E (2:59)

So, you know the title of this on the program is the State of Free Speech in America. And you and I were talking about a Week ago and saying, well, what should we talk about? And I had this thought, we're going to have new free speech controversies between the time you said that and this conference. And sure enough, so we had this situation, Ball State University in Indiana. And I'm bringing this up not because it's unique, but because it's indicative. There is a public employee who posts after Charlie Kirk's death, did not celebrate the death, but said something like, if you thought Charlie Kirk was a wonderful person, we can't be friends. In other words, very pointedly refusing to sort of celebrate Charlie Kirk. And the story of what happened next is by now depressingly familiar. People found the post. It goes viral. It was on her private Facebook page. This was not put out as a statement by the university. It goes viral, gets what sentence? 6.5 million impressions within days, she's lost her job. Very typical story in this moment. And it is now, from a legal standpoint, it's an interesting story. This was an administrator, not a member of the faculty, but speaking obviously in her private capacity on her personal Facebook page, you're gonna lock in the kind of Pickering public concern analysis. And if she wants to file a lawsuit, she's almost certainly going to win. But the thing that really stuck out to me was that when the Times reported this, it said there's 145 people that they recorded who have been fired in the last few weeks since Charlie Kirk's assassination. And it really is yet another example about how we seem to have not learned anything after the worst days of 2019, 2020, the late 2000 teens, early 2000s.

A (4:54)

Okay, I have a few questions. What if I, as a student at Ball State, read that post and read it as if you think Charlie Kirk was a wonderful person? I'm not going to help you in my capacity as an administrator.

E (5:09)

If she had said. If you had said, I think Charlie Kirk was a terrible person, and if you think he's wonderful, I'm not going to do my job, that would bring in a different kind of analysis, that there would be an indication that there is an on the job problem. And even though Charlie Kirk speaking about Charlie Kirk would be a matter of public concern for those who don't remember Pickering balancing. There's another part of the balancing test which essentially is asking what kind of impact you have on the workplace. And if you're declaring that you're going to have an impact on the workplace, it's absolutely going to change legal. But the problem that you have is not people saying, I will not do my job. It's with people on, say, students subjectively interpreting. If you're hostile to me and my point of view, you will not do your job. And that's sort of one of the rationales we've seen for some of these prophylactic firings. On issues where people engage in speech about sensitive topics like race, gender identity, et cetera. The argument has been, well, if I've been offended by what you say or if I'm angered by what you say, I can assume without proof that you will discriminate against me. And take sort of, you know, the old Tom Cruise movie Minority Report, where it's Pre crime. The department of Pre Crime. Well, 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.

A (6:39)

So if a student, after that post, had walked into her office wearing a TPUSA shirt and she had made some snide remark to that student, then you have a problem. But you can't assume what would happen if you walked in with a tpusc.

E (6:54)

Exactly. Exactly.

A (6:55)

Okay, what about the argument that turnabout is fair play, that the right was a victim to this throughout 2019. 2020. And the only way that we will stop the nonsense is if both sides feel the pain of the nonsense.

E (7:13)

I'm so glad you asked that, because when we were driving here, I was literally thinking, I hope Sarah asks about this very thing, because I want to walk through something just for a minute. So some of you guys may be familiar with this Arrested Development GIF that's out there or a meme where it's like, what is it? Lindsey and Tobias are talking, and it's like, that didn't work for them, or, well, let's try this. Did that work for other people? No. Is it gonna work for us? Yes. That's what you feel like when you're watching this unfold. Escalation doesn't work. And what escalation does is it just simply escalates. And the other thing that makes no sense. Can we think about this for about 5 seconds? This whole thing that's like, well, we have to do this to them to make them to stop. Well, who's the them? What are we going to do? Are we going to convene a influencer summit after, like, 18 more months of cancellations? You know, Tim Pool and Benny Johnson comes from the right wing delegation. Hasan Piker and the head of Anti Colonial Studies association comes from the left, and they meet and they sign an influencer peace treaty to stop calling for cancellations. What are we doing here? That's not a plan. It's an impulse. And it's a vindictive impulse and it's ripping us apart.

