The Situation: How Much Less Free Are We?

The Situation on Thursday contemplated the role of humor in confronting authoritarianism.

On Monday, I was privileged to give a speech at North Carolina State University, from which I have adapted the following.

The topic at hand is how much less free we are today than we were collectively a year ago. So let’s start by unpacking two assumptions embedded in the question.

The first assumption is that we are at least somewhat less free, and that we are measuring how much so we are. Let’s acknowledge that there are people who dispute this premise, who feel more free than they did a year ago. They are not wrong. We shouldn’t assume that the sign attached to our particular freedom variable is negative. We should, rather, do a little bit of calculation both as to what the coefficient is in front of that freedom variable and as to what the sign in front of that coefficient is.

The second assumption in the question lies in that pesky word “we.” “We the people,” at least if one is being honest, do not have a common experience of freedom’s rise or fall under The Situation. Some people are more free. Some people are less free. Most people are roughly equivalently free because their day-to-day lives just don’t involve the sorts of activities that The Situation implicates. When one says “we” in this context, therefore, one is cheating just a little bit—mashing together a whole lot of different people’s experiences, focusing on the people whose freedom one cares about most, and imputing to us all the increased or decreased freedom experienced by those people. 

Now this very sleight of hand is precisely what I mean to do here. But I’m going to try to ventilate my thinking on the subject as clearly as I can—to show my work, if you will. I'm going to walk you through why, with certain exceptions, I care more about the freedom of the people whose liberty is decreasing than I care about the freedom of the people whose liberty is growing. And I hope you will come away sharing my conviction that in the aggregate, the liberty that is decreasing is more important to a functioning democratic society than the liberty that is increasing.

In other words, while we tend to think of liberty as operating on a kind of rheostat, the better metaphor is a sound board or a graphic equalizer, where there are a lot of levers the operator can move—each one representing some person or group of people’s freedom. That word “we” represents the composite configuration of the graphic equalizer. It is not a single dial. And the master volume is actually reflecting a series of value judgments about whose freedom is important and whose freedom is less so.

This is not a deep point, or one that is original to me. It goes back at least to Thomas Hobbes, who framed the contractarian vision of government as one in which the individual accedes to authority in order to enjoy the protection of government in the exercise of his or her remaining liberty. The refinement here is that the same people aren’t the ones giving up the liberty and enjoying the residual freedom with the protection of government. So when one thinks about the question of whether liberty is increasing or decreasing in society in the aggregate, it is important to consider who is being asked to give away freedom in order for whom to enjoy the protection of government in the enjoyment of their residual liberties.

I spent some time over the last few days coming up with two lists. The first list comprises categories of people who have actually become more free over the past year. The second comprises groups of people who have become less free.

Let's start with the people who are more free.

First, I want to stress that not all of the people on List #1 are people whose increased freedom carries little or no democratic value. To the contrary, let me start with my friend Elizabeth Tsurkov, who was held hostage in Iraq for two years and was tortured very brutally there. Elizabeth is free today because Donald Trump's hostage point person, a man named Adam Boehler, is an enormously effective individual and really cares about getting hostages home. Elizabeth is not a U.S. citizen. She's a graduate student here. But he cared anyway. And there are actually a bunch of hostages whom this administration has gotten out of sometimes unspeakable conditions from dungeons around the world. This is a significant accomplishment for human liberty, including for somebody that I happen to care about.

The trouble is that the case of overseas hostages is a bit of a singular one. As I compiled List #1, it represented the only category of people experiencing increasing liberty for which that freedom struck me as an unalloyed public good.

Consider, for example, a second category on List #1: If you were charged with or convicted of a crime in connection with the Jan. 6 protests, you are unquestionably more free today than you were a year ago. That's actually a lot of people—more than 1,500—some of whom had long prison terms ahead of them. 

Yet, I remain to be convinced that increasing the freedom of this particular category of people represents a triumph of freedom for society more generally. It rather seems like a payoff of sorts, a reward for service. 

