← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Free Speech Is The Enemy of Free Speech, Apparently
00:52:59
The First Amendment is being hollowed out in the wake of the assassination of right-wing podcaster and organizer, Charlie Kirk. This law professor saw it coming.
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- [00:02]
Host (possibly Dahlia Lithwick)
This episode is brought to you by Choiceology, an original podcast from Charles Schwab hosted by Katie Milkman, an award winning behavioral scientist and author of the best selling book how to Change. Choiceology is a show about the psychology and economics behind our decisions. Hear true stories from Nobel laureates, authors, athletes and everyday people about why we do the things we do. Listen to choiceology@schwab.com podcast or wherever you listen.
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Sponsor/Advertisement Voice
Recently we asked some people about sharing their New York Times accounts.
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Dr. Mary Ann Franks
My name is Dana. I am a subscriber to the New York Times, but my husband isn't and it would be really nice to be able to share a recipe or an article or compete with him in wordle or connections. Thank you Dana.
- [00:54]
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We heard you introducing the New York Times Family Subscription Subscription up to four separate logins for anyone in your life.
- [01:01]
Host (possibly Dahlia Lithwick)
Find out more@nytimes.com family I'm Dahlia Lithwick. This is Amicus Slate's podcast about the courts, the law and the Supreme Court.
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Sponsor/Advertisement Voice
We are going to channel all of the anger that we have over the organized campaign that led to this assassination to uproot and dismantle these terrorist networks.
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Dr. Mary Ann Franks
We will absolutely target you, go after you if you are targeting anyone with hate speech.
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Sponsor/Advertisement Voice
With God as my witness, we are going to use every resource we have at the Department of Justice, Homeland Security and throughout this government. St. Paul tells us in the Book of Ephesians to put on the full armor of God. It appears to be some of the sickest conduct possible. There's calls for Kim to be fired. We hit some new lows over the weekend with the MAGA gang desperately trying to characterize this kid who murdered Charlie Kirk as anything other than one of them and doing everything they can to score political points from it. I mean, look, we can do this the easy way or the hard way.
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Host (possibly Dahlia Lithwick)
In the past week we have pinged back and forth and at high velocities between two competing irreconcilable truths. Charlie Kirk's commitment to unfettered free speech made Charlie Kirk an American icon and that a commitment to free speech in his honor demands firing professors and columnists and comedians for tiktoks and tweets and monologues someone deems as celebrating his assassination. You know, you are at peak Orwell when you can say Charlie Kirk is the actual messiah, but you cannot quote Charlie Kirk's own words if you disagree with that sentiment. You're also at peak Orwell when talk of national unification requires threats of criminal vengeance and racketeering charges against dissenters, all while the Trump regime tightens its grip on the multi billion dollar gatekeepers of speech and communication and the corporate organs that dominate the public square. We've now entered a kind of hyperdrive of speech suppression that comes closed in the name of freedom and personal safety. And whether you agree with the predominant message or not, the propos that we do not shoot our messengers regardless is not meant to be open to debate. And yet here we are back in March of this year. Our guest this week, law professor Marianne Franks, went viral for this statement to the U.S. senate Judiciary Committee Subcommittee on the Constitution which was holding a hearing on censorship.
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Dr. Mary Ann Franks
This administration has, within the span of a few weeks, unleashed the greatest assault on the First Amendment since the Red Scare, while insisting that they are restoring the freedom of speech. The censorship industrial complex is a thought terminating, gaslighting cliche that attempts to portray the most powerful people in the United States as oppressed and silenced. The current President of the United States is ordering lawful residents to be surveilled, kidnapped and expelled from the country because of their speech. He is attempting to dictate what words people are allowed to use, what educational institutions are allowed to teach, what values businesses are allowed to promote. He is calling for critics and dissenters to be imprisoned and assaulted. He is threatening journalists, students, judges, lawyers, religious leaders, governors, anyone he deems insufficiently loyal and insufficiently obedient. Trump's message could not be clearer. You either say what he wants you to say or you will be punished. This is an attitude of a king and not a president, a man who has declared himself above the law, including the First Amendment.
- [04:45]
Host (possibly Dahlia Lithwick)
Dr. Mary Ann Franks is the Eugene L. And Barbara A. Bernard professor in Intellectual Property, Technology and Civil Rights Law at the George Washington University Law School. She's an internationally recognized expert on the intersection of civil rights, free speech and technology. She's also author of two really important books, last year's Fearless Breaking Free from the First Amendment and the Cult of the Our Deadly Devotion to Guns and Free Speech. Marianne, I feel like we've had you on the show recently and yet the world is unrecognizable from the world you and I discussed not so very long ago. We are in a whole new paradigm and nobody predicted it as much as you. Welcome.
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Dr. Mary Ann Franks
That makes me feel very guilty, I think on some level. But yes, it feels like we are in a completely different world even from the last time we spoke.
