Who's Legitimately Protest-Worthy?

Let's divide the expression of certain opinions into four categories.

1. Correct. This is speech one outright agrees with -- you think is correct on the merits.
2. Legitimate. This is speech you do not agree with, but you concede is within the bounds of legitimate argument. "Reasonable minds can differ" and all that.
3. Permitted. This is speech which you neither think is correct or legitimate, but which you agree one has the formal legal right to say.
4. Impermissible. This is speech you think should be legally prohibited. 

In the United States, of course, the "impermissible" column is a narrow if not non-existent category, at least with respect to opinions. And we're all relatively capable of figuring out what speech we agree with. So most of the interesting action comes in whether a given act of expression falls in the second or third category -- that is, whether speech we disagree with is nonetheless legitimate (within the bounds of reasonable argument) or merely permitted (an unreasonable view that nonetheless must be tolerated as part of our commitment to free expression). (This distinction was presaged in my "Academic Freedom versus Academic Legitimacy" mini-essay).

To a large extent, the cultivation of a "free speech culture" is about trying to ensure that the "legitimate" category remains relatively expansive (that we aren't too trigger-happy in placing all speech that we don't think is correct in the merely permitted category). And what makes "free speech culture" a difficult concept is that even as we might agree we should cultivate a strong inclination towards slotting most speech we disagree with into the "legitimate" category, there absolutely are plenty of cases of speech which should be viewed as merely "permitted". I don't think we can ban Holocaust deniers -- their speech is permitted -- but we should absolutely not view them as expressing a legitimate opinion on which reasonable minds can differ.

This is all by of introduction to what I actually am curious about, which is how to apply this framework to protests of speech (here I'm imagining a situation akin to the protest of a speaker invited to give a public lecture, as opposed to broader protests regarding a social or political phenomenon. Picketing a speaker rather than BlackLivesMatter). To wit: Does anyone view themselves as legitimately protest-worthy?

Protests are a form of expression. Stated loosely, when people protest a given speaker, that protest is an expression of a position that this speaker is sufficiently terrible in some relevant respect that it would be wrong and improper to engage with them via the normal deliberative process. And as expression, protests can thus be grouped into the above framework. Some protests we think are correct (yes, this person is so vile and outrageous that they should be protested). Some we think are legitimate (we might not personally share the belief that this person is so terrible as to be protest-worthy, but we recognize that reasonable minds can differ in that assessment). Some we think are merely permitted (the protesters are being unreasonable in their assertion that such-and-such person is that terrible, but they nonetheless have the formal right to protest). And we can imagine protests we think should be outright impermissible, though again, under the First Amendment the set of protests which can be declared unlawful on basis of their opinion is narrow if not nonexistent.*

So: Imagine you are the subject of a protest. Presumably, you don't think the protesters are correct (that you're a vile individual who should not be engaged with via the normal deliberative process). But assuming you accept the American legal tradition, you also don't think protest is impermissible (that it  should be illegal to protest you -- though again, this doesn't mean that all particular modes of protest have to be permitted). So the action is, once again, between the "legitimate" versus "permitted" categories. But it's hard for me to imagine that any individual would ever think they are legitimately protest-worthy. And notice how this is different from how most speakers would treat substantive disagreement. There are many circumstances where one might face a challenging question and think "well, that's not my position, but I think it's a fairly-raised point that reasonable people should consider." It's hard to imagine a circumstance where someone would say "I may disagree, but reasonable minds can differ about whether I'm the sort of vile individual who should not even be met with normal deliberative engagement." All protests, to the protested, will be viewed as falling in at best the "permitted" category. 

Why does this matter? As we said above, the concept of "free speech culture" is in some ways about cultivating an inclination away from removing disagreeable speech from the "legitimate" category and deeming it merely permissible. We should be willing to consider -- not just on a formal legal level but on the level of practical public judgment -- a wider array of challenging opinions that we might otherwise be naturally inclined to accept. But protests put systematic pressure on this inclination because the protested party will always view their circumstance as falling outside the "legitimate" category, and so present a perpetual pressure point pushing away from "free speech culture". 

