In The Racket, Jonathan Katz talks about "the right to be an asshole." He doesn't just describe relatives who start fights at Thanksgiving or the hosts of AM radio talk shows. He's primarily interested in the decisions of judges in two recent court cases. First, there's SCOTUS in 303 Creative v. Elenis, which concerned whether you have a religious right to refuse service to those you hate. To quote Katz:
What matters here is that the six conservative justices, led by Neil Gorsuch, found that the free speech clause of the First Amendment would permit Smith — and thus, pretty much anyone else engaged in a similar pursuit — to hang a sign on her future business saying “No Gays Allowed.”
I don't believe most people hold the 1st Amendment's purpose to be legalized discrimination. I think they believe that free speech is so important that we have to hear dissenting views in tough circumstances. Thus, we are obligated to tolerate some measure of behavior we think bad. It's that specific moral intuition which bad actors exploit to the point of destroying rights for everyone. In this case, those actors include the Supreme Court of the United States.
Still, we have to address those who want to hold that a complete absence of government regulation or social norms constitutes free speech. We'll get to them shortly. Katz goes further than seeing 303 Creative as establishing a right to discriminate via free speech. He links that case to Missouri v. Biden, which is about government "censorship." I'm putting "censorship" in scare quotes for a reason. You'll see why after reading Judge Terry Doughty's summary of complaints below, which I've quoted from Katz's newsletter:
In this case, Plaintiffs allege that Defendants suppressed conservative-leaning free speech, such as: (1) suppressing the Hunter Biden laptop story prior to the 2020 Presidential election; (2) suppressing speech about the lab-leak theory of COVID-19’s origin; (3) suppressing speech about the efficiency of masks and COVID-19 lockdowns: (4) suppressing speech about the efficiency of COVID-19 vaccines; (5) suppressing speech about election integrity in the 2020 presidential election; (6) suppressing speech about the security of voting by mail; (7) suppressing parody content about Defendants; (8) suppressing negative posts about the economy: and (9) suppressing negative posts about President Biden.
Two things the government tried to prevent from spreading throughout social media: vaccine misinformation and conspiracy theories about voting. The judge in this case did not think the government had a compelling interest in stopping either.
You might wonder if it is really free speech to discriminate against your own customers or lie all the time about everything. Katz wonders the same thing, too. He concludes that what's going on is twofold: 1) we're dealing with people who see the 1st Amendment as protection for being as obnoxious as possible 2) the obnoxiousness creates political power for them. Katz, again:
Reactionaries see free speech and the First Amendment first and foremost as protecting their right to be assholes to their neighbors, their relatives, even themselves.
They want that, not just because it feels good to them, but because their political faction thrives in obnoxiousness.
I almost want to stop completely at this point. The argument is airtight. A portion of the political class believes the 1st Amendment protects a vast number of anti-social behaviors. These, of course, are far from harmless. There's a price for vaccine misinformation. Plenty of kids die nowadays on account of easily preventable diseases. Constant screaming about election fraud nearly overthrew the US government. But such behaviors help cement the power of one party in particular.
We need to talk about trust.
There are many who do not think this is important. We're taught that a divided government which can't do anything is a good thing. Relatedly, those who actually get power use an ideology of "winner-take-all," whether we speak of billionaires buying elections or courts ruling as monarchs. Many without power punch down (e.g. not tipping) or try to stir hell so systems cater to them (e.g. "Karen").
The constant bullying of American life doesn't just erode trust. It makes trust invisible. If I bring up the necessity of trust in the classroom, some students will scoff. They'll say they made it as far as they did with virtually no help. And I won't challenge them on this, because in a crucial sense they're right. I've known people who "helped" with such a rotten attitude that it would have been better to receive nothing at all.
The political right currently overuses "the right to be an asshole." But the problem is deeper. Where did so many people learn that trust isn't a real thing? It feels like a number of lazy beliefs combined to create a toxic stew. For example: the belief that factions matter more than fraternity; that if you work hard, you can do anything by yourself; that incentives matter more than social bonds or obligations.
Nowadays I'm thinking the problem isn't just building trust, but showing trust exists and should be valued. This is easier to do on a small scale--though not that easy!--and a brutal exercise when it comes to complete strangers or the marketplace of ideas. The last time I can remember my own circles talking about trust was the mortgage crisis. My libertarian-leaning friends spoke about how it used to be a sacred obligation to pay back a loan, but because people decided they wouldn't pay back loans, banks failed. Of course they failed to mention that the banks intentionally sought everyone and their mother to sign up for mortgages. The banks engaged in all sorts of deception because the mortgages weren't valuable in themselves. What the banks were after was packaging the mortgages into securities where the real money was.
So we spoke about trust, but it was "trust" weaponized against poor people ("why can't they be trusted?") with not one thought about whether powerful institutions depend on norms which they themselves abuse. I think that's a good enough place to end this short take. If I can learn to identify in our recent horrors what social norm or universal good is being used cynically, I can better see what we need to protect or advance. In the case of the 1st Amendment and limitless obnoxiousness, it looks to me like most people do want to make some allowance for others to be obnoxious. It would help to identify those who are obnoxious to a fault as literal enemies of democracy, as they are either taking bribes or aiding and abetting a coup.