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Host (possibly Dahlia Lithwick)
I want to start by saying that everything we're going to talk about today in terms of, you know, Pam Bondi threatening to use the Justice Department to prosecute hate speech, and the vice President declaring open war on the funders of the nation. All of this feels perfectly predictable in some ways, and I feel like in a lot of ways, I'm not putting this all on you, but you have been warning us, and you've said, I think, most recently even in your new book, that history just doesn't back up the claim that all Americans equally enjoy free speech. That we've seen that those who dissent from what you call America's original orthodoxy, you know, which is white male supremacy and power, have always been unprotected and sometimes subject to not just legal persecution, but violent persecution. So I wondered if we could just start by talking about your top line thoughts about Charlie Kirk as sort of patron saint of free speech in America, but also Charlie Kirk, who within a week becomes the reason to criminalize free speech in America.
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Dr. Mary Ann Franks
I think that's really well put, that the Charlie Kirk spectacle in some ways is exposing all the contradictions that I think have, to some extent always been there in our free speech tradition. But they've been really hard to identify and they've been really hard to counter because they've been somewhat hidden behind the plausible deniability of us continuing to say we really respect free speech and the First Amendment will always protect free speech. Now that you're saying that even that pretense right is really coming off, you have that contradiction just laid bare, and now we are having to contend with it. Right. That this is simultaneously an insistence that we are a country that allows people to speak their minds freely. They can say whatever they want, but if you don't agree with how we feel about ourselves or about our heroes, then you will be suppressed. So I think that's exactly. If there is something instructive about this moment, if there is something good that can come of this moment, is that I think it is stripping away all the illusions, all the rhetorical illusions, all the kind of, you could even say, maybe national inertia we've had because we've just assumed for so long that we are defenders of free speech. This is, I think, making it very clear what we've gotten wrong about that and how really serious and deadly a time this is right now.
- [08:06]
Host (possibly Dahlia Lithwick)
So I want to stipulate to our listeners that, you know, we had originally thought that this show was going to be sort of like a pit stop at every weird, asinine, lawless claim that's been made about free speech in the last week. You know, whether it's Attorney General Bondi's threat of using the full force of the federal criminal justice system to target anyone with hate speech to, you know, Deputy Attorney General Todd Blanch claiming that RICO is suddenly available because somebody shouted at Donald Trump at Joe's Seafood on Tuesday. But I want to think of this deluge of lawlessness through this lens of, like, what does it all mean? Rather than, you know, umbrage, umbrage, umbrage, and react, react, react. And I guess I should add to the deluge because it's really chilling. JD Vance and Stephen Miller podcasting about using the sweeping power of law enforcement and the justice system to go after speech and protest. But here's what I have decided. I think rather than go through every such nonsense about the First Amendment, I would love to hear your thoughts about what it means that they feel so comfortable saying out loud and without apology and without any real understanding that they are undermining what we think of as the basic protection of the First Amendment, that right now in Donald Trump's America, free speech means you can praise Charlie Kirk, but you can go to jail or be bankrupted if you criticize him. I mean, the saying it, it's not even the quiet part out loud, it's the loud part out loud. And I cannot believe how swiftly that happened within, in my view, the span of a week and a half.
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Dr. Mary Ann Franks
Yeah. And I think it really does speak to how much the Trump administration thought there was talismanic power in saying we're doing this on behalf of free speech. The administration thinks that it can do the most clearly sensorial things. Right. The most clear violations of the First Amendment. As long as they keep saying, no, no, we're honoring the First Amendment by doing this, they think that that's going to be. Why do they think that that's going to be enough? I think it's because it has been, we've let this happen. And when I say we've let, I mean that there has been a kind of civil libertarian discourse for quite some time that has sort of sided with this idea that, you know, the real problem in the last 10 years is college students protesting. The real problem is that social media isn't giving us enough conservative content. It wasn't just that there was a kind of obsession with things that did not constitute First Amendment violations because they were private actors speaking on their own behalf. It was also because was intended to be a distraction from actual government crackdowns on speech. And not just a distraction, but actually a justification. If you portray protesters, students, professors, Social media companies as censorious, right. They are the ones trying to censor you by their speech. Somehow you at least create this narrative that, well, the government has to step in and stop the censors from censoring you. And of course what that looks like is censorship. But. But you don't call it that because you call yourself a freedom of speech fighter, right? Because you are shutting down the woke and the liberals and all the things that have been vilified for the last decade.
- [11:26]
Host (possibly Dahlia Lithwick)
Marianne, I guess we should pause and note here that although late night comedy show hosts are not sort of the usual bailiwick of amicus, God knows they are clearly what the President lives and dies for. I do think we need to talk about Jimmy Kimmel for a minute because of course ABC and Disney get to cancel whatever they want to cancel. We have seen one network after another, one newspaper after another, taking the knee to Donald Trump. But this is really troubling because before Disney decided to suspend the show indefinitely, we have FCC chair Brendan Carr threatening to revoke broadcast licenses over Kimmel's comments. The President had been calling for Kimmel's show to be canceled months before. And all this is happening while ABC's parent company Disney has business before the administration and while, while nexstar, which was first to pull Kimmel's show from its local stations, has a big merger it wants approved. I'm very confused by this notion that these are all private actors when they are in fact being leaned on by Trump's regime who are saying in advance, I hear Jimmy Kimmel is next. That was the President. Or we can do this the easy way or the hard way. That was Carr or Jimmy Fallon. You're next. None of this feels like it fits the standard narrative about private entities being allowed to cancel speeches. They see fit, yes.
