The sound of leather slapping marble will undoubtedly be the response of many Republican careerists today as they run from reporters and constituents wanting to ask questions about the stinging critique of President Trump by his former Vice President, Mike Pence, in a piece that is a shrewd call-back to Ronald Reagan: “A Republican Time for Choosing.” That piece, excerpted in The Wall Street Journal from Pence’s upcoming book, is a roundhouse punch of rhetoric, a philippic that catalogs the increasingly big-government populist agenda of the second Trump Administration.

Pence is sure to come in for attacks by the beehive of trolls and ghoulish influencers of the post-conservative populist right. But after reading this fact-based and well-reasoned piece, conservatives and Republicans should ask themselves: Do I really disagree with Pence?

Pence chronicles many—though by no means all—the ways in which Donald Trump’s personalistic agenda is antithetical to conservative principles.

“Where Mr. Trump once . . . wanted businesses to flourish in a free-market system, he brought about partial federal ownership of several corporations. Where he once wanted to engage with the world and lead, he has increasingly withdrawn from it and sought to isolate the U.S. from its longtime allies. Where he once defended free markets and expanded international trade, he embraced broad-based tariffs, protectionism and price controls on prescription drugs and credit cards.”

We would add that President Trump is firing off executive orders and ordering selective investigations to target political enemies—some of whom themselves were not adverse to misusing official powers against him—for possible prosecution. His regulators have pioneered new powers for the Federal Communications Commission and Federal Trade Commission by misapplying regulations and twisting rules to punish news organizations the president hates. They seem unconcerned that the next progressive administration will undoubtedly use these new powers to persecute conservative voices and outlets.

And this administration continues—without changing a jot or a tittle—the antitrust guidelines of President Biden and his FTC Chair, Lina Khan. Self-styled “Khanservatives,” from Vice President J.D. Vance to Sen. Josh Hawley, style themselves as Teddy Roosevelt-era progressives. The Missouri senator proposes vast expansions to the FTC’s powers and budget, and outlawing any mergers or acquisitions by large companies.

And these are the conservatives who call other Republicans “RINOs”?

At the heart of Pence’s critique is the distinction between principles and populism.

He writes: “Populists follow urges, not principles. They would erode our commitment to the Constitution and abandon U.S. leadership in the world.” Pence reminds us of a 2022 Truth Social post by Donald Trump justifying “the termination of all rules, regulations, and articles, even those found in the Constitution” to overturn what Trump called the “massive fraud” of the 2020 election.

This is the antipode of a conservatism that rests on a healthy skepticism of centralized authority and fierce opposition to personalized law. Conservatives recognize that free markets are not merely efficient mechanisms for producing wealth. They are also systems that disperse power, preserve individual liberty, and limit the ability of government officials to make economic decisions on behalf of millions of Americans.

The framework of conservatism is a governing philosophy rooted in constitutional limits, economic freedom, a strong national defense, and a recognition of human fallibility. Because people are imperfect, power must be constrained. Because government officials are no wiser than the citizens they govern (if that), decisions should remain as close as possible to individuals, families, communities, and markets.

Pence writes, “Rather than uphold American colonists’ rebellion against monarchical government, populism clamors for centralization to advance its version of the common good.”

Republican populism is progressivism in disguise. It strikes at us not just from a Democratic Party now wholly run by socialist progressives, but from within our own ranks, sparking a battle for the soul of the Republican Party.

This is a new reality but an old choice. In his “A Time for Choosing” speech, Ronald Reagan said:

“You and I are told increasingly that we have to choose between a left or right. There is only an up or down: up to man’s age-old dream—the ultimate in individual freedom consistent with law and order—or down to the ant heap of totalitarianism.”

Our choice is whether the GOP will be restored as the party of limited government, free markets, and constitutional principles, or continue to drift toward a form of populism that’s just a Trump-tinted version of what the other progressive party offers.

Enjoy!

Your father, Robert Bork, Sr, was such a significant figure in American legal history—looking back now, what do you think he understood about the direction of the country that feels especially relevant today?

My father understood something that I think we are only now fully rediscovering—that the greatest threat to a free society doesn’t usually come in the form of open confrontation with the Constitution, but in its gradual reinterpretation to serve political ends.

He saw very clearly that when judges, regulators, or political actors begin to substitute their own values for neutral principles, whether in constitutional law or in economic policy, you don’t just get bad decisions, you get a breakdown of the rule of law itself. The system stops being predictable, and it starts becoming discretionary. And discretionary power is where liberty goes to die.

What feels especially relevant today is his warning that this wouldn’t stay confined to the courts. Once the idea takes hold that outcomes matter more than principles, it spreads—to administrative agencies, to antitrust enforcement, to corporate governance. You begin to see law used as a tool to engineer social or political outcomes rather than to protect a neutral framework for competition and freedom.

In antitrust, for example, he was very clear: if you abandon the consumer welfare standard in favor of vague political goals, whether that’s fairness, industrial policy, or social objectives—you open the door to arbitrary enforcement. And once enforcement becomes arbitrary, it becomes political.

I think he would look at the current moment and say: this is exactly the trajectory I warned about—not because any one policy is catastrophic, but because the underlying discipline of neutral principles is eroding.

And once that discipline goes, it’s very hard to get it back.

Your new book, The New Paradox, addresses conservative socialism. What is conservative socialism?

Conservative socialism is the idea that you can use the tools of government—regulation, antitrust enforcement, industrial policy—not just to protect markets, but to direct them toward preferred social or political outcomes, while still calling that “pro-market” or “pro-American.”

It’s a paradox because it comes from the right. Traditionally, conservatives argued for neutral rules, limited government, and letting competition determine outcomes. But what we’re seeing now is a shift—some on the right are becoming comfortable using state power to shape markets: picking winners and losers, punishing disfavored companies, or steering capital in the name of national strength, cultural goals, or fairness.

At that point, you’re no longer defending capitalism, you’re managing it.

And the danger, which my father warned about in a different context, is that once you abandon neutral principles—like the consumer welfare standard in antitrust—you don’t get better outcomes, you get more discretion. And more discretion means more politics.

So “conservative socialism” isn’t just a label—it’s a warning. It’s what happens when the right adopts the means of the left, even if it believes it’s pursuing different ends.

