The Woke Generation is Demonizing Dissent and Due Process | Opinion

The "progressives" who populate the woke generation have done considerable good in helping sensitize Americans to persistent bigotry in some of our institutions and attitudes. But this good has come with a high cost to important constitutional values. The combination of "cancel culture," "identity politics," "intersectionality" and other woke movements have endangered the freedom of speech, the right to dissent and the due process of law. This combination of "progressive" ends with regressive means has produced an intolerance among many millennials for traditional processes and procedures that lie at the heart of our constitution.

Many woke progressives think they know The Truth—with capital letters. And when you are sure of The Truth, dissent and due process become unnecessary barriers to achieving it. They know that if a white policeman kills a Black suspect, the policeman is guilty. So why do we need a "fair" trial that may result in the "wrong" verdict? They know that if a woman accuses a man of sexual misconduct, the man is guilty because "women tell the truth." So why do we need due process that delays the right outcome and places a burden on the truthful accuser? They know that the voting machines that count presidential ballots were perfect. So why should people who disagree have the right to spread their lies on social and other media? They know that COVID vaccines work with few if any dangerous side effects. So why let anti-vaxxers promote medical falsehoods that may discourage some from taking the vaccine?

And they may be right—at least statistically about some of their Truths.

Too many policemen kill too many Black suspects. Too many predatory men assault women. The election, though not perfect, produced a generally accurate count. The vaccines are far better than the alternative. But being right is not a justification for eliminating the right to dissent. Our Constitution protects the right to be wrong. It also demands a fair trial and due process for the guilty as well as the innocent, and prefers the acquittal of the guilty to the conviction of the innocent.

These values are often misunderstood or opposed by extremists who know The Truth. They view those constitutional protections as unnecessary barriers to their demands. In their utopian vision, there is no need for dissent or due process because everyone is woke to The Truth.

Facebook will moderate content regarding the trial
Facebook will moderate content regarding the Derek Chauvin trial. In this photo illustration, a smart phone screen displays the logo of Facebook on a Facebook website background, on April 7, 2021, in Arlington, Virginia. OLIVIER DOULIERY / Contributor/Getty

But the reality is more dystopian than that. As James Madison, the father of our Constitution, put it: "If men were angels, no government would be necessary." In other words: if men and women never erred, lied or had to struggle to arrive at ever-changing truths, the need for dissent and due process might be somewhat diminished. But that is not our world. We are a deeply divided people and in sharp disagreement over the most important issues. There was never a time when dissent and due process were more essential to governance. And there has rarely been a time when these values have been more under attack by decent people with admirable goals. But as Justice Louis Brandies once cautioned: "The greatest dangers to liberty lurk in the insidious encroachment by men of zeal, well meaning but without understanding."

Moreover, these recent attacks are more difficult to combat because they come for the most part from the private sector rather than from government. Private censors and deniers of due process are not constrained by the Constitution. They generally have their own rights to do wrong things. We must combat them in the courts of public opinion rather than in the courts of law.

For more than half a century I have been litigating and winning freedom of speech cases against the government in the courts, including the Supreme Court. We had the First Amendment on our side and that gave us the advantage. Today, big tech, private universities and progressives have the First Amendment on their side—even when they are censoring based on content. The Supreme Court has ruled that private media companies have a First Amendment right to pick and choose what they will publish, including not giving a person they attacked the right to respond and set the record straight. They, like other private parties, have the right to be wrong and to do bad things in the name of freedom of speech.

In an effort to show that they are not doing bad things, Facebook has appointed its own "court" to review its censorship decisions. Its first high-profile "case" involved the banning of a president, now former president, Donald Trump, following his constitutionally protected, though ill-advised speech of January 6, 2021. Facebook's review board "ruled" that the ban was proper, but had to be reviewed within six months. This decision satisfied no one. Opponents of the ban thought six months was too long; proponents thought it too short. I, for one, am worried about giving any court—even a fairly balanced one, which this is not—the power to decide what we should read, who we should listen to and what should be banned.

YouTube doesn't have its own Supreme Court. It makes its own decisions without external review. I recently suffered "collateral damage" from a YouTube decision to censor. I debated Bobbie Kennedy—the son of the former attorney general and an environmental lawyer—about vaccination. He is a skeptic and raised some interesting points about the current vaccines. I disagreed and we politely argued back and forth. Thousands of viewers watched the debate—until YouTube took it down because of some things that Kennedy said, to which I responded. But YouTube didn't trust the marketplace of ideas, so it canceled the debate.

This is the way of the future—unless we do something about it.

Follow Alan Dershowitz on Twitter @AlanDersh and on Facebook @AlanMDershowitz. His new podcast, The Dershow, can be found on Spotify, YouTube and iTunes. His most recent book is The Case Against the New Censors.

The views expressed in this article are the writer's own.