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Jan. 31, 2023 - Tulsi Gabbard Show
02:04:59
The First Amendment STILL Protects Your Free Speech | The Tulsi Gabbard Show
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Time Text
I had learned at the ACLU that the most dangerous thing you can do to endanger your own rights is give the government the power to decide who gets rights and who doesn't.
Because most of the time, you're going to end up being victimized by that.
Because you can't trust who has government power.
All you can trust is making sure that whoever has government power, they can't tell you what to say.
Yes.
and they can't punish you for saying what they don't like.
Freedom of speech.
Freedom of expression.
A free press.
A vibrant marketplace of ideas.
These are the things that our founders envisioned for this country as being the cornerstone of this democratic republic.
They understood how important it was that every single one of us as Americans, no matter where we come from, no matter our place, our stature in society, No matter our background or story, that every one of us has a right to speak freely,
has a right to open debate and dialogue, and even a right to protest peacefully, to criticize our own government, to criticize those in power without any fear of retribution or retaliation by those in government.
Unfortunately, those in power right now are actively trying to undermine this very cornerstone of this country, Every day, trying to undermine our freedom of speech.
And my guest today is Ira Glasser.
He's the former head of the ACLU, someone who has been on the front lines in this battle to protect free speech for all Americans.
I've really been looking forward to having this conversation just because of who you are and just how you have expressed a lot of bravery and courage at times where it was lacking.
And I saw your documentary, Mighty Ira, and...
One of the things that really was impactful to me, because people see you as a public figure and maybe they've read about you or heard about you, but the thing that's interesting to me that I always wondered was, why?
What was it that drove you to do the things that you did to have the courage to That you've had, not just now, but over decades.
And one of those moments that came through to me that was pretty impactful, but was unplanned in your documentary in Mighty Ira, was when you were standing there at what was once Ebbets Field.
Exactly.
These two little girls who just come up, they're like, what are you doing?
Yeah.
Yeah, I loved that.
It was my favorite moment, too.
And, you know, they just took me there to film me against the background of the Ebbets Field Apartments.
There wasn't supposed to be any interviews, and these two little girls just walked up, and it was just magical.
Yeah.
The destruction of Ebbets Field had been so painful for me that I had never been back there.
Wow.
And I didn't want to be back there.
Since you saw it being torn down.
They insisted on doing this background shot, you know, against the Ebbets Field apartments, which I regarded as an abomination to begin with.
And so we went there, and then...
And those two little girls walked up, and there were other people too.
That guy came up in the motorcycle.
I mean, it was spontaneous stuff that happened.
Those kind of moments are always the best.
Priceless.
That had to, even at a place where you didn't want to be there, that had to have brought some warmth.
Well, it was great, you know, because I kept telling them that the ballpark was there, and they kept saying, where?
And I said, here.
They couldn't contemplate the size of it, of the entire apartment building complex was this ballpark.
I mean, it was inconceivable to them, and they were just so cute.
And I was, you know, they didn't come with microphones, and they weren't planning to record anything, so I wasn't even sure.
Nothing was going to get across to be usable, but it's everybody's favorite thing in that film.
Yeah, I think so.
Yeah.
It came across, like, I couldn't really hear, you could hear a little bit of what those little girls were saying, but what came across was their eyes.
Yes.
You know, as they were listening to you, as they were looking at you, and I could feel kind of the amazement and the wonder in their eyes, just trying to imagine...
What this was because of what you were explaining, but you obviously conveying what it meant to you.
Well, and they were just about the age that I was when Jackie Robinson broke in that first year.
Wow.
And it was a very transformative moment for me.
And so there was this great sort of kind of transference that these two little girls had sort of stumbled into this in much the same way that I, as a kid growing up in Brooklyn, had stumbled into that whole drama.
I mean, that's how I first learned about Jim Crow.
I mean, I grew up in a kind of a liberal Jewish family, and my parents idolized FDR, and that was the atmosphere in which I grew up.
But nobody ever spoke about Jim Crow, and I didn't know anything at all about it.
I mean, I lived in a neighborhood where everybody was white and Jewish.
This was in Brooklyn, right?
Yeah, in Brooklyn.
And, you know, you could walk 20 blocks in any direction and never see anybody who wasn't like you.
So although Brooklyn and New York as a whole was multi-ethnic and multi-religious and multicultural and integrated, they were all very tight, insulated and isolated neighborhoods that were not at all diverse.
Except on the edges of the neighborhoods where sometimes, you know, there was an Irish neighborhood abutting an Italian neighborhood and then there were clashes.
But in the neighborhoods themselves, you were completely isolated and singular.
And, you know, you could go to any store and never see anybody who wasn't like you.
You could go to the movies and never see anybody who wasn't like you.
Not in school.
Yeah.
Even when I went with my father to the hiring hall of the union where he was employed, everybody was the same.
You went to the movies, you didn't see anybody black.
I mean, if you went with your parents to vote, you never saw anybody but people who were like you.
So the Robinson thing It was exploded into our consciousness, and the first time I found out about Jim Crow was listening to the ball games on the radio, because there wasn't even any television then.
So when they had away games, you were listening?
Particularly in St. Louis, which was the westernmost, at the time, the westernmost team in baseball.
There was no teams west of St. Louis or south of St. Louis, but St. Louis was a segregated town.
And the first time that I knew about Jim Crow was when, listening to the ballgames, I found out that Jackie Robinson and Roy Campanella and Don Newcomb, then the three black players on the Dodgers, when they went to St. Louis to play the Cardinals, they couldn't stay at the same hotels that the Dodgers stayed at, and they couldn't eat at the same restaurants that the rest of the team stayed at.
And I remember just being...
Blown away by that.
And as I used to say, sort of half-jokingly, that's how I first found out about Jim Crow, and that's how I first came to hate it.
Not because of racial justice was imbued in me at nine years old, but because those were my guys.
Yes.
You know, that was my team.
And what was important to us was not the color of your skin or your eyes or your hair.
What was important to us was the color of the uniform.
I mean, I hated pinstripes because the Yankees wore them.
Sports are powerful.
Yes.
Sports are powerful.
Especially when you're nine years old.
Yeah.
Baseball was your world.
I mean, that was the only thing I followed in the newspapers.
It was the only thing I listened to on the radio.
You know, I sat around in dinner time and listened to my family talk about politics from time to time.
And in a certain sense, I was imbued with it, but it had no particular meaning to me.
What had meaning and consequence Was the Dodgers.
And the values, you know, we became, I and everyone I knew on the street, we became very familiar and immersed in what was happening to Robinson on the field, in the racist taunts and the death threats.
And we knew all about that.
And it was the kind of thing that when you're nine years old and a white kid living in a really segregated situation back then, That was the only way you ever could find out about it.
Nobody talked about it.
It was not taught in school.
And so the rawness of it and the physical threats of it was something that...
I used to joke that if you were...
If you grew up in New York at that time and were a Dodger fan, you had to grow up to believe in civil rights and civil liberties.
And if you were a Yankee fan, you had to grow up to believe in oil depletion allowances.
Because, you know, we knew that the Yankees had no black players.
And even though they were in New York, they were one of the last teams in the major leagues to hire a black player.
And they didn't do so until...
Eight years after Robinson broke in.
Wow, I didn't know that.
And so we, all of that racial politics, which nobody taught us, and which we were not engaged in the, you know, if Rosa Parks had sat down on the bus in 1948, we probably wouldn't have known about it.
But we knew about Robinson.
And so all that stuff that happened later was to us We understood it already.
It was like a replay.
Oh, they didn't let Rosa Parks sit in that seat?
We knew what that was about.
And not because anybody taught it to us cognitively.
It was not intellectually.
It was in our guts.
We confronted it.
We found out about it.
And it felt like ours because he was our guy.
And so, you know, so all that stuff.
So going back to Everett Field and sort of seeing those two little girls who were black but didn't know much about it, and they knew that there was a ballpark there, and they went to a school that was named after Jackie Robinson, and they sort of knew about it, but they knew about it, you know, the way I knew about Abraham Lincoln.
It was something that happened once a long time ago.
Right.
Just some vague, vague idea.
Right, right.
So running into them like that and then asking about the ballpark and having the opportunity to explain it to them was a really magical moment that was completely unplanned and unanticipated.
So what was the thing, you know, you talk again in your movie about your introduction to the New York, I guess, chapter of the ACLU was really through then-Senator Bobby Kennedy.
And just talk a little bit about what drew you to him and how you got connected with him directly to have a face-to-face meeting with him in his office.
Well, yeah.
Well, I was...
The first time I voted was in the 1960 election.
I was 22 at the time, and it was the first election I was eligible to vote in.
And...
I was not a big fan of Jack Kennedy.
Why?
Well, because I was a big fan of Adlai Stevenson.
Okay.
And I remember very much wanting the Democrats to nominate him for a third time in 1960, because I thought, finally, not having to run against Eisenhower, he could have beaten Nixon.
And...
And Kennedy seemed to me to be, you know A rich kid whose father had gotten him into things and he didn't seem to have the passion for the issues that attracted me to Stevenson and that I liked.
And my second favorite candidate in those primaries that year was Humphrey, who was also competing in the primaries.