Indeed, one of the striking features of the categories of people who have more freedom than they did a year ago is how many of them seem to benefit from what the Israelis call “protektsia.” The word protektsia actually comes from Russian, in which it refers to security as a purchased service, either from organized mob gangs or from more reputable private security entities. (It has the same meaning in Ukrainian.) In Hebrew, however, the word has different connotations—that of corrupt favoritism and, in some contexts, untouchability as a result of political connections. The Jan. 6 felons had a form of protektsia—singled out for freedom and leniency among all criminals nationwide because, well, the president likes their crime.

Here are a few other categories of people benefiting from different forms of protektsia right now:

• Crypto bros—A year ago, policymakers were talking about how to regulate cryptocurrencies. Not any more. They crypto bros are undeniably freer today than they were last year. They do not fear regulation these days and why would they? The president and his family are deeply invested in the industry. The enforcement environment is consequently lax. 
• AI accelerationists—The same is true of AI accelerationists. Last year, these guys were having to justify themselves. This year? Not so much. They are freer. They gave a lot of campaign contributions. Their side won. They fear not God nor the enforcement powers of the United States anymore.  

Note that the form of protektsia that shields the AI accelerationists and the crypto bros takes the form of a legitimate set of policy issues. Yes, it has the whiff—or in the case of crypto, a stench—of corruption to it, but the Marc Andreessens of the world can make good arguments for not regulating crypto currencies and for letting AI product development proceed unimpeded.

My point here is not about the merits of the matter. It is more prosaic: if you're in the crypto business or the AI business right now, you are freer than you were a year ago. You have protektsia. There are things that you had to worry about the government doing a year ago that you don't have to worry about today. If you work for, or own, a company routing cryptocurrencies through Trump family businesses, you're not worrying about enforcement. Here are some other categories of people who are freer as a result of having protektsia:

• White collar criminals—The public corruption prosecution capacity of the Justice Department has not been completely dismantled, but it has been substantially dismantled. A lot of people have been fired, and the administration shows no sign of rebuilding the capabilities it has destroyed. If you are contemplating a life of white collar crime right now, your chances of enforcement, at least in the short term, are quite low. A lot of people are seeing that, and they're feeling freer again.
• Cops who are into brutalizing people—It’s a good year for violent, reckless cops who are into violent, reckless arrests. Everyone has seen the ICE videos of truly abhorrent conduct by federal officers, and if you don’t believe the ones shot by people who are appalled, check out the ones that ICE itself has released and that Kristy Noem flacks with pride on official government social media. If you're into roughing up protesters, you truly are freer than you were a year ago. As a federal law enforcement officer, you are simply not getting into trouble right now for being a little too rough with the immigrant you're detaining or the protester you are arresting. If you happen to be a law enforcement officer for whom violence is kind of exciting, there's a kind of freedom in not having to worry that the person you mistreat is going to become Rodney King.
• Corrupt politicians—This is a really striking example, in my view. Giving clemency to politicians like former Rep. George Santos and scuttling the criminal case against New York Mayor Eric Adams announces in explicit terms that there is a zone of impunity for politicians willing to be loyal and cooperative to power. These men are freer than they were a year ago, and if you're a politician who is considering taking $50,000 in cash in a Cava bag, you are too—as long as you also stay on side.
  

There are other groups whose freedom has increased too: Let's say you hate LGBT people, and you're not content to do so quietly. You've always been free to hate people quietly, but you actually want a public stage from which to do it, and you really want to regulate what bathrooms people are allowed to use. You’re freer than you were a year ago.

What if you sell a product that's become globally uncompetitive and your business is still viable because of tariffs? You're also freer than you were a year ago. Again, your additional freedom here is the result of a perfectly legitimate policy choice. I don’t mean to compare you to a Jan. 6 perpetrator or a violent cop. But understand that one category of people whose freedom the administration is enhancing is those who have been relieved of the burdens of global competitiveness.