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Dr. Mary Ann Franks
And this is such a huge part of why the public understanding of what's going on is so confused. Right. Because this is so complicated. Right. Nothing is as straightforward as, you know, it's one thing if you started putting people in jail, right? Which of course we are putting people in jail for their speech. But that's not what's really getting most of the attention right now. It's things like canceling shows because the President doesn't like them. So yes, we have to unravel this kind of private actors, public speech. What is this question? And I think there's been a bit of a failure of our to really capture what's going on here. A lot of First Amendment scholars and experts refer to this pressure from the government on private entities as jawboning. That is a common expression among experts, but it's not really one that I think the public has ever been able to seize upon because it's not quite clear what that means. And I think it's much better in some ways to think of this as the government coercing private individuals on the basis of their speech or trying to take away their choices when it comes to free speech questions. Because, yes, the networks are entitled to make decisions that they want to make, make social media platforms, are entitled to kick people off their platforms or keep them on. But when the government threatens a private actor, something like a network or a social media platform, that's actually also raising First Amendment issues. Because this is what is known as intermediary pressure, right? And in a very recent case, this is the NRA versus Volo case, the Supreme Court says you can't do that, right? You can't. If a government official is coercing a private actor so that that private actor will then take steps that are in line with what the government demanding, that is also a First Amendment issue. And this is something, again, that the irony is so much that, you know, I'm surprised people's heads don't explode that we've spent how long, right, with the Republicans actually holding hearings about the so called censorship industrial complex where what they were accusing the Biden administration of was pressuring social media companies to take down conservative content that dealt with COVID 19, right? So you had all of these complaints, right, from the Republicans saying, well, someone in the Biden administration expressed displeasure about this and then Twitter did a thing and therefore that censorship, which it isn't actually, because if you want, as a government actor to express your views to the social media platform and say, I don't like this, I do like this, you're entitled to do that because the government has rights as a speaker. The moment you threaten them with either bad outcomes if they don't do what you say, or good outcomes if they do what you say, then that raises very serious First Amendment issues. And that is what is happening right now.
- [15:25]
Host (possibly Dahlia Lithwick)
Tell me if I'm wrong, Marianne. But it's absolutely compounded by another issue that again gets conflated into the whole conversation, which is, you know, this week we're hearing rumors of a, quote, framework of a deal for TikTok. We're hearing about the potential Warner Brothers discovery and Paramount Skydance merger. So we have a bunch of decisions that are being taken by private actors, I guess, but. But it doesn't have anything to do put aside the consolidation of Trump allies and Trump loyalists there. But it has really nothing to do with the marketplace of ideas as the framers would have considered it. This just has to do with optimizing shareholder benefits and trying to get out from under threats from the administration. So there's this consolidation piece that is happening at the same time as the job owning piece and kind of when they're put together and you see it, I think so much of this happening now where whole platforms are simply taken over and in service to this regime, that's a sort of separate problem, but one that I don't think we always name very well.
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Dr. Mary Ann Franks
We really don't, and this is one of the failures, is maybe a little strong. But First Amendment doctrine does not really speak to these moments. What I think most people's intuitions, if they really think about it, what it would mean to protect free speech from government suppression, which is the focus that we should have, would mean that, you know, are we allowed to make private choices and to express ourselves without fear of punishment? Right. And even if the First Amendment means that maybe at some point there will be some litigation that will be brought ultimately to vindicate some of these interests, that doesn't keep us in a free speech positive place. Right. It just means that the government will push and push and push and hopefully somebody will be able to push back eventually and get vindicated. But by that time you have chilled and suppressed your population and we have all learned to be quiet. And that's what's been going on for several years now. The First Amendment doesn't intervene in a kind of a protective way the way that we would need it to. And it does the opposite for us of what we have always told ourselves, Right. That the conventional wisdom about the First Amendment, that we thought that it not only created a restraint upon government, but it also encouraged all of us to ourselves have an open minded view towards other people's speech. And that famous quotation that is always misattributed to Voltaire about I despise what you say, but I'll defend to the death your right to say it. Let us ask ourselves, do we think that that describes Americans? Does it describe, you know, the people next door? Does it describe the people that you know, or is it in fact the opposite, that if I hate what you say, I will do everything in my power to shut you down and I will call you a censor for expressing your views if I don't like them. Right. So I do think that that is A real problem that is part of the mismatch between the First Amendment and how it's supposed to operate and the real binding power we would need of a free speech protective system that we just don't have. And in addition to all the things you mentioned about the manipulations of the market here, and you know, let's pause for a moment to talk about how even that phrase that, that is so much assumed to be a good way to express what we mean by free speech and the kind of exchange of ideas, marketplace of ideas, is a very interesting kind of commercialization view of what speech actually looks like. And now we're seeing it kind of literally put into place. When you think about what marketplaces look like, they're all about manipulation and they're all about the consolidation of power. If you let a market go naturally when the environment in which that market has developed is not equal and people don't have equal access or equal power or privileges, what you get is a reflection of more power to having more power. And that's all you're ever going to get unless some interventions are made. And if we ever had this view that freedom of speech was supposed to correct for that, to make sure that minority voices were heard, that you weren't just going to get trampled by the elites all the time, you know, where is that force now? But in addition to all of that, it's that the presidential administration right now is also a tech company. And what I mean by that is that, you know, we've had all of these concerns from the Republicans saying, well, Biden talked to social media companies, there's collusion between big tech and all of these liberals. Right. They've all gone woke and it's this kind of big ideological. Well, they're all kind of liberals. Right. And now you have a president who is the owner of a social media platform. Right. Truth Social is, is something that he has actual financial stake in and uses as his own private propaganda channel. And we're not talking about what that does to freedom of speech and what that does to the marketplace. You have Elon Musk being made a special government employee. Right. And that means putting him directly into the government. What does that mean for X becoming a kind of a propaganda channel for the president. Right. We have the technology takeover of government at the same time as all the other forms of consolidation that you're talking about. And that should be terrifying to people.
