The Lincoln Plawg - the blog with footnotes

Politics and law from a British perspective (hence Politics LAW BloG): ''People who like this sort of thing...'' as the Great Man said

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Monday, October 20, 2003

Does Eisner get an ADL speech-chilling award or something?

No doubt that, amongst those on offer, the First Amendment is my favourite. Free speech, yay! But the first corollary is, of course, that no one has to publish what he doesn't want to [1].

And that's all that Disney have done (Mickey Kaus has picked up the baton for links and such). Some prehensile-tongued apparatchik, I suspect, anticipating the boss' wishes, rather than Disney boss Michael Eisner himself, got the New Republic's Gregg Easterbrook fired from his ESPN gig. And hats off to him: it's a move with no downside and all sorts of benefits.

It's a warning to all concerned to watch their step. Objectively, Easterbrook was an amoeba in the Disney firmament - the Mouse couldn't feasibly axe, say, Drew Carey (when his show was performing) - but his removal shows intent, a willingness to ignore whinging from the usual suspects, a demonstration that content is being scrutinised and will be cleansed.

But it's also testing the reaction of the wider public: do they know? do they care? My guess is, No and No. Have Disney done private polling on the issue, I wonder? When was the last big campaign of nationwide support for a First Amendment case? I suspect that, on most First Amendment cases taken to the Supreme Court, majority opinion would favour the party wishing to curtail free speech [2]. It always seems to be some weirdo wanting to burn crosses or distribute porn on the net who's protesting about free speech - why do they even let those people go to court...

All the more reason, when the First Amendment is clearly on the side of the Mouse, why a symbolic defenestration would cause no public alarm. One of the great American dichotomies - of which Gunnar Myrdal's American Dilemma is perhaps the best known - is that the society with the greatest legal protection for diversity in expression is also one which prizes conformity highly [3].

Flipping to the ABC News page, one sees the line-up of Eisner's news output. I'm sure there are Chinese walls, and Eisner is no William Randolph Hearst. Still, network news is an expensive business, especially when wars and elections are there to be covered, and even the impression of a hand reaching down from the heavens to grab Easterbrook warmly by the throat...

The key to understanding the process is that we are talking about influences operating at the margin. A news show has 22 minutes a night to fill; even with don't-blink-or-you'll-miss-them segments, that means tons of really great stories get left out of each show. When a difficult piece comes up, it's not as if leaving it out would leave 90 seconds of dead air. Or a report on the Podunk County Fair. No one will notice the difference. The old Stanley Baldwin motto applies: Safety First.

That's the power of chilling speech: it doesn't require a squad of Pinkerton men with clubs and shotguns, or a court order and marshals. No one gets marched into Room 101. It's not visible as an exercise of power at all. Like all good covert operations, it has the essential feature of deniability.

But what goes around, comes around. As, say, with activism in the Supreme Court, it cuts both ways. Liberals of very little brain who applaud the concept in Brown (the schools desegregation case) conveniently gloss over the child labour cases of a few decades earlier. And, quite conceivably, those who are supporting Disney in its courageous stand against Easterbrook (Goliath wins one at last!) may live to regret that front-office muscle may have made news guys even less likely to go out on a limb than before.

  1. The 1995 Hurley case, on the right of the Boston Irish to decide who should march in their St Patrick's Day parade, one of the US Supreme Court's lucid episodes. Did NORAID get a float?

  2. The Free Speech Coalition would scarcely have wanted their case put to a referendum!

  3. In a March 12 piece on Rep James Moran, of all people, I mentioned a piece "Political Correctness" and the American Historical Profession by Herbert Shapiro of Cincinnati U. This piece references a couple of books by Robert N Bellah et al: Habits of the Heart: Individualism and Commitment in American Life and Individualism and Commitment in American Life: Readings on the Themes of Habits of the Heart. And the first chapter of Allan Bloom's Closing of the American Mind is online.


Reading to the bottom of the Kaus piece, it's mostly about characterising Easterbrook's effort. After canvassing various people's suggestions, Kaus quotes Volokh with approval:
Easterbrook's espousal of this theory did not suggest any real hatred, hostility, or bigotry, only moral error.

Factual error is open to all of us to identify: but moral error implies some sort of external authority, animate or inanimate, by which moral truth may be distinguished.

Now there, surely, is a thoroughly un-American idea: didn't the Pilgrims leave England to escape just that sort of authority?

Even allowing there to be such a thing as moral error, how should it be dealt with?

Kaus provides us with a little story about a New Republic piece of his own:
I wrote that discrimination against homosexuals in West Hollywood bars was less outrageous than, say, discrimination against blacks in the South, because homosexuals in West Hollywood had acquired money and power.
And what happened?
After the piece was printed, one of TNR's top editors let me know he thought the argument was offensive, and I realized after some resistance that he was right. I wasn't fired, though. I was busted and I learned something. That's what's supposed to happen...That's what should have happened with Easterbrook.

Now, of course, TNR management are as much entitled as Michael Eisner to control what their media outlets publish. (Though clearly the Kaus piece passed through some sort of editorial process that would have weeded out, say, a call to assassinate the President.)

But Kaus seems to be suggesting, not that his piece ought to have been edited out not because it didn't fit with TNR's agenda, but because it was intrinsically and objectively morally bad.

And it was bad merely because the
the argument was offensive
And, on that basis, it should not have been published at all. By anyone.

And, most chillingly - pun very much intended - of all, he says he
learned something.

Give this boy a Loyalty Oath! Oops, he's got one already.

Surely Kaus's piece must be satire...

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