So I was not a big fan of John Kennedy.
I ended up voting for him because I hated Nixon, but it was not just me.
People don't remember it now, but there was such sort of antipathy among liberals toward Kennedy that Arthur Schlesinger Jr. wrote a Pamphlet at the time called, Kennedy or Nixon, Does it Make a Difference?
And the reason he wrote that, it's a pamphlet, nobody remembers now, but he wrote that because there was a sizable number of people who were very cool about Kennedy among the liberal community.
So I vote for him, and I was a math professor at the time.
And how I got from that to the ACLU is a story probably too long for this show.
But what I really cared about were all of the issues that I eventually ended up working with at the ACLU. But the ACLU was a small, tiny organization at the time.
I had never even heard of it.
And for a kid like me who cared about those issues...
Yeah, that's saying something.
When you talk to counselors at high school and stuff, they didn't know what to tell you.
There were no jobs.
There was no profession to follow.
If you said you were interested in flying airplanes, they knew where to send you to school if you said you wanted to be an engineer.
So the things I really cared about...
We're not something that fit Available academic or occupational careers.
And I was very good in math.
And if you were very good in math and you were a boy, this didn't apply to girls, you got tracked into that.
This was, you know, this was the 1950s and it was the post-Sputnik area.
And so everybody, any boy who was good in math or science got tracked into math or science.
In some way, because they thought it was necessary to compete with the Soviet Union.
And so I just kept going into math courses, and I ended up majoring in math.
And I kept getting A's in everything, so they kept on pushing me, and I ended up in graduate school in math.
And it wasn't really what I was interested in, but there really weren't alternatives.
And I ended up in graduate school, and I finally came home after a year, and I enrolled in a different graduate program, in a doctoral program, in a combined program in sociology and philosophy, which I thought...
More closely embraced the things that I cared about.
But it turned out that it was really the academic world that I was souring on.
I wasn't interested in just thinking about things.
I cared enough about these issues.
I wanted to do something.
That's what I wanted to earn my living at.
But I didn't know how to do it.
Ninety percent of the civic organizations that exist today that That are available for jobs for people like me, for young people like me, didn't exist back then.
I mean, you know, there was the ACLU, which nobody had ever heard of.
There was NAACP, which was also very small.
You know, there was no common cause.
There was none of the women's organizations, none of the gay organizations, none of the environmental organizations.
You know, they didn't exist.
I had never heard of Planned Parenthood.
I mean, there was a Planned Parenthood, but they were basically, you know, a clinic.
They weren't a social activist organization.
So there was no occupational path for kids like me.
So I ended up deciding that, well, I would go on teaching math.
I had gotten a job teaching math at Queen's College, which was where I went as an undergraduate.
And And I found that I liked teaching, which surprised me.
But I still...
I was just not interested enough in a career in mathematics.
So I decided...
I got offered a job at Sarah Lawrence, which was then almost a finishing school for young women.
But they...
They had a much more imaginative approach toward the teaching of mathematics, and I decided to take that job, but it was only available half-time, because they didn't have much math and science.
It was a liberal arts college, you know?
Right.
Because they didn't see a future for women in any of those career fields that they were pushing you into.
That's right.
So this was part of what the educated women should know a little about, but it was nothing.
So they only had one math teacher at the whole college, and I was the second, and they only had enough students who were interested to add a halftime position.
So I decided to take it.
And the reason I decided to take it is I thought it would give me more time and maybe I would explore.
By this time, this was like 1962, 63. And the country had begun to bubble and boil with the civil rights movement and the anti-war, anti-Vietnam War movement.
And things were cooking, and I kept thinking, well, maybe I can use the other half time to find some other work in these areas that have interested me, but that I couldn't find any occupation for.
And I decided to take the job and try to latch on to some kind of magazine.
Which is what I thought, you know, would work.
So I wrote away to 40 different magazines and newspapers.
And I had never even been in my college newspaper or my high school newspaper.
I had no ambitions to be a journalist particularly.
And so I had no experience.
And I was writing these letters with that kind of arrogance that you can only have when you're young.
I love it.
You know, later I would think, why would anybody read such a letter from somebody like me?
And whenever I got a letter like that from a young person at the ACLU, I would always see them for that reason, because, you know, I kind of knew they were just sort of reaching out blindly to see what was possible.
So I got no responses from anybody, except one guy who was the editor of a then A new magazine, a reprint monthly of civic affairs aimed at the citizen, as they put it, a magazine called Current, and he responded.
And so I went to see him, and sure enough, I got a job as an associate editor on this magazine, and so for a while, I had my both worlds.
I was learning how to edit magazine articles on all the issues that I cared about, and then I was teaching halftime math, and I was managing to earn a living because the halftime math position was Paid $2,900 a year.
Oh my gosh.
I mean, it was 1962, 63, but still, it was not enough to live on even back then.
And my wife, who was a kindergarten teacher, had just become pregnant, and so she left her job.
So there we were with $2,900 of income between the two of us, where we had had full-time between the two of us, $10,000, which was okay in those years.
And then I found...
Then I got the halftime job at the magazine.
So that's what I did for a few years.
And...
And that went on.
Eventually, I ended up with another one of the editors being in charge of the magazine when the founding editor left.
And it was one of those magazines that had no advertising, and it was supported by a rich guy who thought it was important.
But basically, the economics of small publications that have no advertising have no future.
So the thing had, at its peak, maybe 12,000 or 15,000 circulation.
And after a while, I realized, well, who are we reaching here?
You're reaching people who are already kind of convinced, right?
You don't have the ability to persuade.
That's right.
And so now it was 1964, 65, 66, and things were really...
in the larger society generating and I decided that I needed to try to latch on to some politician if I wanted to get anything done and Bobby Kennedy had become my favorite politician at the time even though I had always been lukewarm about John Because he,
and even though Bobby Kennedy had worked for Joe McCarthy and was involved in wiretapping and, you know, people like me didn't like him very much, but he had become, he had begun to evolve, particularly on issues of race,
so that he was kind of, as I recall thinking at the time, neither a liberal nor a conservative, but But he was tough, and he got things done, and he seemed to embrace the kinds, or had come to embrace the kinds of values that I really wanted in a politician.
So I decided he should run for president.
He might well run for president, and if he did, I wanted to be there.
So the question was, how does somebody like me get to somebody like him?
And I happened to have a good friend who was the younger brother of Pierre Salinger.
And so I got him to contact Pierre, whom I did not know and I had never met.
And he put me in touch with Frank Mankiewicz, who was then Bobby Kennedy's sort of press secretary and political manager.
And when I say he put me in touch, he got him to agree to take my phone call.
So, you know, I was in my mid-20s.
I was totally naive about these things.
I called him.
Of course, I didn't get him.
I got one of his assistants, and they kept putting me off and putting me off and putting me off and putting me off.
And I guess what he had told Pierre was he'll take the call, but he didn't take it seriously.
And if I had a brain in my head, I would have realized that after seven phone calls, when they said they'd get back to me and they didn't get back to me, that they weren't interested, and I would have just walked away.
Yeah.
But I was too inexperienced to know that.
So I just kept calling.
Good.
And I learned something that I did not know before then, which was that sometimes persistence can be very important.
Yes.
Even when there's no reason to believe that anything can come of it.
And eventually, probably to get rid of me, they set up an appointment for me to see Bobby Kennedy.
Yes.
Now, you know, in all my years at the ACLU, where I met with many United States senators that was very involved in that whole, you know, Washington scene, I don't think I ever met with a United States senator by myself.
Right, no staff in the room.
It was always with two of their staff members and two of my staff members and, you know.
So I get this appointment, and I see Kennedy by himself.
And I go into his office.
It was an astonishing thing.
This was late 1966, maybe December.
And I go into his office, and he's having a haircut with the senatorial barber while he's talking to me.
And I had written him this, again, this letter of the kind that I had written to all these magazine editors.
You have no reason to take me seriously, but let me tell you why.
You should, right.
And so we talked, and he said that he wasn't ready to run for president, and he wasn't.
And as we know, He didn't get ready until Eugene McCarthy surprised everybody in the New Hampshire primary two years later.
But for some reason, he said, what else are you thinking of doing?
And I said, well, I don't know.
I had this offer, which I had.
There was a guy who had worked on the editorial staff of that small magazine, Current, who was laid off in one of the periodic downturns that magazines like that have back in 66 or so.
And had latched on with the ACLU and had a job at the ACLU and became sort of one of the new younger people as the ACLU was beginning to expand at the national office.
And he was sort of like one of the young stars in the organization, which was still then very, very tiny.
When I say very tiny, the national ACLU only had two lawyers on its whole legal staff.
What?
I mean, that's how tiny.
That's hard to believe.
Right.
It is hard to believe now.
And so he got this job as the new executive director of the New York Civil Liberties Union, the ACLU's New York affiliate or branch, and Because the long-time original director was old and retired, and he was kind of the new young thing in the ACLU, and he got this job.
And because I knew him from the magazine, he calls me up out of the blue, the...
Fall of 1966 and says that they're beginning to expand, that their membership is growing, the income is growing, and he's going to create the position of associate director.
And was I interested?
