So to Speak podcast Transcript: The 100th episode, the state of free speech in America

December 13, 2019

Note: This is an unedited rush transcript. Please check any quotations against the audio recording.

Nico Perrino: Well hello, and welcome to this exciting 100th edition of So to Speak, the free speech podcast, where every other week we take an uncensored look at the world of free expression through personal stories and candid conversations. I am, as always, your host, Nico Perrino. And today in honor of our 100th episode, we are joined in FIRE’s DC offices, top floor of the DC offices in the conference room, by a panel of distinguished guests who have been on the show before. And we are going to discuss the state of free speech in America. It’s going to be a wide-ranging discussion and we’ll see where it takes us.

These guests include, starting over here to my left, Jonathan Rauch, he is a senior fellow at the Brooking Institution and the author of six books, including notably, the 1993 classic, Kindly Inquisitors: The New Attacks on Free Thought. It’s a classic here at FIRE. It’s a classic for anyone who cares about issues related to free expression. And Jonathan was the first ever guest on our show, way back in May of 2016, when we had him on to discuss Kindly Inquisitors. He’s a long-time friend of ours. So, Jonathan, thanks for coming back for the 100th episode.

And to his left is Nadine Strossen. She’s a professor at New York Law School. And from 1991 to 2008, she served as the president of the American Civil Liberties Union. And she has appeared on the show three times. The first was in August 2017.

Nadine Strossen: On my birthday.

Nico: Was that your birthday?

Nadine: Yes, it was. A great way to celebrate.

Greg Lukianoff: Also, a Virgo?

Nadine: No, Leo.

Greg: Oh, okay. Oh, and a you.

Nadine: Arrogant, and brilliant.

Nico: Well, we were discussing on your birthday in 2017, Charlottesville and the events that occurred there. And I wanna address that a little bit later in the show because we’re two years out from that now.

The second time was October of 2017 when we had a live event at NYU to discuss viewpoint diversity in the academy. And then the third time was in June of 2018 to discuss your then recently released book, Hate: Why We Should Resist It with Free Speech, Not Censorship.

Jonathan Rauch: A book, by the way, that everybody should read. It’s the most thorough take down of hate speech that I’ve ever red.

Greg: It is, in fact.

Nico: And I was actually looking in my office to see if I could bring up a copy to show, but I read it on my Kindle, so I didn’t have a copy. And we had a bunch in the office, because you spoke at one of our conferences, I think, but we gave them all away.

Nadine: Thank you very much. And it quotes everybody here, so.

Nico: And actually, I’ll wanna discuss a little bit from that book later in the conversation because Angela Merkel recently made some comments about hate speech that I think are worth bringing up.

And then to my right is Bob Corn-Revere. He is a promonent First Amendment litigator, a partner at Davis Right Tremaine. And outside council on many if not most of FIRE’s standup for speech litigation project cases.

Bob first appeared on the podcast back in March of 2017 to discuss censorship in technology. He was subsequently a debater in the Masterpiece Cakeshop episode from March of 2018 in which we simulcast with the First Amendment salons. And then most recently, you were a panelist in our 2018 Supreme Court Review episode.

And then of course, finally, to round out our panel is my boss and the president and CEO of FIRE, Greg Lukianoff. He’ll be very familiar with most of our listeners and he’s our most frequent guest, so I’m not going to go through all the shows, Greg, that you’ve been on.

But as many of you know, he’s the author, co-author most recently of the New York Times bestselling book, The Coddling of the American Mind, which came out last year. Welcome back, Greg.

Greg: Thanks.

Nico: Okay. So, I don’t wanna waste too much time. I wanna jump right into the action. But a couple of points, I’m gonna address a question to each of our guests right off the bat. But, please, jump in, rebut, add clarification, refute anyone else’s points. As Christopher Hitchens used to say, you can’t get light without heat, so heat is welcome.

Jonathan, I wanna start with you. And I wanna ask a question not related to anything we discussed on that podcast we recorded. But to some comments that you made back in 2013 at the Museum of Sucks in New York City. It was an event that was hosted by Reason. And Greg actually interviewed you. This was for the reissue of Kindly Inquisitors.

You were talking as part of that conversation about Ender’s Game the movie, which was coming out at the time. And the movie, of course, is based on a book by Orson Scott Card. And there was efforts at that time to boycott or stop from releasing this movie because Orson Scott Card was a public critic of same sex marriage. He also opposed homosexual activity. And you didn’t like the protestors tactics in that case to try to get the movie shut down. To essentially fire people from their jobs as a result.

This was 2013. Since then, this idea of cancel culture has taken off and become a cultural meme. Steve Bannon was disinvited from the New York Festival of Ideas. Errol Morris can’t even make a documentary about Steve Bannon that I’ve seen and is actually quite critical of him. We’ve got Collin Kaepernick, who can’t play in the NFL. We’ve got Dave Chappell, I guess there’s an effort to cancel his most recent specials, although he might be too big to cancel. And then we can’t forget Kanye West.

I wanted to ask you, six years out from that Orson Scott Card kerfuffle, what do you make of this cancel culture meme? Are these calls for cancelling someone, are they a more speech approach? Or is there something fundamentally detrimental about this culture to open discourse?

Jonathan: Well, first thing to say is that my biggest problem with cancel culture is that no one has tried to cancel me. It would be great for business if I could be the target of one of these campaigns. It would elevate me hugely and my speaking fees and book sales will go up. It’s one of the problems with cancel.

Yeah, it’s interesting, Nico. In 2013, we didn’t have a word for this yet, but it was starting. Brandon Ike, the CEO of Mozilla was fired because years ago he’d given a few hundred dollars to an anti-gay marriage initiative. Which had nothing to do with his job or his position on discrimination. And we thought, gee, this is kind of disturbing.

So, the way I think about it, since I work for Brookings, let’s just go right up to 30,000 feet. I’ve been rereading John Stewart Mill. Does anyone remember chapter three? The famous chapter is chapter two and that’s about how you can only learn by handing candid discussion with multiple points of view.

Greg: If I knew we had a quiz, I would have come prepared.

Jonathan: This is the chapter where he says the man who knows only his own side of the case does not know even that. Chapter three is the next chapter and it’s an extended warning of conformism, social conformism as a social threat to the kind of diverse dialog out of which knowledge comes. And he sees this as a threat to knowledge, an epistemic threat as well as a social atmosphere that represses open conversation.

And then I look at de Tocqueville, who was writing even earlier about America, and he’s got marvelous passages that vividly describe what we call cancel culture, where people are afraid to say stuff because they’re worried about pile owns and the job consequences. And that’s where we are today.

We’re now battling. We’ve still got conventional problems with censorship. Those never go away, they never will. But we’re also moving into these cultural problems where it’s become easy and socially rewarded to do pile owns and cancel campaigns and intimidation campaigns. And that’s something – no, that’s not more speech.

Robert Corn-Revere: But is it new?

Greg: No, I mean, it seems like we learned nothing from McCarthy era. Right, I mean, the whole notion then was if you had the wrong political ideas, your job was at risk. It didn’t have to be some sort of government initiative. It’s that people were policed for orthodoxy, and there were serious consequences if they fell short.

And this is really the same phenomenalism. It’s just updated with social media and with different ideas. But it’s still enforcing a certain set of ideas. And it doesn’t matter whether or not they’re related to the job you do or how good you are at it. It’s just a way of enforcing it through social pressure.

Nadine: And as Jonathan said, the other Jonathan – well, Jon Steward Mill, John, and Jon, without the H. His whole book, he says at the very beginning, he is not addressing government coercion. That the greatest danger to free speech and free thought is from social pressure and peer pressure.

And quite frankly, I had forgotten that until these current phenomena manifested themselves. And then I reread Jon Steward Mill yet again with that new perspective. Anthony Conman at Yale has a fairly new book in which he is very – he really stresses that Dadeville made this message very strongly. That he saw it as the downside of democracy was that, yeah, government might not be repressive, but your fellow citizens might well be.

Nico: Yeah, well, actually our last episode on this podcast was Daily Miller about Jon Steward Mill and in particular on liberty, and in particular chapter two. And Dale provided a little bit of context to the writing of the book. And I guess Jon Stewart Mill was concerned about social conformity, because he was kind of a radical guy. The person he was with – the woman he was with was actually married. And so, he was concerned about that. And in the introduction, he even says that I’m worried there aren’t any great thinkers out there anymore. It’s a lot of social conformity. It also happened to be the same year, coincidentally that The Origin of Species came out.

So that might have changed a little bit. Because in chapter two, he addresses mostly religious conformity and the inability to dissent on religious matters. And then you get, on the Origin of Species.

Robert: For anyone who may be confused, I think you’re referring to chapter three, which I think is the conformist…

Jonathan: That’s chapter three, chapter two though, is the free speech chapter.