Admittedly, part of the reason why is that protests themselves probably are assertions that the speech in question falls outside the "legitimate" category. So we have dueling claims of illegitimate speech -- the protesters say the speaker is illegitimate; the speaker says the protesters are illegitimate. But that underscores the problem rather than solves it -- the entire structure of protests, including opposition to them, exerts pressure against "free speech culture".

I mentioned earlier that the challenge of "free speech culture" is that the inclination towards categorizing speech as "legitimate" still has to be one exercised via individual and case-by-case judgment, because there absolutely are cases (probably many cases) of speech that should not be viewed as legitimate even if it is permitted. There are circumstances where it is proper to view a given speaker as illegitimate (even if permitted); there are circumstances where it is proper to view a given protest as illegitimate (even if permitted). There's no dodging out of personal accountability and discipline here.

But there does seem to be at least one asymmetry in the situation I've identified: the protesters at least in concept could go through the process of individualized assessment and judgment (is this speaker truly in that beyond-the-pale, illegitimate category?). They may get that assessment right or wrong, but the outcome is not structurally foreordained. The protested party, by contrast, I suggest will always come to the conclusion that the protest is in the illegitimate category; there's no realistic circumstance where

he or she will concede "you know, the protesters do have a valid point in how they view me."

I'm not really sure what to do with this observation, but it struck me as interesting.

* To be clear: There are all sorts of ways that a particular way of protesting can be unlawful -- but those mechanisms are unlawful regardless of the underlying opinion being expressed. For example, we could say that "shout-downs" are an impermissible form of protest -- but the point is they're not impermissible contingent on who is being shouted down. They're impermissible regardless of whether their target is the Dalai Lama or David Duke. And by the same token, a protest that does not take one of these impermissible forms cannot be deemed unlawful no matter how unreasonable or absurd we think it is that a protest is targeting someone like that -- people are permitted to protest the Dalai Lama, even if I think that's an utterly absurd and unreasonable (i.e., illegitimate) thing to do.

Even Friendly Dominance Is Still Dominance

For some reason, a slew of congressional Democrats (along with President Joe Biden), most whom purport to support DC statehood -- most of whom I think genuinely support DC statehood -- voted to overturn the DC government's recent alterations to its criminal code.

This was a foolish decision, not the least because you give the GOP and inch and it takes a mile on these things.

But in its way, it demonstrates exactly why DC needs statehood.

The simple fact is that no matter how warm or empathetic any particular national politician feels towards DC, they cannot be trusted to govern DC insofar as they are not elected by DC voters. That's the entire point of democracy -- that our representatives are chosen by us, and so gain the legitimacy to write laws on our behalf. If DC were a state then normal, local lawmaking about DC would be undertaken by politicians accountable to DC voters. That doesn't mean all their choices will be good or salutary, but DC residents have the same right to make what some might deem to be mistaken policy choices as Kentucky or Idaho or Maine voters.

And the setup that DC has now -- with putative home rule, but subject to the oversight and approval of Congress -- will never substitute for actual home rule. Even men and women who think of themselves as DC supporters, who have naught but fair-feeling towards the people of DC, will be unable to resist the allure of substituting their own judgment for those of the actual DC polity. Whether because of strong feelings on a given issue or simply the happenstance of political maneuvering, those who have the power to dominant will exercise that power.

So long as Congress has the special power to override DC home rule, it will exercise that power -- it does not ultimately matter how "friendly" the individual Senators and Representatives are. The only way to end that is to give DC true, actual homerule on the same terms as any other American jurisdiction -- that is to say, by statehood.

(And yes, the same applies for all the American colonies).

Tablet Magazine's Great (Jewish) Replacement Theory

Tablet has a new article up on the purported "erasure of Jews from American life," which is getting at least some amount of traction. This is a bit striking, given that the article really boils down to a Jewish-flavored iteration of "Great Replacement Theory" where undeserving minorities are progressively taking the positions and roles and social boons that previously were occupied by, and are the rightful entitlement of, White people  -- only instead of Jews being the replacers (as in classic White supremacist ideology), Jews here are the replaced. Then again, what is Tablet Magazine these days other than "White Supremacy, but make it Jewish"?* So I guess this is on brand.