Are you named Vladimir Putin? Or do you work for somebody who’s named Vladimir Putin, directly or indirectly? If so, you’re also freer than you were a year ago. You get a mulligan on whatever counterintelligence risk you may pose. 

Are you a racist?

This is actually a complicated category. Racism has never been illegal. In fact, it's constitutionally protected, and it's no more or less constitutionally protected today than it was a year ago. You’ve never been unfree to be a racist.

Yet there is no doubt that racists feel freer than they felt a year ago. That’s because there is a certain social condemnation of their attitudes, choices in life, and belief systems. And that condemnation was very fierce until it began to be dismantled. Without any rules changing or laws changing or the Constitution changing, people feel freer to be racists, and to be open about it.

Note that there is a special category within racism, whose story is more complicated: anti-semitism. Because whether you are more free or less free to express Jew-hatred actually depends on the nature of your anti-semitism. If you're a white supremecist who hates Jews for traditional Nazi reasons, you likely feel freer to be expressive about it for the same reason that the racists described just above do.

Conversely if you hate Jews because you like Hamas and because you can't distinguish between the Israeli government and your local synagogue, you’re a lot less free than you were a year ago. So it matters precisely why you hate Jews if you want to determine whether you are more free or less as a result of that hatred. 

Are you an overt Christian nationalist? Again, the rules have not changed, but you are likely feeling freer these days. 

Now, if I sound like I am less than enthusiastic about most of the increases in human freedom the administration has effectuated, that’s because I am. But I honestly just can’t think of many groups of people who are freer in the current environment than they were about whose increased freedom I’m excited. 

So let’s talk about List #2: the people who are less free today than they were a year ago.

If you're an undocumented immigrant, you are a lot less free than you were a year ago. And I know that there are people who don’t regard that as a problem, because undocumented immigrants broke the law; they're here illegally; and their liberty is thus not of particular concern to many people. I respect this view, though I don’t share it. It’s not that different from my general skepticism of the value of the liberty of the Jan. 6 perpetrators. It’s perfectly fair for someone to say that she has a lot of concerns in her life, and that the freedom of somebody who came or stayed here illegally just is not high on her list.

The problem with this view—even if it is earnestly held—is that it sweeps too broadly. Some undocumented immigrants have been here since they were children, for example; they didn’t do anything illegal except exist. What’s more, there are a lot of people who are not illegal or undocumented migrants themselves but who are sufficiently adjacent to illegal immigration so as to be directly affected by the attitude our society takes toward the liberty of illegal immigrants.

There are, for example, people who are related to illegal immigrants, whose parents are illegal immigrants, or who—though citizens or legally in the country—get rounded up when ICE gets too enthusiastic about detaining undocumented immigrants. All of these people are less free today than they were a year ago. And none of them has done anything wrong. 

And then there are the people on Temporary Protected Status. These are people who came to this country legally under an understanding with the United States that the conditions prevailing in their home countries are so horrible and so dangerous that the U.S. will give them temporary shelter. When conditions in their countries improve, they have to leave. In the meantime, they can work, and they have legal status.

Currently, hundreds of thousands of people are here on TPS, from Haiti, from Venezuela, and from Ukraine. But for the Haitians and the Venezuelans, though not yet for the Ukrainians, the administration canceled TPS. Hundreds of thousands of people became undocumented migrants the day it did so. I want to submit that these people did nothing wrong. Yet they are suddenly subject to arrest, detention, and deportation. They are less free. And even if you have no solicitude for the plight of illegal migrants, their plight should give you pause.

I would make the same argument about many asylum seekers—though yes, large numbers of migrants have filed meritless asylum cases.

Are you a protester? If so, you are less free.

