June 28, 2018 - Rubin Report - Dave Rubin
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| We're continuing our partnership with Learn Liberty today and joining me is the former president of the ACLU, | ||
| a board member for FIRE, EPIC, and the Heterodox Academy, a professor at New York Law School, | ||
| and author of the new book, "Hate, Why We Should Resist It With Free Speech, | ||
| Not Censorship." | ||
| Nadine Strossen, welcome to The Rubin Report. | ||
| Great to be here, Dave. | ||
| So I have to tell you, when I was reading through your bio and looking at all the boards you've sat on and head of ACLU and all that, I don't know that anyone has ever been more of sort of a perfect prime guest to sit in that chair. | ||
| And my prior book, Defending Pornography, I assume that also caught your attention? | ||
| We can get into that too, but really, your life's work is sort of exactly why I do this show, and I know I'm setting you up now with a very high bar here, but this is what it's all about. | ||
| Well, thank you so much, and thank you for your ardent defense of liberty. | ||
| That is the most important value for me, and when people ask me what my politics are, I usually say I care more about my civil libertarian beliefs than I care about partisan political beliefs. | ||
| One of the things that's true for the ACLU, as well as for me as an individual, | ||
| is not taking per se across the board positions on any candidate, official, party, or group, | ||
| but judging on an issue by issue basis and issuing criticism or praise on an issue by issue basis. | ||
| And there's not a single party or candidate or official that hasn't earned some praise and some criticism | ||
| on some important civil liberties issues. | ||
| So looking at the glass half full, as an activist I always do that. | ||
| There's nobody with whom I don't share some really strong convictions, which is very nice. | ||
| Now, it's also true that there's nobody with whom I don't have some strong disagreements, but I'm used to, therefore, having a positive relationship across ideological divides, and the absence of that or the fading of that in today's climate is very bothersome. | ||
| Yeah, all right. | ||
| What a great place to start this conversation then. | ||
| So, as you've seen that fade in society, do you have a couple markers or moments where you started to really see it, or has it just been a slow slide into wherever it seems that we're at at the moment? | ||
| That's a really good question, Dave, and I'm sure some sociologists have probably analyzed it more exactly. | ||
| My impression is, at least on issues, let's stay with issues of free speech, my strong impression is that there started to be a real breaking point in around 2015. | ||
| 2015, I think that's when we had the Ferguson riots and demonstrations and protests around the country, and I am completely sympathetic to that cause. | ||
| Believe me, abuses in the criminal justice system have been on my radar screen and the ACLU's forever. | ||
| Way back in the dark ages, or some would say the great ages, I meant only in the sense of old, it wasn't a stigmatizing reference, but the Reagan administration, I used to debate his Attorney General, Ed Meese, on propositions such as, is the criminal justice system racially discriminatory? | ||
| And I was taking the yes position. | ||
| So the fact that we have this outpouring in support of social justice and racial justice and immigrants' rights and anti-sexual violence, all of that is wonderful. | ||
| But starting several years ago, it started to seem more and more that advocates of these causes began to see free speech as their enemy. | ||
| Rather than what I know it to be, which is their time-tested essential ally. | ||
| So there was this pitting of liberty against equality, of civil rights against civil liberties. | ||
| And as I say that, I realized that it was the second time that had happened in my adult lifetime. | ||
| The first time that that happened very strongly was in the late 1980s, early 1990s. | ||
| Which was the first time that hate speech codes were proposed on college campuses. | ||
| The first time we started seeing criticism of what was called political correctness. | ||
| And then, too, especially law professors were arguing very strongly that you have to choose. | ||
| You can't have both liberty and equality. | ||
| And that's anathema to my own beliefs and experience. | ||
| Yeah, and that's kind of where we're at right now. | ||
| That seems to be where this argument has boiled down to. | ||
| So before we unpack all of that stuff, how did you get involved in this? | ||
| What was it about your education or your upbringing or whatever else that made you care about free speech, civil liberties, everything else that you just mentioned here? | ||
| As far back as I can remember, I have been in favor of individual liberty and resisting anybody who tried to encroach on my liberty or that of anybody else's. | ||
| So long before I had the terminology, I resisted my parents' authoritarianism. | ||
| My school teacher's authoritarianism. | ||
| I was kind of a contrarian. | ||
| I would always like to see a different perspective and I remember being very puzzled as a fairly young student, maybe I was about 10 or 11 years old, and a teacher said to me, Oh Nadine, why do you always have to defend the underdog? | ||
| And she said it as a criticism, and to me it was, well, they're the ones that need the defense. | ||
| I have also always valued freedom of speech for ideas that I disagree with. | ||
| So I remember I was in college from 1968 to 1972. | ||
| I'm very involved in the movement against the Vietnam War, movements for reproductive freedom. | ||
| That was before the Supreme Court had decided Roe v. Wade, again, the really dark ages. | ||
| But I also always defended freedom for people who disagreed with me. | ||
| So I would have big arguments with members of SDS. | ||
| who were students for a democratic society, a very radical organization that wanted to shout down | ||
| certain speakers that were in favor of the Vietnam War administration officials and so forth. And | ||
| while I disagreed with the points of view of those speakers, I didn't believe that we should be | ||
| denying them a podium. So as far back as I remember, I've cared much more about freedom, | ||
| in part because I do see that as the essential means to advance whatever other cause is dear to you. | ||
| It's hard to defend the people that you don't like, isn't it? | ||
| It seems to me that that's the one we're forgetting these days. | ||
| Everyone screams about free speech all the time. | ||
| The second someone says something they don't like, then they kind of get quiet real quick. | ||
| Shortly after I graduated from law school, the ACLU, and I was not involved at the national level at all at that point, but the ACLU got involved in the infamous or famous Skokie case, and that was like a real litmus test. | ||
| I assume most viewers know what that is, but for those who might not, In 1977, the ACLU came to the defense of the free speech rights of a group of neo-Nazis who wanted to demonstrate in Skokie, Illinois, a suburb of Chicago that had a large Jewish population and a large population of Holocaust survivors. | ||
| And many members of the ACLU, Even this stalwart free speech organization lost, we lost about 15% of our members who said we really defend free speech, but this is the one exception we want to make for this absolutely abhorrent speech. | ||
| Now my father is a Holocaust survivor, I have to say was, sadly he died, but it wasn't even Issue for me. | ||