And I said, I don't think so.
You know, I'm not a lawyer.
And he said, well, I'm not a lawyer either.
I said, yeah, but you're...
You should probably have a lawyer.
That's right.
And...
So he kept trying to convince me to be interested, and I kept telling him I didn't think I was, that it was too narrow.
My interests were more wide-ranging politically.
I mean, when I said it was too narrow, I knew nothing at all about the ACLU. To me, it was just, oh, it was a legal organization.
It was lawyers.
I don't know.
So I tell Bobby Kennedy that I had this offer, but I wasn't really interested in it.
And he says to me, and something that I am still to this day amazed, given his background and given the fact that he was anything but a traditional kind of liberal, you know, he says to me, you should take that job.
I said, why?
He says, well, because the ACLU is a very unique organization in American life.
I said, why?
He said, well, it's based on the most fundamental principles that the country is founded on.
You know, the constitutional principles, the principles that are imbued in the Bill of Rights.
But it operates in the mainstream of American political institutions, in the courts, in the legislatures.
And so in that sense, all of its methods are very conservative, really, but its principles are fundamental to what the country is about.
So you're wrong about its narrowness.
It'll get you into all the issues you say you're interested in and that you've been writing about in this magazine.
And...
He was totally right.
To this day, I'm amazed that a person with my kind of liberal upbringing didn't know that about the ACLU. But somebody...
Like Bobby Kennedy, who worked for Joe McCarthy, whose father was the opposite of all of those, that somehow he had come to understand that.
And it was an astonishing thing to me and remains astonishing.
I mean, I think his transformation during the time that he was in public office was an amazing thing.
And to this day, I regard his assassination as one of the Tragic turning points in the political history of this country, at least in my lifetime.
Yeah.
So I go back and I call up my friend and I said, well, I'm thinking about it.
Maybe I should talk to you about this job.
And I was still only half-hearted about it.
I kind of wanted to, if Bobby Kennedy thought I should do it and I wanted to work for Bobby Kennedy, I was thinking, well, I'll do it, you know.
And he says to me as we leave, as I leave his office, stay in touch.
And I say, okay.
Great, that's what I wanted, you know?
So I go back and I end up taking the job and I begin work as the Associate Director of the New York Civil Liberties Union on May 1st of 1967. And then...
The following February or March, after Gene McCarthy surprises everybody in the primary in New Hampshire in 1968, Bobby Kennedy announces, and I get back in touch with Frank Mankiewicz,
and I'm trying to figure, okay, you know, and I'm ready to leave the NYCLU, which I've only been at less than a year, because now maybe, you know, he's going to expand his staff, and maybe I can Get in, and then, of course, he's killed.
Yeah.
I just felt cut adrift from the path that I thought I was on to make a difference politically in the things that I cared about.
So I stayed at the ACLU, not intending to at all.
Spend the following decades?
Yeah.
That wasn't in your plan.
I woke up 20 years later in a motel room in San Diego visiting the San Diego chapter and thinking, oh my God, I've been here for 20 years.
How did this happen?
Yeah.
But he was right.
I mean, the ACLU, particularly as it expanded its resources and expanded the issues that it dealt with, got me quite by accident.
Into all of those things I dreamt of doing when I was a teenager and that nobody could advise me about, well, what do I do if I want to do this?
And I think until I told that story in the film...
Nobody knew it except me and a few close friends and my wife.
You know, it was not a story.
I told it to his daughter once, Rory Kennedy, who she was the only one outside of my small circle that I ever told that story to.
She was the one that Ethel Kennedy was pregnant with when he was killed.
So she never knew her father.
And she became a documentary filmmaker.
And I had gotten very involved in the drug policy reform movement while I was at the ACLU because it was such a source of interference with fundamental liberties in terms of criminalizing.
It was like prohibition.
It was prohibition.
And it was so destructively enforced that it became the major instrument of racial oppression in America.
So I got very involved with an organization called the Drug Policy Foundation that I used to speak at from time to time while I was at the ACLU and I was invited to speak at their convention once and Rory Kennedy was there with a film she had made about pregnant women,
particularly pregnant black women in the South and how they were arrested when they were found to have drugs in their body and criminalized Even though if they had alcohol or nicotine in their body, they were not.
So I met her, and I knew who she was.
And we ended up having breakfast, and I told her this story about my father.
And it was just one of these...
I think we were sitting there, and tears were both...
It was just a very emotional moment.
But other than that, until that movie, until the Mighty Ira movie...
I never told that story to anybody.
It was just something that was locked in the privacy of what might have been stories that everybody accumulates along the way.
So that was the Bobby Kennedy story.
I have been a longtime admirer of Bobby Kennedy for a whole host of reasons, but one of the things that you touched on was how his views evolved and his transformation, as you put it.
And I think so much of that came from his desire to actually go out and visit with and spend time with and listen.
Exactly right.
Listen to people.
Visiting the coal miners in West Virginia, people working the fields in California, and just how rare that is these days.
There's so much talk and people talking and screaming at each other, but very rarely do we hear a political leader say, you know what?
I need to learn more, and let me go directly to the people who are being impacted or affected, whether it's a policy or something happening in the country, like, let me just go and listen.
And that was such a powerful example.
Same thing happened with him on race issues, you know, when he went down south and met with these, you know, sharecropper families and their little kids, and it reached him in a way that Reading about it in books could never have reached it.
Of course.
There's nothing like looking in somebody's eyes.
The Jackie Robinson thing reached me, not through my head, but through the experience of seeing that in personal terms through somebody else's eyes.
So true.
Those examples that you're bringing up through history, like those two little girls there in Brooklyn, I don't know, I just feel like history isn't really being taught in a way that young people or people in general these days find relatable.
And I think it's dangerously led us to a place where now, where I'm just astounded every time I'm in a physical room or seeing online people who are just like, well, no, of course hate speech should not be allowed.
Of course this kind of speech should not be allowed.
Or people actually debating whether or not...
Not even a debate, people just assuming or making the statement that, you know, the First Amendment, questioning, questioning whether it should exist and whether or not it should still apply in the world that we live in today.
And I think one of those examples, obviously, you've talked a lot about it, but I think a lot of people under a certain age don't know what happened in Skokie, Illinois.
No.
And a lot of these, you know, this is when you look at what's happening on college campuses and in other places where free speech just is not something that's universally understood as fundamentally important to this country.
And I know you weren't the head of the ACLU nationally at that time, but you were in a leadership position during and then obviously what happened after.
But I'd love to just hear from you, from your vantage point, What happened and why it mattered just as much then as it does today?
Well, I was the head of the New York Civil Liberties Union by that time.
Okay.
And...
This was a case that was happening in Illinois, and I didn't know much about it.
It actually wasn't an unusual case for the ACLU. We took cases like that half a dozen times throughout the country every year.
There was always some racist lunatic who wanted to speak.
And so I got to understand by that time that my right to speak depended on my protecting their right to speak.
And the reason why it did is because the alternative was to give the government the power to stop them.
And the government that had the power to stop them was the government that had the power to stop me.
And it might be tempting, it certainly was tempting, To say, oh, I would love to shut those crazies off.
I mean, who needs to hear that speech?
For people who aren't aware of the history, the them we're talking about in this example, these are Nazis in America, the leader of the Nazi organization.
These are people walking around with swastikas, walking around in a town that was home to many Holocaust survivors.
Exactly.
I mean, it was as bad as it could be.
Well, we had cases, the same thing of people, you know, of the Klan demonstrating in Mississippi and Georgia, you know, where there were few blacks who didn't have relatives who were terrorized by the Klan in the days when the Klan had that kind of power.
So, you know, the trauma of subjecting people to that kind of speech It's hard to imagine.
But I had learned by then, because of my experience at the ACLU, that if you wanted to stop their speech, you had to give somebody in government the power to ban them.
And I looked around and said, well, who is in power here?
Well, Do I want to give power to Richard Nixon to decide which speech he wanted to ban?
No, because I knew that that speech would include mine.
Do I want to give that kind of power to Joe McCarthy?
No.
Who do I want to give it?
I don't even want to give it to Franklin Delano Roosevelt because he put 120,000 American citizens of Japanese descent into camps during World War II, none of whom had done anything remotely disloyal.
Exactly.
So I had learned by then at the ACLU, not in school, not through my parents, Not from reading books.
I had learned at the ACLU that the most dangerous thing you can do to endanger your own rights is give the government the power to decide who gets rights and who doesn't.
Because most of the time, you're going to end up being victimized by that.
Because you can't trust who has government power.
All you can trust is making sure that whoever has government power, they can't tell you what to say.
And they can't punish you for saying what they don't like.
Imagine if somebody like Donald Trump or Rudy Giuliani had that power.
I don't have to imagine it.
I lived through it.
I lived in the city where Rudy Giuliani was trying to shut down museums for showing paintings he didn't like.
So, you know, I used to...
In the 90s, when the hate speech codes first began appearing on college campuses, they were mostly being pushed by black students who didn't want David Duke coming to speak.
And if I were they, I wouldn't have wanted him to come either.
But they wanted to give the board of directors and the board of trustees and the deans and the president of their universities the power to decide which speech to prohibit.
