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- [00:00]
A
Hey there, listeners, a couple notes before we begin. First, I wanted to say our live show at the Comedy Cellar in New York City next week is sold out. So thanks to everyone who got tickets. We're really excited and looking forward to the show. Well, it's fitting for today's topic, free speech and in this particular case, comedy. If you did not get tickets, do not worry, we will have future live shows and we look forward to seeing you there. So keep your eyes peeled. I also wanted to say, secondly, I want to hear your questions. If you have a question that you would like answered on this podc, there are a couple ways to get in touch. First and foremost, I guess my preferred way is become a paid subscriber. At GDPolitics.com, you can join the paid subscriber chat and submit your questions there. You can also reach out on social media or on email@galendpolitics.com youm've always got fantastic questions. I love opening up the mailbag. So send me any questions you've got. All right, here's the show. Hello and welcome to the GD Politics Podcast. I'm Galen Druke. When President Trump took office on January 20, 2025, he said in his inaugural address, after years and years of illegal and unconstitutional federal efforts to restrict free expression, I also will sign an executive order to immediately stop all government censorship and bring back free speech in America. Never again will the immense power of the state be weaponized by to persecute political opponents. Since then, Trump has called critical television coverage of him, quote, illegal and said that, quote, when 97% of the stories are bad about a person, it's no longer free speech. He's also threatened ABC's chief Washington correspondent to, quote, go after people like you for, quote, hate speech and urged his administration to revoke the broadcast licenses of TV stations that are, quote, against him. He also filed a $15 billion lawsuit against the New York Times and threaten protesters and left wing groups with racketeering lawsuits. Additionally, Trump has urged his attorney general, Pam Bondi, to target his political foes. For her part, Bondi said in a podcast interview, quote, there's free speech and then there's hate speech and there is no place, especially now, especially after what happened to Charlie in our society. She went on to say, we will absolutely target you, go after you if you are targeting anyone with hate speech. She later attempted to clarify that she was referring to incitements of violence. As we discussed on the last podcast, FCC chair Brendan Carr threatened Disney and ABC's affiliate stations over Jimmy Kimmel's comments saying, quote, this is a very, very serious issue right now for Disney. We can do this the easy way or the hard way, end quote. These companies can find ways to take action on Kimmel or there's going to be additional work for the FCC ahead. The Pentagon has said it will require journalists to sign a pledge refraining from reporting information that isn't authorized for release, including unclassified information, or or risk losing press credentials. And the vice president urged Americans to call the employers of anyone seen celebrating the killing of Charlie Kirk. Sorry, I should have clarified. This is not what's happened since Trump took office. This has all happened in just the past week. And it adds to a long list of moves that already concern First Amendment defenders, like targeting law firms, museums, academic institutions and career bureaucrats for expression. Trump disagrees with and attempting to criminalize burning the American flag. Today we're gonna make sense of all of this with a longtime defender of the First Amendment, Nadine Strossen. She was the longest serving president of the ACLU from 1991 to 2008 and is now a senior fellow at FIRE, the Foundation for Individual Rights and Expression. She's also the author of the 2018 book why We Should Resist it with Free Speech, Not Censorship, and a professor emerita at New York Law School. Nadine, welcome to the podcast.
- [03:51]
B
I'm so happy to be here. Galen. Well, do we have enough to talk about?
- [03:55]
A
Yeah, I think we do. But I want to start by giving listeners a deeper understanding of your background because I think it's important for this conversation. Throughout your career, you've defended all manner of expression, ranging from the alt right in Charlottesville to free speech on campuses, to pornography to flag burning, to criticizing the Patriot Act. Perhaps most poignantly, as the daughter of a Holocaust survivor, you've spoken in favor of neo Nazis right to march in Skokie, Illinois, a case that predated you at the aclu. So whether the left or right embraces you often changes from one issue to the next. But over time, you say that you've gone professionally from focusing on the broad set of rights that civil libertarians care about to focusing predominantly on freedom of expression. Because you say it's that important.
- [04:41]
B
Why, it is absolutely the most essential freedom in, in order to protect every other freedom. Without free speech, we cannot advocate for any other human right. For that matter, one couldn't advocate against any human right or for, or against any other public policy. As Justice Louis Brandeis said in a 1927 opinion which remains one of the most eloquent, enduring explanations of the unique value of free speech. It has both an intrinsic value and an instrumental value. Intrinsically, it is essential for each of us to explore and identify and express our own beliefs, our own Persona, our own autonomy. But instrumentally, it is essential for communicating with other people. Therefore essential for forming human relationships and at a larger scale, and essential in our democratic republic for we the people, the opening words in the Constitution we wield sovereign power, but we could not do that effectively or responsibly unless we have the fullest freedom to engage in even the most vituperative, offensive, insulting, dissident, dissenting speech about our elected officials. As another, more recent Supreme Court decision put it, Galen about public policy matters is more than individual self expression. It is the essence of self government.