| I have to tell you Dave and it's coming back to your question because you said Something about how does it feel to defend? | ||
| People that you disagree with and to me. | ||
| I'm never Defending them. | ||
| I'm never defending their ideas. | ||
| I'm never defending. | ||
| What did they say? | ||
| I am defending the principle that government should not have power to silence speech just because the majority of the public, even the vast majority of the public, loathes, despises the idea that the speech is conveying. | ||
| Yeah, so that's incredible. | ||
| Obviously, I know the Skokie case well, and I'm sure many, much of my audience is. | ||
| I didn't realize 15 percent, did you say 15 percent of the members Of ACLU members. | ||
| That's a massive amount of people. | ||
| And you know, so the ACLU really put its money where its mouth is. | ||
| It was a tremendous financial hit and there was a lot of negative press. | ||
| Now, in fairness, fairly soon after that, the ACLU began to recoup members, maybe not necessarily the same people. | ||
| In fact, other people who wrote in and said, we see that you really are neutrally defending civil liberties even for people that | ||
| are anti-civil liberties themselves. Now that said I have to tell you almost every | ||
| time I give a speech anywhere people will come up to me and say I was an ACLU | ||
| member but I quit over Skokie and Aria Nair who was the executive director at the | ||
| time and interestingly enough himself a Holocaust survivor. | ||
| He was born in Berlin. | ||
| His extended family was completely exterminated by the Nazis. | ||
| He and his immediate family escaped, and he wrote a wonderful book about it afterwards called Defending My Enemy, which I quote in my book. | ||
| And we can talk about how that might seem paradoxical, but it's really not. | ||
| But anyway, in this context, I brought him up because he said to me, Nadine, if every person who said they left the ACLU over Skokie really had been a member, we would have been the largest organization in the world. | ||
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Right, right. | |
| They were talking a big game, but there you go. | ||
| But if I can just follow up on that, it's not just an abstract principle because you can really see how the principle has concrete ramifications for exactly the opposite idea. | ||
| So in our briefs in the Skokie case, we pointed out that the arguments that were being made to justify suppressing the Nazis, namely that their ideas were Offensive and insulting and threatening and seen as dangerous to the Jews and the Holocaust survivors in Skokie. | ||
| That was exactly the same set of arguments that was made not that much earlier in 1968 when Martin Luther King was trying to demonstrate in Cicero, Illinois, the very same state, but with a very different population that saw his ideas as threatening and dangerous and subversive, offensive and insulting. | ||
| Right, and this is where this weird subjective nature of this comes in, which is why you've said several times now you're defending the principle, not the person. | ||
| And that, of course, is the key to this whole thing. | ||
| But we've been pushed into this place these days where it seems like there's a large set of people, or certainly a set of very loud people, who think that speech is violent. | ||
| It ain't violence. | ||
| Well, I suppose speech could advocate violence, it could incite violence, it could threaten violence. | ||
| So do you agree with where we have the laws now in terms of you can't directly incite and that sort of thing? | ||
| Do you think all those laws are just and appropriate? | ||
| Absolutely. | ||
| And I have to say, even though I've been teaching constitutional law and the First Amendment for decades, the process of writing this book and thinking about it in an even more focused fashion really increased my respect for U.S. | ||
| law. | ||
| And I really think that for many people, if they would just understand what the law actually provides They would be much more supportive of freedom of speech because it is much more nuanced and much more commonsensical than is often misdescribed when people say either, oh, hate speech is not free speech. | ||
| We heard that a lot, including when you were at the University of New Hampshire. | ||
| We heard that a lot, right? | ||
| And then conversely, people will say, oh, hate speech is protected and neither generalization is correct. | ||
| Yes. | ||
| This fact that speech has a hateful or hated message, idea, or content can never be a justification for censoring it. | ||
| But if in a particular context A hateful message, along with any other message, directly causes certain serious, specific, imminent harm, and there's no way to avert that harm other than punishing the speech, then the speech can and should be punished. | ||
| Common examples that satisfy that standard are intentional incitement of imminent violence, a genuine threat that instills fear that you're going to be subject to violence, Another example is a hate crime, and that is, it's a little bit different in the sense that a, and I'm going so much into my constitution. | ||
| No, we're going into the weeds, but that's good, that's good. | ||
| Okay, so if I can say, there's no term hate speech, and that was a point that you made in your University of New Hampshire presentation. | ||
| Yeah, they were not happy when I said that. | ||
| It's a fact, right? | ||
| And it's a fact that is subscribed to by every single Supreme Court justice across the ideological spectrum, you know, from Ginsburg and Sotomayor on the left to Alito and Gorsuch and Scalia on the right. | ||
| And I think that's a very, very important point that for all of their ideological differences on so many issues that so many justices, every justice in modern history has subscribed to this principle. | ||
| And I wish that people across the ideological spectrum in other, you know, branches of government and the general public would share that unanimity because no matter who you are, no matter what you believe, you really have a stake in denying the government and the majority of people that wield power taking away from you the choice about which views you will express or listen to or refute. | ||
| So in that University of New Hampshire speech that I know you watched, when I was saying, you know, hate speech is not real, obviously I was making the distinction between the direct call to violence, which I actually said, unless it's a direct call to violence, but hate speech in and of itself is nothing. | ||
| It's not a thing. | ||
| You can say mean things. | ||
| I would prefer you don't. | ||
| We wish we could all be nice to each other and say lovely things and use pronouns the way people want it and all those things, but you can't have the government doing it. | ||
| Is there anything else that I should have added in that that perhaps could have gotten those young people to listen? | ||
| I think that they were disposed not to listen, but there were obviously some open-minded people in the audience, and those are the ones that you're... I mean, the hecklers, I think, were not... they didn't seem genuinely interested in hearing you out, but many other people there did. | ||
| And the other point that I would make strategically, Dave, and I already did it in pointing out the Martin Luther King counterpart to the Nazis, is I always try to give an example where An idea that you happen to support, that the person I'm talking to really supports, would be threatened if we gave that power to the government. | ||
