Where we are headed
Moral panic will lead to the penetration of the First Amendment
Social movements ripen over many years, even generations. It’s hard to see the direction of things sometimes until you look back at history for guidance, with the distance of time giving needed perspective. Sometimes that perspective is counter-intuitive to where we are.
My kids and I were watching a popular YouTube channel called “Oversimplified” where a 27-year-old content producer narrates history using simple cartoons in a comic style. It’s entertaining, but largely accurate, history. We watched one about the history of Prohibition.
I had never really studied the temperance movement, other than some of the fiery sermons by preacher Billy Sunday, who railed against the evils of alcohol in the days leading up to the passage of the 18th Amendment. But the temperance movement had much deeper, and much more political, roots. It went back to 1808, when the Union Temperance Society of Moreau and Northumberland, spurred on by writings of Thomas Jefferson’s advisor Benjamin Rush.
In the 1870s, temperance fringe-nutcase activist Carrie Nation went on a smashing spree of bars and saloons. She also protested for women’s rights. Nation was the original Hulk, who loved the word “smash” in ways not heard since it found a place in Marvel comics.
Oh, I tell you, ladies, you never know what joy it gives you to start out to smash a rumshop.
The temperance movement didn’t find its real footing until it became political, and it was picked up by the progressive movement. Various experiments in creating “dry states,” like South Carolina Gov. “Pitchfork” Ben Tillman’s plan, found early support, only to collapse in corruption and abuse.
The failure of the dispensary system in South Carolina and its eventual abolition in 1907 represented a victory for prohibitionists. The lesson educed was that half measures could not work, especially when they implicated the state in a dirty business. Dry representatives felt confirmed in their belief that government regulation was not only ineffective, but counterproductive; once the state sought to rehabilitate the liquor trade by becoming an accomplice, the principles of temperance were irrevocably compromised. Efforts to control were viewed as misguided and expedient; prohibition, it was concluded, was the only consistent response to a traffic intrinsically dedicated to excess and disorder.
Piece by political piece, the prohibitionists, single-minded in their effort to blame all ills on demon alcohol, built their movement. It came to fruition with the passage and rapid ratification of the 18th Amendment. It was a public relations coup.
Up until Prohibition and the Volstead Act, alcoholic beverage production and consumption in America did pretty well. In fact, the Spanish Flu pandemic caused a spike in whiskey sales, as people believed it to have curative powers. Something similar is happening now with COVID-19.
Over time, American consumption of alcoholic beverages has been fairly consistent at around 2 and a third gallons per year per capita. It was that way before Prohibition, and returned to the norm afterwards (except for a brief rise during Jimmy Carter’s presidency, who knew?).
So why was alcohol blamed for all our ills, leading to ten years of a dry America, rampant crime which was largely not prosecuted, and ultimately, a failure of trust in government that only World War II seemed to restore? I’d say it was the same spirit affecting this age: a moral panic.
Today’s moral panic, when viewed from the historical distance of the Prohibition era, becomes a bit clearer to see. We are having a problem with free speech. The movement to protect free speech, and ban various shades of “hate” speech, “seditious” speech, “un-American” speech and the like has been an effort, in fits and starts, under way since the Cold War and Senator Joe McCarthy. It has its roots just as deep as those of the temperance movement.
Just when it looks like the First Amendment is pretty secure, when we can read any number of pieces by David French on how, legally, free speech is winning battle after battle, the arrow I’m seeing in our society is pointing directly at the heart of the First Amendment. French is a past president of the Foundation for Individual Rights in Education (FIRE). That organization has produced a canary-in-the-coal-mine warning of where we are going.
You need to watch the documentary “Mighty Ira” about the lion of the ACLU, Ira Glasser, to see how an organization once devoted to the preservation of deeply unpopular speech rights (like the Nazis in Skokie), has given in to the siren song of opposing “hate.”
On both the left and the so-called right (MAGA land), our society is seeing calls for penetrating the protective shield of the First Amendment in order to stifle debate, combat unpopular opinion, or marginalize dissent. This is very reminiscent of the political strategies used to pass Prohibition, where immigrants were on one side hailed as exemplars of the value of temperance and salvation through resistance to evil alcohol; and on another side reviled (many times by the same people!) as bringing their filthy drinking habits into our pure WASPy society, thereby polluting it.
We are heading in to a social environment where the fruit of doxxing, social media conspiracies, deep fakes, yellow journalism, hacktivism, celebrity worship, and pure manipulation by meme (of markets, elections, and violent movements) birth a reactionary political push to quickly solve the problem. Experiments in regulation will end horribly, and someone will propose an all-encompassing solution to poke a hole in the First Amendment by another amendment preventing “hate” or “seditious” speech. It will be passed by Congress and ratified by the states.
We will then have a problem, a mistake worse than Prohibition, as government will wield a power not granted it by our founders. I see this coming.
Do you?
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I do believe that there are political forces in play that dampen the exercise of free speech in support of sometimes worthy goals by use of intimidation. Congress has passed legislation before that has dampened speech, but the pendulum has always swung back to a vibrant defense of First Amendment speech. Do not see a constitutional amendment countering free speech exercise making it into the Constitution. Only a continuation of strong arm tactics to dampen enthusiasm to speak freely. It will continue as long as our politics is polarized. That is bad enough.
"Experiments in regulation will end horribly, and someone will propose an all-encompassing solution to poke a hole in the First Amendment by another amendment preventing “hate” or “seditious” speech. It will be passed by Congress and ratified by the states."
I'll take the other side of that bet. Amending the Constitution is nigh impossible in this modern age (look how difficult it is to pass simple legislation of any meaningful magnitude relying on regular order in Congress), and I have a very difficult time imagining how much further the country would have to slip (moral panics or not) before amending the First Amendment.
The simpler and easier path is to stack the Court with Justices who don't interpret hate or seditious speech as eligible for First Amendment protections (they've already carved out some exceptions), and letting an existing law or EO stand that limits such speech. I'd also take the other side of the bet that happens, too.