- [06:33]
A
We're going to get into the law a little bit more later on, but I just have to ask you what you've made of the past week or so in American politics.
- [06:42]
B
It really has been like a shell shock. It seems that every day, every hour, there is yet a new attack on free speech. And as you note, gay and I've been at this for a long time. I have a nonpartisan approach to critiquing any government official who invades free speech. And throughout my adult lifetime, which has now spanned quite a few presidential administrations, every single one of them, Democrat and Republican, conservative and liberal alike, has engaged in some serious violations of free speech. But the Trump administration, I have to say, has hit a new low with the constant barrage of assaults and the constant attempt to shape every single federal agency, every single public policy as an instrument for propounding Trump's preferred messages and suppressing anybody who disagrees with him, or even those who don't sufficiently loudly agree with him. In that sense, it truly is a uniquely dangerous approach in my long experience.
- [08:05]
A
Yeah, I think people might be a little overwhelmed by that intro to the podcast. There's a lot in there, but is there anything that sticks out to you as the most concerning?
- [08:16]
B
I would say, in fact, the fact that there is such a constant barrage is extremely concerning and may well be part of a deliberate strategy to create a new normal where we just become so buffeted and so inured that it is too exhausting to even think of fighting back. And this is something that concerns me a great deal. Even though the First Amendment law is very speech protective. And those entities that Trump has gone after, who have chosen to resist by bringing First Amendment lawsuits have prevailed, including with ideologically diverse judges, including those who have been appointed by Trump himself. So Harvard University won a major victory a couple of weeks ago. Every law firm that has resisted Trump's inroads has succeeded against him. There's no doubt that every single one of the measures that you have listed, I am very confident, could be successfully challenged in court. But we see other powerful wealthy entities, including the broadcast networks, including Columbia University and other universities, including many powerful established law firms, deciding not to stand on their First Amendment rights, not to resist under the law. And I am empathetic with and understanding of that decision because litigation is a very slow moving process. It's very expensive. It takes a psychic and emotional toll, a reputational toll, as well as a financial toll. And so for all practical purposes, Trump can simply bully and extort the First Amendment and freedoms being actually enjoyed.
- [10:18]
A
Yeah. To that end, I want to talk about this most recent instance at the fcc. You mentioned that plenty of presidents on the left and the right have, from your perspective, infringed on free speech rights. I think most recently the Biden administration took heat for pressuring social media companies to suppress what it deemed Covid related misinformation as well as information about Hunter Biden's laptop. From my research, I understand that Nixon's administration also tried to use the FCC to influence broadcast networks coverage, but that for the most part, presidents have taken a hands off approach to the FCC since then. So I'm curious, traditionally, what is the role of the Federal Communications Commission and its chair?
- [11:02]
B
The Federal Communications Commission was created in 1934 under the Telecommunications Act. Before that, there was a body that regulated radio, but the statute that created the FCC made very clear, explicitly clear, that censorship, and that was the word that was used, was not to be permitted in any way, shape or form. That the purpose of the commission was technical and operational. The concern there was to make sure that one signal of one radio TV broadcaster was not interfering with the signal of another one. There was one general standard that sometimes has been used for a very narrow sliver of content, regulations, and that's the requirement that the broadcasters must operate in the public interest. Many of us feel that even that standard has been abused, but in fairness, it has been confined to specific matters concerning sexual expression, namely, indecent expression, patently offensive expression, and also vulgarity, profane expression. I'm putting all of those terms in quotes because it is an anomaly for the over the air broadcast, patently offensive, indecent and profane expression is completely protected in every other medium, including the medium that we're using right now. And print and so, Nadine, feel, feel free. Exactly.
- [12:53]
A
If you want to, if you want to, if you want to mention those. What is it? The, the six words that are the seven dirty words.
- [12:58]
B
It's really.
- [12:59]
A
Can I get you to free speech advocate? Do you want to say them?