| So for that audience where you had people chanting Black Lives Matter, I would have pointed out how many government officials now are saying Black Lives Matter Advocacy should be treated as hate speech. | ||
| Even saying that Black Lives Matter should be treated as a hate group. | ||
| The Southern Poverty Law Center, which monitors hate groups, has been lobbied to treat Black Lives Matter as such. | ||
| And so then you have to say to people, you have to understand that it's not your values that are going to be implemented by the enforcing officials across the Yeah, so you mentioned the Southern Poverty Law Center. | ||
| this loose, nebulous concept. | ||
| I mean, hate is an emotion that's inherently subjective. | ||
| What one person considers hateful, somebody else cherishes. | ||
| Yeah, so you mentioned the Southern Poverty Law Center. | ||
| I don't wanna get you in any hot water here, but they, to me, strike me as an organization | ||
| that has completely, completely, with almost no reservation, can I say this, | ||
| gone off the rails. | ||
| I they have you know Between now, they just, just in this last week, they lost this lawsuit. | ||
| Majid Nawaz is getting a $3.3 million settlement, but they had Ayaan Hirsi Ali and Brigitte Gabriel and several other people who I've had on the show who I think are wonderful people on their hate list. | ||
| They just put up an article about the evils of Prager University and called me out by name. | ||
| What am I to make of the shifting of traditionally organizations that were doing good work into becoming what I would say are really far-left advocacy groups instead of maybe the original mission statement? | ||
| Do you think that was a fair assessment? | ||
| I'm not knowledgeable enough about the instances that you cite, so I'll come back to something I said at the beginning, which is I don't endorse or criticize any I look at it issue by issue, and I think the Southern Poverty Law Center has done a lot of good work on issues that I care about, including freedom of speech on campus, and they definitely oppose censorship, including of hate speech. | ||
| I testified with a leader of the SPLC. | ||
| before Congress last year and completely opposed to censorship, completely supporting counter-speech. | ||
| And in fact, the SPLC put out a wonderful guide for college students at the beginning of the last academic year, | ||
| urging them when white supremacist recruiters are coming to campus not to engage in disruption, | ||
| to try to censor them or to shout them down but to ignore them. | ||
| And I thought that was right, not only in principle, but also as a matter of strategy, because you're just playing into their Now, does that mean that every single thing they've done is | ||
| praiseworthy? | ||
| I doubt it. | ||
| I think even the ACLU is not above criticism. | ||
| Yeah. | ||
| So I know when they sent over some notes about what we potentially could talk about in your | ||
| book and everything else. | ||
| So because you did watch that University of New Hampshire thing, there's a moment where a girl that was challenged me kept implying that it was free speech sort of that led to the Holocaust. | ||
| That it was this that we they allowed incitement and that that's what led to it. | ||
| Now my basic argument was The more speech there is, the more we can allow sunlight to disinfect bad ideas, but I think perhaps I could have been a little more forceful there. | ||
| If you were standing next to me when we were doing this, what would you have been saying in my ear to that argument? | ||
| That if we just keep letting people say all these awful things that it can lead to awful things, and awful things obviously have happened throughout the course of human history. | ||
| I have a lot of answers, but let me start with the one that is most specific to the Holocaust. | ||
| And again, I have a personal stake, and I know you also lost relatives in the Holocaust. | ||
| For me, my father fortunately survived, but he was in a concentration camp and suffered grievously doing forced labor, and in fact was scheduled to be sterilized and then was liberated by the U.S. | ||
| military one day before. | ||
| Wow. | ||
| You know, I almost had my life exterminated before it began. | ||
| I have no love lost for the Nazis. | ||
| In fact, there were hate speech laws in the Weimar Republic, which is Germany where Hitler rose to power. | ||
| And the hate speech laws were very similar to the ones that exist in Germany and other countries today. | ||
| They were very strictly enforced. | ||
| Nazis were prosecuted and convicted repeatedly. | ||
| And guess what? | ||
| They loved It was a huge propaganda opportunity for them. | ||
| They gained attention and support that they otherwise never would have had, just like | ||
| the neo-Nazis in Skokie all those years later. | ||
| Nobody would have heard of them if we had just allowed them to have their miserable | ||
| little march for the 20 minutes to 30 minutes they were seeking to march. | ||
| Instead, it becomes two years' worth of worldwide attention. | ||
| Now, the problem in pre-Nazi Germany was that there was no protection against violence that the Nazis were engaging in. | ||
| So, their political opponents, as well as Jews and others, were subject literally to physical assaults and even murder without any sufficient protection or punishment. | ||
| So the other point I would make is that those of us who are minorities and Jews are a tiny minority in this country and around the world especially depend on freedom of speech because by definition we're never going to have majority Power. | ||
| So all we have to depend on to limit the majority from trampling on our rights is freedom of speech, to protest the First Amendment right of association, the right to petition the government for redress of grievances. | ||
| Jonathan Rauch, a great gay rights advocate, whom I quote in my book, makes the same point about, you know, as a member of sexual orientation minority, all minorities, Especially depend on free speech. | ||
| I quote a lot of civil rights leaders in my book, Martin Luther King, the NAACP, throughout the civil rights movement were completely opposed to censorship, including hate speech laws, in part because their speech was viewed as hated and even hateful and certainly dangerous. | ||
| How concerned are you about self-censorship? | ||
| Not the government doing it, but what I see more as the sort of the low-level war right now, which is just the emails that I get every day about people afraid to speak up at work, people afraid to speak up at college, people literally afraid to speak up in their own homes because they've been so crushed by political correctness they don't want to start fights with loved ones. | ||
| It's a serious problem and I have to say it's a difficult problem because to some extent the point of counter speech, which I advocate, and by the way that's a legalistic way of saying anything you disagree with, you just rather than trying to squelch it, stopping that expression from coming out, you respond to it, you debate it, you try to persuade, you cajole. | ||
| So that's Countering an idea you dislike with your own speech. | ||
| To some extent, the goal of counter speech is to chill certain speech and certain ideas, right? | ||
| You want to dissuade somebody from adhering to white supremacist views. | ||
| You don't see it as bad if they self-censor, right? | ||
| But when does that persuasion cross the line into bullying or harassment? | ||
| I think that's a very important and difficult issue, which was discussed very extensively in the famous John Stuart Mill essay on liberty. | ||