Having had a front-row seat to your father’s life and career, is there anything about him that the public didn’t fully understand—but you think they should have?

I think what the public often missed was how deeply principled—and actually how restrained—he was.

He was portrayed as a kind of ideological figure, someone eager to impose his views. But the reality was almost the opposite. What drove him was a belief that judges and policymakers should not impose their personal preferences. He believed in discipline — in sticking to neutral principles even when they led to outcomes you might not personally like.

That’s a harder position than it sounds. It requires a kind of intellectual humility that’s rare in public life.

The other thing people didn’t fully appreciate was his sense of humor and his warmth. He could be very funny, very human, and very aware of the absurdities of the moment—even at the height of the confirmation battle. That part of him didn’t really come through in the public narrative.

And finally, I think people underestimated how forward-looking he was. Many of the debates we’re having today—about the role of courts, the politicization of law, the use of economic regulation to achieve social goals—he saw coming decades ago.

So, if there’s one thing I wish people understood better, it’s this: he wasn’t trying to shape the country in his image. He was trying to preserve a system where no one gets to do that.

You are the President of the Antitrust Education Project; can you tell us more about this?

The Antitrust Education Project is a nonprofit dedicated to promoting sound, economics-based antitrust policy—what I would call the consumer welfare approach.

Our core mission is educational. We work to explain why antitrust law should focus on protecting competition and consumers—not be repurposed as a tool for broader political or social objectives. That includes engaging with policymakers, supporting research, filing amicus briefs where appropriate, and helping elevate serious scholarships in this space.

Right now, there’s a real risk that antitrust is being pulled away from objective standards and toward more discretionary, politically driven enforcement. We think that’s a mistake—not just economically, but legally—because it undermines predictability and ultimately harms consumers.

So, what we’re trying to do is bring clarity and discipline back into the conversation. Not ideology—discipline. The idea that antitrust should be grounded in evidence, economics, and the rule of law.

Where do you see signs of conservative socialism within the Trump administration?

I think you see elements of what I call “conservative socialism” in the willingness to use state power to shape market outcomes—often in ways that depart from traditional, rules-based conservatism.

Take trade policy under Donald Trump. The use of tariffs wasn’t just about addressing discrete unfair practices; it became a broader tool to steer industrial outcomes—effectively deciding which sectors should be protected and which should bear the cost. That’s a form of government-directed market shaping.

You also see it in antitrust rhetoric. There were moments where enforcement—or at least the threat of it—appeared tied to concerns about the speech or political posture of large technology firms. Once antitrust becomes a lever to discipline companies for non-economic reasons, you’ve moved away from neutral principles and toward discretionary power.

Another area is industrial policy—efforts to favor domestic production or particular industries not just for national security, but as a general economic strategy. Again, the question isn’t whether any one policy is justified, but whether you’re normalizing the idea that government should be actively directing private economic outcomes.

And that’s really the thread: when you move from setting the rules of the game to influencing the results of the game, you’re no longer just defending markets—you’re managing them.

That’s what I mean by conservative socialism.

What is the job of antitrust regulators?

At its core, the job of antitrust regulators is to protect competition—not competitors, and not political outcomes, but the competitive process itself.

That means preventing conduct that harms consumers: things like price-fixing, collusion, exclusionary practices that block rivals unfairly, or mergers that would likely reduce competition and lead to higher prices, lower quality, or less innovation.

The key point—and this is where my father was very clear—is that antitrust is supposed to be grounded in objective, economically coherent standards. In the United States, which has traditionally meant the consumer welfare standard: are consumers better or worse off as a result of a given practice?

Agencies like the Federal Trade Commission and the Antitrust Division are not supposed to be referees of fairness in some broad social sense, and they’re certainly not supposed to be tools for advancing political agendas. Their role is narrower—but also more important: to enforce clear rules that keep markets competitive and predictable.

When they do that well, you get lower prices, better products, and more innovation. When they move beyond that—when they start trying to engineer outcomes—you risk turning antitrust into something arbitrary and political.

And once that happens, you don’t just lose economic efficiency, you lose the rule of law in this area.

What was the Biden administration’s approach to antitrust and is this approach different under President Trump?

The Biden administration took what I would describe as a structural and ideological shift in antitrust. Under leaders like Lina Khan at the Federal Trade Commission and Jonathan Kanter at the Antitrust Division, there was a move away from the traditional consumer welfare standard toward a broader set of goals about market structure, concentration, labor effects, and even political power.

That translated into more aggressive merger challenges, skepticism of large firms as such, and a willingness to bring cases that might not have succeeded under the prior, more economic-driven framework. You also saw a greater openness to using antitrust as part of a larger effort to reshape markets, not just police them.

Now, under Donald Trump—at least in his earlier term—you saw something different in tone but not always in direction. On paper, there was more rhetorical support for traditional antitrust principles. But in practice, there were moments when enforcement risked becoming politicized in a different way, particularly in how large technology firms were discussed.

So, the contrast isn’t as simple as “one was aggressive and the other was restrained.” The Biden approach was more openly transformative—explicitly rethinking the goals of antitrust. The Trump-era approach was less ideologically systematic, but at times showed a willingness to use antitrust or regulatory pressure in a more ad hoc, politically inflected way.

And that’s really the point I make in The New Paradox: both approaches, in different ways, risk moving away from neutral, rules-based enforcement. One does it in the name of restructuring markets; the other can do it in the name of reacting to perceived political or cultural concerns.

The common danger is the same—greater discretion, less predictability, and ultimately a more politicized antitrust regime.

Can you talk about President Trump’s antitrust regulators and the plight of CBS News and Skydance media, as chronicled in your book, The New Paradox?

What I argue in The New Paradox is that the Trump-era approach to antitrust, while not ideologically coherent in the way the Biden approach is, still revealed something important—and concerning—about the direction of policy.

If you look at leadership at the Antitrust Division under Makan Delrahim, there was, in many respects, a return to more traditional, economics-based analysis. Delrahim, for example, emphasized vertical merger guidelines and tried to ground enforcement in established doctrine.

But at the same time, there was a broader political environment under Donald Trump in which large media and technology companies—particularly those perceived as hostile—were openly criticized and, at times, implicitly threatened with regulatory scrutiny.

The CBS–Skydance situation, as I describe it in the book, becomes illustrative of that tension. When transactions involving major media entities like CBS News and Skydance Media are viewed through a political lens—whether fairly or not—you introduce uncertainty into what should be a legal and economic analysis.