Nico: Yeah, it’s a great book.

Nadine: But I think the question of is that free speech is a very, very serious question. And I think that question – I’m not quite satisfied with how Mill answer it. Because he does acknowledge that you have a right to criticize. I would add, you have a right to boycott. Right, that is exercising a First Amendment right.

And the ACLU’s policy guide has long said that boycotts are on the one hand an exercise of free speech. But when they are exercised against books or other kinds of expression, they are very dangerous. And so, we want to discourage people from engaging in them, but they would never be punishable.

Robert: Well, it is the exercise of more speech up to a point. At the point it becomes coercive, then it crosses that line. Just in the way a boycott is fine. But if you burn down the store, not so fine. And that is where cancel culture can easily cross the line. If you move from cancel culture to antifa.

Nadine: But there are some cases where I think it’s not so clear where the line is. And I thought a recent piece that captured that very well was an op-ed by Susan Mossel, who’s the head of Pan-America. And the title, which probably was written by some headline writer at the Washington Post, really gripped me because I’ve been such a preacher about counter speech. And the title was When Does Counter Speech Become Censorship.

And if we define censorship as anybody who is effectively exercising power to suppress speech, I have to acknowledge, I’m advocating counter speech against hate speech or disinformation or other potentially harmful deleterious content, because I do want those messages to be surprised, and so.

Robert: But isn’t the answer contained in the Woodward Report, talking about campus speech. Where it preserves the right or the duty even to protest ideas that you disagree with when they are brought to campus. But then says that if that counter speech becomes censorial, if you try to shout down the speaker, if you use disinvitation.

Nadine: Well, that’s a clear case Bob, but just because you don’t want to be criticized, you don’t to be ostracized, you don’t want to be called an it’s or an ore, so you engage in self-censorship.

Greg: I’m gonna add on to this. Because counter speech is free speech. And certainly, calling for boycotts, you have the right to do that. But one of the advantages I actually think frankly, FIRE has, is that we also have to think about academic freedom, which forces us to think about things like the production of ideas. Things about the kind of tolerant society we wanna live in.

So, you end up having to – and people have the right to say that the First Amendment shouldn’t exist. So, when we’re dealing with student protests, like for example, when they were trying to get like Nickels Cristockus fired from Yale, for me, there was no tension in between saying they absolutely have the right to call for him to be fired, and they’re wrong.

Because for the production of ideas of for these kinds of – because the habit of mind in which you go against conformism, where you actually go against the crowd, is a very hard thing to cultivate in people. And so sometimes it’s a difference between freedom of speech and the ability to think as broadly as possible.

And that takes an extra effort. That’s where academic freedom is supposed to come in. and it’s supposed to have this kind of artificial kind of discipline of open-mindedness, that doesn’t come naturally people at all. So, have to create space for that.

Jonathan: But it also calls for school administrators to show some moral courage. A spine is a terrible thing to waste.

Nico: A lot of the discussion right now is about free speech and open discourse. But how much of this should be a discussion just about good tactics. I mean, if you are trying to cancel someone presumably because you don’t like their ideas, the best result would be to change their mind, right? And so, the question is how many minds are you actually changing?

Robert: Cancelling is not about changing minds and it’s not about adding information to the conversation.

Nico: So, you don’t think people who are trying to cancel are…

Robert: So, we’re now in the realm of values, not legal rights. And free speech values. And free speech values are about adding information. And you can never have too much diversity of viewpoint in free speech values.

Cancel culture values are about shut up, he explained. The goal here is for a group, a usually self-defining group to express its solidarity in contrast to another group who it hates. Preferably by shutting it down or shutting it up. Or if not that, then at least expressing outrage against it.

So, as John Hight, Greg’s co-author has said, this behavior is not about communicating. It’s about display.

Nadine: Yeah, virtue signaling.

Robert: Virtual signaling, display of tribal colors, think of people painting their faces and putting on big headdresses and going to the top of a hill to shake their spears at the tribe on the next hill, that’s what’s going on here.

So, we’re now in a different realm than traditional Million free speech. We’re doing something else in cancel culture.

Nico: It’s actually interesting that you bring that up because in preparing for this podcast, I Googled cancel culture, because I wanted to provide some examples up front. I was wondering if there’s a place that consolidated all of them. There is not.

But the first entry is the Wikipedia entry on it. And in that Wikipedia entry, the big reference or citation for it is, Greg, your book with Jonathan Height, the Coddling of the American Mind. And they say well, Greg and John call this call out culture. But in Wikipedia, they use it as a synonym for cancel culture.

Greg: Oh, that’s pretty cool, or is it? I don’t know.

Nico: So, an interesting thing I discovered there.

Nadine: You know, I think the response of courage is so important because yes, it is very tempting to avoid criticism, to avoid controversy. What’s especially disturbing to me is when we see two little courage on the part of tenured faculty members, because that is the whole reason that tenure exists.

And I also think of some Supreme Court decisions, forgive me, I’m a lawyer, but this is relevant, on the tension between privacy in voting and signing petitions on the one hand, and the public right to information when you’re engaging in the political sphere.

And Antonin Scalia so strongly came out for transparency and he had such a great line. He harks back to – he may have even quoted de Tocqueville; I don’t remember that. But he says, “If we don’t have the courage of our convictions, then we’re no longer the land of the free and the home of the brave.”

Nico: I think we could spend a lot of time discussing disclosure laws, because I think we might have some differing opinions there.

Jonathan: But you know, just an aspect of that. I know you want to move on, but something I’ve been wrestling with when I talk to students, and especially professors, and especially tenured professors about this, is who are the real snowflakes in a situation where people are allowing themselves to be shut down?

And I realize, it’s very hard, if you’re the target and you’re suddenly targeted. You get on a plane and 10 hours later you get off, and you’ve got thousands of hateful Twitter messages and you’re in trouble with your employer. This is a terrible situation. And thank God for organizations like FIRE that exist to help people in those situations.

Still, isn’t there an obligation on lots of people, including students and professors to not shut up? I ask – the most common question I get on campus is from students, especially freshman and first years a second’s years is what I say when someone disqualifies me from a conversation because I’m white or male or whatever, and I wrestled with that. Until I finally realized after several failed attempts, the right answer to them isn’t, I can’t tell you want to say, what I can tell you is keep saying. Just don’t let them shut you down because they can’t. There’s nothing they can do to you, so keep talking. That’s the key.

Nadine: And one of the other things, I think, is that we should not necessarily apologize just because somebody is demanding that. And one of the best pieces that I saw in this, but quite frankly, I think he’s much better positioned to say it than the rest of us, is Randy Kennedy.

In one of the recent incidents where – who has done at least one fabulous podcast for you. I know because I literally stopped by the side of the road because it went on like 40 minutes after it was supposed to end. And I just wanted to hear it. It was phenomenal.

And Randy, who wrote an entire book, for those who don’t know it. He’s African American, Harvard law school professor. An entire book, many years ago with the full n word when one could say that, for purposes of critiquing it and the history.

But he’s been very critical not only of administrators who fire faculty members or call for them to be fired because they’ve used the word for pedagogical purposes. But he recently was critical of a faculty member for apologizing for having done so, which I thought was very, very interesting.

Robert: And I really got to just add a point to this, and I want to direct this also to the viewing audience. I’ve been doing this for 18 years now at FIRE. And one of the great disappointments of my career has been coming in as a believer of tenure, and then watching how frankly cowardly a lot of these professors act even when their colleagues are getting in trouble, even when their students are getting in trouble.

And what’s amazing and what people need to know is, I’ve had case after case where a single faculty member, a single donor, a single alum, actually making enough noise about something has won a case. And the fact that we’ve had many situations on campus where no professor is willing to come forward and actually do the right thing or stand up for academic freedom, even for speech they don’t like, is one of the more depressing parts of my career.

Nico: You’re a social science aficionado. You’ve written a social science book. I thought I saw something recently that there’s pretty good social research that apologizing actually makes things worse in a lot of contexts. And this might explain why Trump is like Teflon in that.

Robert: It shouldn’t. if we had different cultural norms, it wouldn’t be. But now, on campus in particular, usually when people ask us, when they come to me directly, should I apologize? I’m like listen, listen to your conscience. But I now have to add a caveat. It will be treated as if you had admitted to being a witch. It will be treated like a confession and things will probably get worse.

Nadine: That’s so interesting. Because I’ve noticed recently a couple cases of campuses where there would be explosions over words that made people uncomfortable or offended. And you could juxtapose, and I was wondering whether there’s a larger pattern, which you might be aware of. But in these paired situations when the President would abjectly apologize and capitulate to demands, that didn’t satisfy the demands. It fueled more demands.

Whereas when the President took a strong line and said we’re going to have positive counter measures. We can have discussions, we can have education, but I am not gonna punish these people, it just sort of quailed the protests.