| Many people who haven't recently read it would be surprised, as I was, because I hadn't read it for a few years. | ||
| I have a copy of it with me on my travels actually. | ||
| Somebody reminded me that his main focus there was not on direct government coercion, but rather on the social pressure that is exerted by colleagues, peers, civil society. | ||
| And in this country, on the one hand, I'm very glad that there is such a robust civil society condemnation of racist tweets by Roseanne Barr, to cite a fairly recent example. | ||
| On the other hand, I'm afraid of the mob. | ||
| Ruthlessly punishing somebody who may have just said something that's insensitive. | ||
| And I'm concerned about that, David, not only because I don't want to, you know, the mob is no more appealing as a force that drives certain ideas out of existence than the government is. | ||
| But I'm also concerned from the point of view of educating and persuading and I've met people that have been not only members but leaders of hate groups who have come to see that they were wrong, who have come to They realize that all of us are equal and entitled to equal dignity and equal rights and they've repudiated their formerly discriminatory ideas and they didn't come to that change by being denounced as racists, much less as would happen in Europe by being imprisoned as racists. | ||
| So, if our goal truly is to gain more support on the part of more people for the ideals of liberty and justice and human rights and equality and dignity for all, I think we don't do it by shouting them down. | ||
| So, it's a strategic question as well as a principled question. | ||
| Yeah is that just one of those things where it's like in the moment that we live in we often don't live up to our ideals in the best way possible because you reference being a constitutional law professor and I've got the Declaration of Independence and the Constitution framed right in that room right over there and it's like these guys that were writing these incredible documents that have given more freedom to more people than in the history of the world Well, some of them were slave owners, and plenty of other things, and probably womanizers and whatever, and it's like, but yet they were writing the things that freed us, which is an incredible, that's just a little something about being human, I suppose. | ||
| And I think it ties back to some of our earlier conversation, that so much of what passes as debate, such as your hecklers at the University of New Hampshire, is not genuinely engaged in really trying to relate to you | ||
| as a full-fledged human being with whom they might... I have absolutely no doubt based on | ||
| my experience that there are no two people in the world who won't have at least some strong | ||
| common concern, some idea that... or passion that they both deeply care about and are committed | ||
| to and some that they deeply disagree And I think it's really important not to paper over the disagreements. | ||
| I think we should discuss them and hash them out, but I think we can do that more constructively and effectively if we also find what we have in common and relate to each other in a holistic way. | ||
| All right, so there does seem to me to be a rebirth of a defense of free speech starting again on the left. | ||
| Possibly. | ||
| I see a little something happening. | ||
| Jonathan Haidt at Heterodox and some of the other organizations you're involved in, and FIRE, there is this group of people kind of making a comeback on the left. | ||
| I'm not so sure it can hold. | ||
| I hope it can hold. | ||
| But what do you make of how this sort of bounces back, where sometimes free speech is something that the left holds more dear, sometimes it's something the right holds more dear, and it kind of switches as the decades go by? | ||
| Well, my perspective, and I'm not far be it for me to pull out the age card, but I think I've seen a few more decades than you have. | ||
| And it's been a constant that was very well summed up by Nat Hantoff, whom you would have loved, I don't know if you ever crossed paths with him, but he was a great free speech stalwart and he wrote a book whose title really says it all, Freedom of Speech for Me but Not for Thee, How the Left and Right Relentlessly Censor Each Other, and he wrote that decades ago. | ||
| But it's always been true that most people Being human, believe in free speech in general, but those ideas that they hate or despise or think are dangerous should be the exception. | ||
| Let's go back to Skokie where ACLU members, even 15% of these diehard stalwart ACLU members, I'm not surprised that the one exception they want to make is for speech that's denigrating civil liberties and human rights. | ||
| But I had a friend who was the Executive Director of the National Coalition Against Censorship, and she put it so well, she said, Nadine, everyone has his or her Skokie. | ||
| So at particular times, I can tell you, for every year, I can tell you, this was the one exception, or maybe more than one exception, that liberals wanted to make. | ||
| And this is the one that conservatives wanted to make. | ||
| And I would say, in general, let's amend the Constitution so that it is a crime to burn the American flag. | ||
| That has been supported by many, if not most, conservatives. | ||
| And by a lot of liberals as well. | ||
| I think that is the single most hated expression in my lifetime because no other expression has led to a constitutional amendment coming within a hair's breadth of being ratified. | ||
| More than two-thirds of the House approved it, came within one vote short of two-thirds of the Senate and more than three-fourths of the states. | ||
| That's incredible actually if you think about it. | ||
| Where do you think Trump kind of fits into the general discussion? | ||
| It seems to me that there is obviously some sort of authoritarian bent to him. | ||
| That being said, as far as I know, people aren't being jailed because of free speech at the moment. | ||
| Do you think our institutions, let's say that his worst critics were right about whatever they think about him, do you think our institutions at this point are strong enough to ward off that kind of threat? | ||
| And we don't even have to make it about Trump specifically, but if there was truly like a real authoritarian in office, do you think that the way our balance of powers and our separation of powers works? | ||
| And again, I would have to say, you know, Trump has certainly done a lot of saber rattling on free speech issues and, you know, said that flag burners should be deported, but let us not forget that Barack Obama was responsible for the most stringent enforcement of the Espionage Act and, you know, pressing criminal charges against more whistleblowers | ||
| than all prior administrations added together. | ||
| So again, a pox on both your houses. | ||
| So far, the courts have been a wonderful bulwark. | ||
| The flag burning example is a really good one. | ||
| It was two Supreme Court decisions joined by both conservatives and liberals on the court | ||
| that struck down under the First Amendment laws that criminalized desecrating the American flag. | ||
| Well, the Supreme Court doesn't have quite the last word. | ||
| A constitutional amendment could overturn it. | ||
| But I have great confidence that this court would continue to uphold What has been called the bedrock principle of freedom of speech, and that is viewpoint neutrality. | ||
| I summarized it earlier that the mere fact that the viewpoint is hated, whether it be flag burning or whether it be racist speech, that is never a justification for censorship. | ||