And that’s the key point: antitrust enforcement depends on credibility. It has to be seen as neutral, predictable, and grounded in law and economics. Once market participants begin to believe that outcomes may turn on political considerations—who you are, what you say, or how you’re perceived, you’ve already weakened the system.

So, the lesson I draw isn’t that Trump’s regulators abandoned economics across the board—they didn’t. It’s that even a partially politicized environment can undermine confidence in the neutrality of enforcement.

And once that confidence erodes, you don’t just get different outcomes, you get a different kind of system.

We know that the IRS was weaponized in the past for its’ treatment of conservative groups as well as social media censorship. Is censorship a problem from the right side of the aisle also?

I think the honest answer is yes—censorship, or pressure on speech, is a risk from any direction once you accept the premise that power should be used to shape outcomes rather than protect neutral principles.

We’ve seen well-documented concerns on the left—whether involving government pressure on platforms, or the treatment of certain groups by agencies like the IRS. Those episodes raised serious rule-of-law issues.

But the right is not immune to the same temptation. You’re now seeing calls from some conservatives to use government power—whether through regulation, antitrust, or platform mandates—to discipline or control the behavior of large technology companies based on their perceived bias or speech policies.

At that point, the justification changes, but the mechanism is the same: government pressure influencing private speech.

And that’s really the line that matters. A free society depends on the idea that the government doesn’t get to decide which viewpoints are favored or disfavored—directly or indirectly. Once you open that door, it rarely stays confined to one side.

So, my view is consistent with the broader theme of The New Paradox: the danger isn’t just what one side is doing, it’s the erosion of neutral principles that restrain everyone.

Because once those restraints weaken, the tools of censorship become available to whoever holds power next.

Are you optimistic or pessimistic about America’s future?

I’m cautiously optimistic—but only if we’re honest about the risks.

The United States has an extraordinary capacity for self-correction. We’ve gone through periods before when institutions were strained, where legal principles were bent, and we’ve found our way back. That resilience is real.

But what gives me pause is that many of the pressures we’re seeing now—whether it’s the politicization of law, the erosion of neutral principles, or the growing comfort with using government power to shape outcomes—are coming from multiple directions at once. That’s new. And it makes course correction harder.

So, my optimism isn’t automatic. It depends on whether we’re willing to recommit to first principles: the rule of law, limits on government power, and the idea that the system should be neutral, not outcome driven.

If we do that, I think the country’s future is very strong.

If we don’t, then the risk isn’t some dramatic collapse, it’s a slow drift into a more discretionary, more politicized system.

And history suggests that once you drift far enough in that direction, it’s very difficult to turn back.

President Trump calls his stream-of-consciousness rhetorical style “the weave.” Conservatives should pay more attention to the president’s ideological style, a weave between conservative free-market and constitutional principles, and major steps into state-run capitalism, the crass use of regulatory authority to punish speech, and executive orders that bludgeon individuals and groups for their politics.

We acknowledge and celebrate the president’s big wins — closing the border, lowering taxes, stripping away deadweight regulation, and unleashing America’s energy might. These bright spots (and some are very bright) cannot distract us from the way in which Trump is erecting a guillotine for those who still value free speech and free enterprise, shielded from government control.

Charles Dickens called that execution machine introduced by the French Revolution “the National Razor which shaves close.” Conservatives especially should prepare themselves for a very close shave when the Democrats return to power. The Democrats are ever more dominated by far-left progressives, certain to use this weapon against conservatives and whatever remaining center-left Democrats when they are back in the White House. This is not a guess but a straight-line extrapolation of their behavior.

A few examples: During the Biden administration, social media platforms were pressured into censoring and shadow-banning conservative speech. Biden’s people funneled taxpayer money through a State Department “Global Engagement Center” to a London-based NGO that scared advertisers away from right-leaning American media, including such dangerous entities as Reason magazine.

The Biden administration encouraged corporate ESG, DEI, and the replacement of equality with “equity.” They appeared unconcerned (or worse) that academia — long a home for leftist and sometimes ultra-leftist orthodoxy — became arenas for struggle sessions among dissenters that had a way of ending unhappily. President Biden continued to forgive student-loan debt despite the U.S. Supreme Court’s ruling it unconstitutional, and coerced U.S. automakers into making electric vehicles that Americans didn’t want and couldn’t afford.

President Trump ran in 2024 promising to set a new course. Since he came into office, this has not always been so.

For example, Trump’s Federal Trade Commission chairman, Andrew Ferguson, sent a “warning letter” to Apple CEO Tim Cook, threatening him over Apple News’ curation of news sources. “The FTC is not the speech police,” Ferguson proclaimed, saying he acted only because Apple News’ choice of sources violated its terms and conditions. Yet a close reading of those terms explicitly disclaims responsibility for content accuracy.

That’s an argument not too far removed from one made by Tim Wu, a major critic of Big Tech in the Biden White House, who recently penned a piece in the New York Times arguing that social media isn’t just speech but is instead “a defective, hazardous product.” As the Trump administration evolves, the arguments of Carr and Ferguson in favor of enforcing consumer protection standards against First Amendment activities dovetail with those of Wu. The right and the left are beginning to agree that speech is a product that should be regulated, not a fundamental right that must be protected.

The president has also attacked the First Amendment directly by leveling executive orders against law firms with former partners or associates who had worked against him. By threatening to cut off their access to security clearances and federal buildings, including possibly courthouses, the president has extracted promises of nearly a billion dollars’ worth of pro bono legal work for his favored causes.

In business, the administration is mixing public monies with private investment. Among other examples, the government obtained a minority stake in Intel and a so-called “golden share” of U.S. Steel, extracted cuts of international sales by Nvidia and AMD in return for relieving export controls, and crafted bespoke policies to guide the business strategies of corporations. The president has personally demanded the removal of the Intel CEO and a Netflix board member. At times, he has seemed to act as a sort of corporate director, laying the foundations for state capitalism. As we have seen from earlier incarnations of industrial policy — from U.S. Steel to Solyndra, and in China today — the politicization of capital always distorts markets and ends in tears.