Robert: This has been clear as day throughout my career. And one of the people who was actually great about it is one of the now very rightfully discredited people, the president of Penn, Graham Spanner. But he would come out and say despicable speech for the republican who dressed up like a Nazi for a party. But protected and we’re not investigating anything like that.

And for the first 10 years of my career, presidents would routinely come out and make these statements and the case would be over. I think the turning point, though may have unfortunately been the Brown case when – who was that, the…

Nadine: Vartan Rogerian? No.

Robert: Where the president of Brown, there was a shutdown of the chief of police under Giuliani.

Jonathan: Oh, this is 2013.

Robert: Yeah, 2013. And she came out actually with a very strong free speech academic freedom statement at the end. But then just kind of got picked to pieces over the course of months and started sort of backtracking. And that was the moment when it was really important to go to the university president and say we support you; we have your back. And I think people maybe forgot to do that.

So, when you’re dealing with university presidents and you think they’re doing the right thing, be sure to say so and loudly, so at least they know that someone is on their side.

Nico: That there is a consistency there for that, yeah. Well, I wanna move on now to the next topic. And Nadine, I want to start with you on this one where, as I referenced earlier, we’re two years out from Charlottesville. Where, as I think most of listeners know, there was a group of white nationalists, white supremist who were rallying in that community to protest the removal of a Robert E. Lee statue. They brought tiki touches to the University of Virginia on Friday night. On Saturday night, they were violent clashes resulting in a couple of deaths. Including Heather Hire getting mowed down by a man in a vehicle.

Jonathan: There’s more than one death?

Nadine: Well, two law enforcement offices were killed in a helicopter that crashed.

Nico: But after that, we in the free speech community were kind of besieged on all sides. And of course, we have arguments as to why we’re the wrong people to be besieged in that situation and we can perhaps get into it.

Nadine: Because people – I can’t tell you how many – I mean, this comes up every time I speak, and I have spoken in Charlottesville itself. And people make – they post hoc, propter hoc, illogical felicity. ACLU defended freedom for the Unite the Right White Nationalists to speak, people were killed, therefore the ACLU is responsible for those deaths. And we saw that most dramatically just a few months later at the college of William and Mary, when my colleague, Clair Gusted Yale, who is the executive director of the ACLU of Virginia was asked to speak there, ironically, about student’s rights to protest on campus.

And she is a graduate of that school herself. And she was proudly shouted down by students who described themselves as affiliated with Black Lives Matter. Who proudly videotaped the whole thing and bragged about shutting it down? And had signs that said liberalism is white supremacy. ACLU would have defended Hitler too.

Nico: Well, I want to ask you because you’ve been touring the country discussing your book about hate speech. Has Charlottesville changed any one’s perception? Or do you get the sense that Charlottesville has changed the perception for some people about free speech itself? About hate speech?

Obviously, the retort is that the police completely failed in Charlottesville. We’re making a documentary right now, Chris is behind the camera over there, and he’s taking a look back at a lot of archival footage surrounding Skokie, and I can’t even begin to tell you the number of police that were there when protesters were meeting with counter protesters. When the Jewish Defense League was meeting with Frank Collin and the National Socialist Party of America. And they were coordinating, it was incredible. That was absent in Charlottesville.

Nadine: Well, I know, as the very excellent report documented that was done at the behest of the city council. And it was a tragic failure of law enforcement at every level, from the state on down. I wouldn’t say increased, Nico. Because before Charlottesville people were still saying – I can barely give a speech anywhere even to this day where people say I was a card-carrying member of the ACLU until you defended the Nazis in Skokie.

You know, the gentlemen who was the executive director of the ACLU at the time, Aria Nyjer, has said Nadine, if every person who said they resigned over Skokie really was a member, we would of been the largest organization in the country.

Jonathan: And yet, ACLU lost, according to his estimate, 300,000 members. Lost half a million dollars in donations. And that’s over Skokie. And that’s in like 1978 dollars. So that’s a lot of money.

Nadine: Exactly. So, two points of observation. One is we quite quickly recouped the membership. And maybe different people who said you really do put your money where your mouth is. You really are neutrally standing up for free speech principles.

But the second point is I always bring this up when I hear there are new and different problems now when you read what clearly are to me very disturbing statistics about how many students and other people today want to censor hate speech. You know, if 15% of card-carrying ACLU members didn’t want to defend it back in 1977 and ’78, I think it’s just a chronic problem. People see this hateful expression and there’s this instinctive reaction that we ought to suppress it.

I wanna tell you the single most interesting and important discussion I’ve had about Charlottesville since then. It was with Susan Borough, and I still get a chill when I say her name. She’s the mother of Heather Hire. And I was doing an event for the Economist magazine in Chicago. And when I found out that Susan Borough was gonna be on my panel, I got a little bit nervous. Because you know, she may very well have felt that the ACLU was responsible in some way for her daughter’s death.

And to my amazement, she was the most eloquent, forceful defender of free speech. She was asked by the moderator, an Economist journalist, would you oppose the Unite the Right rally coming back to demonstrate again. She said absolutely not. And she, as far as know, has no legal education, not that that’s either here nor there, or any background in free speech. She gave the classic arguments of if they can censor those views, then they can censor my views. They could have censored my daughter’s views.

And it was so spontaneous and so eloquent and so moving. I strongly recommend that you interview her.

Jonathan: That’s amazing. And I might add to that as a member of a community, the gay community, that has been historically terrorized and beaten, and of course hate speech was spewed from palpates across America for many years, and politicians on television. That something she could have attested to is to the extent that we shift the blame for what happened to Heather Hire in Charlottesville to the ACLU, we remove it from the white supremist behind the wheel of the car. And if you’re the victim in that situation, the last thing you wanna be doing is letting the bad guys off the hook.

And probably at some level, she understood that. She understood that Nazi is the focus of blame.

Greg: But it’s interesting that we have these two historic touchstones. We have Skokie in the 1970s and we have Charlottesville in 2017. And the provide this sort of moment to compare and contrast and ask we were free speech is going. Because after the ACLU’s principle defense of the right to free speech in the 1970s, it became sort of a tagline. Defending Nazis in Skokie. That’s what a principles person would do if you’re really committed to neutral principles and a First Amendment that protects everybody, even the most disgusting.

But here we have 2017, and it isn’t just a few misguided Nazis in Skokie, it seems like it’s Nazis everywhere. Because you have this display of tiki torches, with – where do these people come from?

Nico: Apparently Home Depot.

Greg: Exactly, exactly. And so, for people who are skeptical of protecting free speech, it seems like, oh, you let these people speak and they are all over the place. What they ignore is the week after, in Boston, you had a repeat or an attempted repeat of the same sort of Unite the Right sort of thing, 40,000 people showed up. And the Nazis outnumbered 800 to 1. You also had the lessons from Charlottesville having the police in Boston able to control things and make sure that there wasn’t the same kind of thing.

Greg: And I wonder if some of the activists are catching on to the idea that in many cases, the best thing to do with these jerks is ignore them. They clearly – I think they came to understand in the University of California, all it did is elevate Milo Demopolis’s speaking fees, to rally against him.

Nico: I want to ask you about Boston really quickly, because FIRE co-founder, Harvey Silverlake wrote a piece in which he said there was probably too much separation in that case between the protesters and the counter protesters. Because there’s a fine line that the police have to draw there. Harvey had a great quote, I forget what it was, but he said the police essentially created a desert and so the speakers weren’t able to engage with each other. How do you draw that line?

Greg: It’s so close in time it’s hard, because once you’ve had a horrific example like Charlottesville, it’s really difficult to moderate what your response is going to be. I think we can only learn over time as we look at these different examples. And a lesson from Boston as well, maybe not so much of a separation.

Nico: Now, I wanna ask a question that I think there will be some disagreement on this panel about, but the idea of marching with weapons, demonstrating with weapons. Where does that fall in the realm of free expression for example. If you’re a want to protest potential restrictions on the Second Amendment in Virginia, where you’re allowed to open carry, in some cases, assault style like weapons, it’s very symbolic in that case.

Should people be allowed to do that? Because I know there are other contexts where police will restrict people from even bringing bottles into a demonstration. In this case, we’re talking about guns. I spoke with Ira Glasser and Norman Seagal about this and they said if you take that approach, then the Black Panthers in California wouldn’t have been able to carry guns. Then the Justice League down in Mississippi that always carried guns to protect civil rights marchers wouldn’t have been able to carry guns. But I understand the argument, but how do you separate that out from the symbolic?

Nadine: It’s very interesting. I’ll tell you how the ACLU has answered that very recently. And folks that you referred to were with the ACLU defending free speech rights for the Black Panthers to demonstrate with arms. But after the blowback we got from Charlottesville, which interestingly enough, internally was not nearly as dramatic as it had been after Skokie. But it was enough that it got press attention. Several hundred staff members asked for a reexamination of the policy, which did not happen.