I have some personal experience with this. I spend a lot of time harassing Russian diplomats. I do this with projectors and by other means. I project Ukrainian flags on Russian embassies both in Washington and elsewhere. I do other such mischief as well. And as a result, I’ve been sanctioned by the Russian government. I'm not allowed to travel to Russia anymore—a deprivation I try to bear daily with stoic resignation. And I have also had a number of interactions with American law enforcement, which is responsible for protecting the Russian embassy. Most of these interactions have been exceedingly pleasant and have increased my faith in rule of law policing in civilized democratic society.

But that has begun to change, as the space for these protests has definitely shrunk over the last year. I’ll give you two examples.

The last time I did a light protest on the National Mall, something I have done many many times over the past few years, I was confronted by a rather large number of police cars, their sirens and lights screaming. On this occasion, the National Park Police seized all of my laser gear, many of my cameras and tripods, and they still have custody of all of this material. I have not been notified yet of a court date or any charge. 

In all my many previous light protests, I had never seen a single member of the National Park Police. And I have projected pro-Ukrainian slogans on the Hirshhorn Museum, on the National Gallery, on the National Air and Space Museum, and on the Washington Monument.

My point here is not self pity. I will cheerfully accept whatever consequences may come my way as a result of my mischief. I am merely observing that the space for political protest at the margins of the law is a lot narrower than it was a year ago.

The police assured me at the scene of this last encounter that the rather dramatic change in enforcement posture has nothing whatsoever to do with the changed political environment.

Suffice it to say that I do not accept these assurances at face value.

Here’s another example; this one actually is a kind of controlled political science experiment. In Washington, D.C., there is no history of prosecuting people for drawing on the sidewalk with chalk. That’s why children can play hopscotch and draw butterflies and rainbows. Washingtonians have never understood this to be illegal. 

If you spraypaint on the street, by contrast, that is not okay. The police don't like that. And you might get cited, or even arrested, if you choose to do that. That’s defacing public property—aka graffiti.

A little more than a year ago, I had an amusing idea, which was to dump a large quantity of blue and yellow chalk—blue and yellow being the colors of the Ukrainian flag—on the sidewalk in front of the Russian embassy and to sweep it into the sidewalk and make a Ukrainian flag.

I was so confident that this would be legal, that as a courtesy to the United States Secret Service, which protects foreign embassies, I did a walk-through with a Secret Service officer of exactly what I was planning to do. I showed him the chalk, the broom, everything I was planning to use. And the Secret Service officer had no problem with this plan. It’s no different from playing hopscotch, after all—just a little bigger and in a location calculated to annoy certain people.

A year later, I decided to do the same operation again, because I knew the Secret Service wouldn’t have a problem with it. And so I did it again. But this time, several Secret Service vehicles showed up with their lights streaming. I informed the officers of our prior interactions. And they informed me, in response, that if I continued, they would arrest me. 

What statute would they arrest me under? That local municipal ordinance that forbids defacing public property. All of a sudden, hopscotch and butterflies and rainbows are illegal in Washington, D.C.

And it is federal law enforcement officers who are enforcing the law against these things. This is the United States Secret Service, the people who protect the president of the United States, enforcing a D.C. municipal ordinance about graffiti.

Now, are you less free because every time you play hopscotch, you now theoretically risk arrest by federal law enforcement? Perhaps not. Because we all know that hopscotch enforcement is not actually going to happen.

But the First Amendment is not about hopscotch and rainbows. It is centrally about political speech. And if you commit the exact same infraction in the course of conducting a confrontational political protest, then apparently enforcement will happen. You are less free.

I would be remiss if I didn’t mention a special category of political protesters, because if you’re a pro-Palestinian protester, you are dramatically less free than you were. The administration will come after your university if that university is too tolerant of you. The administration will revoke your visa status if you are not an American citizen. There are at least three ongoing cases of that.

These are people who were here legally on valid visas. One was a permanent resident. And the administration decided because of their concededly First Amendment protected activity, to change their visa statuses and revoke their residencies, thus rendering them illegal, and then to detain and deport them. They were scooped up off the streets. These people are not projecting lights on the Washington Monument in violation of some National Park Service regulation. They are not violating some D.C. municipal ordinance. They are writing op-eds.