The administration’s antitrust policy also seems to be taking a statist turn. For almost half a century, antitrust policy has been guided by the “consumer welfare standard,” which takes the politics out of regulatory enforcement by evaluating mergers and acquisitions based on their impact on consumer prices, choice, and innovation. Inexplicably, President Trump’s antitrust regulators failed to restore this modest standard. Instead, they retained the merger guidelines of the progressive antitrust regime of Biden’s progressive FTC chair, Lina Khan. The result is a hybrid “America First” antitrust policy that sounds conservative but, like the approach adopted in the Biden-Khan era, embraces the use of antitrust to direct the economy from Washington.

Donald Trump could have been the restorer of free markets. Instead, his administration is institutionalizing mechanisms that Washington can use to meddle in the operations of private business.

The president’s defenders will respond that the left has proven ruthless and lawless in its quest to maintain and expand power — a case only strengthened by the recent menacing comments by Democratic strategist James Carville. They argue that a Republican president who truly would be “the restorer of free markets” might be committing unilateral disarmament, a defeatist and largely nonsensical argument that ignores the extent to which the protection of free markets can be reinforced both legally and institutionally. (To be fair, this effort would require a more active Congress than we have at the moment.)

True unilateral disarmament would be leaving tools on the table that the left would likely use in a far more hostile manner. For conservatives, from a practical point of view, smoothing the pathways of predatory power will only allow Democrats to complete the job in the future, while undercutting Republicans’ moral authority to fight back.

Although these dangers are real, such partisan considerations risk overlooking the greater peril: If both parties finally give up on free-market capitalism and limited government, then it really does not matter much which party is in power. The differences would no longer be quite so ideological, but cultural and tribal. A conflict between two parties unmoored from what we can consider constitutional Americanism would signal a break with the last 237 years of shared assumptions regarding the character and principles of this nation.

Regardless of whether the Republican Party retains its principles, Trump’s interventionism is a gift to the next progressive administration. Conservatives should be deeply worried about the guillotine that the president and his people are setting up in the plaza. As with the radical Jacobins, it is sure to be used against those who installed it.

A version of this article first appeared in National Review.

The news that Columbia University Law School is establishing a new Center for Law and the Economy – to be directed by Biden’s former FTC Chair Lina Khan and includes former Biden economic and legal advisor, Tim Wu – is a new and exciting development in the future of American antitrust enforcement.

The creation of the center, Khan says, responds to “tremendous interest from law students, and the center will help harness that interest and develop the scholarship and expertise needed to advance this work across key areas of economic law and policy.”

To help guide this new center, below is a suggested curriculum to shape the legal philosophy of Columbia Law students – the Lina Khans and Tim Wus of our future.

Structural Inequality Studies: Econ 501 – Why Markets Fail (Especially When They Work)

Many law students arrive clinging to naïve and outdated concepts of the market as “free” – believing that market dominance is usually challenged and corrected by a mythical deity called the Invisible Hand. This course demonstrates how innovation and consumer surplus mask deeper harms such as scale and excessive efficiency, while exploring the corrosive effect of discounting and low prices in promoting inflation.

Econ. 502 – “Small Dealers and Worthy Men”

First, an apology for the title, which harks back to the archaic (and frankly nebulous) word “men.” Yet it derives from a foundational Supreme Court opinion from the late 19^th century that presaged the Center’s Brandeisian ethos. This course will explore why a big company’s size is a marker of late-stage capitalism practically begging for the regulator’s wrecking ball.

Econ. 503 – Taking a Razor to the Rule of Reason

This course explodes the myth of neutral principle in regulatory enforcement. As progressive expert Matthew Stoller put it, “the point of economics as a discipline is to create a language and a methodology for governing that hides political assumptions from the public.” The rest is just math.

Antitrust Redistribution: Law 510 – The Fascistic Roots of the Consumer Welfare Standard

Students learn to move beyond price effects toward a holistic and critical evaluation of how the current antitrust dogma upheld by federal judges of both the left and the right serves unequal power arrangements under the guise of “consumer welfare.” We will explore how antitrust enforcement can look beyond price, innovation, and choice for consumers to become a strategy to promote unions, inefficient competitors, and – in the words of Rebecca Kelly Slaughter – confront “structural and systemic racism that underlies and facilitates acts of violence.”

Law 511 – Antitrust Without Apologies

How to bring cases first and define the theory later – such as the failed FTC case against the Meta monopoly, while ignoring the fierce competition Meta faces from YouTube, TikTok, iMessage, Mastodon, LinkedIn, as well as growing personal networks such as WeChat, Telegram, Snapchat, Reddit, Pinterest, Discord, and Tumblr.

Law 512 – Gerrymandering Antitrust Cases

We learn how to sue anyone as a monopolist by defining markets as narrowly as possible. A case study: How the FTC under our Director Khan investigated Subway as a “Big Sandwich” monopolist by excluding markets for warm beef and chicken sandwiches, while otherwise including anyone who could slap something between two pieces of bread. Students will develop mock cases of their own, such as suing Chick-fil-A for monopolizing the market for chicken sandwiches not sold on Sundays.

Law 513 – Vertical Integration as Original Sin

We learn why owning multiple stages of production is presumptively suspect, especially when heartless efficiency is maximized.

Law 514 – The Heroic Return of the Robinson-Patman Act

How the future regulator can ensure that no firm ever gets too good at winning market share by economies of scale and discounting for consumers. Case study: How the “Walmart Effect” ruined the American economy by delivering “Everyday Low Prices.”

Administrative Omniscience: Law 515 – Monopsony Everywhere

How to develop the techniques for finding the victimization of labor markets in any dataset and convert competition law into a parallel labor code.

Law 516 – The Policemen at the Elbows

Explore the social value created by unrelenting oversight and static rules on dynamic markets. We will develop advanced mental techniques by which antitrust experts can foresee future market developments that elude the brightest people in investment capital.

Econ Colloquium: Industrial Policy for Beginners

How to use political favoritism and heavy-handed capital allocation under the rubric of “planning.” We will also study how subjecting capital and business to the whim of politically controlled regulators will one day lead to the “withering away” of the state.

Capstone Project – Designing Markets that Behave

Students re-engineer industries so outcomes align with preferred social distributions – avoiding demerits for any policies that promote efficiency. Students must always keep faith with the Center’s motto: Vigil ad cubitum (“The policeman at the elbows”).