But what did happen was a national legal director, David Cole, consulted with local legal directors and others about are there ways that we could handle these cases and better explain our position to the public, so they understand. We’re not defending their ideas, and its people that are anti-racist who have the biggest stake in defending freedom for unpopular ideas and so forth.

But as part of that report, one of the guidelines was when we take these cases in the future, we will be much more attentive to all of the specific facts and circumstances to try to distinguish effectively a true threat which intimidates people and makes them afraid. And therefore, violates their free speech rights as well as their other freedom. Versus solely hateful ideas that does not rise to the level of a punishable true threat.

And that one of the factors we will consider in that analysis is whether people are carrying firearms. All of which makes sense, except, I was surprised. I actually called David and said, but so we’re not going to categorically treat the carrying of fireman’s as being enough to demonstrate that there’s a true threat? Because I was putting myself in that situation, thinking I don’t think I would have been a counter protestor if the people I was counter protesting against were armed.

And David said well, you know, we’ve got to take it on a case by case basis. Suppose it was absolutely clear that the firearms were not loaded, that they had been inspected in advance. Suppose that those firearms were particularly relevant to the subject of the protest, namely, demonstrating in favor of Second Amendment rights. So that’s the ACLU’s answer. Probably a factor that weighs against protection, but not absolutely.

Nico: Bob, as a litigator, what’s your perspective?

Robert: It’s a difficult call. I think that just based on history, with ACLU defending Black Panthers, defending others where firearms were part of the demonstration, it’s really hard to have a categorical rule. Once you start saying we’re gonna take it case by case, that leads you into some difficult decisions too. Because it may look, over time, that you’ve taken sides in the debate. In some protesters, you’ll defend the First Amendment rights and others you won’t. and if there appears to be a pattern, then it looks like simply a political choice.

Jonathan: My view on that, for what it’s worth, would be that it’s not an interesting or important question. This is carrying firearms. It’s so far, so far from the center of constitutionally protected speech and so rare that I don’t really care one way or the other.

Nico: I said heat, Jonathan. Not too much heat, though. Just kidding.

Greg: Many of the cases we handle are so far form the center of the First Amendment and rare. I don’t think that makes them less important.

Jonathan: It makes them less important for sure. We’d be much more worried if the government were out there saying you can’t carry an anti-Trump banner than if they were out there saying you can’t carry a loaded firearm.

Greg: That’s true. But many of the most important First Amendment principles have been decided in those rare cases. And in those cases where it seems like it’s a trivial issue. And yet, that’s where the principles become the most important.

Nadine: But you know, I’m so sorry. At the University of Texas, where they allowed conceal, carry on campus like a year or two ago, some faculty members did bring First Amendment lawsuits saying that they would feel deterred in saying certain things and addressing controversial subjects if they feared that there might be an angry student there with firearm.

And I think that’s a realistic fear. We talk about having the courage of your convictions, yeah, to be shouted down but not potentially to be shot down.

Greg: Smile when you say that part.

Nico: I’m always weary of justifying restrictions on expression based on subjective opinions of potential listeners. Because I feel like you enter a slippery slope there. But Bob, I want to move now away from the culture questions, the questions about events and bring it now to the legislature.

Capital Hill is right behind us. And there’s some discussion now in the halls of Congress about reining in…

Robert: Oh, they discuss things there, do they?

Nico: That’s about all they do. But there’s some discussions about reining in “Section 230 of the Communications Decency Act.” Which was of course passed in 1996 I believe.

Robert: Totally destroyed the internet, I believe.

Nico: On the contrary, allowed the internet to flourish.

Nadine: He was being sarcastic. And somebody wrote a book about it called the 26 Words That Created the Internet.

Nico: I don’t have those 26 words in front of me, although I’ll guess that if anyone can probably repeat them it might be Bob. But in essence it says.

Robert: Not without crib notes.

Nico: In essence it says that the responsibility for expression online lies with the speaker and not with the host. So, if you, for example, are on Facebook and you post on your friend’s wall something, you’re responsible for that expression, not Facebook.

There are now efforts underway to scale that back, for many reasons, including ensuring political neutrality, or to allow for the suing of companies for noxious expression. I wanna ask you, Bob, what have you seen? Do you think this movement to rein in Section 230 will have any success in the coming years? And how concerned are you about it?

Robert: Well, I’m quite concerned about it. Answering your last question first, because it was the one thing that Congress did that actually supported and had a beneficial impact the ability of the internet to be a forum where everybody can speak. Now the downside of that is it was a forum where everybody could speak. Who knew people were going to say such awful things to each other?

And so, Section 230 has worked remarkably well. Courts have enforced it quite constituently. And that’s why a lot of people are upset. And they would like to see more restrictions on the platforms by imposing potential liability on them for third party speech. But then that’s the way internet speech works. It wouldn’t be the place that allows universal speech that it is if anyone that allowed you to post could be responsible for negative consequences for the things that third-parties post.

And so, the drive to rein in Section 230. To either remove it altogether or to modify it, which by the way, has already been done with FOSTA to a certain extent, is a very dangerous trend. And it’s not going to stop with just FOSTA. Anytime there’s going to be negative speech that people think has bad consequences should bet the target of the next amendment to Section 230.

Now, what it shows is a real policy schizophrenia. Because on the one hand, we have people saying, oh, the internet platforms have too much power. They’re making all these decisions for us. And now we want to impose legal obligations on them to exert more power.

People on one hand will talk about network neutrality, saying that we need to preserve free speech on the internet, thereby rein in those companies. And now they say they want to remove or modify Section 230, which will force the platforms to exert more control over speech that is available on the internet.

It’s crazy from a policy perspective and from a First Amendment perspective. And I think what it will do – actually, what it has already done in the case that we’re handling involving FOSTA, is raise the question of whether or not the principles of Section 230, which protects platforms for the liability for third-party speech, is constitutionally required and not just a statutory requirement.

Because if you modify the protections from liability for platforms in Section 230, you are now selectively allowing some kinds of immunities and not others, and that’s’ when the First Amendment kicks in.

Nadine: Wow. Who’s your client in that?

Robert: Woodhall Freedom Foundation.

Nico: Actually, I think it would be really valuable. Can we explain FOSTA to the audience? Because I’ve tried explaining this people who don’t know anything about it, and they…

Nadine: And it sounds so good, right.

Jonathan: So, I’ve actually got some information here. So FOSTA was the House bill. It was the fight online sex trafficking act.

Nadine: How can you be against that, right?

Jonathan: Yeah. And SESTA was the stop enabling sex traffickers act from the Senate bill. Now this creates, as Bob as alluding to, an exception to Section 230. That means that website publishers would be responsible if third parties are found to be posting ads for prostitution, including consensual sex work where it’s allowed on their platforms.

Now, an unintended – although, I can’t say unintended consequence of it, because I know that the lawmakers were aware of these consequences, because there were groups like EFF that were raising it up.

Nadine: No, but also women’s rights groups, and certainly, sex workers organizations. But other feminist groups were saying it sounds very good, but it’s actually gonna have many negative consequences as your client indicates.

Jonathan: Well, in the immediate aftermath, this was March of 2018, numerous websites took action and they censored portions of their websites in response. Not because there was any prostitution or solicitation taking place in those portions of the websites, but rather, they didn’t wanna take the risk. And this speaks to what would happen if you got rid of Section 230, which is websites would have two choices, either shut it down altogether, or invest all the time resources that would be necessary in order to police induvial pieces of content. Every single piece of expression which takes place on that website, which would be impossible at scale, I think.

Robert: That’s right. And essentially through the legislative history, one of the things that they did as well is at the last minute when they combined the Senate and House bills, was to not just remove some of the immunities from Section 230, but they also added a new federal crime for anything that “facilitates prostitution” whatever that means.

And so, as a consequence, for anyone involved in sex work, both legal and sex work that is not legal, now faces the possibility of liability under this federal law.

And so, our clients include not just Woodhall Freedom Foundation, they’re also some groups…

Nadine: Can you explain what that is?

Robert: Woodhall Freedom Foundation is an organization that exists here in DC that protects all forms of sexual freedom as a basic human right. It has, among the people that are a part of it, sex workers, but others that are simply involved and interested in protecting just rights of sexual freedom. Our plaintive group also includes Human Rights Watch, the Internet Archive, certain other individuals, including someone who’s a therapeutic massage therapist who’s been kicked off of Craigs List, because Craigs List is afraid of having anything that could even arguably be connected to sex work.

Nadine: Of course. That’s a rational business decision. And you know, by way of background, since you mentioned Human Rights Watch, I don’t know if it done this. But Amnesty International fairly recently came out against laws criminalizing prostitution, right. As a matter of basic human rights and women’s rights.