A (8:36)

We'll pause now for a quick break and be right back.

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A (10:12)

And we're back for more of our live advisory opinions at Vanderbilt University. Okay, let's move to example number two. The administration asked Apple to take down posts that were spotting or apps that were used to spot ICE agents, Immigration and Customs Enforcement agents. And Apple did this. And there was exactly what you would expect from different parts of the pundit world. Some people saying, look, that's not speech, it's conduct and it endangers law enforcement officers. Where you have apps identifying where they are at a time when people are going into ICE buildings and shooting people. On the other hand, boy, that sounds like speech.

E (11:03)

Yes, it does sound a lot like speech, because it's speech. And so, yeah, this is an absolute jawboning situation which is then rationalized and justified is all jawboning is. There's always going to be sort of this argument, but this time it's different, you know, but this time what we're trying to deal with is misinformation and pandemic. Well, but. But this time we have FCC authority in the public interest, but this time it's law enforcement safety. But if you walk through this, essentially what they're saying is, how dare you interfere with the lawful operations of government? And the protesters would be saying, lawful operations of government. I've got a lot of information indicating these. These operations are lawful. But then the government's saying, no, no, it's lawful. Trust us, we're the government and we've declared this to be lawful.

A (11:58)

How do you compare this to the jawboning from the Biden administration to take down speech that they didn't like on social media platforms related, for example, to the origins of COVID You and I railed against this. The case went to the Supreme Court. I thought the record was even worse than I initially assumed it was in terms of how bad the jawboning was, how explicit the threats were from senior White House staff. You know, boy, it'd be a real shame if you lost 230 protections unless you take this down. We said that was really bad. Is this the same? Is it different in any important respects?

E (12:39)

You know, it's just bad. So one of the problems that we have right now is you can't even have a conversation about right wing censorship or right wing violence or left wing censorship and left wing violence without sort of partisans demanding that you say, okay, I'll only accept your critique as long as you say the other side is worse. Why can't I just say that it's bad, right? That it's as bad. But I'm glad you brought up Murthy, because I don't even like to think of Murthy as just a standalone case anymore. I think of Murthy and Vulo.

A (13:11)

So Murthy is the Biden jawboning against social media companies case. The Supreme Court ends up basically tossing it, arguing that the people who had sued didn't really have a plausible case, that it would happen again. So they didn't have standing in Vulo. It was actually the nra. And a unanimous Supreme Court found for the NRA that the New York Commissioner of Insurance, and I'm sorry, I'm definitely getting her title slightly wrong, had threatened other companies, insurance companies, that if they continued to do work with the nra and that she would punish them with investigations, fines, et cetera. And the Supreme Court was like, yeah, no, jawboning is not just limited to threatening the company. If you threaten other companies from doing business with that core company that you don't like their speech. Same deal. So, yeah, the two are not even different sides of the same coin. They're just a coin.

E (14:10)

Yeah, they're the coin. And Murthy is okay. If you're going to make the jawboning claim, you got to show that you, the plaintiff, have been injured by jawboning and that you, the plaintiff, could be injured in the future by jawboning. If you are seeking injunctive relief, it was a standing case. And then Vulo, the why you gotta include it. Vulo then says, but, hey, jawboning's a real thing. But let me ask you a question, Sarah. We've talked about two incidents of left wing. I mean, of right wing censorship. The left's got it all together. They've learned their lesson, right?

A (14:43)

Totally. So recently at New York University Law School, which has faced all sorts of complaints related to antisemitism, the Federalist Society had scheduled a speaker to come on October 7th. This speaker was Jewish, known for criticizing anti Israel protesters and for criticizing schools for not dealing with encampments properly that had blocked Jewish students from getting to class, et cetera. So what did NYU Law School do when they found out about this October 7th event?

E (15:27)

They said, there shall be no heckler's vetoes on this ground. We have learned our lesson over years of free speech pressure. The cost of living to your students. You declare the cost of living in a pluralistic society is you have to be prepared for contention. To paraphrase Justice Brennan from the Pico case in the 1980s. Did I get that correct?