Robert H. Bork Jr. is president of the Antitrust Education Project.

What is left is right, and what is right is left – and both are getting it all wrong.

A convergence is taking place between the philosophies of some on the new right and the progressive left that treats social media as a “product” that must be regulated in the best interests of the American people, sweeping aside quaint concerns about the First Amendment guarantee of free speech.

We recently covered attempts by the Trump chairmen of the Federal Trade Commission and Federal Communications Commission to regulate journalism by overriding the First Amendment with appeals to consumer protection and airwave regulation.

This dovetails nicely with a recent New York Times op-ed by Tim Wu – who led the implementation of progressive policies from inside the Biden White House – arguing that social media is “a defective, hazardous product” that must be regulated “as a matter of public health.”

He echoes the reasoning of trial lawyers seeking to hold Meta, Google, Snap, and TikTok liable for harming youth. Wu lists a parade of horribles – “algorithmic recommendations, infinite scroll, auto video play and intermittent reinforcement (in which likes, comments, and refreshed content are rewarded unpredictably rather than consistently).”

Put aside, for a moment, the obvious lack of utility of a social media platform that doesn’t guide users to what they want to see, or that requires manual intervention to get something to play. Wu’s point here is that “the very design of social media is intentionally engineered to create compulsions and habits of overuse, regardless of the content provided.”

He adds: “Lofty platitudes about free speech ring hollow in the face of teenage depression, self-harm and suicide.”

Thus the circle squares, from Trump FTC Chairman Andrew Ferguson, who wants to apply consumer product regulation to Apple News, to Wu, who wants public regulation of social media to make it less harmful.

Wu is, to say the least, less than an ardent defender of free speech. He achieved notoriety with an essay that asked, “Is the First Amendment Obsolete?” (Short answer from Wu: yes.) There is also a more thoughtful side to Wu. He is right that American teens are too absorbed by social media, many dangerously so. But the solution, if there is one, could never come from government control of speech.

Several years ago, Elizabeth Nolan Brown in Reason magazine summed up the problem with blaming all the ills of the world on algorithms – which are, after all, a way to give users control of the content they see. Brown wrote:

It’s no secret that tech companies engineer their platforms to keep people coming back. But this isn’t some uniquely nefarious feature of social media businesses. Keeping people engaged and coming back is the crux of entertainment entities from TV networks to amusement parks…

Moreover, critics have the effect of algorithms precisely backward. A world without algorithms would mean kids (and everyone else) encountering more offensive or questionable content.

Brown quoted Meta’s former vice president of Global Affairs, Nick Clegg, who said that without the news feed algorithm, “the first thing that would happen is that people would see more, not less, hate speech; more, not less, misinformation; more, not less, harmful content.”

Algorithms pluck what users follow out of a torrent of billions of global messages. Without them, that torrent would hit us all in the face.

For reasons spelled out by Brown, Wu’s idea of turning over algorithmic control – and thus speech control – to law enforcement and trial lawyers has no hope of working. The same is true of the efforts of FCC Chairman Brendan Carr and FTC Chairman Andrew Ferguson to force journalists to adhere to their idea of greater ideological balance.

If either side ever succeeds in putting their schemes into action, they are sure to be disappointed when their controls fail to deliver the intended results. The obvious answer, to them at least, will be that even more control is needed. Then more.

Both ideological extremes are in a race to the bottom. Defenders of the First Amendment must be bolder than ever in declaring that speech is not a product – it is a human right.

Editor’s Note: Did it seem like DEI (Diversity, Equity, and Inclusion) initiatives sprang out of nowhere? Or that a giant, multibillion-dollar sector of diversity training seemed to suddenly emerge from that same nowhere to teach Americans to walk on eggshells?

In fact, these trends were a long time in the making, germinating in law since the 1990s. Gail Heriot, a legal scholar who has served on the U.S. Commission on Civil Rights, explains how a law passed in 1991 incentivized a “woke” approach to race and sex, replacing the venerable quest for equality with the nebulous concept of “equity.”

The following is a lightly edited version of speech Professor Heriot gave last December at Cornell University.

Sometimes the nation gets swept away by sudden enthusiasms for which there is no real explanation—like pet rocks, the Macarena, or fidget spinners. They seem to come out of nowhere. But very few things are like that. Most trends, including those of an ideological nature, have a cause or (more commonly) a constellation of causes. And they build over time. The “woke ideology”—which I’ll be talking about a bit this evening—is no exception.

I think most of you have some sense of what I mean by “woke ideology.” It’s not just about being sensitive to whatever special challenges that are thought to be faced by women and minorities, although that’s part of it. It’s a set of beliefs—central among them that when group outcomes differ by race, it’s the result of the nation’s long and continuing history of racism. The same goes for differences based on sex and other identity factors. Those who subscribe to the woke ideology tend to reject laws that require that individuals be treated equally regardless of race or other identity factors on the ground that those laws are insufficient to equalize group outcomes.

If you believe (and spoiler alert, I do not) that racism, sexism, and the like really are the cause of, well, everything, then I suppose that’s an explanation enough for the intense popularity of the woke ideology in the last decade or so—women and racial minorities finally have gotten wise to it all and they’re not goin’ to take it anymore.

But if you’re like me and like most Americans, it just doesn’t seem to jibe with the America we see around us—a country that is imperfect, but nevertheless fundamentally decent and in some ways exceptional. We’re looking for a different and better explanation.

The 1991 Civil Rights Act

I don’t believe anyone can give an exhaustive explanation for the Woke Era in a short space. Any such explanation would have to look at the issue from many angles: demographic, economic, ideological, technological. My aim is more modest. I want to talk about the contribution made by the area I know best—civil rights law and policy. In particular, I want to concentrate on one law, the Civil Rights Act of 1991. Its special ability to cause Americans with conservative, libertarian, and centrist views on race and sex to feel they must walk on eggshells has been a significant contributing factor to the Age of Wokeness and quite possibly the age of Trump too.

What happens when people in the center and right two-thirds of the political spectrum are made to be especially uncomfortable in speaking about issues of race and sex? The answer to that should be obvious. Overwhelmingly, they clam up, so a large swath of the population starts to sound like a fringe group. Meanwhile, free from substantial criticism, the ideas that start out somewhat left-of-center slowly evolve to be quite left-of-center, then far-left, and eventually, in my opinion, into woke unreality.