Greg: What this does, though, is that anything that “could arguably facilitate prostitution” now that it can be prosecuted as a federal crime. And also, now sued under state laws, with the immunity provisions for Section 230 being modified. It means anything that provides assistance to sex workers of all kinds. Things that keep them safe, health information, safety information, is now at risk on internet platforms.

And because the platforms are being targeted because it now removes those immunities, they simply don’t take any risk whatsoever. And so, the effects that we saw immediately after the passing of FAUST were widespread across the internet. I think it is the largest single adverse reaction to a change in law since the communications decency act in the 1990s.

Nico: Which, by the way, is why I went to Law School I was so worked up about the 1995 Communications Decency Act, it’s actually what led me to decide that I was going to go law school.

Nadine: But it’s saving grace was that it also contained Section 230.

Greg: That’s the thing. It was almost accidental. I mean Section 230 was added first as a poison pill, to try to kill the censorial provisions of the communications decency act. Now, Congress being Congress thought, oh, let’s adopt both, Section 230, which allows platforms to police themselves and not face liability. And the prohibitions on indecent speech, because why not. We’re gonna treat the entire internet like it’s a radio station.

Nico: Just for you kids out there, I want to explain. The Communications Decency Act literally tried to ban indecency on the internet. Which is mind-blowing. And it took me getting – so I was working on this one – I got really interested in this area of law in 1994, when I was like a sophomore or junior in collage. I was obsessed with all this stuff. And I was kind of disappointed that my first semester of law school in 1997 was ACLU v. Reno, so it happened right before I started, and I was like so excited to have these arguments, I was a little disappointed.

Nadine: And that’s when I met you. I came to Stanford Law School to speak about it.

Nico: And it almost happened too soon, but you’ll appreciate this. The thing that took forever to dawn on me, which I’m kind of embarrassed about now, is wait a second. Congress passed something they knew was unconstitutional on purpose.

Greg: That could never happen.

Nico: I was a more optimistic, less cynical person back then.

Robert: Well, they tried to do that with flag burning too, right. Yeah, the flag burning case and they tried to come.

Greg: Well, first there was the supreme court decision in 1989 saying there is a First Amendment right to engage in symbolic speech that it can include desecration of the flag. Congress then adopted federal legislation to respond to that, knowing that it was unconstitutional, and it was struck down 1991 as being unconstitutional.

But then, in the early 2000s, 2004 or ’05, Congress came within one vote of passing an Amendment to the First Amendment to allow prosecution for people who would desecrate the flag.

Nadine: And I think that’s so interesting, because and I often cite that history, to the best of my knowledge, it is the only time there’s been a serious attempt to cut back on the First Amendment through a Constitutional Amendment.

And so, today you hear these public opinion polls about hate speech and racist speech being so unpopular. But I think if we were to give the American public in general the power the censor unpopular speech, it would probably be desecration of the flag or unpatriotic speech.

Robert: And it just changes over time, whatever is on the public radar’s screen at the time. Which is why the principles have to hold in times when speech is most unpopular. Because we know we are going to see event after event. And if you simply say, we’ll protect speech except for those things that people really, really hate, then over time you see the rachet go the other way and less and less protection of speech.

Nico: I think it was you, Bob, I was at an event at the Newseum, where you went through the history of the Communications Decency Act, and I think you referenced a Time Magazine cover, that was like wow, people thought the sky would fall with the internet.

Robert: Well, no one knew what the internet was. I mean, there were just…

Nico: We should probably say what was on the magazine cover.

Robert: I will. But we’re talking about 1995, and in 1995 there were maybe what, 20 million people who knew what the internet was. And so, the cover of Time Magazine was about cyber porn. This was America’s introduction to the internet. And it was just a child’s face bathed in the glow of a screen, so this sort of blue caste to his face, and he just looks shocked and aghast. And people are finding out that they’ve been talking about indecency on radio and TV, they’ve been looking in the wrong place because we now have this new technology where your children are going to be turned into internet zombies by porn coming into your homes.

So that led to a wave of hysteria, which led to Senator Exon introducing an Amendment to be added, a rewrite of the Telecommunications Act in 1996 – well, ’95 then, but ultimately passed in ’96. It led to efforts of trying to block Exon, which led to Section 230. And then it all got thrown in a blender and everything was passed together.

Nico: And didn’t they hold up that Time Magazine cover in Congress?

Robert: Oh, yeah. Oh, yeah, it was everywhere. This is back when Time had a serious…

Nadine: I have to explain that when I tell my students about this. And then quite frankly, one wonders what’s the motivation? Did Time Magazine actually anticipate how dangerous the internet was going to be to its existence? Did it possibly have a conflict of interest?

But what I think is so interesting is this illustrates how quickly and dramatically what we are afraid of changes. And whatever we’re afraid of manifests itself in this specific subject of called for censorship.

So, before the internet hit people’s radar screens, we had the Oklahoma City bombing, remember? A lot of violence by anti-government activists on the right. And there was something called Hate Radio, and there was a big attempt to censor that and to censor Hate Radio and bombmaking instructions. And then in the ‘90s, the panic was about child sexual exploitation. So, we wanted to – that’s why we got the Communications Decency Act.

Robert: In 1985 it was porn rock.

Nadine: Oh, of course, right. And gangster rap.

Robert: Remember? When Tipper Gore comes to the capital?

Nadine: And anti-police violence. And now it’s disinformation and hate speech.

Robert: And fake news, depending on which side of the political spectrum you come from, that can be anything. And it’s one moral panic after another.

Jonathan: You guys should be delighted though because we’re not seeing calls for censorship. Government censorship of the internet. That is not happening. And by historic standards, that is…

Robert: Well, it depends on what you mean by censorship. I mean, what was FAUSTA?

Jonathan: I mean good old fashioned you can’t say this. I don’t know enough about FAUSTA to come and [inaudible – crosstalk] [00:53:24]

Robert: Well, as a matter of fact, you are seeing that in various forms. And one of the things that is a biproduct of having a strong jurisprudence that says you can’t censor is that you see a lot of efforts to work around that, various kinds of workarounds that have the effect of censorship, but aren’t called censorship because after all, censorship would be a bad thing.

And so, what you see are bills like Senator Holly’s bill, that would require the FTC to certify internet platforms every three years to make sure that they aren’t discriminating between different political parties when they enforce their terms of use and enforce their editorial policies.

Nico: What could go wrong?

Nadine: And Jonathan, I thought when you and I had another recent exchange that that was one subject where we disagreed. You seemed to be more favorable, at least then, to some kind of government regulation of social media.

Jonathan: No, no, no, no. No government regulation.

Nadine: I’m glad I misunderstood you, okay.

Jonathan: And in fact, the point I was driving towards is there will always be policy disputes. But isn’t it remarkable how difficult it has been for the United States to even maintain the idea of direct censorship of the internet? I mean, what earlier era would we have seen that be so difficult for governments as powerful as they are.

So, we have a lot to be grateful for. Where we do disagree is the policies of internet publishers. We call them platforms. They’re in fact publishers ought to be. And there I disagree with you all. I think they should be more aggressive not less aggressive in selecting content. I think that’s a publisher’s duty.

But I come from a different world than you guys. You’re First Amendment lawyers, I’m a journalist. And people forget the other side of the First Amendment, which is the sovereign right of publishers to decide what not to print. And say that this is a certain kind of environment, and we don’t want that another sort of thing here.

Greg: No, I agree with you and I think the publisher should exert that power, it’s called editing. And I don’t think we have forgotten that. But the reason why we don’t see calls for direct censorship by that name today is because the Supreme Court got it right in 1997 when it struck down the anti-indecency previsions of the CDA.
And it was because after 80 years of First Amendment jurisprudence, for the very first time when the court was looking at a new technology, it said this is fully protected. And the legacy of that was 20 years of really strong presumptions in internet freedom. And you still see that in the Supreme Court decisions, like in the Packing ham decision two terms ago.

But you also see erosion, because for all of these principles, it’s always a constant argument over where the boundaries should be.

Nadine: And the companies are being pressured by the laws that are being passé dandy the judicial decisions that are being rendered in other countries and by regional so-called human rights courts.

There was a recent decision by a European court that has required Facebook to enforce internationally Austria’s definition of defamation, of punishable defamation. Which was a citizen using some insulting language against the head of the Green party. And it was in German, but I live with a native German speaker, so I have an exact translation. This citizen, if you can believe, used three words against the head of this political party. Corrupt, vulgar, and I’m sorry, I can’t remember the third one.

Nico: Probably damn racketeer.

Nadine: Something that we can imagine wanting to use against certain officials here.

Jonathan: Human scum, perhaps?

Greg: So, we wouldn’t be able to have impeachment hearings.

Nadine: And the ruling of the court is that Facebook has to adhere to that decision around the world.

