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A thread on @HawleyMO’s First Amendment tweet last night. My thoughts might also apply to some of Josh’s other legal claims (including his views on the electoral process), but since my expertise is the First Amendment, I’ll stick to that.
Lots of people dragging Josh for not knowing First Amendment basics. I don’t think that’s the right response. He knows what he’s doing.
It’s also not clear to me that Josh is lying outright in the same way that Trump lies, at least with this tweet. Legal doctrines are not the same as observable facts. But what Josh is doing here and in other contexts is in some ways more dangerous.
Take the First Amendment tweet. Josh knows that the state action doctrine limits the scope of the First Amendment to governmental actors and does not cover, for example, private book publishers.
He went to law school, clerked for a leading First Amendment expert (Michael McConnell), clerked on the Supreme Court, and helped with First Amendment cases at Becket.
But he has also been pushing for a long time a non-mainstream view that the First Amendment should not be limited by the state action doctrine. (Just google Josh Hawley, First Amendment, and state action.)
One complication is that a lot of law professors and legal advocates also play fast-and-loose with the theoretical contours of the state action doctrine. Just because courts haven’t bought into those arguments doesn’t mean you can’t make them.
But it’s one thing to make arguments in scholarly articles or legal briefs; it’s quite another to use a public platform to present them without nuance.
And context matters. This isn’t an op-ed pushing critiques of Facebook on a slow summer day; we are in an ongoing and exigent political crisis. And people likely inflamed by Josh’s rhetoric earlier this week have now killed and been killed.
The core of Josh’s strategy trades on his intellect and expertise with the general public while at the same time representing himself as the outsider to similarly credentialed people who challenge him, whom Josh labels as “the Left” or “the liberal elites.”
There’s part of me that wonders if Josh’s “irregardless” in his Senate speech was a play from the same book to trigger a reaction from “the Left.” I’ve known Josh a long time, with plenty of opportunities for an “irregardless” in our conversations, and I’ve never heard it before.
For what it’s worth, this is also @ericmetaxas’s playbook with evangelicals: trust my Yale education and my big words, but don’t listen to experts when they challenge me because they are just “the Left” out to get me.
That this strategy works is certainly an indictment of evangelical supporters of both Eric and Josh, but it also reflects broader cultural distrust of experts and institutions. It’s all really bad for democracy and politics, as explained by Yuval Levin, among others.
Finally, since some people of faith follow me on Twitter, don’t miss how seriously damaging the Josh and Eric strategy is to their witness and to the witness of those who support them. It’s self-serving, it lacks integrity, and now its enormous consequences are in plain view.