A (15:51)

That correct the speech we hate? Yeah, that's exactly what they said after they said, you need to move your event to the basement because we don't want this event above ground or whatever. And the students were like, you know what? Fair enough. This will be much easier to control inflow and outflow. That's not a crazy request. So the students said yes to that request. And then the school was like, jk, we're canceling your event. But also, we're not canceling your event in this very Orwellian sense. They were like, you can have this event, just not on October 7th. And of course, they said this on, like, October 1st. And the speaker, as you can imagine, Ilya Shapiro, his schedule was not just wide open to come back some other day. And I love this, when asked by a reporter, they said, we did not cancel the event. In fact, the talk is now listed as canceled in NYU's event management system. So let me read you some quotes from the university. Again, the reasoning evolves as one feels like perhaps each time a lawyer tells them what they've done wrong. This decision is not based on the proposed program or school speaker, but rather based on an obligation to provide enhanced security generally on campus during that week, as well as resource commitments we have already made across multiple buildings for public and closed events during the same period. Okay, so then the students were like, but you have all these other events, including another Federalist Society event with a non Jewish speaker who isn't going to talk about Israel. And that event was allowed to move forward even though it had been booked after this event in, you know, they have like a booking system at the school or whatever. Then the dean had a meeting with the students and told the students that the law school would not be hosting any outside speakers on the week of October 7th.

E (17:53)

Oh, so much better here we're going to solve our censorship problem by compounding it.

A (17:59)

Except, David, you could check the events calendars. And the dean himself was introducing an outside speaker on October 7th.

E (18:07)

This is being handled magnificently. Yes, please continue.

A (18:10)

Okay, so then they've landed on this reason. There are a limited number of events that we have the capacity to support responsibly, particularly during periods of heavy demand or other constraints on staffing our space. It will not surprise you to Hear that on October 7, NYU hosted a number of very left wing events on campus. I will not claim to have done a like, genealogy background of every outside speaker, but I did not see a Jewish speaker listed for any of those events on campus. On October 7th. They did cancel the event. The Federalist Society found funding to hold the event off campus with Nadine Strossen from the aclu, which is nice, but David, you know, it's sort of funny because we literally talked about this on the podcast of so schools using quote, unquote, security concerns to block speech that they don't like and saying like, oh yeah, you can have that speaker if you pay us $800,000. And basically using the Charlie Kirk situation, and I mean the situation around security failures at that event to shut down controversial speakers and the controversialness being decided by the other students, the majority of students on campus or the majority of administrators.

E (19:28)

I mean, this is untenable. And look, as we talked about on our podcast earlier, there is sympathy for administrators, especially at smaller colleges that have limited security budgets. But at the same time, I also think if I'm a mayor of a city, let's suppose we're not at a huge university like Vanderbilt but we're at the university I teach at down the road at Lipscomb, which is a mid sized university. It's got, you know, it's a. But it doesn't have unlimited funds. It just, it's not made of money. But in that circumstance, I think the logical next step is to then call, say Metro police here in Nashville and say there's First Amendment protected activity that is under threat because of a potentially violent mob. This is 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. That was an event that was disrupted by violent protesters. And the complaint there wasn't that the local church where he was appearing didn't have sufficient resources to protect him. It's that the authorities in the city of Boston should have exercised their much greater resources to protect. So I almost feel like I want to go and rewind that whole conversation that we had and say, why didn't I sit there and think every one of these small colleges is in a town or a city or a government jurisdiction that has infinitely larger resources and therefore should be tasked to protect free speech.

A (21:04)

What about, for instance, I was the Federalist Society president at Harvard. You always have a choice between having a event limited to people with a university ID and opening it up to anyone in the community. Town gown relations being a bit strained in some of the places I went to school. It is very hard, I think, for a university with the security of the university to deal with outside hecklers. By the way, hecklers sound like fun. It sounds like they're different words. Think instead of people who prevent others from hearing speech that they don't like. I'm curious what you think about if the school said you must limit this to people with a student id because then we have far more control because we can say if a student disrupts this event, prevents others from gaining access to the area or from hearing the speaker, you will be immediately suspended. Is that okay or not okay in your free speech world?