- [20:27]
Host (possibly Dahlia Lithwick)
Let's pause now to hear from some of our sponsors. This episode is brought to you by Choiceology, an original Podcast from Charles Schwab. Choiceology is a show all about the psychology and economics behind our decisions. Each episode shares the latest research in behavioral science and dives into themes like can we learn to make smarter decisions? And the power of do overs. The show is hosted by Katie Milkman. She's an award winning behavioral scientist, professor at the Wharton School, and author of the best selling book how to Change. In each episode, Katie talks to authors, historians, athletes, Nobel laureates, and everyday people about why we make your irrational choices and how we can make better ones to avoid costly mistakes. Listen and subscribe@schwab.com podcast or find it wherever you listen.
- [21:27]
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- [21:35]
Host (possibly Dahlia Lithwick)
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- [21:39]
Dr. Mary Ann Franks
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Host (possibly Dahlia Lithwick)
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- [21:45]
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- [21:56]
Host (possibly Dahlia Lithwick)
Let's return now to my conversation with Marianne Franks. One component of this week's sort of rapidly unspooling horror show was what it was to have the Vice President and Stephen Miller on Charlie Kirk's show. This is not a Fireside chat. This is not the President giving an interview to ABC News. This is exactly that kind of conflating of what exactly is this conversation and who is hosting it and why? That again, I don't know that we've adequately reckoned with. We're just like, oh, I'm watching the YouTube of, you know, J.D. vance and Stephen Miller shooting the breeze about the First Amendment without thinking about how that came to be. And I think that's one of the things you're kind of flagging right now is that, you know, performing the presidency as an act of technology and communication is something we don't really have skills for yet.
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Dr. Mary Ann Franks
Yet. Right. And the incentives there are so very perverse and dangerous because as many people have pointed out, in addition to all of the kind of literal tech takeover of the interests of the presidency, there's also been the number of people who have been appointed and given really, really powerful positions within Trump's administration who come from the podcasting background from, from tech companies. Right. And that's not just troubling, again, for that actual question of conflicts of interest and whether or not these people are being rewarded for having spread a certain kind of propaganda, that is a concern, but it's also yes, because it keeps confusing the American public about, well, what is entertainment and what is policy. And again, back to that confusion between who is the real censor or not. If you constantly tell people that the real censors are the professors or the real sensors are the big tech companies, and then you basically confuse tech and government and tech and entertainment and government and entertainment, then they don't feel like the sensors anymore. Right. They've scrambled all the signals so that it doesn't seem to matter whether someone is government or not. But of course it matters. It always should have mattered. Which has never been to say that we shouldn't be concerned about the way that private actors with really powerful platforms make their choices. We should always be concerned about that because it does say something about the health of our freedom of expression and our exchange of ideas. But there's a reason why the solid, most sort of sustainable, important part of the First Amendment was always do not let the government control what you say. And if we kept that as our real focus, if we kept focusing on the fact that more than anything else, we need to be worried about the government's influence over the way that we hear things and say things and do things, we need to keep that focus, that we could have been in a position, I think, to more clearly state about the Trump administration, about the people aligned with his values, that they are trying to destroy free speech, and they will do everything they can once they have the power to do so, to repress any view that does not align with the Trump administration.
- [25:04]
Host (possibly Dahlia Lithwick)
And here I just have to stop to note that Sinclair, the media conglomerate that is replacing Jimmy Kimmel live with the Charlie Kirk tribute special on its ABC affiliate stations Friday night, is also demanding that Jimmy Kimmel apologize to Kirk's family and send, quote, a meaningful personal donation to them and to Turning Point usa, that's Charlie Kirk's organization. But again, this sort of casual like, send money as part of your reparations, which again, I think gets alighted.