So let me tell you a little about the Civil Rights Act of 1991 and why I think it caused people to clam up. You are to be forgiven if you’ve never heard of it. Unlike the landmark Civil Rights Era legislation of the 1960s, it doesn’t get a lot of mention these days. And I don’t recommend that you put it on your summer reading list. It reads a bit like the Tax Code. But like the Tax Code, it created incentives that have had a real impact on our lives.

A Brief History

When it was signed into law by President George H.W. Bush in 1991, it contained many provisions, some ok, some not-so-ok, and some maybe well-meaning but quite terrible. In retrospect its most important provisions were the ones that made employers who intentionally discriminate liable for emotional distress and punitive damages. To be sure, there were caps on the amounts that could be recovered, caps put there at the insistence of the Bush Administration and still in effect today (though a bill was recently introduced in Congress that would remove the caps). No one could get more than $300,000 in combined emotional distress and punitive damages. And for cases against very small businesses the cap was lower. Still, the amounts were more than enough to grab the attention of most employers. And for reasons that I’d need an extra three hours to explain, the caps did not apply to cases involving racial harassment or discrimination. These changes significantly raised the financial stakes for most employment discrimination cases. That matters.

Here’s the way it worked: Beginning in the 1970s, courts began to view certain kinds of workplace interactions—deemed to be “harassment”—as Title VII violations. During that period, however, the largest sum of actual money a plaintiff could hope to receive for winning a Title VII lawsuit would have been the value of the wages lost as a result of the violation. They might be able to get an injunction too, but that’s not money. Since only serious harassment was likely to result in lost wages or the desire for an injunction, harassment lawsuits were relatively uncommon. The new provisions for emotional distress and punitive damages in the ’91 Act greatly expanded the array of racial and sexual harassment cases that could be worth a plaintiff’s time and energy to litigate.

In some sense, of course, that is exactly what the Act’s supporters wanted. More lawsuits and higher damages could mean more effective deterrence, or so the Act’s supporters hoped. What Congress probably didn’t bargain for was how overwhelming the deterrent effect would be.

But think about it: Harassment was and is an ill-defined concept. By adding the possibility of significant financial gain, the new law invited aggressive efforts to expand what could fit into that concept. The uneasiness this caused for employers is easy to understand.

The most fundamental reason for the law’s disproportionate deterrent effect was the cumulative nature of harassment. As the Supreme Court interpreted the law, a thousand pinpricks, no one of which is serious in itself, could add up to a violation. Those pinpricks wouldn’t have to come from the same person. A sexual harassment case could be made up of a rude remark from one colleague, an annoying stare from another, and a sexy cartoon anonymously pinned to a bulletin board. Individually, those pinpricks would have no legal effect. But together, at some undefined tipping point, they could create liability for the employer.

Racial harassment was no different. At some undetermined point, one colleague’s imprudent race-based teases, another’s controversial reading material at lunchtime, combined with yet another’s objection to an affirmative action plan, could put the employer in the firing line of a lawsuit.

Once the ‘91 Act passed, jittery employers correctly understood that to avoid costly lawsuits they needed to control employee speech and conduct at the pinprick level. There was no other way.

It wouldn’t be fair to say that the Bush Administration was asleep at the wheel when this was happening. Bush had actually vetoed an earlier (and worse) version of the bill—called the Civil Rights Act of 1990—and his Congressional allies and Administration lawyers were prepared to hang tough to get a bill that would be acceptable to them. But a funny thing happened while the new version—the one that Bush eventually signed into law—was being negotiated: Bush nominated Clarence Thomas to the Supreme Court. Then, suddenly, Anita Hill appeared to provide exactly the push the bill needed. In televised hearings, she accused Thomas of having pestered her for a date and having a bawdy sense of humor. The public was mesmerized to hear the subject being discussed in a stately Senate hearing room. Bill supporters finally had the high-profile case of sexual harassment had been hoping for. Bush’s political advisors told him that if he wanted to be re-elected, he needed to sign the bill. So he did, while his legal advisors looked on with worry, not knowing exactly what the fallout would be.

Title VII

Looking back over the years, I believe the fallout was extremely significant. It helped lead to endless woke DEI training and perhaps ultimately to the Age of Trump, though it wasn’t so clear at the time. Over the next 30 years, it did a lot to silence the voices of everyday Americans whose views are center-right. That in turn has done a lot to knock our civil rights policy off kilter.

But to understand that fallout, we need to back up to 1964 and see how Title VII was originally structured and how the ’91 Act upset that structure.

Allow me to do just that:

Under the original version of Title VII, the prohibition was worded very broadly. Any discrimination by employers, no matter how trivial, was technically a violation. So if a business that’s located in a cramped, old building has a slightly more conveniently located restroom for men than it does for women, it’s in violation.

Still, nobody with the gift of wisdom is going to want to make a federal case out of it. Fortunately, the way the statute was set up, we didn’t need to rely on people having that wisdom. First, an aggrieved individual would have to take the case first the EEOC for mediation. If she was dissatisfied with that mediation, she could take the case to court. But she could get only two possible remedies: lost wages or an injunction (or both). But minor cases rarely involve lost wages. As for injunctions, they could be useful—but they wouldn’t make the plaintiff rich, so they usually wouldn’t be enough to convince someone to sue who didn’t truly feel she’d been wronged. Moreover, they couldn’t be used in a situation where an employee had been fired for good reason and had therefore become angry and desperate, such that she “just remembered” that she’d been harassed and mistreated while still on the job. It’s too late to have the court fix the problem with an injunction. All this worked as a structural brake on Title VII.

My University of San Diego law students sometimes think that the reason Congress limited the remedies in 1964 was that they really didn’t care about ending discrimination. Alas, our students sometimes come to us already educated to believe the country is rotten to the core, so I guess it’s no surprise that they’d think that way. But that’s not it. Here’s one piece of evidence: Congress also gave Title VII plaintiffs one boon that’s unusual in American law: Successful plaintiffs could get the defendant to pay their attorneys’ fees. Congress understood that injunction cases don’t generate a pot of money out of which a contingency fee can be paid and they also understood that even in cases involving lost wages, low-income plaintiffs with perfectly good cases would sometimes have a hard time hiring an attorney because the amount of money involved would be too small to generate a significant contingency fee.