E (22:05)

I don't necessarily have a problem with saying there are going to be student only university, community only events. I mean, these are people who are actually paying tuition for a particular kind of educational experience. So I can see a curricular reason why if you are wanting to create a certain kind of atmosphere for discussion. I mean, one of the things that people do is they choose the size of the venue, for example, to change how the dynamics, like I would say, we're in the round right now, which is very Interesting. I'm feeling very Bono like, although I think he would be in a little bit bigger than a mid sized hotel conference room. But so there's different ways in which you formulate the event for different purposes, where you're trying to achieve different purposes. I don't have a problem with that. But I would have a problem if you had a record, say, of the university, allowing controversial speakers to be open to everyone. And then they come into the conservative student group and say, well, you. You are particularly dangerous. Only student IDs for you.

A (23:05)

We'll pause now for a quick break.

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A (23:39)

And we're back for more of our live advisory opinions at Vanderbilt University. I think this concept of an assassin's veto is going to be the tool used by universities in the coming few years to shut down conservative outside speakers. And of course, the great irony, right, 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. And so, again, you are having the disproportionate effect of shutting down conservative speakers. And so I think universities have a real problem. Okay. I wanted to talk about Connor Friedman. See, this is why he's here.

E (24:21)

Connor's here.

A (24:22)

Connor, I'm. So I read you every week and I have no idea how to pronounce you. I just. Friedersdorf. Does that sound good?

E (24:28)

Sounds great.

A (24:29)

Okay. Connor has this amazing piece in the Atlantic, what Republicans can do if they really want to protect free speech. And I guess I would say what I don't like about the headline is that this should have nothing to do with one side of the political aisle. If anyone wants to protect free speech, here's some stuff they can do. Because what you hear is Democrats feel like speech is under threat now. Republicans felt like speech was under threat before. It's a little like, well, actually, literally any fight we've ever had. But when you're in power, you're like Whee. This is amazing. We can issue executive orders about whatever we want, and then when you lose the next election, you're like, oh, my God. Oh my God. They just undone all of our executive orders and now they're in charge. I never imagined this could happen in a self governing democracy.

E (25:22)

And then when you point this out, then they're always going to say, yeah, but the other side was worse.

A (25:26)

Okay, so he has flagged some legal changes that Congress could pass, and I wanted to walk through a few of them. One, this relates to the Jimmy Kimmel episode. Although again, I don't think you have to go too far through any administration to find questionable practices. Congress could eliminate the Federal Communication Commission's rules that regulate content on broadcast, television and radio, thus stripping the FCC of the bad stuff.

E (25:58)

No brainer. The idea that the government has any say over what Jimmy Kimmel says is just an artifact of really a dying era of communication. When broadcast, it was broadcast over airwaves that under unique historical circumstances are owned by the government. And so the government has always exercised more control over broadcast than say, cable or streaming. And now it's just nonsensical. It makes no sense at all. It was dangerous at the time. It makes no sense now. Get rid of it.

A (26:28)

Does NBC News turn into Cinemax saying the F word every five seconds?

E (26:33)

Without the fcc, market forces would mitigate against that, I would think.

A (26:38)

Okay, second, by the way, go to any number of administrative agencies. And I think if we had a like thumbs up, thumbs down referendum from the American people, should Congress have this power or this administrative agency filled with thousands of people that are not elected and that you don't know? I mean, the FCC is sort of the least of the problems, but it is the one that I think clearly has the most free speech concerns. Congress, do your job. Second target, jawboning. You know, a term for when an official informally pressures a private party, such as a social media platform, to censor speech that is protected by the Constitution. So FIRE has actually drafted legislative language that would require federal officials to report any communications they have with social media companies about third party content.