And they had in mind that they were going to prohibit the speech that they wanted to prohibit.
But they didn't have the power.
They were giving the power to someone who was not their friend.
And so, you know, when I would go to speak to them, I had a certain amount of credibility because I came from the ACLU and I was, you know, I was well known for my advocacy for racial justice.
And so, you know, even though I was white, I could talk to those black kids with some credibility.
And I did not give them a lecture on the First Amendment.
I don't even think I mentioned the First Amendment.
What I told them was, if the hate speech codes that they were trying to get passed had been in force in the 1960s on college campuses, their most frequent victim would have been Malcolm X, not David Duke.
Because Malcolm X and Eldridge Cleaver, they were the people that the university trustees and the deans were afraid of.
And that they were not empowering themselves, they were empowering other people who they couldn't trust with their own speech.
So why are you giving them that power?
Hmm.
There were some Zionist kids in the early 70s in Britain who found out the same lesson.
They were part of a large student group that passed a university-wide code that banned racist speech on college campuses in Britain.
And all the students were in favor of it, including this group of Zionist kids.
And then a few years later, not long, three or four years later, those Zionist kids wanted to invite a Zionist speaker on campus to talk to them about the situation in the Middle East.
And the Zionist speaker was banned.
And the kids couldn't believe it.
Because by that time, the people in charge, even among the students, had decided that Zionism was a form of racism.
So the Zionist kids said, what are you talking about?
But they didn't get to make that decision.
They had already given the power of the speech to somebody else, and it came back like a boomerang.
And bit them in the ass, and that was the end of the Zionists.
So, you know, I learned out of my many experiences at the ACLU, not in a law school, as I say, not from books, not from debating theories, but from hard experience, that the only way to protect your own rights is to deny to the government the power to violate them.
Because If you give the government the power to violate rights, then they get to decide whose rights to violate and whose not to.
And you have no protection.
And the levers of power in the government change hands.
So today you might like the person who's got the power.
Tomorrow they may be coming after you.
Yeah, and most of the time the people who need rights the most, the vulnerable, the powerless, The people who are fighting for their own rights to end their own disadvantages, they're not the ones who have political power.
Exactly.
And so they're the most vulnerable.
They're the last ones who want to be giving the government the power to decide.
And that's really what the Bill of Rights was.
You know, if you go back and you look at it historically, you know, the Bill of Rights were amendments to the Constitution.
They weren't in the original Constitution.
Right.
Because they had that same argument.
And they, you know, the people who wrote the American Constitution were great people, Madison and Jefferson and Franklin, all those people.
But they thought, you know, that they imagined how they would exercise power.
So they didn't understand why you had to limit it.
Right.
But people who were less trustful than that argued with them.
And in the end of the day, the Constitution could not have been ratified unless they agreed to add the Bill of Rights as the first 10 amendments.
And I came to understand through that history and through my work at the ACLU, what I never learned in all the years I went to school was that liberty and democracy were two different things.
They weren't synonyms.
And one did not flow from the other.
Democracy was the principle that the majority get to rule by vote in some way.
Liberty is the idea that the majority can't rule everything.
That in order to protect the fundamental rights of the minority, there had to be limits on majoritarian rule.
That's why the First Amendment says, Congress shall make no law abridging freedom of speech or assembly or religion.
It prohibits the majority from violating the rights of the people that they outvote.
Now, the majority gets to rule on most things, even if the minority doesn't like it.
But they don't get to rule on minority rights.
That's what rights are.
Rights are limits on democracy.
And when they are under attack, you know, and again, I think there are so many similarities to...
The challenges to those rights today that are not new challenges, and they are most often threatened in these difficult situations and environments.
I was, you know, again, I really encourage people to go back and watch your documentary, Mighty Ira, because I think there's so many really teachable lessons in there that are so, so impactful and relevant to the questions and challenges and the conversations that I think we should be having in this country today,
but unfortunately are not happening very often because in the media, you know, you just see people say, well, I forget what event it was, but there was some I think it was a tragic shooting in New York where every politician's response to it was, well, the kind of hate speech that that shooter was using should be banned.
And there was no challenge from a constitutional perspective by anybody that I saw in the media, at least certainly not the mainstream media, Just, you know, obviously grieving as a nation for this tragic shooting, but not questioning the response from those political leaders in government who immediately, immediately and very easily just said, well, that speech should be banned.
And in your documentary, you have really powerful footage of how people on both sides of the Skokie, Illinois incident, both the head of the Nazis saying, well, if it comes to violence, yeah, sometimes violence is the way to go.
And similarly, the rabbi is saying, hey, if they come here, what do you say?
We're going to break their heads and we will beat them down.
And so, you know, we live in an era now where speech is equated to violence and therefore people are using that theory as an excuse to say, well, certain speech should not be protected under the First Amendment. certain speech should not be protected under the First Amendment.
How do you explain this to people who are, you know, even with the best of intentions, making this argument that's fundamentally threatening that right?
It's very difficult because people have a hard time understanding that when they say that speech should be banned, The only real question is, who are you going to give the power to decide which speech is banned and which speech isn't?
It's not going to be you.
Who is it going to be?
And who do you trust with that power?
And how do you know that that power won't be used against you or people that you like?
Why do you think it's only going to be used against the speech of the people that you don't like?
You're not going to be making that decision.
Right.
I've had that discussion, as you can imagine, four million times in all kinds of different contexts.
Good.
Thank you for doing that.
But the conversation that was most interesting to me was the one I had with Ben Stern, the old Holocaust survivor from Skokie who was in the film.
Yes.
Well, this is a guy who was arrested in Poland when he was 17. He never saw anyone in his family again.
He was the only one who survived.
He was in seven concentration camps.
He was on three different death marches.
Right as the war was ending, he had Caiaphas.
He was down to 70-something pounds.
He was half dead.
He was being forced to walk in the snow with bare feet.
I mean, it's an incredible story.
And he gets here, and he meets a woman in...
In the refugee camp in England after the war.
They get married.
They get to the United States.
He learns a trade.
He makes a life.
He ends up moving to Skokie.
And in his 50s or 60s, these crazies with swastikas on their arms from Chicago come and want to demonstrate.
I mean, This guy who hated guns, he was in favor of banning all guns, he buys a gun.
And he resolves, I'm not doing this again.
I've seen this movie before.
Now, of course, when they came to Poland, you didn't have a First Amendment.
You didn't have, you know, you didn't have any way of...
I mean, it was a different context.
You can't argue for free speech in a situation...
Where the Nazis are marching into Poland.
I mean, your only solution is to run away or get a gun.
And so Ben, you know, he comes out of this country.
So I go there.
I go to Berkeley and I'm on a panel with him and I end up in his daughter's kitchen eating tuna fish sandwiches.
And we end up having this discussion for two hours.
And it was, you know, in some ways it was an agonizing discussion, but it was a very touching discussion.
He knew that I was Jewish.
He knew that I had grandparents who came from Belarus and Poland.
I knew who he was and what he had gone through.
I could argue with you or somebody in the Senate or some journalist about free speech, but I wasn't about to tell him he shouldn't feel the way he felt, because I knew that if I were in his situation, I would feel the same way.
I knew that if I were in his situation, I'd be buying a gun too.
You know, I have always, growing up as a kid in the streets in Brooklyn, when you confronted a bully, you either had to be able to run faster than them or you had to try your best to beat the hell you either had to be able to run faster than them or you There was no—you didn't talk about it.
There was no discussion.
So people like Nelson Mandela, who endured what he endured, and people like Ben Stern, who endured what they endured— You know, I don't understand where all their restraint comes from, and I'm not about to lecture them on principles of free speech.
So we had this incredible two-and-a-half-hour discussion where we were trying desperately, both of us, To find an inch of common ground.
And it was very hard.
But, you know, what I told him in the end was, so what did the people in charge of the government in Skokie tell you?
He said, they told me to go inside and shut the blinds and wait until the Nazis passed.
I said, what did you think about that?
He said, that's what they told us in Poland.
I said, well, did you think that by buying the gun you were going to solve this?
I mean, what do you think would have happened?
I don't care.
He says, they're not going to come here.
I finally said, so when we finally represented them and we went into court and we won their right to demonstrate in Skokie, what happened?
They never came.
I said, right, they never came.
Well, how come they never came?
He says, because once they won the right to come, he said, I organized 60,000 people around the country to come and demonstrate against them.
And I said, and how many of them were there?
He says, there were 12, 15. He said, so they ran away because they didn't want to be, you had 60,000 people demonstrating and they had 12 people.
And you didn't beat them with a gun, and you didn't beat them by banning their speech.
You beat them by more speech.
Yeah.
And there was some level at which he sort of got that, you know.
I said, you know what happened after they ran away from Skokie?
He said, what?
Well, you saw in parts of the film, they went back to Chicago, which is where they came from, and they decided to demonstrate there.
And by that time, the Skokie case had become so famous that 100,000 people came out to demonstrate against them.
And it was a shambles.
And they were crushed.
And what crushed them?
Not a legal ban, not a gun.
What crushed them was more speech.
And that's the way it has to work in democracy.
You know, that's the only way it can work.
Because the alternative is to give people power who will use it against you sooner or later.