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Dr. Mary Ann Franks
It's send money and grovel. Right. It's both of those things. Right. And because we are so unaccustomed to actually treating this presidency as a normal presidency, that that doesn't strike all of us as extremely odd. And, you know, it sounds so simplistic in some ways, but just it is true enough, hopefully, for those who are wondering if this is a crazy moment, right, to think what would it have looked like? And what would have been the perception if this was Biden doing any of these things, if it had been Obama doing any of these things. Right. There was this kind of attempt to preemptively vilify, Right. The Biden administration and the Obama administration, that they're going to do all these things. Well, as it turned out, they didn't do any of those. Not even close to any of these things. And if we really ask ourselves and my by here I'm trying to sort of performatively say we, as in if you are aligned in some way with this administration, imagine how you would feel if this was Biden instead of Trump doing these things. What would it look like and what would you call it? How do we describe that when other countries do it? Right. So to really think to ourselves that lesson we were supposed to really be better at than everybody else as Americans is if it were the person you hated, if they were saying the things that you hated, how differently would you feel about this?
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Host (possibly Dahlia Lithwick)
Marianne, we've sort of talked about they from the jump here, but I want to be clear. You know, thus far, we've been talking about the Trump administration. We've been talking about folks in his Justice Department, We've been talking about J.D. vance and Stephen Miller and Todd Blanche, and we've been talking about members of the Republican Party, which are also Trump's party. But I want to talk about we for a minute, all of us, because a lot of people have taken this very lofty moral position that while Charlie Kirk might have been a sort of vocal purveyor of unvarnished hate for women of color and racial equality and trans rights and Paul Pelosi and gun regulation, all of those views were somehow power washed into being a real virtue because he was always willing to go to campuses and perform himself debating with college students. And these kind of quote, unquote, changed my mind. Debates on campuses which were filmed and cut and turned into content for Turning Point USA becomes symbolic of, you know, there is no higher avatar of First Amendment values than Charlie Kirk. And I think that that's a we proposition. I mean, I'm seeing that everywhere that's not they. And part of it is about the asymmetry of, you know, how we have these conversations. But part of it is I do think there is a baked in sense that that was an end in itself, those debates. And that that kind of debating, as embodied by Kirk is an end in itself for equality and liberty and dignity as we think about it as a constitutional value. And I would just love, as somebody who has been watching the First Amendment really carefully, what you think of the proposition that at the end of the Day what Kirk did was put into the world and paid for it, you know, horrifically, with his own body. The proposition that all ideas should be aired in the marketplace of ideas and that if everybody just debated everyone openly, the world would be a better place.
- [29:15]
Dr. Mary Ann Franks
Yeah, that's one of the most sinister aspects, I think, of what we've seen happen in the last few weeks. And precisely because, as you say, that isn't a they versus us kind of thing, that has been this orthodoxy, right. Almost more than anybody else, there have been sort of self proclaimed liberals who are rushing to say we really need to honor what Charlie Kirk stood for. And that's an extraordinary thing to say for multiple reasons, right? And again, separate from the question of, and this is part of the problem, we all need to separate the question of gun violence and horrific act from what someone stood for, Right? These things, they don't go together. And I mean that even in the kind of literal sense that the number of people who have confidently stated that they know why Charlie Kirk was killed, we don't really ever know why someone does something so horrific and so violent, right. The motives are never that clear. There's always a muddled political sign, right? To some extent, human behavior, human conduct is not that easily explicable, right? So the idea that he died for his ideas or that he died because he represented freedom of speech for some way, I think we should really push back on that because that's not really how gun violence and horrific assassinations really operate. So that's one. Right? But separating the question of that from what was it, that kind of brand of so called freedom of speech or civil discourse as some people are calling it, what did it actually entail? And is it in fact the kind of thing that we should be committed to regardless of what happened to one of its proponents? And I think not if we actually care about freedom of speech, because that was the opposite, right? It was someone who, I think it's important to note, was not part of a university community, right? This is not someone who was a student. This is not someone who was a professor. This is not someone who is an expert. This is someone who was able to work their way into universities as a kind of, for lack of a better word, a kind of troll, right? To say, I disagree with this whole proposition of the university, I'm an outsider and I want to go and aggravate people or get them stirred up and I want to film it and I want to make money off of it, right? That's what this was. It wasn't someone who was trying to model within a university community how we could have healthy conversations. This was someone who had a business plan, and who's to say whether that's a good or bad business plan. But as a model for free speech, it is not, because. And this, I really do mean the we. When we think about what that really meant, what Turning Point actually did was it made a list of people. It had a watch list of people. You know, sometimes we say that history doesn't repeat, but it does rhyme. Sometimes it actually repeats. This is a list called the Professor Watch List that lists professors who are not suitably, ideologically aligned with Charlie Kirk and his organization. And they're on a list, and their employers are on a list. And those people have experienced extraordinary harassment, death threats, et cetera. And it's a deliberate attempt to chill free speech. That's what Turning Point stood for, was to chill free speech that they did not like. And then to try to take the accolades of saying, but I'm making this a debate, right? Just come and debate me. But when you are at the same time jeopardizing people's livelihoods and their. And their physical safety, and then you show up and say, just debate me. Well, let's not pretend that this was some kind of civil commitment to discourse. This was someone who was trying to use the kind of formalistic mechanics of debate to make it seem like they cared about free speech, while at the same time ensuring that people were reporting, literally reporting people for not being right wing enough or not expressing the views in the classroom that they thought were appropriate for students.