Nico: But this does get to John’s point at the same time, is if you want to look for sort of linear censorship, like it just going from A straight to B, it’s happening to a shocking extent in the free world outside of the United States. The right to be forgotten, for example, is probably the worst innovation in censorship I’ve seen in my lifetime. But also enforcing things that are cruel to President Erdogan in Germany. Which is absolutely insane.

And so, we get to see this really, and like you were going to talk about Angela Merkel thing, just this really return of very strident old fashioned 19th century censorship coming back into vogue in the rest of the world.

Robert: Yeah, you referenced Angela Merkel, I didn’t know if we’d have time to get it, but since it’s already been brought up. I want to read the two paragraphs that sort of went viral on the internet the other day. She was speaking to a group. I believe it was some sort of commerce related group and said, “We have freedom of expression in our country. For all those who claim they can no longer express their opinion, I say this to them. If you express a pronounced opinion, you must live with the fact that you will be contradicted. Expressing an opinion does not come at zero cost.” Up to that point, pretty good, right. And I’m trusting the translation here. I’m not a native German speaker.

But she continues, “But freedom of expression has its limits. Those limits begin where hatred is spread. They begin where the dignity of other people is violated. The house will and must oppose extreme speech, otherwise our society will no longer be the free society that it was.” And she’d said this to roaring applause. I read reports of standing ovations.

In what was it, 2018? Nadine, you might know. They passed a ban on…

Nadine: It went into effect on January 1st, 2018. A ban on – well, so Germany has long had anti-hate speech laws, including in the Weimar Republic. Note, right. Very strictly enforced, according to the Jewish organizations at the time.

Nico: Nazis went to jail for it, including Striker.

Nadine: Enforced fairly. And Nazis, leading Nazis – exactly. And guess what, they loved it, going back to one of John’s early points. It helped spread their message and made them sympathetic. So, what has happened – and Germany having the toughest anti-hate speech laws already. You understand because of their history. Because of a superficial interpretation of their history. So, you understand, they want to at least symbolically denounce hate speech. And obviously are unaware of how ineffective or think that they can make it effective now.

But Germany has had just a distressing resurgence of anti-Semitic violence and anti-refugee and immigrant violence. But you know what, I’ve debated people in those countries and in the EU, and my interpretation is this proves that those laws aren’t working. And their interpretation is that means that we need more such laws and stricter such laws.

So, I think you have to point to the enviable adverse consequences, which may be unintended, but if you know anything about logic as well as history you should be able to foresee. The minute that the new net DG law went into effect, which requires the social media companies within a very short time to take down as anything that is labeled as – somebody complains, this violates the hate speech law in Germany, they’re required to take it down. Predictably within the first three hours, the messages that were taken down were political messages by leaders of a very serious political party there. I mean, it’s a political party who’s values I abhor. It’s extreme right. It’s extreme anti-immigrant, but these people wield significant power. They have the third highest number of members in the German parliament. Don’t we want to hear what they’re saying?

And no sooner were their policy statements taken down, right. So, it wasn’t like racist slurs, but disagreeable policies, objectionable policy statements, you know the very much day, there’s a satirical magazine, the German equivalent of The Onion that’s mocking and ridiculing and deriding those comments, and they get taken down. And protest artists and people who are crusading for human rights have been taken down under that law.

So, it’s basically censoring anybody who says anything about immigration or race or these important subjects.

Greg: Well, it’s not just political things, either. It also goes to cultural and artistic things as well. And you have in the EU now the enforcement of blasphemy laws. Because if you say anything negative about a religion, you can be a subject of these hate speech laws. And for atheists like me, that’s not good news for free speech.

Robert: Well, to position it in the context of America, a lot of these social media companies are American companies. And to create a platform where you’re abiding by all these different local speech codes, essentially, I would imagine is very difficult. And it’s hard to foresee how any upstart social media company would be able to scale to accommodate those sorts of things.

Greg: And that’s one of the ways in which the changes since the 90’s, and now that we’re dealing with a global internet, with companies that have offices around the world in different countries and are subject to those countries jurisdictions, that’s the challenge of enforcing what we think of as free speech values and first Amendment values for global media that are answerable to these governments around the world.

And what is so threatening about this ruling that Nadine, you were just talking about. Is saying we’re going to take one country’s laws and apply it and enforce it for an entire platform.

Robert: And to get to something that Nadine was saying and to also take a little bit out of the realm of strictly law. One thing that’s been a real pleasure is I’ve been working more on psychology for the past couple of years than on First Amendment law. But when you spend time in there, you start realizing that there’s so many principles within the First Amendment law that appear to be very firmly rooted in social psychology, for example.

And one – I’m working on a big paper on this, thought it will probably take me forever to actually finish it. I’m working on it with Adam Goldstein and a couple other people at FIRE. But one thing that both Hight and I are very serious about is the idea of group polarization. That essentially that when you start talking to people you agree with, you get more arguments on one side. And that’s kind of the hydraulic Cass Sunstein idea, that you just end up with more arguments. But then sort of tribalism kicks in too, and it becomes much more something that looks a lot more like religion.

Now within First Amendment law, there’s this idea that if we punish hate speech or we punish disfavored speech or blasphemous speech, we will drive it underground where it can fester. That’s an argument where I was kind of like I think this is true but it’s not – that sounds like a fairy tale. That doesn’t sound all that persuasive.

But when you think about it in terms of group polarization, censorship, no kidding, doesn’t change anybody’s mind. It just makes them more careful about where they say their actual opinion. By passing these laws, you are forcing people who have these despicable opinions to never talk to someone with a contrary opinion and to exclusively talk to people who share their ideologies. Then they get a thousand times more arguments of maybe their hateful view. And they also develop a sense of us versus them tribalism.

So, I do think there two fields can really compliment each other. But what Germany is doing at the moment, a lot of these other countries are doing at the moment, I’m like, you just created a perfect machine that is going to replicate and intensify tribalism, radicalism, and passion on the side that you’re trying to shut down.

Greg: But it’s not just Germany. I think that tendency is what explains events like Charlottesville. I think that you have that undercurrent where you have this “Unite the Right nonsense.” Where you bring out the Cretans with their tiki touches. So, you then have these tribal events where it ends up with fighting in the street.

Jonathan: And the principle generalizes beyond law to society. We haven’t used the word Trump yet in this conversation.

Greg: Well, thank you for breaking the seal on that.

Jonathan: I will go there. I will put my cards on the table. I’m a never Trumpery. But I cannot doubt that one of the things that empowered him to the Presidency was the forces of political correctness and the feelings of a lot of Americans that they could no longer express themselves openly without being stigmatized and shamed. And that has been deeply counterproductive.

Nico: I did wanna discuss defamation.

Greg: Did we get to viewer questions, though? Or have these all been viewer questions?

Nadine: That’s right. Did you ask individual questions of Bob and Greg? You did it so artful.

Nico: I asked Bob about the Communications Decency Act. No, you were next, Greg. I wanted to ask – you were. I promise.

Greg: Is its comic books?

Nico: No, it’s about your book, The Coddling of the American Mind.

Greg: Okay. I hope we get a comic book.

Nico: Of course, the article came out, what was it 2016?

Greg: 2015.

Nico: Oh, wow. Was it that long ago?

Greg: Yep 2015. Right before – it was kind of funny. So, the joke I say is like, so we wrote this article about campus culture and polarization on campus in 2015, and we solved the problem. And it got so much worse immediately after we wrote it.

Nico: We saw on campus between 2013 and 2017 a lot of changes. Violence on campus, the rise of campus disinvitations. I’m a relatively recent graduate of college, 2012. I never heard the idea of microgranite policing or bias response teams. Those weren’t in existence when I was in college and that was less than a decade ago.

Greg: They did actually exist, it’s just they were extremely marginalized, extremely rare.

Nico: Yeah, well people weren’t talking about them. They weren’t in the public consciousness the same way. Anyway, the people who were in college during this era of the rise of campus censorship, call out culture, microaggression policing, are now graduated. And they are entering our corporate world or our working world.

Since your book came out in 2018, have you heard from any professionals or business leaders about how this sort of call out culture, this culture of vindictive protectiveness as you call it in your book, has percolated?

Jonathan: This is what in my business we call a softball question.

Nico: Very softball.

Greg: Oh, yeah. No, so much of it. And it’s kind of funny. It’s happened a couple times with my friends who are like the heads of organizations that do direct services, for example. That defend homeless people, that defend – they do public defender type stuff. I can’t – they always say don’t name my name. And sometimes because of the politic – I sometimes think they’re gonna be like, this is the one person who’s going to hate what I wrote in Coddling the American Mind, and I talked to them and they’re like the students who are showing up in my organization from elite campuses have turned my organization to something where it’s just interpersonal battles about ideas of how this office is oppressive rather than actually helping oppressed people we’re actually trying to help.