E (27:32)

The only problem I have with that legislation is it's limited to social media companies. If in fact that's what it is. I would actually like to see legislation mandating transparency when you have contact at all with companies in the attempt to regulate their protected or job to persuade them to engage and alter their protected expression. I think that level. Look, I understand that politicians are elected with a bully pulpit, that one of the reasons why people elect Politicians now is to sort of wage culture war on your behalf. However, it's one thing to make an argument for or against a proposition on cable tv, which seems to be their highest and best use right now. It's another thing entirely to be picking up the phone, calling a meta, calling Time Warner, calling Paramount and saying, yeah, I didn't really like my portrayal on Tulsa King the last week, you know, and so I think transparency is a necessary corrective.

A (28:29)

This gets to a fight, though, that I've been having with Steve Hayes and Jonah Goldberg. They thought that the saying the quiet part out loud, you know, we can do this the easy way or the hard way. Saying publicly take down this app or else that that was worse because it shows that the norm has been gone versus during the Biden administration where they did it secretly and denied doing it, or the Obama IRS targeting based on speech, where again, they denied doing it. And then we're like, our bad. But that was really bad that we did it. This only gets to transparency, right? So it would only illuminate. Well, it actually would do nothing for the irs.

E (29:10)

And we get to the next suggestion. Once you illuminate, you have evidence for your litigation which should have damages attached to it.

A (29:21)

What happens when these officials break the law? Right now, a state official breaks the law, you can sue them under section 1983 and in theory get damages. And I do mean in theory, because you're definitely not getting damages because of qualified immunity. This idea that unless the law was clearly established, it was a constitutional violation, and it was clearly established under the law and by judicial opinions as a constitutional violation, you don't get damages. And the problem being, of course, you'd think to yourself, I like using the chalking tires example. Okay, so person number one is like, you chalked my tires. That's a Fourth Amendment violation. I want my money. And they're like, you know what? It is a fourth amendment violation. But it wasn't clearly established. So that meter maid or municipality doesn't owe you any money. And at least you go home and think, I didn't get any money. But the next person who has their tires chalked, right? I have set up the world for them.

E (30:22)

That's wrong. Because if they talk the tire at the 3 o' clock position, and that was deemed to be, there's qualified immunity. And then the next meter person chalks in the five o' clock position, they'll say, but it's only clearly established you can't chalk in the three o' clock position.

A (30:39)

Well, so more often Than not, they skip the first part of the analysis at all. They don't even. They're like, well, since it wasn't clearly established, we don't need to determine whether it was a constitutional violation. So the tire chalking continues and then everyone keeps losing because it's not clearly established. It's like insane, but at the federal level. So let's say you were to sue the Biden administration for, or the Trump administration, you know, someone specifically who you felt like had violated your First Amendment rights with jawboning, you have nothing. The Supreme Court has held that because there is no congressional statute giving damages like section 1983 that was passed in 1871. They had one case called Bivens that was a Fourth Amendment violation. That was what, 1970 something. Anyway, since then they have cabined Bivens like to the facts being so tiny that like your name better be fricking Bivens.

E (31:39)

Yeah, yeah, you have to sue somebody with a last name Bivins, maybe maiden name Bivens, but that's it.

A (31:45)

So the idea would be to have Congress actually allow for, clearly allow for damages for state and federal officials that violate your constitutional rights.

E (31:56)

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 because that's like the language in section 1983 and that's not strong enough apparently. So it's gotta be. We really mean it. Comma. No, seriously, comma, no ifs, ands or buts. Court shall be entitled.

A (32:18)

Got it. Okay, next up, you've heard of slap anti slap laws. These are state based laws that say if you bring. So in law there's frivolous lawsuits. If you bring a truly frivolous lawsuit, you get sanctioned. But what about a lawsuit that is not frivolous in the legal definition of the term, but is nevertheless meant to chill or harass someone for their speech because you've got more money. Basically you're the big swinging lawyer in town. Okay, so about half the states have anti SLAPP laws that basically says if you bring one of these lawsuits and lose against poor, poor little guy, you owe them attorney's fees. Half the states don't have slap laws and the federal government doesn't have a SLAPP law.