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Host (possibly Dahlia Lithwick)
I mean, that's one of the things that I think, again, has slightly fallen out of this conversation. And it's the part that is chilling me to the bone right now, Marianne, and that's the vigilantism and the encouragement of people to turn on their college professors. We're hearing citizens should report establishment that don't want to fly their flags at half staff. We're hearing that if you refuse to make a copy of Charlie Kirk posters, you know, you should be turned in. And you know Yale Law School's finest, J.D. vance, encouraging Americans to report to employers, anybody who seems to be, quote, celebrating Charlie Kirk's killing, right? And he says, so when you see.
- [33:34]
Sponsor/Advertisement Voice
Someone celebrating Charlie's murder, call them out. In hell, call them out. We don't believe in political violence, but we do believe in civility. And there is no civility in the celebration of political assassination.
- [33:47]
Host (possibly Dahlia Lithwick)
I'm trying to put into words, Marianne, the twin concerns and one is just the vigilantism, right? The law is failing, so just take it into your own hands, you know, go and harass somebody at your place of work, you know, film your professor. The other is. And this is again, and it loops back into one of your concerns that you've had since I've known you. What does it mean when the entire nation is mobilized to be a surveillance state, you know, filming their neighbors and reporting on them? And I think, again, the sort of casualness of the statement that this is what it is to be a citizen, and so go ahead and do it and we've got your backs. I don't think we've reckoned with where that goes.
- [34:31]
Dr. Mary Ann Franks
We absolutely have not. And one of the tests of our country is in. Of whether we were going to reckon with that was. Was, of course, the insurrection, right? When you had Donald Trump saying, I, I think this is a good thing that you're doing, encouraging the violence. And then you see what happened, right? That police officers died, that there was a, an attempt to take the forcible takeover of our actual democracy, and that just was allowed to happen. Right. And there were no real repercussions. I mean, quite literally, right. To the extent that there were repercussions, when Donald Trump was installed in office, he undid all of them, which, which was from the very top, right, saying, if you are engaged in political violence on my behalf, that is by its definition, not a crime. Whereas people who are engaged in criticizing anything that has to do with Trump's ideology, then you are committing a crime. So it's completely backwards. But that's where things accelerate in a certain direction. If we're being told that the insurrection was not political violence that was encouraged by the president, and that we're being told that criticizing it, right. Is somehow a violation of patriotism. Right? So we're being told what we stand for, which is you have to. To advocate for the orthodoxy that this government wants you to have to have. And you would have thought that if there was any sincerity to this belief or any consistency, I guess I should say, to the concern that people might be moved to violence on behalf of Charlie Crook's positions, right. That you might think you can't control that kind of bloodlust once you unleash it, it could also hit the people that you agree with, right. There's no way to control this once you have let it out, right. If that's what you actually think happens, happened to Charlie Kirk, then why aren't you worried about it happening again. And I do actually think that that's part of why the bloodlust has been so sustained and so genuine in the sense that I do think that there is a certain part of the population that never thought it had to worry about being on the receiving end of that kind of violence and now is a little bit worried. And their way of dealing with that worry of having to contend with the fears that many of us have had to contend with for years because we've been the vilified opinion havers, right? They are just determined to become angrier and more violent as a way of shutting out that fear, that they are very afraid that it's going to be them. And I think that it would be far better for all of us to take a minute to think about why do we have to be worried that we're gonna be surveilled, punished or assaulted or killed because of whatever view we have, whether it is one that is in favor of this current administration or one that's very critical of it.
- [37:03]
Host (possibly Dahlia Lithwick)
We are going to take a short break.
- [37:06]
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Dr. Mary Ann Franks
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Dr. Mary Ann Franks
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- [39:06]
Dr. Mary Ann Franks
Forward.
- [39:08]
Host (possibly Dahlia Lithwick)
More now with Dr. Maryanne Franks. So here I need to stop and ask you about the theory of the case that is kind of emanating from the people who are now really weaponizing this assassination. Again, because there's a subtle step that I think we keep skipping. And again, I think it's something that you've had your finger on for a long time. And that is essentially this long before we knew anything about the identity of this shooter, we scrabbled around, as we always do, right, for clues, what were his motives? And then that becomes the Holy Grail. We search for that and it allows us to start to level blame. Right? And one thing that, that it seems happen with Kirk Shooter is that long before there were any clues at all, we were certainly hearing from the president and his proxies that the shooter was a leftist, okay? Then it became clear that the motives were uncertain. I think are still uncertain and certainly not clear. Then the blame shifts, right, immediately to the university that he went to, only briefly. And then these terror networks that, you know, Stephen Miller is putting it, you know, they're out there radicalizing young people. And then it's speech, right? It's whoever is, you know, paying money, funding magazines, right? And so it's this old, old play. It is not new. But the idea is there's really no such thing as actual right wing violence. All violence is the result of, you know, good boys who become brainwashed completely by radical leftists. And that allows you to raise these questions about race and agency and, you know, these unseen, shady forces of outsiders and about the academy. And it seems to me that that also happened in such a compressed amount of time, Marianne, that we didn't even do like the, the due diligence of waiting to find motives. It is simply the case that long before we know anything, we're blaming the academy, we're blaming left wing funders, and we are blaming the speech of people who apparently is so powerful that it needs to be sort of stamped out root and branch.