So, I’m with Hight, and we’re hearing these stories a lot again, that this is all going to get a lot worse. And I think the end result of this to a degree is probably going to be a lot of corporations becoming a lot more hesitant about hiring people elite collages. Because a lot of this stuff we find is not as prominent at state schools, for example.

But the stories that I’m hearing, they really kind of blew me away. But I was invited to talk to – I’ve been increasing invited to talk to human resources organizations. Because I was kind of joking about saying my one stock tip that came out of writing the book was invest in human resources, because they’re gonna be really busy.

And that partially comes from something that we talk about in the book. This idea of someone growing up with a fully intermediate, where conflict is always intermediate. Predictably, mostly, we’re talking about largely upper-middle class and upper-middle class and upper-class people, but the experience that they have. And we talk about this in the book, is it basically if it’s bullying in eight grade or if it’s any other kind of conflict, you go and tell an adult so to speak.

And that means that the adult in the room in a lot of corporations is considered to be the human resources person. So rather than having the difficulty of having to sort of hash something out with a peer, you go immediately over their head. And that’s completely dysfunctional for a working corporation. And I will predict, there are going to be companies that absolutely fold because of these unworkable dynamics.

Robert: Yeah, well companies are different than schools, of course, as we all know. But companies also have speech policies. There are some companies that might be permissive of what their employees can say. There might be companies that are less permissive on what their employees can say.

But in the workplace, congress has passed laws that tell you kind of what is harassment, what isn’t harassment. And so, my question is, some of these claims that someone’s humanity or dignity has been afflicted, or that another one of their colleagues engaged in hate speech. I mean, what are the responsibilities of companies to respond to those sorts of things? Do they have hated speech codes? What sort of leverage, I guess I should say, do people who want to engage in this vindictive protectiveness have against their employer?

Greg: Against? Plenty, unfortunately. And we’ve seen this. And if you’d told me before I started at FIRE in 2001 – well, actually not in 2001, by that time I knew. But if you told me say before I worked at the ACLU. I interned at the ACLU in 1999. If you told me a little bit before that that there was this constant abuse of harassment laws, I was so sort of brainwashed I would of been like, that’s offensive. How dare you. No one wants anyone to be harassed. And I would have said it just like anybody else.

But then working at the ACLU when I was talking about how great it was that the ACLU defends everybody including the Nazis at Skokie, I actually had an ACLU employee who will remain unnamed, chastise me for, we don’t defend harassment. And I’m like, I didn’t say anything about harassment.

And that was the biggest tell that I had that was like – partially, because even I would not question what was in a harassment code because it was considered so politically incorrect to actually even look into it, that I didn’t realize that all of the speech codes that had been passed from 1987 to 1994 on college campuses, every single one of them were partially formulated as harassment rules. Because everybody thinks harassment rules are good, preventing harassment is good, that you can put whatever you want in those codes.

And unfortunately, I think that there is going to be some real abuse of harassment standards – I think there already are, within corporations to police ever smaller offenses. I think the people that really care about racial harassment and sexual harassment should be the most aggravated about this because it ends up trivializing it.

But I do think that it’s gonna be, in some of these corporations, a much more brutal legalistic battle to use whatever human resources can give them and whatever legal regulations can give them to create dysfunction within a lot of companies.

Nico: Well, we had this debate a little bit in the ‘80s. And Jonathan, I think you wrote an article, was it for The Nation or The New Republic?

Jonathan: New Republic.

Nico: New Republic. I remember. I dug this up.

Jonathan: Punch In, Sit Down, Shut Up.

Nico: Yeah. In which you essentially argued, if I’m recalling correctly, that the government mandated employers to do what itself can…

Jonathan: Nico, you were what, 13? Were you reading New Republic when you were 13? That’s amazing.

Nico: No. I forget in what context I found it. You might have had it on your website?

Jonathan: Probably. It’s received much too little attention. The Supreme Court has never ruled on the First Amendment implications of workplace harassment law. Weirdly enough, it’s never stepped in.

Robert: We tried.

Jonathan: Did you try? So, all kinds of stuff goes on out there. A guy was punished because he was printing Bible versus on paycheck and an employee complained that that was a form of religious harassment. A Christian complained that in a neighboring cubical, the guy had a picture of his same sex spouse. The guy complained that that was harassment, workplace harassment. So, the gay employee was forced to hide the photo. And these are old cases.

People don’t know this, but when I talk on campus about this, I argue that the ultimate, the original source of the campus culture now that’s all about protection from racial harassment in the form of speech is the 1989 Discriminatory Workplace Hostile Environment Doctrine, which comes from, of all places, the George H. W. Bush administration Equal Employment Opportunity Commission. It says that employers need to keep their places of employment clear from harassment defined very broadly, so that now becomes making people uncomfortable.

Nadine: I’ll give you a deeper historical pedicure. It comes from Catharine MacKinnon and Andrea Dworkin. I mean, Catharine MacKinnon, to her credit, created the concept of sexual harassment, which the devil is the details. But we could all agree on some narrow definition that does constitute gender discrimination.

The problem is consistent with their philosophy, any expression about sexuality or gender is inherently demeaning to women. And I predicted in a book that I wrote in 1995 that this was gonna be the Trojan horse for smuggling their view of pornography that should be censored into mainstream…

Nico: And this is in Defending Pornography. Great book.

Nadine: It’s in Defending Pornography.

Robert: Oh, yeah. It was a great book.

Greg: Illegal in Germany, I’d add.

Nadine: And somebody else, there was another legal scholar at the same time that made the same prediction. And the incentive structure is different because the reason why the Supreme Court has not enforced the First Amendment in this context is private sector employers have no obligation to respect to free speech under the constitution or under any statute. But they do have statutory obligations to protected employees against sexual harassment. So, it’s a complete one-way incentive structure.

Robert: Right. And the inspection between this topic and what we were talking bout earlier with regulation of the internet, and how you don’t see straight forward regulations designed to censor the internet, is how when we first – after the Supreme Court clarified this, that the internet is fully protected, the first case after that was a case I handled in Lowden County involving library filtering – mandatory library filtering of internet terminals within the public library. And it was called an internet sexual harassment policy.

And so, rather than saying we’re going to censor the internet, the idea was simply going to require filters to censor speech, and we’re going to call it an anti-harassment code.

Nadine: Well, some workers or employees or patrons were complaining that the mere fact that somebody in the library was looking at a sexual image did constitute harassment from their subjective perspective.

Greg: One thing that I always want to point out is that FIRE has seen dozens of cases, many more, where harassment is abused in really transparent ways to get that clearly protected speech. That oftentimes has a passing thing to do with sex.

One of the most famous FIRE cases of all time is an Indiana University, Perdue University in Indianapolis, this is the guy that was reading the book, the Notre Dame Versus the Klan. And what did they bring him up on charges for? Racial harassment. Because literally found the book – judging a book by its cover, finding the cover offensive.

As rim Rigidi wrote something in the Huffington Post maybe five years ago that was just a laundry list of cases where you had to scratch your head to figure out why on earth, how on earth could this possibly be either sexual or racial harassment. But nonetheless, that was a tool that universities fell back on.

Nadine: Well, in good news from the Trump administration, it’s predicted that Betsy DeVos’s new Title IX regulations are going to very narrowly define punishable sexual harassment on campus. I don’t know if that will have a spillover effect into the workplace, but it could have positive effect on campus.

Robert: It’ll define it consistent with the Davis standard.

Nico: The Davis standard, which FIRE’s been advocating for forever.

Jonathan: I was kind of thinking the Perdue case, because as part of research for the book that I’m doing now, I was reading the book Words That Wound which is a book by Richard Delgado, at all proposing speech codes and anti-hate speech laws.

But on my commuter train, where I was doing this research, I thought I can’t show the cover of this book, because it has a swastika on it. And so, I thought of the Purdue case and thought I don’t wanna get in trouble on a commuter time.

Nico: So, we’re running out of time here. We’ve got about 5 to 10 minutes left. I wanna wrap up by turning over to a few listener questions. One that I want to address to you, Greg, because this is a hobbyhorse of yours.

Greg: First of all, how dare you?

Jonathan: Nico, don’t hurt his feelings.

Nico: This is another softball one. He is my boss Afterall.

Jonathan: We have to coddle him. The coddling of the Lukianoff mind.

Greg: I’m gonna hit my cash bonus button.

Nico: It is the holiday season, after all. This one is from Twitter and I hope I’m pronouncing his name correctly. This is Obada Omar. He said how can we inculcate the thinking that free speech goes beyond laws. If we only think of it as a legal issue, we can create laws to limit.

