We are coming this week on the anniversary of the death of our beloved friend Michael Novak, one of the founders of this site and many other valuable initiatives. His voice as a writer, on theology and politics, on the arts and sports, could always break through the rancor and confusion of what is left of our public discourse.
I miss him at every turn, and I need him ever more now as an ally as I find myself at odds – even with friends among the conservative judges – on the matter of purging moral judgment from the law when it comes to judging the content of public speech and entertainments.
What can be said for my friends on the courts is that they have come to a vivid sense of the tendency, abroad in the land, to brand a conservative and religious perspective on marriage and sexuality as a species of “hate speech.” Some of them seem to be persuaded now that the surest path to protecting the speech of moral conservatives is to deny, in a stroke, the possibility of casting a moral judgment on any species of speech, as hurtful or wrongful, as rightly deserving restraint.
Call it a saving touch of “relativism.”
And so, two of my favorite justices brought things to sharper statement three years ago (in Matal v. Tam) when they drew on a line of the late Justice Brennan and declared, with a new accent, that it is nothing less than a “bedrock” of the First Amendment that “speech may not be banned on the ground that it expresses ideas that offend.”
The simple novelty here is to regard what “offends” as a matter entirely subjective. Any hurt or damage depends entirely on the feelings of the people who hear the words, and the variety of wounded feelings may be boundless. But what is ruled out is the recognition that there may be things done, with speech as with any other instrument of our freedom, that may indeed be offensive and wrongful in principle.
But, of course, it was long understood in the law that speech could become an instrument for inflicting unjustified, wrongful harms, along with any other part of our freedom. Strictly speaking, “assaults” did not require bodily touching and material harms. The threatening phone call in the middle of the night constituted an assault, just as much as any bodily attack. That call could administer a shock, as could a call that brings news of a death in the family. And we can judge one call as justified and the other unjustified, with the same standards we bring to the judging of any other acts that inflict harms.
The radical break comes in detaching the “liberty” to speak from the moral judgment that decently constrains. And that is the problem that Michael Novak addressed at the core. For what he saw was that “liberty” could not be separated from moral truth. Liberty must always be directed to an end, and so it must point to the question of whether that liberty is being directed, in any case, to ends good or bad.
For most of our history, the notion of liberty has been attended by the awareness of “license”: the misuses of freedom in pursuing wrongful or corrupted ends. What Novak saw, at the heart of liberty, was the challenge posed by nihilism. He recalled the infamous “mystery passage” by Justice Anthony Kennedy: that “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the meaning of human life.” This, said Novak, was “pure nihilism”:
If I am free to make up my own universe, no law binds me. Nihilism means never having to be judged, and in this it gives the illusion of total freedom and unfettered autonomy.
And as John Paul II saw, “If there is no ultimate truth to guide and direct political activity, then ideas and convictions can be easily manipulated for reasons of power.” As moral truths are ruled out, judgment turns on acts of brute will or the flexing of power.
The shift began really in 1971, with Cohen v. California and Justice Harlan’s famous axiom, that “one man’s vulgarity is another’s lyric.” The meaning of moral words was taken to be entirely emotive, with no content that could be judged true or false. And so the judgment on what language is legitimate in a public place, he said, is a judgment that “the Constitution leaves. . .so largely to the individual.”
Before then there was a prevailing sense that people had an obligation to restrain themselves out of a respect for others in a public place. But after the presumption was in favor of the freedom to act out even gross displays in public. The burden would fall to others to avert their eyes, develop tougher skin, or simply avoid public places altogether.
Except for one class of speakers: pro-life demonstrators. They alone could be restrained or barred from approaching other people if their very presence could be felt as a sting of reproach for women walking into a clinic for abortion.
The result has been a steady coarsening of our public discourse and entertainments, while the move to a “protective relativism” has brought no safety for conservative speakers on the campuses. At the same time, it has removed even the moral ground for defending “liberty” as a good to be preserved.
*Image: Michael Novak by Igor Babailov, 2009 [Canizaro Library, Ave Maria University, Florida]