- [41:28]
Dr. Mary Ann Franks
Yes. And that connection that you're making, especially to the university question, right, because we're definitely going to Be we're already in it. But I'm sure that we're going to hear the crescendo pretty soon because for just really a long time now, Trump and Vance in particular have been vilifying universities. They've been attacking professors, they've been attacking students. We know that that is the spectacle that they really want to focus on. And yes, as soon as it became that this was a person, the person who's identified as a shooter is from a conservative Mormon family, that is Trump supporting, right. That became complicated. So of course it had to then shift to, well, that must mean that someone was led astray. But of course, all of the things that are being shifted here, right, is to this pre established narrative that all bad things are the fault of the left and all good things are products of the right. And if things were taking their natural and healthy course, we'd never get any kind of violence. That's really tricky, right, for the right to maintain. Because, because when you look at the way that the narrative goes around actual pretty clearly politically motivated violence, what do you say about that? Right? And the answer is, you don't say anything, right? So when Donald Trump is asked about Melissa Hortman and seems to not even know who that is and to talk about the number of assassinations that have been really quite, in as much as any of these things can be clear, have been quite clearly motivated, right? By far, right ideology. And we know that that is kind of typically the case, right. And we know this from sources that are not left leaning. These are just, just, just, you know, categorizations made by Cato Institute and others that, you know, when you look at the left. And again, what are we even talking about when we use these categories? But by and large, what does the left do that the right criticizes? They advocate for gun control. They say there's too much violence. They say that we really need to condemn these acts of violence. And we're usually in that position of having to say that because it's usually some right wing coded violence that is constantly happening, whether it's a school shooting or whether it's a political assassination. And what does the left do every time they say we should really have some gun control and what happen when it's seen as something that affects the right, they immediately say, well, the left is bloodthirsty and they're calling for our murders and we've got to shut them down before they do that. And the fact that people aren't hearing when I say people, people who are advocating that don't understand that that's the pattern here is really concerning, that we can't see this, that we have been so tricked into believing that there is this kind of justice to. Well, the left has gone too far. And we're hearing it again from liberals. Right. That, well, it's certainly true that the culture of intolerance is something that universities have really cultivated. As if that were possibly true, as if universities were setting the tone for our country at any time. Right. As if it weren't much more powerfully the things like what Charlie Kirk would say about the Second Amendment, this firm belief that, yeah, you gotta have some dead kids if you believe in this constitutional right, that we don't see that that is a much more powerful motivation of why we've gotten so violent and so extreme. But I think it's this determination not to see that, and it's a determination, I think, not to see seem as obviously weak as the far right must seem right now. Right. And what I mean by that is you are quite literally saying as. As members of the Trump administration, we are so scared of even so much as the suggestion that the far right isn't right about everything, that we are going to shut it all down, we're going to threaten them with violence, we are going to strip them of their funding, we are going to surveil them because we're so scared of what they might say. Right. That is why they're trying to insist that there's some kind of violence they have to preempt, because they can't adm. That what they're really saying over and over again is that they're scared, so scared of being contradicted, so scared of being criticized, that they have to respond with this kind of repression.
- [45:03]
Host (possibly Dahlia Lithwick)
It's so interesting because what you're describing is both unthinkable power and unthinkable weakness and vulnerability at the same time. And it's really fascinating to hear it posited that way, because it just reminds me, you know, we keep having this conversation on the show about this is both an immense, chilling amount of power, and we all feel it. I mean, I don't know anybody who's teaching at university or who's, you know, a media person who isn't feeling a little scared, but also in the midst of that chilling power, this is really fragile. Like, this is really brittle as bone. And that's, I think, the place where the hope comes in. Right. Because once you can name it and understand, understand it, it's not, in fact, insurmountable I do want to ask about this Donald Trump lawsuit. I'm laughing because it's the New York Times lawsuit. Now you're laughing. And it's so ridiculous because, I mean, I'm not going to do the dramatic reading I had thought about doing, but it's beyond comedy, right? And his lawyers clearly don't know what actual malice means, right, under New York Times v. Sullivan and what defamation means. And the whole thing is written like, I don't know know, it's crazy, but it does signify, I mean, both this long standing Trumpian, you know, I'm just gonna sue everybody. Cause even if I lose all the time, I'm moving the bar. I'm moving the bar. You know, I'm chilling and I'm bankrupting and I'm, you know, why not roll the dice? I've got infinite resources. But there's something else going on in this lawsuit that I just wanna test against you. Who actually, again, thinks about the First Amendment and as a set of pretty meaningful categories, right? Because actual malice has meaning, defamation has meaning. The University of Mississippi just terminated someone due to, quote, hurtful, insensitive comments. You know, now we're hearing that Trump's interrupted dinner has some like, you know, hurtful, I don't know, digestive injury. And I'm very, very curious about this kind of feeling replacing actual doctrine. Like we know what fighting words are, right? We know the incitement, we know what these ideas are. And even if they're amorphous, the courts have spent 200 years putting meat on that bone. Now we're just hearing about like, feelings. And in so many ways, what is scary. And we haven't talked about the Supreme Court much on this show, but it does feel like a Supreme Court that has a majority conservative membership that is made of nothing but feelings and skin is gonna be really sensitive to the idea that maybe actual malice means being mean to the President. And I'm just really wondering if in some sense this goes to the fragility of what we thought was an immutable First Amendment doctrinal landscape that turns out.