Greg: How do we do that? Wow, I’ve been thinking about that my whole career. Everyone has their sort of preferred sort of metaphor or way of thinking about it. Now of course, I have this ongoing argument with Ken White at Pope, that he doesn’t believe that free speech culture is like really, really a thing, and I think that’s just nonsense.

I talk about this to death to anybody who actually knows me, and I realize that I haven’t written about it and I’m going to be writing a lot more about this idea next year, is that we’ve got the marketplace of ideas, Oliver Wendel Holms idea. And it’s a good idea. It’s good. It’s good, predicable, when it comes to political battles of trying to figure out who should win. But it’s a very small part, in my opinion, of what the value of free speech is. And rather than thinking like lawyers, we should be thinking like scientists when it comes to freedom of speech.

And one of the things that I tell people is, when you hear someone say something horrible or something you don’t know, rather than put on your war hat, put on your anthropologist hat. Put on your scientist hat and be curious about where that person is coming from.

And I call this sort of the project of human knowledge. The goal of human knowledge is to know everything about everything that we possibly can, especially what people are really like. And so, from that perspective, there’s something not just bazar, but kind of childish about saying you should not say that because I find it offensive.

Like if you think of it from a scientific point of view, the question is like – if an orangutan behaves in horrible behaviors, which they do, you don’t want to go we can’t report this. This is offensive. You write it down and try to figure out where they’re coming from. And a lot more of openness to the idea of like.

So, people bring up conspiracy theories too. It’s kind of like – and they say, well surely, conspiracy theories can’t be protected. I’m like, don’t you want to know if conspiracy theories are going on? I mean, conspiracy theories like Protocols of the Elders of Zion changed history. You’re putting your head in the sand by not knowing that.

So, I think that rethinking the way we tell these stories. The way we explain these principles. The idea of kind of radical openness and trying to understand the world precisely as it is, gets you a lot further than the marketplace of ideas.

Robert: The other half of that too. Because so often those of us who are in this field think of free speech by trying to define free speech values. And there’s so much written about it. But I think we really truly understand free speech by understanding censorship. It’s like a superhero movie, you’ve got to have good villain, right.

But free speech law in America didn’t really develop until we had censors. Until the censors defined what it was to be restricting speech. It wasn’t that you had the Supreme Court finally saying, oh, I think we want people to self-realize. And I think we want people to do deliberative democracy. That was part of the reasoning process, but only when they had to confront what was happening in politics. What was happening with laws being passed? What was happening for 40 years under Anthony Comstock? And it was a reaction to that, of understanding the evils of censorship that we began to develop what free speech means.

And it’s useful to keep in mind that the First Amendment isn’t a guarantee of deliberative democracy. It’s not a guarantee of self-realization or enlightenment. It’s a guarantee that we’re not going to allow the government to censor you. it’s about censorship.

Nadine: I think that’s a really good point. And I would add to the excellent question that it’s not enough to talk about the culture of free speech in the abstract. You have to contrast it to a culture of non-free speech. At least 99% of the time, People’s argument in favor of censorship starts and ends with the harm that speech can do. And I agree. Speech can do great harm. But nobody ever analyzes what is the harm in censorship? Or even does censorship prevent or reduce the harm in the free speech?

Nico: Last question here, from another correspondent on Twitter, Patrick Lockwood. He said what’s the best argument against free speech absolutism. Nadine, I want to direct this to you. And I want to kind of twist this question. Have you ever met a free speech absolutist?

Nadine: It’s such a straw person. Because even the most adiate defenders of freedom of speech, including everyone around this table, acknowledge that some that does clearly, indisputably involve speech and expression, can and should be censored if it satisfies appropriately strict standards.

Jonathan: But that’s why Stanley Fish says there’s no such thing as free speech, because there’s no such thing as a free speech…

Robert: We spent 100 years developing free speech doctrine by looking at examples of censorship over time. There’s no such thing as a First Amendment absolutist, except in the writings of First Amendment skeptics and First Amendment critics.

Nadine: Exactly. The straw person that have to knock down.

Robert: They cannot use the word First Amendment advocate without using the word absolutist.

Nadine: Or fundamentalist.

Robert: To some other term like that treating it like it’s a religion.

Greg: I mean, when I heard First Amendment absolutist, I prefer to say, thank you for the compliment, but I’m not. And it’s really instructive to try to explain this stuff, and also, it’s very masochistic, to do try to explain United States First Amendment law when you’re over in Europe, for example. And I’ve done this a lot.

And I’m glad to get people coming to the point of being like, wow, that doesn’t sound quite as bat shit crazy as we thought it was. Because they do assume. And you have to explain.

I think the way we do it with a categorical approach makes sound psychological sense. We’re better by making strict categories. I think that keeping them strictly limited. I think we do a lot of very cleaver things.

And when I talk about American First Amendment law, I explain that I think it’s – well, I’m not trying to be just totally just America booster. But on this thing, we’ve had some of our brightest minds thinking about how to make free speech real in the real-world, I think better than almost other body of thought.

Nico: So, we need to wrap up here. Before I wrap up though, I want to ask for in 30 seconds or less, final thoughts. Are you optimistic or pessimistic about the direction of free speech in this country and the protections that the First Amendment provides?

Nadine: I’m very optimistic. I mean, among other things, the Supreme Court, despite all of its ideological differences and disagreements on other issues is a very strong supporter. And we have wonderful organizations.

Greg: Except in the defamation context.

Nadine: In general – yeah, but the court has been extremely, extremely good. And we have wonderful organizations, including FIRE and others that are represented around the table that are working full-tilt and making a big difference.

Nico: Greg?

Greg: First of all, I wanted to say, congratulations on the 100th episode. Absolutely amazing that I get to be sitting around the table with a lot of my free speech heroes. It’s a real pleasure. I’m actually pretty pessimistic, but predicable also because I try to see everything globally too. I think that the democratic resin, the liberal recession is going to get worse. And I think that the tribalism that John and I talk about in Coddling the American Mind is at least in the near-term going to be terrifying. And I think that it’s going to have ramifications for free speech both as a cultural value. And I think with time, a legal value as well.

So, I’m actually – I wrote a book called Freedom from Speech in 2014. And my point in that is that even though I agree that I’d rather live now than almost any other time. As some things get better and we get more comfortable and there is more progress, other things get worse. We get out of practice of disagreeing with people constructively. We actually therefore become more likely to believe that they should be censored and there ought to be a law that starts taking over.

So, I actually think that a problem of progress is going to consistently be as those things get better, that respect for free speech, for the pain and difficulty and sort of emotional hardship it is to live with freedom of speech is going to get worse and manifest it more through law.

Nico: Bob?

Robert: You hit it right on the 30 seconds. I’m optimistic, but I recognize all the challenges that Greg just mentioned. And that’s why the debate never ends. No case is ever fully won. The fight has to continue. The educational process has to continue.

As Jonathan pointed out in his book so well, the First Amendment or in free speech presumes that the debate never ends. And so, does the struggle for preserving freedom of speech.

Nico: Well, thank you everyone this has been a fun conversation.

Jonathan: I hope you’ll have me back before the 200th episode.

Nico: Write another book about free speech, Jonathan;

Robert: You’re doing an update to your book. Isn’t something coming up this year?

Jonathan: I’m writing a defensive reality, I think of. It’s called The Constitution of Knowledge. Still on the boards, though. Still thinking it through. I’d love the input of all of you.

Nico: Of course. You don’t have publication date yet?

Jonathan: No. I don’t have a publisher yet. I’m working on that now.

Nadine: I have a new epilogue to my book about social media coming out in March. I’d love a return invitation.

Nico: Is that with the hardcover?

Nadine: It’s a paperback.

Jonathan: And Bob is working on a book too.

Nadine: Yeah, it’s great.

Nico: Can we talk about that?

Robert: Is there still time?

Nico: The name of it.

Robert: The name of it is The Mind of the Censor in the Eye of the Beholder. I’m doing it for Cambridge University Press. And it is about the psychology of censorship and why we need to look at censors if we really want to understand free speech.

Nico: Well, stay tuned for that. I’m sure we’ll have you back on to discuss it. A quick show note before we end here. Our next episode is scheduled for the day after Christmas, Boxing Day, which because Greg, half of his family is British.

Greg: We take it very seriously.

Nico: It’s very serious so the office is closed. So, we’re going to push that next episode back a week to Thursday, January 2nd.

This podcast is hosted and produced by me, Nico Perino. Recorded by Aaron Reese and Chris Multiply and edited by Aaron Reese. You can learn more about us on Twitter at twitter.com/respectable and like us on Facebook at facebook.com/sotospeakpodcast. We get feedback at sotospeak@thefire.org. We also take reviews. It is the holiday season, and if you wanna give us anything please give us a review at Apple Podcast or Google Play to help attract new listener to the show. And thank you, again, for helping us make it to 100 episodes and we’ll see you all in 2020. Happy holidays, everyone.