| Again, they unanimously endorsed that last summer in a hate speech case. | ||
| Yeah. | ||
| Let's slightly shift for a second. | ||
| So when you were the head of the ACLU, what are the political pressures that you're under that maybe the average person wouldn't know from the headlines? | ||
| Like involvement with politicians, with lobbyists, etc, etc. | ||
| So the ACLU was, is, and I was personally involved in lobbying and testifying. | ||
| I still do testify before Congress occasionally. | ||
| And I would say to me it was a very privileged position because we did not have to be directly concerned about partisan political pressures. | ||
| We could simply make alliances and work with anybody that we thought could support an issue that advanced our cause, even if we disagreed with | ||
| them on other issues. | ||
| And I remember, to me it was a great source of pleasure. | ||
| I remember on one piece of legislation testifying before the Senate Judiciary Committee and | ||
| and the chair was Orrin Hatch, and the ranking minority member was Ted Kennedy, | ||
| the chair was Orrin Hatch and the ranking minority member was Ted Kennedy and they were | ||
| and they were both supporting the same pro-civil liberties position. | ||
| both supporting the same pro-civil liberties position. | ||
| And I was testifying together with the head of the National Association of Evangelicals | ||
| And I was testifying together with the head of the National Association of Evangelicals | ||
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and the head of the Mormon Church and despite all of the the Senate Judiciary Committee, | |
| and the head of the Mormon Church, and despite all of the differences on so many other issues, | ||
| the fact that we could make common concern that was on principles of religious liberty | ||
| and freedom of thought and freedom of belief, that's what I feel is deteriorating a little bit. | ||
| So last year, I testified a couple of times on campus free speech issues, | ||
| and the bipartisanship had really worn down, even though the theme was freedom of speech on campus, | ||
| and even though the chair of the committee, who was Lamar Alexander, Republican, | ||
| and Patty Murray, the ranking member Democrat, they were both really solid and great on the issue, | ||
| but the other members of the committee just used it as opportunities to trot out their own ideas | ||
| of which free speech was bad and should be suppressed. | ||
| So some of the Republicans were saying taking a knee by athletes should be punished, | ||
| and some of the Democrats were really saying Trump is violating free speech, | ||
| and there was too much political grandstanding. | ||
| Right, and that's why, for as critical as I am for the left, I don't want free speech to become, | ||
| I don't want it to be a political issue in the first place. | ||
| I don't want it to be that the right, which at the moment I see more tolerance related to diversity of ideas, I don't want that to be the home. | ||
| I want there to be a balance, otherwise we're just going to end up in that Well, I may be a little bit skeptical, but I think that people tend to be result-oriented and that on the right there may be much more support for freedom of speech on campus because they see that it's views on the right that are being squelched. | ||
| Now, in fairness, I'll give you a counterexample. | ||
| Many years ago, during this first surge of political correctness on campus, Mitch McConnell, let me put it backwards, It was Henry Hyde, I'm sorry, a conservative Catholic from Illinois who was completely on the opposite side of the ACLU on abortion and gay rights. | ||
| He really was so strong on campus free speech. | ||
| that he sponsored a bill that would have required all private universities to | ||
| respect the same free speech rights that public universities are required to | ||
| observe under the Constitution. Many people don't know this but the | ||
| Constitution only applies to government including state universities but not | ||
| private universities. How did you guys feel about that? | ||
| Well we totally Again, that would be a difference between libertarians and civil libertarians. | ||
| My libertarian friends would say, you know, keep the government out of it, let the private institutions decide. | ||
| And there were exemptions for religious institutions, but basically... | ||
| I think that's where I would fall on this. | ||
| So sell me your way then. | ||
| It's a very interesting debate and I can understand. | ||
| I've had this discussion with my dear friends at the Cato Institute for many, many years now. | ||
| What's the difference between a classical liberal or libertarian and civil libertarian? | ||
| I think that we are less opposed to government regulation when it is in the service of regulating very powerful private sector actors. | ||
| That for all practical purposes, the way we were talking about civil society earlier, can exercise coercive power that stifles people's liberty. | ||
| So what if we did not have the 1964 Civil Rights Act, then even the most powerful, large, landlord employer, corporation, private university, etc. | ||
| would be able to discriminate on the basis of race or gender. | ||
| Under federal law they still can on the basis of sexual orientation. | ||
| I would view that as something that could and should be remedied | ||
| through passing a statute making that illegal. | ||
| So you don't support ENDA? | ||
| Well, first off, I agree with your basic premise here, just at the idea level. | ||
| It's a great place for a rich conversation. | ||
| The idea that the government would be coming in and telling private schools, even though I understand what you're saying, that they would have to adhere to these codes, even if I... The code being the First Amendment. | ||
| Right. | ||
| I don't necessarily think a private school should have to do that. | ||
| I just think that ultimately the market, you'd either decide you wanna go there or don't wanna go there. | ||
| This one's definitely a tough one for me. | ||
| It's an interesting one, and I definitely can see the other side, and I certainly would insist on some exemptions, certainly for religious schools. | ||
| I think military schools were also exempted. | ||
| But then I wanna give you another example of a Republican that I worked with. | ||
| Mitch McConnell worked very closely with the ACLU in opposing, many people are gonna be surprised | ||
| to hear this, the McCain-Feingold Law, a campaign, so-called campaign finance reform. | ||
| Seems like a lifetime ago, we don't talk about that anymore. | ||
| Yeah, well, the ACLU, very, you know, we were the ones who argued Buckley versus Valeo | ||
| and arguing that the ability to spend money in order to promote a message is protected free speech | ||
| and it should be protected even when the speech is engaged in by people who are organized into a group | ||
| and including if they're organized. | ||
| In the form of a corporation or a union or a not-for-profit corporation. | ||
| So some liberals are really distressed by that position and I think it's absolutely the correct one. | ||
| Anyway... What do you say to those liberals or the lefties who do get more upset about that in general? | ||
| That you're just going to allow corporations to endlessly pour money in the system and manipulate the system and that's it? | ||
| Well, again, what is the lesser of two evils? | ||