So why would you want to give Trump power?
You think he likes you?
Why would you want to give Nixon power?
You think he loved the Jews?
You know, so it was the same kind of arguments with the black students on college campuses in the 90s.
But, you know, it's a very tenuous thing because it's Because look at what happened in Charlottesville.
In Charlottesville, there weren't just 12 people with swastikas.
There was tens of thousands of white nationalists who came to demonstrate.
And that was what was so scary.
You can't base these principles on there's only going to be a handful of them and we'll outnumber them.
What happens if they outnumber you?
And that's a crisis for any democracy.
You know, you either have faith that protecting legal rights and protecting the vote will turn out okay, and that you can handle disagreements on policies so long as you stay within certain boundaries of behavior toward each other.
But it can go bad.
And I always used to say when discussing these issues about free speech, if we got into a situation that was like Poland or Czechoslovakia in 1938 with the Nazis, I would not be arguing for free speech in the First Amendment.
I'd be running away.
We're getting a gun and joining the resistance.
You know, that civil liberties and free speech depends on a certain set of shared assumptions about how democracy works and how liberty that limits democracy works and that the courts and the institutions and ultimately the people are going to respect those boundaries or else you've got chaos and you've got war.
And so these principles can only work within a certain context.
And by and large, we've had that context here.
And every time periodically in the history of this country where that context gets threatened, it threatens the whole structure.
It does.
And it's not just recent.
I mean, it happened seven years after the First Amendment was passed.
They passed the Alien and Sedition Acts.
Mm-hmm.
And they put people, they put editors and newspapers in jail for criticizing President John Adams.
Yeah.
John Adams was one of the apostles of the Bill of Rights.
He was one of, you know, one of the, and as I used to say about Thomas Jefferson, he was a great believer in civil liberties, but he was more of a believer in civil liberties when he was not president than when he was.
That's very telling.
And that was true of the people who started the country.
And it was true about Lincoln.
And it was true about Roosevelt who put Japanese Americans in jail for being Japanese.
That's all.
There was nothing else that they were even accused of.
Yeah.
It was certainly true of Joe McCarthy and Nixon.
It was true of guys like Rudy Giuliani and people like Huey Long in Louisiana and George Wallace.
You know, and the only solution to it is that you have to outvote them, and if they happen to get in power, Because they outvoted you, you have to be able to enforce the limits on what democracy decided to protect people's rights.
And you have to depend on the courts for that.
And for most of our history, the courts have not done it.
You know, my career at the ACLU coincided with the only period of time in the history of the Supreme Court that the Supreme Court expanded rights.
I mean, at 20 years or so, roughly between 1954 when Brown against Board of Education was decided and 1973 when Roe v.
Wade was decided, 90% of the rights people wake up with and take for granted every morning in this country were established through the courts in those 20 years.
For most of our history, the Supreme Court has behaved badly.
You know, in 1857, the Supreme Court decides Dred Scott and says that blacks have no rights that whites are bound to respect.
That's language right from the decision.
In 1873, in a case called Bradwell v.
Illinois, a woman who had graduated law school was denied the right to practice law.
On grounds, and the Supreme Court upheld that, saying that a woman's role was to nurture her husband and raise her children.
That was what God intended.
I mean, that's not just the result of the decision that I'm characterizing.
That's the language of the decision.
That's what the Chief Justice in the Supreme Court writes.
And, you know, you could cite four million cases like that in every single area of civil liberties to the proposition that if the Supreme Court was the institution that was designed to enforce The limits on democracy to enforce the rights in the Bill of Rights, it didn't do it for most of its history.
And so, you know, it's been a struggle, not only been a democratic struggle in the history of this country, but it's been a struggle to limit democracy in ways that protect the rights of people.
And if you're not willing to protect the rights of the people you disagree with, then you're endangering your own rights.
It's not a matter of moral principle, it's a matter of practicality.
Exactly.
Given that practicality and given the consequences, Where do you see, you know, so many people, especially in democratic politics in the past, who have been traditionally, you know, civil rights leaders, champions for freedom of speech?
I just, I don't see it today.
And I think even in the ACLU, I don't see the same ACLU today standing up for everyone's free speech rights.
As they did in the past, what happened?
What was the turning point that has brought us to this position today?
Well, I think...
I don't think there's been a sharp turning point.
I think throughout our history, it's been a Sisyphean upward scramble where you keep getting knocked down to the bottom again.
I mean, most politicians...
Have never understood this.
Congress and state legislatures have more often been an enemy of rights than they have been a friend of rights.
Nobody likes to limit their own power.
And I don't care how liberal you are, I don't care how much of a libertarian you say you are, right or left, nobody likes to limit their own power.
So no matter who is in power, the people who are not in power are threatened.
Their rights are threatened.
And But you know, the metaphor I like to use is the poison gas metaphor.
You know, when you've got the poison gas and you've got an enemy in sight, it looks awful tempting to start shooting that poison gas out at that enemy.
But then the wind shifts and it gets blown back on you.
So you can't use that weapon.
That's such a great analogy.
And most people in power and most politicians don't understand that.
You know, I used to get involved in debates about how come whenever polls are taken so few people say they believe in free speech.
And I always used to say, that's not true.
Everybody I ever met It was in favor of free speech, because the speech they had in mind was their own.
And everybody's in favor of rights, because they imagine themselves as the beneficiary of those rights.
But when it's somebody they don't like, they're not very sympathetic, and they don't see the connection.
It's very hard to see that if you endanger the rights of that person over there, you give the power to somebody to threaten your rights.
It's very hard to see that.
When I was the head of the ACLU in my years, we filed a brief in behalf of Oliver North during his criminal prosecution, saying that his Fifth Amendment rights had been violated and his conviction should be overturned.
What had happened was, if you remember, Oliver North, who was a colonel in the Reagan administration and had been involved in various hanky-panky in South America.
That's a good way to put it.
Overturning governments.
Had been forced to testify in Congress on his activities.
And...
He resisted testifying in Congress by citing his Fifth Amendment rights not to testify against himself.
Congress said, we're not criminally prosecuting you.
We are asking you for information that is part of our job to find out what happened here and what we can do about it legislatively.
At the end of the day, he was required to testify.
He testified and then prosecutors later used the testimony that he gave to Congress to indict him and prosecute him and convict him.
So in effect, the Fifth Amendment, which said that you can't be forced to testify against yourself, was used against him.
Even though they couldn't force him to testify against himself in the actual trial, they could force him to testify in Congress and then use that to prosecute.
So we filed a brief saying that was a violation of his Fifth Amendment rights.
And, you know, you can prosecute him and you can convict him, but you can't use the testimony you made him give in Congress against him in the court case.
Right.
And the Supreme Court agrees with us and his conviction gets overturned.
So some years later, he's on a radio program.
He has like 18 million audience or something and they're all right-wing followers of his politics.
And I imagine every single one of them hated the ACLU, but he asked me on his show to be interviewed about some issue.
I don't even remember what it is now.
And so I get on and he introduces me to And says to his audience, so have here Ira Glasser of the American Civil Liberties Union.
And I imagine a lot of you are wondering, you know, why am I having somebody from the American Civil Liberties Union on my show?
But, you know, the ACLU filed a brief in my case that defended my Fifth Amendment rights.
And I never...
I've publicly thanked them for that.
And then he thanks me and introduces me.
So I say to him, well, Ali, I had never met him before, but I'm being familiar.
And I said, well, Ali, I said, actually, you never privately thanked us either.
And the thing is about the Fifth Amendment is that you spent quite a few years before attacking us for defending the Fifth Amendment rights for people who you thought were communists, and attacking us for defending the Fifth Amendment rights of people who you thought were in the mafia.
And people like you, and probably a lot of people listening to this show, thought that the ACLU was soft on crime because we defended the Fifth Amendment rights of people who were accused of crimes.
But here's the thing.
If we had not defended the Fifth Amendment for those people in all those years, it wouldn't have been there for you when you needed it.
And he says on the air to his audience, that's absolutely right.
And I used to live for the moments when I could make those.
I wasn't interested in going on NPR. Everybody listening to NPR already agreed with me.
I loved going on shows like that.
And the same thing with Bill Buckley.
The opportunity existed on shows like that with audiences like that.
To make the point that their rights depended on our defense of those same rights for people that they didn't like.
And if they wanted the rights to be available to them when they needed it, they had to support its defense for people who they didn't like.
You very rarely get a chance to make that point in a compelling way.
And that was what made, you know, public education on these issues so difficult.
But you had to be honestly willing to do it.
I mean, you know, it was...
I used to say when people talked to me about free speech, I said, you know, Most of the speech that we defend, I wish didn't exist.
I said, most of the political speeches I listen to, I wish didn't exist.
I said, I hate most of the speech that I hear.
I said, you know, if I could press a button and it would be disappeared from the universe, I would probably press that button.
But do you want to trust me to press the button?
Right.
And how do you know that when that button is pressed, it isn't going to include your rights?
The answer is, it will include your rights.
Yeah.
Because there's a lot of people, you know, if you're in a democracy, you have to understand that a lot of the times, people who are going to be elected to power are people who disagree with you and with whom you disagree.