Do you work at a law firm? If so, you are less free. 

Do you work at a university? If so you are also less free. 

Are you a political opponent of the president? You, too, are less free.

This one similarly hits close to home for me. Former FBI Director James Comey is a friend of mine, somebody I care about. He is not guilty of lying to Congress, and I have every confidence that he will be exonerated. Letitia James is not a friend of mine; we have never met. But I similarly have every confidence that she will be exonerated of supposed mortgage fraud. The indictment against her is defective on its face. 

In both of these two cases, there is only one reason these people have been indicted and prosecuted. And that is that the president hates them. I think both Comey and James would tell you that the environment they are living in is less free than it was a year ago.

And then there is John Bolton, who actually may be guilty of some crimes. There’s some stuff in his indictment that’s genuinely disturbing—in contrast to the indictments of Comey or James.

And yet, Bolton is not facing criminal charges today because of some professional determination at the FBI and the Justice Department that his infractions are deeply important. He is facing multiple felony charges because the president hates him. Lest you respond to this point by saying, “Yes but you’ve just acknowledged that he committed crimes,” I remind you that you—dear reader—are almost certainly also guilty of some federal crimes yourself. If you have ever smoked marijuana or consumed an edible, you too have violated federal criminal law. And so Bolton is, in some sense, not that different from all of us. He is facing the music today for whatever crimes he may or may not have committed, not because they are the worst things that anybody’s ever done with classified information—though some of them are pretty bad if he did them. He’s facing charges in no small part because he criticized Donald Trump and because Donald Trump hates him. 

Bolton is unquestionably less free than he was a year ago. But if what separates you from Bolton is not that you are pure as the driven snow and have never committed a federal crime but that the president doesn’t hate you enough for the administration to go after you for your crimes, then his case stands in well for your own. If somebody comes to hate you enough, they can find out what you did and go after you. And in that sense, Bolton is all of us.

Including me. I projected on the Washington Monument, after all. And there’s a law that says I can't violate a federal regulation promulgated by the National Park Service without committing a misdemeanor. And the National Park Service has the regulation about projecting on monuments on the Mall without a permit.

And if I am not prosecuted for any crime, it is only because the president doesn't hate me enough to demand it of the United States attorney in the District of Columbia. That's not a safe environment for any of you to live in.

Do you work for a foundation or an activist group on the center-left or left? If so, you are less free. The president doesn't like certain foundations and the groups they support. And these groups are going to be subject to investigations as a result. You don't have to believe me about this. The president has announced in an executive order that this is what’s going to happen. He’s going to investigate or have investigated a bunch of foundations giving money to a bunch of activist organizations that are engaged in activity that he doesn't like.

Have some of them made accounting errors over the years? Undoubtedly. If you go through every grantee that the set of disfavored foundations has given money to, and if you demand information from every single one of those groups, are you going to turn up somebody who made a mistake whom you can then turn into the next Bolton? Absolutely.

And will you intimidate people and make them less free along the way? Oh, yes.

Are you a journalist? If so, unless you are very lucky in your choice of employer, you are less free. The administration is aggressively putting pressure on journalistic organizations, putting pressure on individual journalists, and, most importantly, putting pressure on organizations that are not fundamentally journalistic in character but have small journalistic components. These companies may need regulatory approval for things unrelated to journalism. And when The Situation threatens these other interests, it can substantially affect their journalism. 

And their comedians.

Most of this is not visible. It’s not the Jimmy Kimmels of the world. It’s the ones who get quietly told: “Hey, you're going to be on tomorrow. Congrats. Don’t do anything too controversial, okay?” And they don’t. Because it’s a big opportunity. And they just know. Because they are less free. Because the organization that is putting them on television is less free. And they are less free as a result.

Which brings me back to cops. I mentioned earlier that the cops for whom brutalization is a kind of kink are more free. 