- [48:08]
Dr. Mary Ann Franks
To be pretty hollow again, if we just did that. Fun, you know, switch the party's game, right? Who was it who was talking, telling us for, you know, years now, safe spaces, snowflakes, you know, facts don't care about your feelings. That crowd that was saying, oh, you're saying that when people threaten to lynch you and to stalk you, you know, you're saying that that's, you know, a problem for you. And we're going to articulate that or we're going to respond to that by calling you a snowflake. But now if you so much as don't say the right praiseworthy things about someone that the right considers to be a hero, then you will be shut down. And that's somehow not fragile. And that's not so. Yes, I do think it's an attempt to code fragility as strength. Right. And that's extraordinary. It's unnerving how often terminology and concepts from the field of domestic violence really do come into play here and are really illuminating. But one of the things that domestic violence experts talk about is how the thing you have to understand about the dynamic between abusers and victims often is that victims have to learn how to listen to, to watch what the abuser is doing as opposed to what is it, what he's saying. Because the abuser is going to say, I'm not hurting you, you're hurting me, as they're punching you in the face, right. We all have to learn that skill of do not listen to what they are saying. Look at what they're doing. Right. And it's the same kind of cowardice, right? It looks like it's not cowardice because it's so violent, but it is cowardice because this is an attempt to. Yes. To say that that one's personal, fragile feelings should determine what anybody gets to hear. Right? So if it hurts your feelings, not only should you not have to hear it, no one should hear it because he forbid someone else think that it's also important. So, yes, I think that that is this extraordinary attempt to do this in light of the fact that the far right, and not just the far right, the liberal kind of heterodox alliance as Nicole Hemmer calls it, has been trying to portray students as being fragile and the woke as being fragile and liberals as being fragile, that they've spent all this time lecturing people about how their feelings are not adequate grounds for any kind of censorship or any kinds of grounds for repression. But now it's all feelings all the time. And think about how, you know, in the Mahmoud case, right, where the complaint about these books, right, these kids books that say something as innocuous as, well, maybe gay weddings are not bad, right. Or they're not that unusual. And the way that it's portrayed, the dissent points this out, that it's articulated as a threat, a threat to the religious beliefs of these children's parents. That's amazing, right? The same time that this is a ideological position that takes real threats, real stalking, real harassment, and says, we don't actually care about any of those things. C counts, right? We don't care about any of those things. But what's an actual threat is if you so much as suggest that someone's private worldview might not be the only worldview that is considered to be a threat.
- [51:00]
Host (possibly Dahlia Lithwick)
Dr. Mary Ann Franks is the Eugene L. And Barbara A. Bernard professor in Intellectual Property, Technology, and Civil Rights Law at the George Washington University Law School. She is an internationally recognized expert on the intersection of civil rights, free speech, and technology. She's also president and legislative and tech Policy Director of the Cyber Civil Rights Initiative, a nonprofit organization dedicated to combating online abuse and discrimination. She's the author of two important books, most recently in 2024, Fearless Breaking Free from the First Amendment and Before that, the Cult of the Constitution, Our Deadly Devotion to Guns and Free Speech. Marianne, it is always a pleasure and also a heartbreak to have you on the show. But, um, I do feel, I do feel as though for folks who feel like this is a new, new, new turn, it's useful to remember we have been turning in this direction for a long time and that in fact, this is a norm that I think I'm hoping that now that we have described it and named it and sketched it out, it's a little easier to think about how to combat it. So thank you, as ever, for being on the show.
- [52:19]
Dr. Mary Ann Franks
Be well, and thank you for having me.
- [52:25]
Host (possibly Dahlia Lithwick)
That's all for this episode. Thank you so much for listening and thank you so much for your letters and your questions and your comments. Keep them coming. We are reachable by email@amicuslate.com you can find us@facebook.com Amicus Podcast. You can also leave a comment if you're listening on Spotify or on YouTube or rate us and review us on Apple Podcasts. On today's Amicus bonus episode, Mark Joseph Stern and I celebrate Constitution Day the only way that makes sense right now. You've guessed it. By running through all the latest wildly unconstitutional moves made by the Trump administration. We've got prosecutorial misconduct, possible shadow docket endorsement for more seizing the of of the power of the purse, and more threatened firings for officers of the law who will not carry out the king's wishes. You can subscribe to Slate plus directly from the Amicus show page on Apple Podcasts and Spotify or visit slate.comamicusplus to get access wherever you listen. That episode is available for you to listen to right now. We'll See you there. Sara Burningham is Amicus's senior producer. Our producer is Patrick Forth. Hilary Fry is Slate's editor in chief. Susan Matthews is executive editor. Mia Lobel is executive producer of Slate Podcasts, and Ben Richmond is our senior director of operations. We'll be back with another episode of Amicus next week.
- [54:02]
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