Yeah.
And you can't trust those people with your rights.
They've got to have strict limits on what they can do, and those limits are in the Bill of Rights, and you have to be prepared to support them for everybody, or they won't be available for you.
That is a practical political fact.
It isn't something that is, you know, some airy-fairy law school principal.
It's very difficult for people to understand that because it's never happened to them.
Yeah, that's really it, isn't it?
If they can't imagine themselves being limited in some way, then it's easy to resort to that quick option, the button option you're talking about.
I once tongue-in-cheek proposed that I mean, there's nothing like being indicted to sensitize you to the need for rights.
And how quickly those rights are just gone.
Gone.
Right?
Even without being charged, formally charged, prosecuted.
I mean, just that assumption of guilt immediately takes away your rights.
Yep.
I'm seeing a lot of...
I think one of the things...
How do we know what to look for?
The warning signs to know that our rights are being taken away.
When it's not often...
It's very rarely, if ever, like, hey, I am now going to silence you and your voice because I don't like what you say.
It's very rarely that blatant, right?
And I feel like a lot of what we're seeing, especially under this administration lately...
But outside of it as well, but the Disinformation Governance Board, commonly known as today's Ministry of Truth, where the people with the power get to decide what is true or what is not, What is disinformation or what is information?
And, you know, they therefore then cite speech or things that they don't like as disinformation.
And I've experienced this.
Others have experienced this, especially online working with big tech.
And the fallback that they give is like, well, you know, we don't want people seeing – we don't want people being poisoned by things that aren't true.
And dangerously, I mean, there was somebody on CNN who was actually making this argument that speech shouldn't be allowed unless it is true because of how it could influence or impact people in their view in a negative way.
What should people know or think about when they're hearing these warnings about disinformation?
Because we've been hearing it over the last few days as well, the last weeks leading up to the election.
Disinformation, watch out, be careful.
Right at the birth of our country in the late 18th century, false speech was not presumed to be protected, even by the people who wrote the First Amendment.
They all thought the same thing, as you just said.
You know, they wanted to protect speech and debate, but what was the value in protecting lies?
Now, nobody asked the question, who decides what's a lie?
You know, if I say two plus two is four, and you say it's five, well, you know, there are rules of arithmetic, but in the realm of politics and assertions, it's not so easy to determine what's true and what's false.
I mean, sometimes it is, but...
And so when they passed the First Amendment...
In 1791, along with the rest of the Bill of Rights, nobody among the founders, all those apostles of civil liberties that we celebrate all the time, none of them thought that the First Amendment embraced false speech.
And so what happened Eight years later in 1798, John Adams is the president.
He is involved in a fierce political controversy about the French and about Whether they should go to war and this and that.
And the newspapers, some of them, were harshly critical.
I mean, if you think the internet is wild today, you should go back and read some of the newspapers in the late 18th century.
They weren't, you know, the New York Times.
And all this very staid, written...
They were...
They were really like the wild west of tweets are today.
That's the way the newspapers were.
And so he passes and he proposes and Congress passes and he signs the Sedition Act.
And the Sedition Act proposes to punish false and defamatory speech.
This wasn't Donald Trump.
This was John Adams.
And they start arresting people.
And who do they arrest?
They arrested a member of Congress.
They arrested Benjamin Franklin's grandson, who was the editor of a newspaper that regularly criticized Adams.
And one of the things that came out of that, and Jefferson wrote about this at the time, was They realized for the first time that if they wanted to protect true speech,
they had to be willing to protect false speech or speech that was accused of being false, because otherwise they would end up indicting somebody for speech that the government thought was false.
And the jury would have to decide, is this false speech and therefore they go to jail?
Or is it true speech and therefore...
Now, can you imagine political speech today being subjected to that kind of a jury?
But this isn't new.
This isn't something...
This happened right away with the generation that passed the First Amendment.
And they began to figure out And you know, the people who were convicted on the Sedition Act, those convictions were never overturned by the Supreme Court at the time.
They never even got to the Supreme Court.
Nobody went into court and said, you can't do this, the First Amendment.
They were just feeling...
You know, what ended up happening is that there was a political solution.
Jefferson comes back and runs against Adams In 1800. And he beats Adams.
And then the Sedition Act is repealed.
Those convictions were never overturned.
There was never any First Amendment ruling.
In fact, the courts never, you know, when the ACLU was created in 1920, 129 years, 129 years after the First Amendment was passed, At the time the ACLU was created in 1920, the Supreme Court has never, in those 129 years, ever once struck down any government action or law on First Amendment grounds.
Wow.
Never.
I did not know that.
Wow.
And part of the reason was that the people who needed it most had no capacity to get into court.
It wasn't just that the courts were insensitive, which they were.
But you ever see that movie Reds, that Warren Beatty movie?
It was a 1981 movie about...
The social movements in 1917, 1918 in favor of labor unions against America's entrance into World War I and how they were harassed and wiretapped and arrested and meetings broken up and all that.
There was no First Amendment protection.
In 1916, when Margaret Sanger got arrested on the streets of New York every Monday and Tuesday for distributing informational leaflets on birth control, There was no First Amendment case to vindicate her right to do it.
People didn't go to court.
They didn't have the money to get into court.
There were no organizations to bring those cases for them.
Private lawyers wouldn't take those cases.
If they would take the cases, the people who needed them couldn't afford them.
The cases never even got into court.
It wasn't just that they got into court and the Supreme Court made bad decisions.
The case is never gone.
So when the ACLU was created in 1920, it's created in part by people who themselves had been arrested repeatedly for free speech and realized that there was no remedy.
These were people who were active in an organization called the American Union Against Militarism, which was a pacifist organization that was out there pressuring against America's entrance into World War I. How did they do this?
They held meetings.
They had demonstrations.
They distributed leaflets.
They assembled.
All of the rights of the First Amendment was they were arrested all the time.
So the people who came out, and the same thing was going on with workers who were trying to strike for better wages and working conditions.
The early work of the labor unions, they went on strike, they demonstrated, they had meetings, they distributed leaflets.
All of the core First Amendment activity that even today's very conservative Supreme Court would support in a minute.
But back then, People were arrested for all of it, all the time.
The First Amendment didn't work.
This is now, you know, it's only 120, 130 years after the First Amendment.
It was a dead letter.
So people who are in those movements, to protect their own speech, not to protect the speech That they disagreed with or hated to protect their own speech and their own right to meet and their own right to leaflet and their own right to assemble.
They created the ACLU in 1920 to protect their own rights.
They never imagined at the time all the stuff we were talking about about protecting the rights of the enemy.
They didn't yet understand how doing the one was related to the other.
Roger Baldwin, who was the principal organizer of the ACLU back then, the first of its executive directors, I was the fifth, and he was still alive when I was there.
He lived into his mid-90s, late 90s.
Baldwin used to tell the story about how they were, you know, defending the rights of the anti-war people, defending the rights of the pro-labor union people, defending the rights of women to vote, defending the rights of the reproductive rights of birth control, all that stuff.
And then one day, you know, citing the First Amendment this, the First Amendment that, they never went into court.
They didn't think going into court was a way to do that.
They thought that getting the public excited was a way to do that.
Right, do it on the streets.
Because the courts were terrible.
The courts were insensitive to this stuff.
And it was expensive.
And then one day, Baldwin used to love to tell this story.
The Grand Dragon of the Klan.
Walks into his office at the ACLU and says, I hear you guys protect free speech.
I'm being arrested to demonstrate.
We're not violating anybody's rights.
We're just demonstrating in the park.
And he says, you're going to defend us?
And Baldwin used to say, we never thought about that.
And we were suddenly confronted with, do we really mean what we're saying here?
Are we only defending our own speech rights?
And he says, we ended up having a spirited, divisive, internal argument.
We ended up taking that case.
He says, and the reason we did it is because we figured out, powerless as we were, For the movements that we were interested in.
That if we did not defend everybody's rights to speech, we had no hope of defending ours.
Because if we were taking the position that the First Amendment protects the rights of people to say what they want, the government can't decide.
But we say, oh, but the government can decide about banning that speech because that speech is...
We can't ever hope to win this fight.
So again, not out of some lofty principle, but out of some hard recognition that the political reality of the situation was, is that protecting your rights was tied to protecting everybody's rights.
There was no way to do one without the other.
And that begins the ACRU's transformation from an organization that was invented to protect their own rights, to follow the causes that they were all involved in, to protecting everybody's rights on a neutral, to protecting everybody's rights on a neutral, principled basis.
And that took a long time to happen.
And if the ACLU itself had to go through a process to figure that out.
how much harder was it going to be to get the courts to figure it out, to get the legislatures to figure it out, to get the general public to figure it out?
It still hasn't happened.
But the truth is, is that while people like me bemoan the current state of the Supreme Court as reactionary and conservative and against civil liberties, even that court today would protect the even that court today would protect the rights of the First Amendment rights that nobody protected in 1920.
That's saying something.
So, you know, all of these slow, incremental, one step forward, two steps back, three steps forward, two steps back, four steps...
All of that back and forth stuff slowly, by accretion, builds a tradition of...
So that, you know, when people like Giuliani or Trump gain power...
