Advisory Opinions – "The Future of Free Speech"

Podcast: Advisory Opinions
Hosts: Sarah Isgur and David French
Date: October 14, 2025
Live from the Global Free Speech Summit at Vanderbilt University

Episode Overview

This episode, recorded live at the Global Free Speech Summit 2025, dives into the contemporary challenges facing free speech in America. Hosts Sarah Isgur and David French analyze the current state of free speech through recent controversies and explore a range of concrete legal and cultural solutions. They cover issues from firings over social media posts, government “jawboning,” and university censorship tactics, to legislative and constitutional reforms aimed at safeguarding the First Amendment. Both legal analysis and personal anecdotes create an engaging, incisive conversation about why free speech remains vital amid escalating polarization.

Key Discussion Points & Insights

1. Workplace Firings Over Protected Speech

(Starts ~02:33)

• Recent Case: Ball State University administrator fired after posting on her private Facebook page about Charlie Kirk's death, saying "if you thought Charlie Kirk was a wonderful person, we can't be friends."
  • Went viral, received 6.5 million impressions.
  • Administrator fired despite speech being made in a private capacity.
  • Likely legal recourse under the Pickering public concern analysis.
• Trend: Over 145 similar firings post-Kirk’s assassination, echoing past “cancel culture” waves.
• French on Preemptive Firings:

  “Take sort of, you know, the old Tom Cruise movie Minority Report, where it's Pre-crime... because you've said something I don't like, I'm locking in the Department of Pre-crime, and I can presume that you'll discriminate against me.” – David French (06:05)

• On "Turnabout Is Fair Play":
  • Escalation and retaliation don’t create solutions; both political sides escalate out of a sense of grievance, leading only to deeper division.

  “Escalation doesn't work. And what escalation does is it just simply escalates... That's not a plan. It's an impulse. And it's a vindictive impulse and it's ripping us apart.” – David French (08:07)

2. Government “Jawboning” and Private Censorship

(Starts ~10:12)

• Jawboning Defined: Informal government pressure on private entities to suppress speech.
  • Example: White House pressuring Apple to ban apps used to track ICE agents.
  • Similar dynamics compared to Biden admin’s pressing social media companies to remove COVID-related speech (Murthy case) and NY’s coercion against companies working with the NRA (Vulo case).

  “This is an absolute jawboning situation which is then rationalized and justified, as all jawboning is.” – David French (11:03)

• Legal Landscape:
  • Murthy: Supreme Court found plaintiffs lacked standing for injunctive relief.
  • Vulo: Unanimous decision upholding that indirect threats to businesses are also unconstitutional jawboning.

  “...the two are not even different sides of the same coin. They're just a coin.” – Sarah Isgur (14:07)

3. University Speech Restrictions & the "Assassin's Veto"

(Starts ~14:43, ~23:39)

• NYU Law School Example:
  • Federalist Society event with controversial Jewish speaker repeatedly rescheduled/canceled under shifting, pretextual administrative justifications.
  • Other (left-wing) events and outside speakers allowed without issue.
  • “Security concerns” used as a tool to suppress unwelcome viewpoints, primarily conservative.

  “If you shut down, if a school said there's going to be no outside speakers anymore, well, the faculty, the inside speakers, are overwhelmingly liberal... you are having the disproportionate effect of shutting down conservative speakers.” – Sarah Isgur (23:47)

• French on Administrative Responsibility: Schools have a duty to protect free speech, even (or especially) when resources are limited – local government resources should be leveraged if necessary.

  “...the core function of the state is to protect the exercise of free speech. And this goes back to Frederick Douglass and the plea for free speech in Boston in 1860.” – David French (20:01)

• Should Universities Restrict Events to Students Only?
  • French: Allowable for pedagogical purposes, but not if selectively enforced to suppress unpopular viewpoints.

  “I don't necessarily have a problem with saying there are going to be student-only university, community-only events... But I would have a problem if... they come into the conservative student group and say, well, you. You are particularly dangerous. Only student IDs for you.” – David French (22:15)

4. Concrete Solutions to Free Speech Challenges

(Starts ~24:21) Based on Conor Friedersdorf’s Atlantic article and further proposals:

A. Repeal FCC Content Rules for Broadcast

• Outdated and unnecessary; current distinctions between broadcast and streaming make little sense.