Lawyers and legal historians can often guess why Congress limited remedies the way they did. But if you’re not one, you’ll probably never guess: So I’ll tell you: Congress did it to make sure that employers wouldn’t have the right to a jury trial. For reasons involving the 17^th century English distinction between “law” and “equity” that we needn’t go into now, jury trials aren’t available in cases involving injunctions and sometimes injunctions plus a little more. Congress was unconvinced that Title VII would be enforced by juries in Jim Crow states.

So that was the state of play in 1964: A extremely broad prohibition, narrow remedies designed to avoid jury trials (though not that narrow, since recovery for emotional distress and punitive damages is somewhat rare in the law). And all that was combined with an unusual provision allowing successful plaintiffs to recover for attorneys’ fees.

Was Title VII a perfect engine for the elimination of discrimination? Of course not. No law is ever has been. The only way to give the public perfect protection against violent crime is to have a police state. The only way to give the public perfect protection against ever-dreaded misinformation is to shut down discussions that a free society needs. The original version of Title VII wasn’t perfect, but it was serviceable.

As an aside: Just in case some of you are the kind who think that the law can work miracles, let me urge you never lose sight of the fact that our best protection against employer abuse including discrimination is a strong, competitive economy. With it, everyone can prosper. If instead the economy goes to hell, all bets are off. All the worker-protection laws in the universe won’t help us. Anti-discrimination laws are a good supplement when the economy is somewhere between terrific and terrible and especially when entrenched laws and practices have disrupted what otherwise would have been a competitive economy, but it’s only a supplement.

And I would submit that, all things considered, we made things worse when we amended Title VII to make lawsuits more lucrative. In the early 1990s, harassment lawsuits brought under Title VII skyrocketed. Employers panicked. Everything that anybody might consider offensive had to be eliminated. And the Supreme Court, in what appears to have been an effort to throw employers a lifeline, told them that if they can just set up procedures under which employees can have their complaints investigated and dealt with, and if they can just train their employees to avoid harassment, they would to a certain extent be protected from liability.

Where This Got Us

So what do you think you’re going to get under such circumstances? You’re going to get an in house bureaucracy to field complaints and micro-manage human relations from afar. And you’re going to get training, training, and more training. Under the Supreme Court’s analysis, it didn’t matter if the training and the reporting procedures were effective; just having it would count in the employers’ favor.

This kind of training rapidly became a billion-dollar business and evolved into what we call DEI today. It’s no wonder employers would seek professionals—often the products of over-the-top university multi-cultural programs of the 1980s and 90s—to help them instruct their employees on how to avoid offense. Consider the number of words that people were finding racially insensitive in the 1990s and early 2000s “cakewalk,” “long time no see,” “master bedroom,” “no can do,” “plantation shutters,” and “peanut gallery.” There was a surprisingly widespread notion that the word “picnic” derives from lynching parties. “Picnic” was said to derive from “pick a [insert a derogatory name here]” to lynch. A Smithsonian staff member reported that at one point she was fielding several calls a day about this absurd belief.

One thing you can count on in life, big businesses want to stay in business, so they will keep inventing new things that just might cause offense. Thus the concept of micro-aggressions was popularized. In a pre-1991 Act world, employers and employees could laugh off hyper-sensitivity. But in a world where harassment is judged on a cumulative basis and in which hyper-sensitive employees may have a successful “retaliation” lawsuit under Title VII if they can prove that they’ve been discouraged from making complaints, employers can’t laugh off anything. Every complaint must be treated with kid gloves. The law thus encourages ever greater levels of sensitivity.

Among the so-called micro-aggressions that we’re now routinely warned not to say are those that can be interpreted to relate to affirmative action. Specifically, you can’t say:

“I believe the most qualified person should get the job.”

“As a [manager], I always treat men and women equally.”

Think about what that means. The animating principle behind Title VII when it passed in 1964 was “the most qualified person should get the job regardless of race, color, religion, sex or national origin.” The Supreme Court 15 years later in United Steelworkers v. Weber held that, well, the statute might say no discrimination, but it doesn’t really mean that. Discrimination in favor of under-represented minorities is okay sometimes—even morally upright! The dissent by Justice William Rehnquist rightly called the decision Orwellian; that is, an obvious case of judges deciding what they think the law should be rather than what it is. But that was nothing compared to the last decade or so during which even articulating Title VII’s animating principle—the most qualified person should get the job—can be viewed as harassing and hence a violation of the law.

Here are a few more of these standard-list microaggressions:

“Where are you from?”

“Where were you born?”

“Don’t say that!”, employees are instructed. And if you can’t say that, you sure can’t say to your colleagues—“I don’t think we need bring in more employees on a H1-B visas. There are plenty of qualified Americans out there.” And you sure don’t want to say, “We need to be more careful about not hiring undocumented workers.” Is it any wonder that employees who are opposed to affirmative action or who have concerns about immigration think they have to walk on eggshells? And if they can’t say these things at work, they can’t say them in public.

Let’s face it: It has always made most people uncomfortable to talk about race and sex (and I’ll include within that immigration). But the ’91 Act and diversity bureaucracy and relentless training that grew up around it made it exponentially worse.

And is it any wonder that politicians and commentators, when they don’t hear views from the center-right as often, get a mistaken view of where public opinion lies. Or that left-of-center ideas get flakier and flakier when they aren’t subject to criticism?

I picked up a copy of White Fragility: Why It’s So Hard for White People to Talk About Racism, the runaway bestseller by celebrity DEI trainer Robin DiAngelo a few years ago. The book purports to be a distillation of what she has learned over the course of her many years as a trainer. Her message amounts to this:

1. All the whites are the racist beneficiaries of white privilege, right down to the lowest paid WalMart warehouse worker forced to sit through her teaching.

2. Only whites can be racist.

3. Whites who complain about “‘reverse’ racism” are being “profoundly petty and delusional.”

4. If her trainees don’t docilely accept these teachings, they are displaying what she calls “white fragility.”

That’s pretty extreme. But the book sold 5 million copies, so somebody liked it. Still, if you can’t see how that will go over with a blue-collar white guy struggling to make ends meet in a dead-end job, you’re not trying.