They may want to ban all the criticism against them, but they can't.
Now, you know, we still lose cases.
The Supreme Court can change.
The Supreme Court is ultimately a reflection of who wins elections because that's how they get.
So all of a sudden you have a majority against Roe v.
Wade.
You know, when I first came to the ACLU in 1967, abortion was a crime In almost virtually every state.
You know, people went to jail for performing abortions in New York, everywhere.
So when that finally changed in 73, it changed because of the Supreme Court, but now the Supreme Court has itself changed, and so they reversed that right.
So what happened two days ago in the elections?
Abortion rights won in virtually every state where it was up for grabs by the vote.
Now, that's not great because it means that in certain states you have the right and in other states you don't have the right and in a woman's right it all depends on where she happens to live.
But the fact is is that the real consequence of Of the 50 years that Roe was around, is that every woman in this country grew up thinking she had that right.
Even the women who said they were against, it was easy to say you were against it when it wasn't really threatened.
But now, every woman has to ask herself the question, do I really want to live in a state Well, I can get pregnant by accident or by rape and I have no recourse.
So wherever that has been put up to vote, I mean, it started last summer in Kansas.
Kansas!
Right.
You know, everybody was surprised by that.
But there were, you know, abortion was on the ballot in five different states this last election.
And it won in all but, I think, all of it.
Kentucky, it won.
Mitch McConnell's state, it won.
So, you know, the advantage of people having rights and then having them taken away is that once people have rights, they won't give them up so easily.
It was much easier to have bans on abortion and birth control before people had a right to have abortions and birth control.
I mean, the right of married couples to buy birth control in Connecticut was still a crime in 1967. The right of a black person and a white person to get married was still a crime.
In Virginia in 1967. I mean, it's pretty recent.
Very.
And so a lot of the struggle involves winning the rights when you can and having them prevail long enough so that people get used to having them.
And then it becomes politically very hard to take them away.
And that's the situation that the right to abortion is in right now.
And that would be the position that speech was in.
I mean, if anybody actually tried to pass a statute today that banned certain opinions, it would be very difficult to pass that.
Now, you know, how it gets enforced and whether it gets enforced and all that is going to vary from place to place and from time to time.
But You know, in 1968, in liberal New York City, the mayor was John Lindsay, who was a model for civil liberties in many ways.
But in 1968, George Wallace was running for president.
And he comes here and he wants to rent out Shea Stadium, which is the place where the Mets played baseball, but it was a city-owned stadium.
And the city refuses to rent it to him because he's a racist pig.
Right.
And we sued John Lindsay to get Wallace the right to speak in Shea Stadium.
And the lawyer, the ACLU lawyer who was assigned to the case was Eleanor Holmes Norton.
Oh, no kidding.
Who was then the assistant legal director of the ACLU. Interesting.
And I drive her out to Queens to the courthouse to meet Wallace's lawyers.
And we come walking up.
And there's these two guys standing there with sunglasses, straight teeth and crooked smile.
And we're walking up to them, and I know what they're thinking.
I'm the ACLU lawyer who's coming to defend them, and she's my secretary.
And then I introduce their lawyer to them.
And the look on their face was almost as priceless as the look on those little 10-year-old girls.
I mean...
Yeah.
And she wins the case, and he gets to speak, and the world didn't collapse, and I didn't like listening to him, but I didn't like listening to virtually anybody who was running for president.
What he was saying was reprehensible, but I think that about so many political speeches that the whole idea that every time I don't like a political speech or I think it's reprehensible, I could press a button and ban it.
I mean, how is that going to work?
And who am I going to trust with that?
So, you know, that kind of lesson is learned over and over again in the cauldron of real cases that come up.
And it's why, you know, what Bobby Kennedy told me about the ACLU all those years ago turned out to be even truer than he thought and certainly truer than I thought.
And So, it's been an education.
I'll say.
A real-life education.
On the topic of free speech, Elon Musk's acquisition of Twitter has gotten a whole bunch of people really excited and a lot to say about it.
I remember, I don't know, this was I guess a few months ago when he tweeted out that he was a free speech Absolutist.
And I think you've referred to yourself in that same context.
I was surprised at how many, what a backlash he got when he said that.
What does that mean?
What does that mean and what do you think about what he's doing?
Well, you know, what he meant, I think, was that If he owned Twitter, he was going to have no limits.
He was going to let everybody speak on it.
But he doesn't mean that.
I mean, you know, the New York Times is a free speech publication, but it doesn't print every letter submitted to it.
It doesn't print every op-ed article that somebody submits to it.
Is that a fair comparison given the whole debate around Section 230 and the New York Times being a publisher versus a platform like Twitter being a public...
I forget what Elon's tweet was.
A public utility.
Well, a public utility, but I think being a virtual marketplace of ideas.
Right.
Well...
We're at the very beginning of figuring out how First Amendment principles apply to the internet in general.
I mean, the internet is not very...
Think about what newspapers were like after the printing press was first invented 500 years ago.
People didn't know what to make of it.
It takes a while to work these things out.
Twitter and Facebook and all these places are in some respects just like television stations or newspapers or magazines or book publishers, right?
They're privately owned and they're publishers.
So the first question is, so why don't they have the same rights as book publishers and To decide what they want to publish and what they don't.
You know, the New Yorker magazine once decided it wasn't going to take an ad for the play McBird, which sort of implied that Lyndon Johnson was involved in the assassination of JFK because they were offended at what the play said.
Well, they had a right to do that.
We argued with them because we said, you know, you benefit from the First Amendment.
You're a First Amendment-protected publication.
You shouldn't be deciding which ads to take and which ads not to take based on your opinion of the opinions in those ads.
But we didn't win that, and nobody could have taken them to court for it.
The right to publish is also the right not to publish.
The right to speak is also the right not to speak.
If I wanted to be on your show and you didn't want to have me, that's your decision.
I can't go to court and say, no, you have to have me on your show.
So to some extent, Twitter and Facebook are privately owned publications.
They're electronic publications instead of print publications, but that's just a difference in format.
On the other hand, Both Facebook and Twitter made public claims that they were wide open platforms.
They were like somebody building a stage in Central Park and saying, anybody can come.
And the law giving them legal protection for asserting that.
Exactly, which the New York Times does not have.
They don't have that same legal protection.
And that's where Section 230 comes in.
That's a complicated issue.
But the truth is, is that that claim, which I guess Zuckerberg made first for Facebook before they went to Twitter, that claim that we're just going to be a forum...
Y'all come.
Everybody gets to be on here.
That was an advertising scam.
Their revenue comes from circulation and selling advertising space.
How many eyeballs they get.
And the more circulation they have, the more they can charge for the advertising.
So they wanted everybody to come, but they didn't think it through.
And all of a sudden what happened is that some really nasty people started to come, and some really nasty things started to be said.
A lot of them were not true, but even apart from the question of truth and falsity, there was all kinds of racist stuff, there was all kinds of terrible things, and they began to get heat.
Not just from the government, And not just because of Section 230, but also because it started to offend some of the advertisers.
And then they also decided that they wanted to be more than just a forum.
They wanted to also be a publisher.
So they began to have news feeds.
And they began to have articles.
And suddenly they weren't just a forum for other people to come and mount and say what they wanted.
They weren't just a microphone for people.
They were also turning into publishers themselves.
So the whole issue of what Facebook and Twitter are is still sort of undecided and mixed and confused.
And therefore, it's hard to tell.
You know, if you think of them...
I think of this in two ways.
One, let's suppose they're really just like a book publisher.
And they get to decide what to publish and what not to publish.
And they're a newspaper, they get to decide what to publish and what not to publish.
And newspapers just, you know, depend on advertising revenue too.
And, you know, they don't have to publish every ad that somebody submits, much less every article.
Uh...
And maybe Section 230 has to be changed, but if they're publishers, then the fact that they're electronic publishers instead of print publishers doesn't change very much.
They have the right to publish, and they have the right not to publish.
Okay.
The second way to look at it is to think of them as a utility, like a telephone company.
They're providing a means of communication.
Anybody can get on the phone and call anybody else.
They can have conference calls.
They can have conference calls now with 300 people on them.
The telephone company doesn't get to have any say over what is said, and they don't have any liability over what is said.
But telephone companies don't ordinarily act as publishers, and publishers don't ordinarily act as telephone companies.
With Twitter and Facebook, you have an amalgam of the two.
That's part of what the confusion is about.
The other thing is, with Twitter and Facebook, is it's all public.
Telephone calls...
A private.
This is like operating with a universal party line.
I make a call to you and everybody in the United States gets to hear it.
That's what Twitter is.
That's what Facebook is.
Now, you could have private communications, but that's not what we're talking about.
What we're talking about is, you know, I write a letter to you and everybody sees it.
You make a phone call to me, And everybody hears it.
So the analogy between Twitter and Facebook on the one hand with telephone companies or publishers on the other is not an exact analogy.
It's only an approximate analogy.
So figuring out how the First Amendment should apply to it is It's not so easy to just say, well, if it protects this, then why doesn't it protect it over here for them?
Why doesn't it protect it over there for them?
It's a somewhat different beast.
And I don't think people have figured out how it should work yet.