| Would I rather have the government telling corporations such as the ACLU and Planned Parenthood and the Sierra Club, you name your favorite left-wing so-called cause, and it is organized in corporate form. | ||
| And the ACLU under that law was it would have been a crime to go on the airwaves and by name call on people who are running for federal office and say, you know, repeal the Patriot Act because arguing for issues over the broadcast airwaves was a crime under that law and spending your own money to | ||
| advance your own issue-oriented message. | ||
| So I think people are shocked when they hear what the law actually did and are persuaded | ||
| that in at least some applications it went too far. | ||
| Well McConnell became such a supporter of free speech as a result of working on this | ||
| issue that he actually changed his position on the flag-burning amendment. | ||
| He had been a big proponent of it and having seen how important freedom of speech was, | ||
| including for what to liberals is a very controversial form of speech, namely spending money in the | ||
| political process, he said, "Well, you know, I've got to stick to principles here and we | ||
| should not amend the Constitution to outlaw another controversial expression." | ||
| So I thought that was a really wonderful idea of not just being result-oriented toward your own ideological concerns, but seeing the overarching principle and following it. | ||
| It's almost like if you actually have the debate, you might change people's mind and be surprised who your allies suddenly are. | ||
| Is there any country that is protecting these rights better than we are? | ||
| No. | ||
| For as screwy as our system may be? | ||
|
unidentified
|
No. | |
| Well, let me make, on sexual expression, the United States is much more repressive than many European countries. | ||
| Like in what regard? | ||
| You mean with what can be seen in magazines or something? | ||
| Yeah, so we still have, I mean, not only sexual expression, but four-letter words. | ||
| I mean, thank goodness we're not broadcasting, because I still get bleeped You can say whatever you want here. | ||
| All seven of them. | ||
| Well, and one of them appears, and I'm not even sure if this was one of these seven, but fuck the draft, was upheld in a very important free speech case by the United States Supreme Court. | ||
| And it's a case that has ramifications for hate speech as well. | ||
| But I cannot describe the facts of that case. | ||
| on radio or TV and that's laughable in other countries. | ||
| And we still have anti-obscenity. | ||
| Well, I mean, let's not forget that the brouhaha about the wardrobe malfunction at Super Bowl. | ||
| I mean, so we're much more puritanical, but when it comes to political expression, | ||
| there's no country that gives as much protection as we do, including for hateful, racist speech | ||
| and misogynistic speech, including for defamation, defamatory falsehoods | ||
| about public officials and public figures. | ||
| And that's why there are so many libel lawsuits that are brought in the UK against | ||
| what would be clearly protected speech in this country. | ||
| Yeah, but you do believe in our libel laws here. | ||
| Yes, I'm sure I would wanna trim them back a little bit, but on the whole, we're quite protective. | ||
| So, if it's a matter of public concern or public official or public figure, you get quite a bit of leeway. | ||
| You can't be held culpable unless you have acted intentionally or recklessly, and I think that's correct. | ||
| Right, they're pretty specific. | ||
| Yeah, one of the things that Trump wanted to do, as he said, was to reform the libel laws to make it easier for a public official to collect damages. | ||
| And, you know, a lot of people say, oh come on Nadine, Britain and Germany and France and Canada and Australia, you know, it's not as if they are totalitarian authoritarian countries. | ||
| But if you read the examples in my book of the kinds of speech that are being punished, even with imprisonment, even with criminal fines, and that's the tip of the iceberg, because for every punishment there is, there are countless numbers of self-censorship incidents, it would really make your skin crawl. | ||
| I give examples. | ||
| No matter what your ideology is, you should find something in there that you would say, oh my goodness, I can't believe it. | ||
| So, you know, France a couple of years ago criminally convicted the head of a gay rights organization for calling the head of an anti-gay rights organization a Homophobe! | ||
| That was considered to be hate speech. | ||
| Now, fortunately, she wasn't sentenced to prison, but she was subject to a very stiff fine, $3,500. | ||
| And then you think, what are the ripple effects of that? | ||
| Yeah, have you guys tracked this case with the comedian in the UK who had the dog salute? | ||
| Oh, yes, yes. | ||
| I mean, again, it's like, There's no exception for humor or satire. | ||
| When the new online hate speech laws went into effect in Germany on January 1st, the first person convicted or charged under it was One of the leaders of a right-wing party, not surprisingly, and maybe the first two that were charged were from that party, but the very next one was a satirical magazine that was making fun of their statements, mocking them, ridiculing. | ||
| And these laws, by being so subjective, can't make the fine distinctions between humor, satire, and straightforward advocacy. | ||
| Yeah, so my audience knows I'm not big on the globalist ideas here, or even the UN I think is mostly a farce at this point, but do we need some sort of Internet Bill of Rights? | ||
| I mean, this is a new phrase that seems to be popping up over the last year or so, that will uniformly protect people in other countries from their ability to say things that are uncomfortable online, and be able to tweet things that, you know, you can't say in Germany, but you can say in the United States. | ||
| I think we have to do that on a country-by-country basis, and I am pleased that there are advocates in other countries that really strongly support freedom of speech, including for hate speech. | ||
| I keep putting that in air quotes because it As they say to that person at the University of New Hampshire, no, there really is no such thing. | ||
| And by the way, a lot of what they said to you some people would consider to be hate speech too. | ||
| So that's another argument that you could have made. | ||
| My one regret is at one point when she said to me, I said something about losing Holocaust Family members from the Holocaust on both sides and then later she said they're rolling in their graves over what I'm saying I mean try to think like if this if we're really if we're really gauging the offense meter Yeah, I assure you there was nothing that I said in those two hours that was more wildly offensive than that But do I want her jailed because of that? | ||
| I mean Of course not. | ||
| So I really was heartened at how much support there is for the American approach. | ||
| We're often attacked as being American exceptionalists, and it wouldn't bother me if we were the only ones in the world that were Defending our free speech principles as long as that is the right thing to do. | ||
| But it's interesting that other people having seen, despite the good intentions of sensorial laws elsewhere, how they are leading to results that no thinking person should accept. | ||
| And handing over to these online... So here we get to this question again. | ||
| I'll put it this way, Dave. | ||
| What's the lesser of two evils? | ||
| To allow these private agglomerations of power, internet companies, decide, pick and choose whose speech is allowed and whose not? | ||