The thing that struck me most about DiAngelo’s comments was that she was experiencing a lot less pushback around the time she wrote the book (which was published in 2018) than when she first started as a trainer many years prior. She attributes this to her many years of experience as a diversity trainer. Maybe. But I wonder if something else isn’t going on. As politically conservative and moderate employees were exposed to year after year of training, they were learning there’s nothing in it for them to talk back. They clam up. Polls show this quite clearly and may even underestimate the effect. Self-described moderates avoid speaking up almost as much as self-described conservatives. But just because they do so that doesn’t necessarily mean they change their views.

It does mean, however, that political leaders and commentators (who may well understand that the legitimacy of our form of government depends in large part on its ability to effectuate the will of the people) have a hard time. How can you even gauge the will of the people when there’s an imbalance of that kind?

Let me give you a couple of examples: A little more than 10 years ago a good friend of mine, somebody whose stock in trade is largely to detect public opinion, told me with great assurance that very few voters were interested in the immigration issue. Just a few disgruntled populists. But for the vast majority of voters, it was at the bottom of their list. A year or two later, Donald Trump descended on the escalator. It turned out that many voters were frustrated enough to vote for the guy they saw as the disrupter.

Here’s another example, one that involves work that I was involved with. Almost 30 years ago, in 1996, I co-chaired a California ballot initiative called Proposition 209. It amended the state constitution to include these words: “The State shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, color, sex, ethnicity or national origin …” It was aimed at prohibiting the kind of preferential treatment we call “affirmative action.”

At the time, 30 years ago, we strongly suspected it would pass once it got on the ballot. And we weren’t the only ones who thought so. Our opponents must have thought so too, for they employed mostly disingenuous arguments against us, claiming the effect of the initiative would be to legalize sex discrimination. Even liberal newspapers admitted the argument was just plain silly. In the end, it did pass; and I’m proud to say it even made a history book or two.

Fast forward to the more recent past. The California Legislature had been trying to come up with a way to expunge Proposition 209 from the California Constitution for years. They liked having the power to discriminate. That’s not too weird. People in positions of power don’t like limitations on their power, and that’s what Proposition 209 did. What was weird was that they had convinced themselves that the voters wanted them to have it. It was gospel in Sacramento, even among some of the Republicans, that since California was a majority minority state, the people couldn’t wait to crank up the preferential treatment machine again. In 2020, in the midst of Woke Fever, the legislature made its move: It put a referendum on the ballot (known as Proposition 16) that would have repealed Proposition 209.

It flew through both houses as if it had wings. All the Democrats and even some Republicans voted for it.

A “NO on Prop 16” campaign, which I co-chaired, was quickly assembled. Everyone thought we would lose. Money poured into the campaign coffers of our opponents. They had more than 14 times more money than we had—almost every nickel of it in huge donations from major corporations, big unions and real estate moguls. And endorsements! They had Kamala Harris, Dianne Feinstein, Bernie Sanders, Gavin Newsom, Alex Padilla, Pete Buttigieg, Nancy Pelosi, more than two dozen members of the U.S. House of Representatives, and lots of big city mayors.

It wasn’t just politicians. The Golden State Warriors, the San Francisco 49ers, the San Francisco Giants, Lyft, Uber, Facebook, United Airlines, Wells Fargo, Yelp, and Instacart all endorsed Proposition 16. Plus the New York Times and every major California newspaper with the exception of the Orange County Register.

What did we have? We had hundreds of volunteers, many of them immigrants and children of immigrants who had come to this country precisely because they’d been told that American was the place they wouldn’t be discriminated against.

In the end, we shocked ‘em. Proposition 16 was defeated overwhelmingly—We got over 57% of the vote. Of course, our opponents immediately argued that the voters had simply misunderstood. But an important poll taken directly after the election proved otherwise. The politicians in Sacramento were simply out of touch. And I believe the ’91 Act was a highly significant contributing factor to that situation. We’re all trained not to talk about race and sex preferences.

Ok, so far I’ve mostly been saying that the ’91 created a culture that made it difficult for elected officials to understand where the voters were coming from. I don’t mean to suggest that the only thing. In addition, I believe the voters tended to be right about the core policy issues. For example, for reasons that I’d be happy to talk about if we had all week, I believe the public has it right that the only just and sustainable policy is that of race and sex neutrality: No preferential treatment based on race or sex. But it is perhaps easier to make my point in terms of a different issue—and that of criminal justice.

Criminal Justice

Five years ago, thousands of convicted criminals were emptied from the prisons on account of COVID. Teenage gang members were not in school. Then a few weeks later, the country went on a DEFUND THE POLICE kick and this was argued for (mostly by people who live in higher-income safer neighborhoods) as necessary to protect African Americans whose neighborhoods were said to be “over-policed” from police brutality. It was a time we could have used MORE police protection, not less. But we got less. Most Americans understood that it would have the opposite effect. That those living in low-income African American neighborhoods would suffer most of all. But very few were willing to say so out loud. And sure enough, that’s what happened.

Part of the problem is that left-of center voters don’t have the facts right. A national survey conducted in 2019 found that nearly 44% of self-described liberals believed that an alarming 1000 or more unarmed African American men had been killed by police in that year alone. But those estimates were wildly off. The true number was 29 that year. Not 1000, 29.

Similarly, a 2020 survey found that 60% of highly educated white liberal respondents believed that young African American men were more likely to be shot to death by the police than to die in an auto accident. In fact, young African American men (ages 18 to 34) were more than 17 times more likely to die in a motor-vehicle accident than to be shot to death by police in that year. 17 times.

It’s not that police brutality doesn’t exist. It is the fundamental tenet of conservatism that wherever power is found, there will be abuse. Police have power. Oversight is necessary. But the other side of the coin is that police protect us all from crime, and that argument wasn’t getting made.

To close: Do I really believe that the ’91 Act is solely responsible for these problems? Of course not. Lots of things had to happen too in order to get us where we are today. We live in a complex world. Do I want to say that without the ’91 Act, over-the top DEI training and DEI bureaucracies wouldn’t have come along, conservative, libertarians, and centrists would not have felt they must walk on eggshells, the woke ideology would never have evolved to be as radical and aggressive as it did, voters would never have decided they needed a “DISRUPTER” to pull things back in the direction of the center and Trump never, never, never would have been elected. I don’t think I want to put all my eggs in that basket either.

On the other hand, It. Wouldn’t. Surprise. Me. One. Bit.