But if you’re a law enforcement officer who actually has ethical and legal limits, who doesn’t believe in targeting the president’s political enemies, who believes in that whole rule of law thing, you are less free. And if you haven’t lost your job yet, you’re lucky. The number of firings at the FBI and Justice Department have been astonishing. People are getting fired for simple reasons of political loyalty. There's been a lot of news coverage of this. But the reality on the ground is way worse than the news has been able to convey.

And the people affected, for the most part, do not even feel free to talk about it. Because people need to go on with their lives, because they need to make a living, because they fear retaliation. To be an honest cop right now is a very hard thing. The pressures are really intense, and the costs, if you don't fall in line, are really high.

This is all true of federal prosecutors too.

It’s true of public health officials too. 

It’s true of people who compile labor statistics. 

If you're an honest public servant in any field right now and there are, as a result, things that you will not do for ethical or legal reasons, you are at risk, and you know that you are at risk, and that knowledge makes you less free.

Two final categories of people who are less free than they were a year ago: The first is anybody who's afraid of any of the people in the list of folks that are more free than they were. So if you have reason to be afraid of racists, you are less free than you were a year ago. If you have reason to think a Jan. 6 pardonee might retaliate against you for some reason or might otherwise menace you, you are less free than you used to be. If you're somebody who believes that public corruption threatens you in some way, maybe because your business can't compete against businesses that are cutting in the folks that are in power because they have protektsia and you don't, you are less free than you were.

Finally, it would be wrong of me to end without talking at least a little bit about the category of people whose freedom has disappeared most completely over the last year, and that is elected Republican officials. I use slavery metaphors, like Holocaust and Nazi metaphors, very sparingly. But if you are an elected Republican official, particularly in the Congress of the United States, query whether you are actually a free actor at all or whether you have chosen a sort of bondage.

To those Republican officials, can you show me something you have done that demonstrates that you are capable of—or permitted to exercise—independent thought and action? These people are doing things on a daily basis they absolutely know to be at odds with their oaths of office. They are covering for things that other people are doing that shock the conscience. They are not criticizing, or voting against things, they have a sworn duty to try to stop. And they are thus enabling things that they know to be antithetical to the Constitution and to life in a civilized society.

And I cannot think of any show of unfreedom more dramatic than that.

Because if you know that we all know that you have subjected yourself to bondage, and that you have given up the capacity for independent moral action and judgment, well, there is nobody less free than that.

All of which brings me back to Elizabeth Tsurkov, the Princeton graduate student who was held hostage in Iraq for two years—who made a different choice.

I never thought I would hear from Elizabeth again. Candidly, I did not expect her to survive her captivity. So I was delighted to get a WhatsApp message from her in the middle of the night a few days ago, as some readers of The Situation may recall. And I was particularly delighted because she texted me that she had discovered my mischief videos: the chalk and lights and my #GetReadyWithMe videos about Trump administration cabinet nominations. Elizabeth has been catching up on things she missed while she was busy being tortured. And she sent an audiogram in which she told me that when she was being tortured, having a sense of humor and being able to maintain that sense of humor were essential tools for survival.

She gave as an example the bully who was torturing her, who apparently liked the motifs from movies in which the interrogator blows cigarette smoke in his victim’s face. He did this a lot to Elizabeth, but she said there was a problem: He used a vape, not a cigarette, and his vape was strawberry scented. So he would, in this menacing display of machismo, blow smoke in her face. Only it wasn't smoke, and it smelled like strawberries.

And there's nothing less intimidating, she said, than having somebody blow a strawberry vape in your face thinking he’s dominating you.

In a physical sense, nobody is less free than a person who is being tortured. And Elizabeth has physical injuries from her experience that will follow her for the rest of her life. 

But unlike the Republican members of Congress who daily choose—though they have real power—to be some of the least free people in the world, Elizabeth chose to be free.

And that's what I wish for you all.

The Situation continues tomorrow.