| And enforcing their own concepts of hate speech or pornography or permissible or impermissible nudity, to pick just a few examples that they enforce. | ||
| Would I rather have them have that enormous power or would I rather have the government say, no, we're going to check your power to restrict other people's free speech rights? | ||
| And to me, that's a very difficult issue. | ||
| Okay, so that's exactly where we were before with the universities, and that's where I would say, ultimately, right now, our four, I don't know how many internet companies we have, let's say Comcast, Spectrum, they're all one at some level. | ||
| Yeah, you're thinking of the net neutrality issue, and I'm thinking of the social media that, you know, the Facebooks and the Twitters, having these armies of enforcers saying, that's hate speech, we're gonna take it down. | ||
| Right, so I guess what I would say is that if there were certain internet companies that were saying, alright, well we're not going to allow pornography on our pipes, or we're not going to allow this type of speech or that type of speech, I would still prefer that you as the consumer would have more choice than the government saying we have to enforce all these things this way. | ||
| But because of the internet now, I know this is a unique situation related to free speech that's a little... | ||
| I mean, in my ideal world, I'm completely with you. | ||
| The question is, and I'm not an economist, my husband is, and he tells me that it's very complicated, have some of them amassed so much power that we should use anti-trust type tools to prevent them from, that they are denying us choice through their market power. | ||
| Right, so there's a great conversation to be had there. | ||
| This is where my friends at Prager University, who I agree with on all sorts of stuff, they were suing Google YouTube over restrictions to their videos, which I wasn't for, because I don't want the antitrust stuff to be in. | ||
| To me, that then means you just create a zillion other problems down the road. | ||
| But that's a great place for a free speech person and an economist and probably a technology guy to all sit down and work this stuff out without choking each other. | ||
| There was a, to me, really frightening story in the New York Times a few weeks ago featuring Facebook's deletion center. | ||
| That's what it was actually called, this huge building in Berlin where they had literally hundreds of people that are looking at individual posts and deciding should this be deleted and should it not be deleted. | ||
| And it was, you know, in the examples you realize how inevitably subjective it is. | ||
| Ultimately they took down, when they took down this comment that was posted by the politician, she was calling certain Muslim men And the question was, was she referring to the particular Muslim immigrants who were in fact convicted rapists? | ||
| There was a horrible incident on New Year's Eve a couple of years ago, in which case one would hope that would be protected speech because she's describing something factual. | ||
| Or was she perhaps insinuating that all Muslim men are rapists, which would be a generalization that I would find objectionable. | ||
| But it would be illegal under German law. | ||
| And the official, you know, these people, it's their whole job to make these decisions. | ||
| They couldn't agree between themselves. | ||
| And so, of course, if you're not sure which way it goes and you're facing a 50 million euro fine if the German government says it is hate speech, well, guess what? | ||
| Which way? | ||
| Yeah. | ||
| What do you think right now is our biggest censorship threat? | ||
| What do you think is coming on the horizon? | ||
| I'm going to be very general because it's been the same answer I've had throughout my decades of activism, which is lack of public understanding and awareness of what the First Amendment is, what it does protect, what it does not protect, what the rationales are. | ||
| I truly believe that the more people understand both what the principles are So I'm curious, during the whole NFL kneeling thing, I made a couple videos about it and obviously we talked about it on the show, but I basically was saying, look, this is free speech working. | ||
| The president said what he said. | ||
| Now, I would certainly prefer that the president not call people sons of bitches, right? | ||
| But he's entitled to free speech. | ||
| He didn't try to enact the law to stop him. | ||
| So he spoke. | ||
| The players could then kneel or not kneel, so they were able to do what they wanted. | ||
| The owners could then, you know, fine the players or not, so they got to do what they wanted. | ||
| The fans could say, I'm gonna buy jerseys and attend games or I'm not gonna. | ||
| So everyone's speech actually, everyone's speech and action was protected. | ||
| You might have some consequences for it, but to me it was a great example of the whole thing working. | ||
| Messy, but working. | ||
| Do you think that's a fair estimation? | ||
| I absolutely agree with that, and I had a quite similar analysis myself to the disappointment of people who did not realize that the NFL as a private entity has its own rights, including its own free speech rights, and I thought it was interesting that some of the owners said they would allow their players to express their protest. | ||
| In that case, though, is Trump getting it as close to where it could be an issue for the ACLU or other similar organizations as he can without directly calling for a law? | ||
| Because there is some other, I don't even know what that phrase is, but there's something else happening there when he's calling people. | ||
| If he were threatening, if he were threatening to pass a law. | ||
| Yeah. | ||
| And he did that in one other context. | ||
| I think he threatened that an FCC license should be taken away from some broadcaster. | ||
| That comes much closer to the line. | ||
| And the principle, Dave, you're exactly right. | ||
| He does not give up his free speech rights by virtue of being a government official. | ||
| But if he is speaking in official capacity and threatening some adverse consequences, | ||
| that could be seen as an abridgment of free speech, which would violate the First Amendment. | ||
| That's the phrase I was looking for. | ||
| Exactly. | ||
| So in the past, I think the closest Supreme Court case we have is where a government commission | ||
| wrote a letter that threatened that it would take some action. | ||
| And even though it wasn't starting a prosecution or it wasn't an order to cease the expression, the court said, you know, it was a very functional, practical concept. | ||
| Would a reasonable person feel deterred in pursuing their free speech after they hear this communication? | ||
| And again, reasonable people could disagree about what the answer to that is, but that's the question we should put in evaluating whether Trump has crossed the line or not. | ||
| So one of the things that I saw when the NFL released its new standard now for next season where the players are allowed to stay in the locker room or not, and again, everyone's choice will or will not have consequence, I saw a lot of people that were saying, well clearly the government involved, you know, interfered behind the scenes. | ||
| Now I know there's no, I know you don't, I suspect you don't have some sort of insider knowledge on something like that. | ||
| That's where there would be a problem, though, if there were really, you know, behind-the-scenes meetings where they were saying, you're going to institute this new policy. | ||