I just think it's new and everybody's coming to grips with it.
But the problem is that most of the debate that I hear about it Ends up being confused with the issues that we've been discussing for the last hour and a half.
It's not just that they're trying to figure out, well, is this a telephone company or is it a book publisher?
And if it's a telephone company, but it's having a party line, how does that change how the law applies?
They're not discussing that.
They're discussing it in terms of we don't like this speech.
We don't like that opinion.
This is too racist.
This is too sexist.
This is too this.
This is too that.
And so it's getting all mixed up with the content decisions that we don't want the government to have the power to make.
So the The trick is, I think, is to try to figure out how the First Amendment should apply to these new methods of communication, which are privately owned, how the First Amendment should apply, but in a content neutral way.
And that If somebody gets up on a...
I was talking about Wallace renting out Shea Stadium.
I didn't want to hear what George Wallace had to say.
I fought for his right to have a chance to say it at Shea Stadium, and we won that right, but I wasn't going to go listen to him.
And that's where individual choice comes into play, whether you choose.
I get people comment on Instagram or Twitter, you know, oh gosh, I hate hearing what you have to say or whatever it is.
Like, bro, unfollow.
It's that easy.
Turn it off.
Turn it off.
Change the channel.
Whatever.
Exactly.
I mean, you know, I watch ballgames all the time.
There were some announcers that I can't stand.
I turn off the sound.
Just the sound of their voice.
I watch the game without the announcers.
I mean, there's got to be some element here where the government and the legal rules that regulate communications over Twitter or there's got to be some element here where the government and the legal rules that regulate communications over Right.
They have to be based on structural rules of some kind.
You know, there are privacy considerations, there's...
There's always been a tension between privacy and the First Amendment and freedom of the press.
I mean, if you're writing about a rape trial, what things ought the newspaper to report about the details that are coming out in open court?
Anybody can go.
But, you know, the anybody can go to the trial was always limited by the number of seats in the courtroom.
Suddenly, it's not.
Suddenly, the cameras are everywhere.
And the physical limitations...
You know, it was a little bit like what happened at the time the printing press was invented.
You know, before the printing press was invented, the way stuff got published was for monks, you know, sitting in remote places, hammering things out with a chisel and a hammer on a piece of stone.
So there was no mass communication.
Suddenly, the printing press was invented and the same stuff could be put on pieces of paper and widely distributed.
And that was a different...
And that's when government censorship began.
They never bothered censoring what the priests were doing on pieces of stone because there weren't enough listeners to matter.
Yeah.
But once the speech becomes audible...
Then it becomes threatening.
And so what the internet has done is it's made speech tremendously audible.
I remember I was still at the ACLU when the internet first came down the pike and people first started using email.
And I remember there were people in my office Who thought this was going to be the biggest boon to democracy ever, because all of a sudden, anybody could get on the computer and say anything they wanted, and the government couldn't do it.
I mean, wow!
I always, my instinct was that that was naive.
I didn't trust it, and I never knew what, but I was seen as a kind of a curmudgeon by the younger generations at the ACLU. I was nearing retirement.
I was the only person in the office who refused to have a computer, and I never had a computer until I retired.
Wow.
And, you know, but it didn't turn out to be such a great thing for democracy.
Mm-hmm.
Because the speech itself, you know, by allowing all speech, you were allowing a lot of garbage.
And how did that improve the back and forth, you know, of the give and take of democratic debate?
And so what's really happened is that...
Somebody then has to make decisions about which speech is publishable and which speech isn't.
In the world of newspapers and magazines and books, those are private decisions, and there's lots of different publishers, so you end up with a lot of variety.
And the public's choice is, what do you choose to consume?
What do you buy and what do you tune into?
There's Fox News, but there's also MSNBC. And the government doesn't get to decide which exists or which I have to listen to.
Exactly.
If I want to listen to any of them.
Which it seems like more and more people don't these days.
No, I never, you know, people always ask me, oh, did you hear Rachel about it?
I never listen to that.
You know, I use the television for only two things.
I use it to watch old black and white movies from the 1940s and sports.
I don't listen to the Sunday talk shows.
I stopped doing that a long time ago.
I didn't watch the ones I was on either.
You were fantastic on Bill Maher.
I think there's a lot of honest conversation going on on his show, especially lately.
My big problem on that show was that I hadn't done it for a long time.
It was like, you know, I'm going to an old-timers game and wondering, can I still swing the bat?
And will I still hit the pitch?
I mean, I used to do those kind of shows in my sleep, but I've been retired for 22 years, and that stuff that was on the tip of your tongue all the time is...
One is anxious about, you know, can I still do this?
Yeah.
Will I... So, you know, it was...
But it was, you know...
It was very powerful.
It was like riding a bike.
I mean, once I got on after the first 10 seconds, it was fun again, you know, and it was...
That's good.
I think that's why I started this show.
That's why I appreciate you taking the time because Bill Maher's conversation with you was very powerful, very impactful, but also I was left wanting more and the time of that platform just doesn't allow it.
The personal stories and experiences that you've had and that you've shared today, I'm sure there are tons more, have the power to really impact and influence because it brings this concept.
It brings the Bill of Rights to life.
Okay, I hear about the First Amendment, you hear about the Constitution, but like we were talking about, a lot of people are just like, I don't know, what does that even mean these days?
And so those stories and experiences you've gone through and that you've shared really does bring it to life.
It personalizes it because you're a great storyteller, first of all.
As you're talking, I feel like there's a movie in my head and I'm seeing...
You know, the people, the guy with the buck teeth that you were talking about, or, you know, the color of the grass in the baseball field is really, really impactful and has the ability to better help us as a society have informed, well, have conversations, first of all.
And even better yet, have informed conversations.
These rights are not Abstractions.
They're not law school things.
They can only come alive to ordinary people by being concrete.
I mean, they have consequences.
If you want to know what it means to be forced to testify against yourself, you have to be forced to testify against yourself.
I mean...
Look at what Brittany Griner has just gone through.
Yeah.
You think she understood any of that stuff about rights before?
She understands it now.
Yeah.
Yeah.
And so does anybody who has followed her case, you know.
Oh my God, they don't have the right to cross-examination.
Oh my God, they don't have the right to...
You know, all the stuff that these rights that sound like the complete abstractions that have no meaning, no relevance to my life, they only come alive in terms of concrete experiences.
And if you don't have them yourself...
If you want to inform people about them, if you want to teach people about them, you have to be able to explain them in those concrete terms.
Exactly.
You know, people used to ask me where I learned to be a public speaker, and I would tell them I never took a public speaking course in my life.
Well, where did you learn to do that?
So from teaching calculus to people who were not prepared for it and didn't want to be there.
I never encountered a more hostile, unresponsive audience.
I had to learn how to keep their attention.
I had to learn how to be entertaining.
I had to learn how to find a way to make them...
Ears perk up for things that they didn't care about.
I mean, all those things just to get through that hour.
And I said, so that was how I got prepared to talk about First Amendment rights in Skokie in synagogues.
Wow.
That was nothing compared to teaching required calculus.
Wow.
I wish that I had you as my teacher in college in math because, trust me, it makes a difference.
My teacher was less than phenomenal, put it that way.
Here's the question that all the people want to know, though, truly, is what's your relationship with the Dodgers today?
They were...
They are a lover so long ago spurned that I no longer remember what it was like.
I mean, if you look at the, if I look at the Dodger uniform, for a long time when the Dodgers played the Mets, whom I came to adopt, when the Dodgers came to town, that uniform would still get me.
You know, it was like seeing a pretty girl in a dress that the woman you loved long ago used to wear.
You go, oh my God.
But I had to keep my eyes off the cap because the cap, instead of that B, said LA. And that...
I ruined it for you.
Pop the fantasy.
Now I don't, you know, there's still a pang of recognition, but it really, she left me so long ago and it was so bitter.
I mean, you're talking about 65 years.
Yeah.
And I'm 84. So, you know, as bitter as the parting was when I was 19. Yeah.
There's been a lot that happened afterwards.
Okay, fair enough.
Well, Ira, you've been so incredibly generous with your time.
I feel like I could talk to you.
There's so much more I want to talk to you about.
I hope we can do this again sometime.
Well, I hope so.
Where do you do this from?
I'm in Hawaii right now.
You did say aloha at the beginning.
That's right.
You're in Hawaii right now.
But I travel quite a bit and would love the opportunity to meet you.
If you ever get to New York, let me, because I don't get to Hawaii much or anyplace else much anymore.
Okay.
But if you ever get to New York, shoot me an email and it would be fun.
I'd love to do that.
Are you in Brooklyn?
Are you still living in Brooklyn?
No, I'm in Manhattan.
That was my big moral compromise.
I followed a woman to Manhattan, and I said, you know, all right, this is as far west as I go.
Because after that, you had to go to New Jersey and...
I know enough New Yorkers to understand.
That's right.
Just not dumb.
Because nothing is provincial, and proudly provincial, as a New Yorker.
That's right.
Well, I'll take you up on that, Ira, and I look forward to meeting you.
And just thank you for being who you are, and thank you for lifting up, continuing to fight the same fight that you've been fighting for all these decades.
Thank you very much.
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