The debate over the meaning of free speech took another turn recently when a federal judge announced that he would no longer take clerks who had graduated from the Yale Law School, which is down the street from me.

US Circuit Judge James Ho told Reuters that Yale Law “not only tolerates the cancelation of views — it actively practices it.” He added: “I don’t want to cancel Yale. I want Yale to stop canceling people like me.”

At least one other federal judge heard Ho’s call to join him. In a statement to National Review, a “conservative” magazine, Federal Appeals Court Judge Elizabeth Branch said she would follow suit.

“Like Judge Ho, I am gravely concerned that the stifling of debate not only is antithetical to this country’s founding principles, but also stunts intellectual growth,” Judge Branch said last week. “Accordingly, I accept Judge Ho’s invitation to join him in declining to consider students from Yale Law School for clerkships with me.”

Those who accuse the “woke left” of “playing politics” are in fact playing politics. There’s no getting around that truth. They’re defending opinions, interests, compromises, rhetoric and ideologies that together form the establishment of a status quo, which is to say, a social and political consensus acceptable to most stakeholders.

According to Fox pundit Leo Terrell, boycotting Yale Law grads is the right thing to do, because clerks should remain nonpartisan. “You cannot have law clerks who are going to serve as members of the federal court system canceling half this country’s viewpoint,” he said.

The fundamental requirement for any law clerk is to be fair and to allow a marketplace of ideas. What these law clerks, these students at Yale want to do, they want to indoctrinate Americans from the federal court system and basically use it as a propaganda tool. You cannot cancel half of this country simply because you do not like their viewpoint (my italics).

There’s a lot going on here. For one thing, we’re told that “cancel culture” is bad — except, apparently, when it’s the right people doing the canceling and the right people getting canceled. That’s the only way to understand “conservative” judges thinking that canceling Yale Law grads is not the same thing that they accuse Yale Law of doing.

For another, this apparent hypocrisy is no such thing. It would be hypocritical if they were concerned genuinely about “the stifling of debate [that] not only is antithetical to this country’s founding principles, but also stunts intellectual growth.” But we know they are not concerned genuinely. Here they are, canceling Yale Law.

What they are concerned about is creating a moral pretext – “cancel culture” is “antithetical to this country’s founding principles” – with which to gain a political advantage over perceived enemies. Those perceived enemies are, of course, challengers to the status quo.

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That’s the other thing going on. It’s so big, so foundational, to the debate over free speech and “cancel culture” that practically no one can see it. That thing is the status quo itself, a consensus – “just the way things are” – that itself is a product of ordinary, democratic politics. 

Those who accuse the “woke left” of “playing politics” are in fact playing politics. There’s no getting around that truth. They’re defending opinions, interests, compromises, rhetoric and ideologies that together form the establishment of a status quo, which is to say, a social and political consensus acceptable to most stakeholders.

Critics of “cancel culture” share a belief in the status quo as inherently nonpartisan, apolitical, free of interests, conflicts and ideas that arise from the contingencies and randomness of history. 

No one made choices in the past. Those choices do not influence and inform the present. No one made compromises or sacrifices. No one lost. No one won. The status quo just is – the natural order of things. 

This is where the debate over free speech truly begins. It begins with an ideological conviction that “the way things are” is OK, indeed preferable to the ways things could be if “institutionalists” did not protect the status quo against the outcomes of democratic politics.

When you view the status quo as if it were separate and distinct from human agency and from human history, it’s understandable that challengers to it look to be political or biased, even hateful of its stakeholders. It’s understandable that challengers seem to be politicizing everything, indoctrinating individuals, propagandizing the public square and “shoving their opinions down our throats.”  

The solution to this problem, from the point of view of those invested in the status quo, is getting the challengers of the status quo to stop using democratic politics to change the way things are. At the center of the status quo is a paradox that needs attention: in order to stop reformers from acting politically, the status quo must act politically. That’s easy given that the status quo is the product of past politics.

That central paradox, however, reveals the whole truth of the debate over free speech or “cancel culture” or virtually any political issue.

That whole truth is that people have a political choice to make between one set of legitimate politics (status quo) versus another set of legitimate politics (reform). But if you’re defending the status quo, letting people choose is risky. What if they made “the wrong choice.” 

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If you can take away that choice, you’re on firmer ground. That’s why pretending that the status quo is “just the way things are” is so effective. It depoliticizes politics. It paralyzes democratic politics. It puts you in the position to say “wokeness” is a threat to freedom.

No, it’s not. 

It’s ordinary, democratic politics advancing a new set of politics.

It’s tempting to ask what Yale Law students did to arouse the ire of federal judges, but honestly, it doesn’t matter. What matters is the reaction to it. That reaction, as silly as it truly is, is recognition, in effect, of the legitimacy of whatever it was those Yale Law students did.

Whatever it was, status quo defenders see it as a threat to the status quo or a chance to expand it. When viewed this way, you can see why, whatever they did, it may be better than the way things are.

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