| Exactly. | ||
| But short of having that information, everything kind of worked. | ||
| Yeah. | ||
| There's another analogy I can think of, which is where the government has threatened certain businesses that if you don't adopt a voluntary Restriction on speech, then we're going to pass legislation. | ||
| So, for example, the movie rating system or sound recording rating systems that we think these labels are stigmatizing and therefore suppressing certain expression. | ||
| I think there's a very strong argument that the only reason this so-called voluntary system was put in place in both businesses is because they knew that if they didn't do it, the government was going to legislate it. | ||
| But even that, the Supreme Court never held that that was illegal censorship. | ||
| Alright, well we can't talk free speech for an hour and not mention the cake. | ||
|
unidentified
|
We've got to talk about the gay cake. | |
| Tell me your thoughts on the gay cake. | ||
| Okay. | ||
| First of all, I think it involves not only expression, which I would define quite broadly. | ||
| And again, let me talk about the standard here. | ||
| Reasonable people can disagree how the standard applies to the facts of the case. | ||
| Absolutely. | ||
| So the court has said, and I think this is correct, that something comes, some expression comes, or arguable expression, comes within the ambit of the First Amendment if it is intended to and can reasonably be perceived as conveying a message, at least a general message. | ||
| So that's the question you would ask about the cake. | ||
| I think there's at least a plausible argument that The cake satisfied that standard. | ||
| In addition to expression, there's the question of religious liberty, right? | ||
| Which I defend very strongly, even more strongly than the Supreme Court, which has a quite narrow definition now. | ||
| But I think people should not be coerced generally to do something that violates their deeply held religious or conscientious beliefs. | ||
| That's only one side of the equation, though, because neither freedom of speech nor religious freedom is absolute. | ||
| And in general, the Court has said, and I think this is right, that government can restrict those freedoms if it can show that there is a countervailing interest of such compelling importance that can only be advanced by restricting the expression or the belief. | ||
| And the countervailing interest is, of course, the dignity and equality of, in this case, gay people, but in past cases it's been African Americans or women, because people have cited, who are in business, have asserted religious justifications for not serving members of racial minorities or not treating women equally. | ||
| But to be clear, that's not what was happening here, because they could have walked in and bought any cake off the shelf. | ||
| A black person, an interracial couple could have walked in and bought any cake off the shelf. | ||
| This was about the specific act that was going to be painted or whatever they do on the cake. | ||
| Right. | ||
| You know, it's interesting. | ||
| There's another free speech principle that's involved here, which is that government may not compel somebody to proclaim a certain message that they don't believe in any more than it may stop somebody from conveying a message that they do believe in. | ||
| So I would say I think there are very strong concerns on both sides, so I'm very sympathetic | ||
| because let me finish out the other argument. | ||
| Of course, if you're an independent artist that is only taking assignments on commission, | ||
| whether it be to paint a portrait or a landscape or to decorate a cake in a very elaborate | ||
| way, that's one thing. | ||
| But if you are doing business with the general public and basically holding yourself out | ||
| as what the law would call a public accommodation, we're open to all comers, then you may not | ||
| discriminate on certain bases, such as race, religion, and I think even though you still | ||
| can as a matter of federal law under state law in that state and others, you cannot do | ||
| that on the basis of sexual orientation. | ||
| And so I think that very strong, countervailing equality principle, I think, should dominate in this analysis. | ||
| So you actually weren't thrilled with this decision? | ||
| Well, I was in the sense that there were so many ways that the court could have gone wrong on so many issues. | ||
| Well, they said that it was a very narrow... So I thought the best thing they could do was to be very narrow. | ||
| And I actually, if I were writing a brief in the case, that's what I would do, too, because all of these principles are so important. | ||
| I deeply care about freedom of expression, including the freedom not to be compelled to affirm a message that violates your Beliefs, whether they're religious or conscientious, doesn't matter. | ||
| But I also deeply believe in equality in the public sphere. | ||
| And the facts were murky. | ||
| So I think, you know, as I think what happened in past situations with race and gender, I think, you know, once things, once the immediate resistance died down to the 1964 Civil Rights Act, That it's sort of worked its way out in a way that is maximally respectful of all the competing rights. | ||
| So I think it's very good to avoid really broad brush holdings that might have unanticipated adverse consequences for other factual situations. | ||
| That's an interesting take because I saw some people saying, well, they're just sort of kicking this down the road now, but basically you're saying in a weird way, That's the way a functional society works at times. | ||
| I think, you know, the court sets some general goalposts, and then as time goes by, the controversy may die down. | ||
| People may figure out how they can live their own lives in ways that they're not going to be bothered by, by the government not being treated disrespectfully. | ||
| One of the things that I really liked about the opinion in that case, and it's so contrasting to what's happening in the European countries that I discuss in my book, is that The court talked very strongly about equality and neutrality in many different, sorry, | ||
| In many different contexts. | ||
| So not only that you should be treated with equal dignity regardless of who you are, but also regardless of what you believe. | ||
| So the fact that the court was respectful both of the equal dignity of the gay couple and of the Equal dignity of the religious beliefs and the free speech rights of the baker. | ||
| I really liked that. | ||
| One of the things that bothers me very much about what is often paraded as diversity on campus is that it only looks at one dimension. | ||
| It looks at demographic diversity in terms of who you are but not in terms of of what you believe. And in these European countries that | ||
| are enforcing hate speech laws, you see them going both ways depending on who's in power. | ||
| So certain religious beliefs are being punished and criminalized as hate speech if they | ||
| run against what is a dominant secular orthodoxy in those societies. Whereas in other | ||
| communities, certain criticism of religion is treated as hate speech and criminalized when it's | ||
| the religious belief that is held by those in dominant power. | ||
| I think the main takeaway here is that freedom is messy, but we're doing a pretty decent job of it here. | ||
| Well, thanks to those who keep agitating, right? | ||
| Eternal vigilance. | ||
| There you go. |
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