  “The idea that the government has any say over what Jimmy Kimmel says is just an artifact of really a dying era of communication.” – David French (25:58)

B. Transparency & Accountability for Government Jawboning

• Require officials to report contacts with companies regarding speech.
• Extend to all communications, not just with social media.

  “I would actually like to see legislation mandating transparency when you have contact at all... to persuade them to engage and alter their protected expression.” – David French (27:32)

C. Reduce Qualified Immunity; Allow Damages for Rights Violations

• Current reforms (like Section 1983) don’t apply to federal cases, and Bivens has been too narrowly interpreted.

  “And when we say clearly state that they're entitled to damage, I think the language will have to be even stronger than shall be entitled to...” – David French (31:56)

D. National Anti-SLAPP Laws

• Prevent lawsuit abuse meant to chill speech, by requiring losers to pay attorneys’ fees.

E. Respecting the First Amendment on Campus Act

• Abolish free speech zones and excessive security fees.
• Clarify the standard for harassment under Title VI: only “severe, pervasive, and objectively offensive” conduct that denies institutional access qualifies.

  “…after 20, 25 years of microaggressions being called harassment to see what the real thing actually looks like. And so, yeah, I agree with you completely.” – David French (36:15)

F. Mandate Civic and Free Speech Education in High Schools

• Value: Civic knowledge inoculates democracy against manipulation and mob mentality.

  “I think that one of the biggest problems that we have right now is... when you combine large scale civic ignorance with ruthless exploitation of large scale civic ignorance, you're just incredibly vulnerable.” – David French (37:00)

• Criticism: Federal overreach and curricular overload.

G. Make Amending the Constitution Easier

• Lower ratification threshold to empower citizens (e.g., via the states).
• Risks: Potential erosion of First Amendment rights if the process is made too easy.

  “If we make it easier to amend the Constitution, will we suddenly chip away at First Amendment rights? I think that is a real concern.” – Sarah Isgur (42:33)

Notable Quotes & Memorable Moments

• David French on the futility of escalation in speech wars:

  "Escalation doesn't work. And what escalation does is it just simply escalates... That's not a plan. It's an impulse. And it's a vindictive impulse and it's ripping us apart." (08:07)

• Sarah Isgur on university event censorship:

  “...the most Orwellian thing I've ever heard. Like, it's like a little literally, at Northwestern where I went, it was a 150 foot box that was like labeled free speech zone.” (33:36)

• David French on civic education:

  “Heck, I feel like you could almost have a civic education where you just made every single student in America read Frederick Douglass 1860 plea for free speech in Boston and memorize paragraphs of that like people memorize the Gettysburg Address.” (37:55)

• French, channeling public frustration:

  “If the culture turns against free speech because you hate your enemy that much, you'll lose free speech just culturally, even before the court precedent starts to turn.” (44:00)

Key Timestamps for Important Segments

• 02:33 – Current wave of speech-related firings; Ball State case
• 06:54 – Student interpretation vs. actual conduct in campus speech controversies
• 08:00 – Problems with tit-for-tat “cancel culture” logic
• 10:12 – Apple, ICE apps, and the government’s informal censorship (jawboning)
• 12:39 – Supreme Court on jawboning: Murthy and Vulo cases
• 14:43 / 23:39 – NYU Law School incident and campus censorship tactics
• 24:21 – Legislative solutions, starting with broadcast regulation
• 27:32 – Jawboning solutions and transparency proposals
• 31:39 – Discussion of qualified immunity, Section 1983, and Bivens
• 33:36 – Anti-SLAPP legislation and campus free speech zones
• 36:50 – Proposals for civic/free speech education
• 39:35 – Pros and cons of mandating civic education from DC
• 39:54 – Making constitutional amendments easier and its risks/rewards
• 42:10 – The story of the 27th Amendment (fun historical anecdote about a University of Texas student)
• 44:00 – The relationship between polarization and free speech culture

Conclusion

This episode is a rich, nuanced, and often humorous exploration of the modern free speech landscape. French and Isgur expertly move between legal doctrine, recent headlines, and structural reforms—consistently emphasizing that protecting free speech requires more than successful court cases: it demands a cultural commitment across all political divides. The solutions presented are practical but not naive, acknowledging both the promise and peril in reforming existing law and institutions.

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