E (33:05)

I've been doing this First Amendment work for a very long time and some of this stuff, like if you're talking about some of this legislation, back when I was President of Fire in 0405, we were drafting some of this stuff. So yes, yes. Greg and I, this might come as a surprise to you, given that Greg and I go back now maybe 25 plus years. We have a lot of similar ideas.

A (33:28)

Okay, here's my biggest beef with Connor. He put this as the last proposal and it should have been the first. There is a bill proposed, bill called Respecting the First Amendment on Campus Act. The bill's provisions include putting an end to quote unquote, free speech zones on campus, which is like 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 foot, that's just like very small 100 foot box that was like labeled free speech zone. Okay, so free speech zone and prohibit onerous security fees. And here's the part, this is why I wanted it to be first. Title six, which talks about harassment on campus based on sex, race, is often used to shut down speech that someone could find offensive because the school is genuinely concerned that they're sort of damned if they do, damned if they don't. If they shut down the speech, they get sued by that student on the First Amendment. If they don't shut down the speech, they get sued by that student on Title 6. And if it's a private school, the student doesn't have a First Amendment right, therefore they're actually only worried about one lawsuit. So this would also codify that speech only rises to a Title 6 violation if it is so severe, pervasive, and objectively offensive to undermine and distract from the victim's educational experience that the victim students are effectively denied equal access to an institution's resources and opportunities. As in, to use, I think, the really egregious example, but one that has happened on campuses, if a student puts a confederate flag in their dorm room window, that is offensive, but it is not a Title VI violation. And the school cannot hide behind Title 6 to prohibit that speech that they find offensive. Now, to be clear, they can say, no flags in your dorm room window. You know, it's a fire hazard, that's fine. But you can't shut down the speech because of Title 6. Unless again, what would rise to the level of severe, pervasive and objectively offensive to deny equal access to an institution's resources? Probably the professor saying, well, for instance, what some professor did say last year, which is, jews, go sit in that corner of my classroom. That is literally denying the equal access to an institution's resources when the Jews aren't allowed to sit where they want in your class based on their religion post.

E (35:59)

October 7th, we had a national lesson in what actual harassment looks like. If you're physically blocking people from going across campus, you are denying access to facilities. If students can't even leave a library because there's an angry mob outside pounding on doors. If you're. Because of their religion, because of their religion, because of their Jewish identity, you know, it was very instructive 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.

A (36:35)

All right, we've got two more solutions to go through. David. Next one, number six. A federal law mandating free speech and civic education in high schools.

E (36:50)

Wait a minute. Are you talking about compelled speech? No, I'm. Well, this is what, of course, all curriculum is. This is what curriculum is. I was joking. I like this idea. I will tell you, I think that one of the biggest problems that we have right now is a democracy can kind of hang together when you have an enormous amount of civic ignorance. But the leadership of the country is at least civically informed or at least oriented towards civic knowledge. It is very difficult to have a functioning democracy when you combine large scale civic ignorance with ruthless exploitation of large scale civic ignorance. You're just incredibly vulnerable. And we have immense, immense civic ignorance around the First Amendment. We have immense civic ignorance around the history, and especially. Sarah, this is one thing that I has been a pet peeve of mine is that for some reason, and I don't know exactly how this happened, and I think it gets to the anti harassment stuff and lots of people point to liberating concepts like the far left, liberating tolerance or whatever. But there got to be this sense that for some reason free speech and social justice, where free speech and assistance for marginalized justice for marginalized communities are somehow at odds with each other. And I think nine seconds of civic education would tell you that's exactly false. It's 180 degrees wrong. 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. Because if there's any one historic statement, not just of the value of free speech writ large, but the value of free speech to the most marginalized people, I can't think of one than that plea for free speech. And that's the kind of thing that our students are being denied. They don't know any of this. They don't know this stuff. They don't know the history of how free speech was used to uplift. I mean, look at it this way. 1925 is when free first amendment was incorporated to the states. Is America more or less just for marginalized people since 1925?

