the other? If both sides are guilty of atrocities, it would seem that we need to dig deeper than the veneer of belief systems. 

Criticism is the life breath of reason. When religious and political regimes commit atrocities, it is not because they are inherently evil, but because they too easily become evil when they refuse to permit criticism.

Taking it a step further, all ideologies need to seek out criticism. But communism and religion typically fail to do this.

It is politically correct to declare religion (especially Islam) innocent of any culpability for atrocities committed in God’s name. An unasked question, however, is this: If religion is not responsible for evil committed in its name, then is religion also not responsible for good committed in its name?

For example, one controversial theory claims that slavery was really abolished because it is incompatible with modern industrial capitalism, but religious sentiments served as a good marketing strategy for abolitionism because economic self-interest was too crude a reason. 

But wouldn’t capitalists love free labor? There are key reasons why they wouldn’t. For one, capitalism is based on incentive and self-interest. If you work hard, you’ll earn more money. A slave, however, will still earn nothing regardless of how hard she toils. But slaves do have an incentive for passive resistance, such as “accidentally” breaking tools, not bothering to think of ways to improve efficiency, and pretending to be stupid. Further, education is important in a modern capitalist society, but slave education was prohibited because knowledge is power.

Yet, it doesn’t seem plausible that the moral and religious sentiments of abolitionists (some of whom were also critics of capitalism) were less than sincere. The point is that religion is intertwined with politics and economics. Put another way, religion is not mutually exclusive from other social institutions. 

It’s not a matter of religion or politics. Instead, it’s the combination of religion, politics, economics, culture, and so on. Likewise, communist atrocities involved politics and economics, but atheism was in the mix too.

Further, the dividing line between secular and religious atrocities is not always clear cut. Nazism featured a confluence of two disturbing ideologies, one secular and one religious. Social Darwinism justified racism as survival of the fittest, and this created a new rationale for anti-Semitism, which the Nazis borrowed directly from Christianity. Hitler (a lapsed Catholic) was quick to sign a concordant with the Vatican upon taking power in Germany. And the Vatican, unlike its unrelenting criticism of communism, remained silent on fascism until after World War II.

Religion didn’t invent violence, and neither did atheism, although at times both have encouraged it. Only studying what promotes peace, and understanding what creates violence, will enable us to find ways of stopping atrocity. But simplistically blaming religion or atheism for the world’s problems is unlikely to get us anywhere.