In any event, the claim that Jews are "vanishing" from American public life seems dubious to me, and some of the data marshalled in support is suspect.** Moreover, some of the "colorful" anecdotes meant to illustrate how the big bad DEI industry is excluding Jews are so bad that they end up undermining the entire thesis. Consider this absolute corker, which I can't help but sharing.

Another Jewish professor applies to work in the UC system. In his mandatory diversity statement, which he describes as “the most shameful piece of writing I’ve ever done,” his sole aim is to convey the impression that he hopes to be the last Jewish man they ever hire. He still doesn’t get the job.

"He still doesn't get the job." Good! Someone who expresses their hope that the UCs never hire Jews again should be ashamed of writing that, and should absolutely not be hired! When your evidence of pervasive antisemitism is "universities won't hire people who are nakedly antisemitic on their DEI statements," I think you're losing the thread.

But anyway. Let's assume, arguendo, that there are proportionally fewer Jews at various elite institutions than in years past (though, it must be said, Jews still are statistically over-represented). There are, as far as I can see, three different stories one could tell to account for that shift.

(1) There are proportionally fewer Jews in certain institutions because there are proportionally fewer Jews, period. In 1953, the American Jewish population was estimated at around 5,000,000. In 2020, that figure was approximately 8,000,000 (5.8 million Jewish adults, plus roughly 2 million Jewish children, depending on how you count it). That's a roughly 60% increase over a period where the overall American population grew by 120%. The result is that a smaller proportion of Americans are Jewish, which makes it unsurprising that a smaller proportion of the population of American institutions will be Jewish. That type of "disappearance" may or may not be concerning, but it's not a problem on the end of elite institutions.

(2) There are proportionally fewer Jews in certain institutions because Jews are choosing to attend alternatives. If Jews aren't literally disappearing, then they have to be somewhere. So the question is "where have they gone?" If the answer is "someplace else they're equally happy at," then it's hard to say there's a problem. For example, suppose we encountered data showing a significant drop in the number of Jews attending veterinary school. After some sleuthing, we learn that many of the Jews whom in prior years one might expect to enroll in veterinary school now are going to dental school instead. That speaks to a potential change in generational priorities, but there's nothing worrisome about it. More broadly, if the absolute number of Jews isn't going down (see explanation #1), then the not-literally-disappeared Jews must be going somewhere, and if they're broadly going to places and jobs and positions that make them happy, then there's no basis for concern.

(3) There are proportionally fewer Jews in certain institutions that Jews still wish to be admitted to at equal rates compared to past years. This is the only story that seems even potentially worrisome: Jews still wish to attend elite institution X at the same rate as in years past, but now fewer of them are actually gaining admission. Yet even here, this story doesn't necessarily demonstrate anything unjust is going on. Many students wish to attend Harvard, most will be thwarted in that ambition, but while that's sad for those students it's not proof that they're being maltreated. Most of the time, it's proof that other as-or-more qualified applicants got the nod -- no harm there. And if the same number of Jews are applying to Harvard each year, but the overall number of applicants surged (Harvard received over 20,000 more applications for the class of 2026 compared to the class of 2016), then one is likely to see fewer Jewish admissions simply because the pool has gotten much more competitive.

Ultimately, I think all three explanations play a role. There are fewer Jews demographically (and my understanding is that is even more pronounced amongst younger age cohorts). That there will always be generational shifts in what Jews want to do means there will always the opportunity to hack in a selection bias ("X University has fewer Jews!" -- well, yeah, because more decided to attend Y College). But there's also the simple fact that civil rights progress means that many other groups which previously had lagged in the opportunity to access elite institutions, now are capable of competing for those slots, which means the admissions pool is larger and more competitive than ever before. 

