There’s a story about Justice Hugo Black that I really like.[FN: I can’t find the source for this story online; if anyone knows it, please let me know and I’ll edit it in. All quotes below are from memory and thus are likely not exact.] For context, you should know that Justice Black was famously principled—respected, even by his ideological opponents on the Supreme Court, for his intellectual consistency.
With that context, a journalist interviewing Justice Black late in his life asked, “Justice Black, while serving on the Supreme Court, did you ever reach an unprincipled decision? And do you regret it?”
Without hesitation, Justice Black answered, “I did, and I don’t regret it. The Court had just decided Brown v. Board, which struck down school segregation for a very principled reason—the Fourteenth Amendment requires states to provide ‘equal protection of the laws’ to all people, and segregated public schools were inherently unequal. But right after Brown, we were confronted with a problem: What about public schools in Washington D.C.?”
“The Fourteenth Amendment only applies to states, so the principled answer would be to say that Brown v. Board did not apply to D.C. But that would have been a terrible outcome—we would have looked like huge hypocrites, saying that all schools should be integrated except for the one set of schools that our kids (and the kids of other politicians) would go to. It would have looked awful, and it would have been a huge setback for civil rights.”
“So, as a companion case to Brown, we unanimously decided Bolling v. Sharpe, which held that D.C. schools must be integrated. We didn’t have equal protection to truly justify our decision, and so we reached for a justification involving due process instead—and ended up with a decision that legal scholars describe as ‘very difficult to reconcile with the text of the Constitution.'”
“In short, we reached an unprincipled decision, and I don’t regret it at all.”
I admire Justice Black for his votes in Brown and Bolling and for his honesty in acknowledging that Bolling was not a principled decision.
* * *
I’ve been thinking a lot about this Justice Black story lately, because I think it captures something essential. It genuinely is important to have principles, and to stand on principle. It’s also, however, important to make exceptions to those principles, and not to follow them off a cliff.
Perhaps most important, though, is to honestly acknowledge that you are betraying your principle, that you are making an unprincipled exception. When you’re open about that, you can weigh up the costs and benefits of making the exception. You can, like Justice Black, decide that the unprincipled exception is worth it in these special circumstances—while acknowledging that making the exception one time weakens the principle going forward, and that this is a real cost.
Doing that, however, is really hard. It hurts to acknowledge that you’re breaking your own principles, that you are making an exception, that you’re weakening the principle that’s dear to you. It’s much easier—and certainly much more psychologically comfortable—to twist and bend your principle until you can come up with some justification for why your actions fit with that principle. To come up with some sort of story—some lie—about how you’re really following your principle after all.
The problem with that comfortable lie, however, is that it weakens the principle far more than making an honest unprincipled exception would have. Instead of a firm principle with one (or a few) unprincipled exceptions, you’re left with a twisted principle, and one that is probably even more flexible in the future.
All this has gotten pretty abstract, so let me bring it back to a concrete example. Here’s the example that got me thinking about all this.
After the recent protest in Charlottesville turned violent, resulting in a murder and several serious injuries, the ACLU modified its free speech stance: The Wall Street Journal reported that the ACLU announced that it “will no longer defend hate groups seeking to march with firearms.”
Now, I can understand wanting to make an exception after Charlottesville.[FN: In the interest of avoiding getting too deep into the object-level political issue, I’m not getting into whether I agree with making an exception. But, agree or disagree, I can understand wanting to.] After all, the ACLU’s legal support for Unite the Right played a key role in keeping the protest in the heart of the city, where high-profile clashes were most likely. If the ACLU had not represented Unite the Right, it’s very possible that Heather Heyer would still be alive. So I get why they want to make an exception.
But I strongly believe that if they wanted to make an exception, they should have done so honestly. They should have acknowledged that they were breaking from a fundamental principle on a one-time basis. They should not have twisted their commitment to free speech with this “modified principle” that will have far-reaching implications for their work going forward.
What would it have looked like if the ACLU had handled the Charlottesville fallout the way I wish they would have?
I have the perfect example, actually. Cloudflare (the content delivery network used by this blog and millions of other websites) generally has a policy of free speech and content neutrality. Just recently, however, Cloudflare issued the following statement: Why We Terminated Daily Stormer.
Earlier today, Cloudflare terminated the account of the Daily Stormer. We’ve stopped proxying their traffic and stopped answering DNS requests for their sites. We’ve taken measures to ensure that they cannot sign up for Cloudflare’s services ever again.
Our terms of service reserve the right for us to terminate users of our network at our sole discretion. The tipping point for us making this decision was that the team behind Daily Stormer made the claim that we were secretly supporters of their ideology.
Our team has been thorough and have had thoughtful discussions for years about what the right policy was on censoring. Like a lot of people, we’ve felt angry at these hateful people for a long time but we have followed the law and remained content neutral as a network. We could not remain neutral after these claims of secret support by Cloudflare.
Now, having made that decision, let me explain why it’s so dangerous.
Cloudflare went on to say:
Beginning in 2013, Cloudflare began publishing our semi-annual Transparency Report. At the time we choose to include four statements of things that we had never done. They included: …
- Cloudflare has never terminated a customer or taken down content due to political pressure.
We’re going to have a long debate internally about whether we need to remove the bullet about not terminating a customer due to political pressure. It’s powerful to be able to say you’ve never done something. And, after today, make no mistake, it will be a little bit harder for us to argue against a government somewhere pressuring us into taking down a site they don’t like.
They closed their announcement post saying:
Someone on our team asked after I announced we were going to terminate the Daily Stormer: “Is this the day the Internet dies?” He was half joking, but only half. He’s no fan of the Daily Stormer or sites like it. But he does realize the risks of a company like Cloudflare getting into content policing.
There’s a saying in legal circles that hard cases make bad law. We need to be careful of that here. What I do hope is it will allow us all to discuss what the framework for all of the organizations listed above should be when it comes to content restrictions. I don’t know the right answer, but I do know that as we work it out it’s critical we be clear, transparent, consistent and respectful of Due Process.
That is how you do it. If you have an important principle, and you face a circumstance where you decide it’s worth making an exception to that principle, this is exactly how you should do it. Just like Cloudflare, you should honestly acknowledge that you’re making an exception and that this carries risks. I’m proud to do business with Cloudflare.[FN: Ok, use a free service they offer. Fine.]
Cloudflare, like Justice Black, stood on principle until they didn’t—and then made honest exceptions to that principle. And I admire them both.