A (39:08)

Okay, there's two problems with this idea. One, the federal government dictating curriculum to states. Let's set aside any legal problems with that. It's a little bit scary because like we may want to do it for free speech. But then of course, as I mentioned, new people come into office and now they're dictating some curricular thing that I think is stupid. And students days are pretty full. So we also have to pick what we're gonna get rid of. Like are we getting rid of biology to do this?

E (39:35)

Let me put it this way. I know in high school I had electives. I could have had one less David.

A (39:41)

Coming out against well rounded children. I love it. Okay, and then the last idea is to make amending the Constitution easier.

E (39:54)

I'm glad you brought that up because it's not strictly a free speech idea and it's one of the ideas that we have talked about as sort of overall constitutional reform. But it's interesting to bring it up in this context because this is one arena in the round where that would land like a thud. Because what are you talking about? Potentially making easier to mess with the first Amendment and as opposed to the way I would think of it is I would like to see the pardon power restricted. But once you open Pandora's box, you can't control where it goes. Is it too much of a risk to our core civil liberties to make it? And again, even in our proposals about amending the Constitution, it's not that you would have to lack a super majority, it'd just be less of a. It would be less of a super majority.

A (40:40)

Yeah, I mean, I think the proposal that I have skips Congress so three quarters of the states, or maybe I lowered it to 2/3. Still far more than a majority of states would still need to ratify a constitutional amendment. But I don't trust Congress to do anything anymore. And what's interesting is even the number of proposed amendments has dropped, let alone of course the ratifying the amendments. The last one was ratified in 1992, which if anyone knows the fun story, it's a at the University of Texas who got a bad grade on his paper when he suggested that that amendment could be ratified. And so then he was like, oh yeah, f you. No, I Did not know that. You didn't know this story?

E (41:21)

No.

A (41:22)

As a Texan, we have an entire class on just this. No, he gets a C. And this is one of the original 12amendments that was proposed for the Bill of Rights. Of course, only 10 of them get ratified. The 11th sovereign immunity gets ratified. Then next. But not as part of the Bill of rights. Sorry, 12. And then the 27th Amendment is the other one. It prevents members of Congress from raising their own salaries until an intervening election, basically. And yeah, so the professor was like, that's not realistic and nobody cares. And so he dedicates the next like 20 years of his life to getting this ratified. And they hold this big ceremony at the University of Texas where they change his grade officially to an A. It's like every student's dream.

E (42:10)

So I love that story so much, I cannot believe I didn't know it. And the other thing though is, can I just say when Tennessee founded Texas that we had no idea that we were creating such an arrogant young child in the Texans. And so I apologize for that. I don't regret that, teacher. Tennessee founded Texas. So I just wish we raised Texas better.

A (42:33)

Or is Tennessee proto Texas and we perfected the model. Ah, yeah, interesting. Okay. But the First Amendment point is well taken. 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. On the flip side, the reason I brought it up in the First Amendment context is because I wonder how much lower the overall speech temperature would feel in the country if people actually believed that they could institute real change in some of these areas that they're so mad about. You don't need to shut down someone else's speech if you can actually go and ratify an amendment to the Constitution and that it would jumpstart the entire self governing process rather than fight over who Supreme Court justices are because they're the only ones who can wink amend the Constitution. You would actually be able to do it yourself. And so my hope would be that empowering temperature lowering part to our First Amendment fights. But you're absolutely right, it runs the risk of just going the other way and suddenly we have a blasphemy amendment.

E (43:41)

But the last thing.

A (43:41)

God damn it.

E (43:42)

I think the last thing I would say is that point about lowering the temperature. If we actually want to protect free. If we want to protect free speech in this country, that is indispensable element of it as well. You can win case after case after case after case. But as we've learned 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. And so I do actually think that polarization is an urgent threat to free speech in this country.

A (44:15)

Thank you guys so much for joining us. Thank you to the Global Free Speech Summit for having us. This has been advisory opinions and we hope you'll tune in.

F (44:28)

Okay, David, that's it for us today.

A (44:29)

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F (44:31)

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A (44:35)

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F (44:36)

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