Imagine a simplified admissions model where each year there are a certain number of "qualified applicants" and every qualified applicant is equally likely to be selected for a limited number of slots (i.e., amongst "qualified applicants", selection is random). That's obviously not true, but it's closer to true than we'd like to admit: Once one passes a certain threshold, it is essentially random chance whether the university prefers the tuba player or the violinist; the prospective physics major versus the biologist. I remember hearing one college admissions staffer at (I believe) Cornell say something to the effect that he could create an entering class comprised entirely of applicants rejected from Cornell in any given year and it would look statistically and functionally identical to an actual Cornell class. So at that level, we can say that amongst the many extremely smart, qualified applicants, there's more than a fair bit of chance about which ones actually get the admissions nod.

Suppose that in a given year, there are 20 qualified applicants for 10 positions, and 10 applicants are Jewish. Statistically (again, assuming functional random selection), we'd expect half the admittees -- five -- to be Jewish. Ten years later, there are still 10 positions, but now there are 100 qualified applicants, of whom 10 are still Jewish.  Now we'd expect only one Jewish admittee. But the reason isn't because of any discrimination (Jewish applicants are still exactly as likely to be selected as anyone else); it's because there's now a larger pool of competitors being drawn from. This is not odd but in fact exactly what one would expect as barriers to achievement or entrance to elite institutions begin to fall away: more people can access it, which means that the cadre which already was capable of accessing it now faces a tougher row to hoe in the form of greater competition. 

At this point we start to see a lot of dust get kicked up about whether Jews are "privileged" or not, whether Jewish overrepresentation is inherently unjust or not, whether Jews are "White" or not, whether Jews who successfully got into elite universities nonetheless faced antisemitism or not, and so on. But the fulminations around these point obscure a more essential truth, which is that their resolutions don't materially change the analysis. 

On the one hand, unless one adopts a very simplistic binary where one is either uncomplicatedly privileged or uncomplicatedly oppressed, then there is no trouble whatsoever with simultaneously observing two seemingly undeniable truths: one, that Jews in mid-20th century America faced significant antisemitism, and two, that the relative barriers to Jews gaining entrance to elite universities in mid-20th century America were objectively substantially lesser compared to the barriers faced by, e.g., African-Americans. Different oppressions are different (it's not a simple binary), and along this particular dimension African-Americans were historically more burdened than Jews (which is not to say Jews faced no burdens at all, and is not to say that there might be other dimensions where Jewish oppression looms comparatively larger). If that's so, then relatively equalization in this dimension will see a disproportionate swelling in the number of non-Jewish "qualified applicants", which makes for a more competitive pool. Again, no harm there.

On the other hand, if you insist on arguing that college admission is and always has been a pure meritocracy, and no group has faced any more obstacles than any other, then one has to accept that the current assortment is also the product of this meritocratic assortment and is thereby unobjectionable.*** Suppose (and I don't think is true, but you hear people make arguments like this a lot) that the reason Jews were overrepresented in elite colleges was because "Jews worked harder, and if other groups worked hard like Jews, they could succeed too." Well, then it would seem that what we're seeing now is other groups "working harder", which now puts them in a similar position to where Jews are, thus making the qualified applicant pool more competitive, to the (relative) disadvantage of persons who were already in the pool before other groups "caught up".

It turns out, of course, that the "just work harder" people get really angry at this story too, which suggests they don't actually believe it. What they want is a "heads-I-win-tails-you-lose" account where when their group overperforms it is the product of an unimpeachably fair and just system, but when other groups start to close the gap now suddenly the system is suspect. Needless to say, this isn't a legitimate play.

For my part, there are absolutely legitimate bases on which to say that Jews historically being statistically overrepresented in various prestigious social positions is not the product of Jews doing anything unjust, but rather based on salutary traits like hard work and moxie. But I don't think it's possible to say that it is inherently unjust if Jews don't keep this statistical overrepresentation in perpetuity. Jews can earn (via hard work, an educational ethos, selection, what have you) a greater-than-statistically-average share of the pie; but that does not mean that a world where Jews aren't getting that additional share (or, to be more accurate about it, are getting a share that is still larger than average but now less so) is unjust.

This is one of the great paradoxes of equality and fairness. At least in a zero-sum competition, which to a large extent admission to elite institutions is, greater fairness hurts anyone who is currently inside those institutions, and so to the extent Jews had (for whatever reason) successfully gained access to elite institutions, increasing fairness in access to those institutions may well work to the comparative disadvantage of Jews. The non-Great Replacement story here is an iteration of a generationally-common theme of millennial middle class anxiety -- that of downward mobility even as we work ourselves ragged because there are millions of other people in our exact position gunning for a limited number of slots, any one of whom could hustle just a little more or get one more credential or work a few more hours and knock us or our kids off the perch and send us tumbling down the economic ladder. 

The reality is that much of what we're seeing really isn't about Jews at all, it's about the meritocracy trap. Equality means that more and more people have at least nominal potential access to elite institutions, which means that it's harder for any one individual person to access these institutions, which results in a terrifying and never-ending arms race to become (and stay as) one of the elect few, which generates new inequalities in terms of who has access to the resources that allow them to win the arms race and who doesn't.

In a very basic way, it is true that "equality" is the problem here. In the old days, if you were an elite, you could be pretty confident your kids would stay elite so long as they were basically competent: with relatively few people who could or were allowed to compete for prestigious social positions, being "okay" generally was good enough. 

Once the doors are flung open, though, you're competing against everyone, and now it's off to the races. Today, we don't want to say that "only the children of elite university attendees should attend elite universities"; we want to say that every child should have an equal chance to join the Talented Tenth. But saying that means that, if you're in the top 10% right now, you're committing to the notion that your kid should only have a 10% chance of staying in your social strata, and that's a very unpleasant thought that only grows worse as the gap between the top 10% and everyone else increases. But unless your solution is "we should go back to reserving elite roles for the current incumbents", this is necessary feature of an egalitarian social sphere combined with extremely limited "elite" social roles. So if we're not going to accept going back to overt exclusion, we need to tackle the omnipresence and power of scarce "elite" roles. The only actual way to ease the sting of redistributing the pie is growing the pie. The actual, actual villain here is terrifying inequality -- the massive and growing gap between the power, influence, autonomy, and life chances of the elites versus everyone else, which makes so that not getting into Harvard feels like a death knell.

But otherwise, we get articles like this -- articles which are undisguised fulminations against equality and fairness, because what they're really mad about is that others actually are being allowed to compete on equal terms and that makes life harder for those unused to things being quite that egalitarian. 

As Will Emerson puts it, "I take my hand off [the scales] and then the whole world gets really fuckin' fair really fuckin' quickly and nobody actually wants that. They say they do but they don't."

* I have seen this article shared on some White Supremacist forums, whose denizens absolutely recognize the line of argument being made even as they see it as Jews getting deserved comeuppance for our role in promoting racial justice ("White privilege ends, Jews affected most", one cracked).

** Some of the claims are entirely unsourced and I'm not sure where they purport to come from -- the alleged 50% decline in Jewish editors on the Harvard Law Review in less than 10 years is a good example, since I don't think HLR collects that data. In other places the author's methodology seems to be just scanning mastheads for names that "look Jewish", which isn't exactly a hallmark of reliability. The most direct statistical evidence put forward is typically cited to data compiled by FIRE, but I haven't been able to independently find the data on FIRE's website to verify it (I reached out to a FIRE staffer I know to see if he can point me in the right direction). It's entirely possible that data is entirely on the level; it's also possible it's technically accurate but misleading (to give one example that raised flags for me: the number of "academics under the age of 30 at elite universities" strikes me as likely comprising such a small n -- how many under-30 academics are there at elite universities? -- that churn in numbers is probably too noisy to draw conclusions from). But I do have to observe that Tablet has been caught publishing articles in this domain with falsified evidence before....

*** This is essentially tautological: If we stipulate that the system is fair, then by definition the system is fair.