- [13:02]
B
Well, there's one I want to say because. And most people your age and younger, Galen, don't get it because to them they can't tell. It all comes over the same screen. What's the difference between broadcast or cable or satellite or online? And yet, for this archaic reason that the Supreme Court has not revisited for many, many decades over the air, broadcast has given second class treatment. And therefore, even when you are using one of these four letter words for very serious test, educational purposes, you get bleeped and you perhaps subject the interviewer to fines. One of the most important Supreme Court landmark decisions on free speech, which came out of the Vietnam era, Cohen vs. California. In 1971, the Supreme Court upheld the right of a college student who was protesting the draft and the Vietnam War to wear a jacket that said fuck the draft. And by the way, that word then I always have to explain this to younger people because now everybody says it and seems not to be particularly offensive. But at the time it was such a deeply taboo term that the Supreme Court justice told the ACLU lawyer who was arguing the case in the Supreme Court that he should not use that word. And fortunately the lawyer did, because if he had not, that would have acknowledge the argument that was being made by the government that this word is so dangerous that it cannot be, you know, the word that dare not be uttered. But to this day, Galen, when I have interviews on radio, over the air, radio or tv and try to describe the facts of that case, you know, the word is quoted in the pages of the United States Supreme Court reporter and on every other medium that could seriously lead to, to a fine against the broadcaster. So that exception is very lamentable, but it is fortunately the only exception that has been made to the bar on content censorship. There has never been even any attempt to suppress political speech, let alone for the reason that Trump and Carr have made expressly clear that they want to suppress views about politics that are critical of Donald Trump and his policies. That violates what the Supreme Court has called the bedrock principle of freedom of speech, namely viewpoint neutrality or content neutrality. Government must remain neutral with respect to the content, the viewpoint, the idea, the message. Now, the reason that the Supreme Court, by a very split vote, upheld the FCC's authority to regulate so called broadcast indecency again, in a very old case that was very contested at the time and has not been revisited for many years. It was for a child protection rationale, the assumption being without evidence, I might say that children are somehow damaged by inadvertent exposure to four letter words or to any sexually suggestive reference over the air.
- [16:48]
A
Well, you, you caught me, Nadine, because I oftentimes do bleep swear words on this podcast because people will send in comments being like, I like to listen to your podcast in the car and, and sometimes my children listen in. But I think, you know, I'll give you the respect of not bleeping your fuck this time around. Okay, so back a little bit to the issue at hand here, which is whether or not there is a legal case against Brendan Carr, the fcc, the President, in this instance, abc, nextstar and Sinclair seem to adhere to any pressure from the FCC instead of filing a suit. Two questions. If they filed a suit, is there a clear pathway to victory? And if they aren't interested, is there anybody else who could file a suit?
- [17:32]
B
I have to say I have not litigated for many, many years and there may very well be procedural, technical kinds of obstacles to filing lawsuits. Such standing, is this the correct party and immunity doctrines and so forth. I can only comment on the substantive merits of the First Amendment argument, which are extremely clear. Not only the fundamental viewpoint neutrality principle that I told you about, but also the longstanding tradition that has been adhered to by FCC commissioners or all across the ideological spectrum, consistent with Congress's explicit mandate that there shall be no censorship. I noted with great interest that recently a group of former FCC commissioners who had been appointed by both Republican and Democratic presidents strongly objected to this new assertion of power to regulate content. So I think it would be a slam dunk winner on the merits of the First Amendment. The standing issue is something that the Supreme Court has enforced inconsistently, but in some ways making it difficult to successfully press First Amendment challenges. So you raised the very important issue of the Biden administration engaging in jawboning with social media companies to get them to deplatform certain speakers and certain ideas that were inconsistent with the administration policies. I think, and many agree, that in the First Amendment community, that was a severe violation of free speech. But when the Supreme Court heard the case, it held that the particular parties to the case did not have standing. They were not the correct parties to assert that claim. You know, in terms of whose First Amendment rights are violated. Galen, I really want to make a video. Very basic point here which Is that, of course, the right of the immediate speaker, the Jimmy Kimmel in the case we were talking about is affected and undermined, but also the free speech rights of the network, because as a powerful private sector communications platform, they have a free speech right to determine without undue pressure or coercion from the government to make determinations about who will speak and what they will be allowed to say. So I should have a parenthetical here. If the network had decided, for business reasons or public relations reasons, if they had made an independent judgment of their own to suspend Jimmy Kimmel, that would have been an exercise of their First Amendment rights. But if they do so because of the veiled, or in this case, hardly veiled threat, threats of the Trump administration, that is tantamount to the government directly censoring Jimmy Kimmel, which in a case just last year, the Supreme Court unanimously reaffirmed that such indirect government censorship violates the First Amendment fully as much as direct censorship. But in addition to the network and the speaker himself having First Amendment rights, undermining every single one of us members of the listening public, the audience also have our free speech rights undermined because the Supreme Court rightly has recognized that the First Amendment protects not only the right of the speaker to convey information and ideas, but also of audience members to receive the information and ideas.
- [21:41]
A
Yeah, we've been talking a lot about the First Amendment, so I just want to read it here as a reminder to everyone, which is Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people peaceably to assemble and to petition the government for a redress of grievances. We've talked a little bit about the Supreme Court weighing in here. I know lots of people have opinions about the current Supreme Court. Liberals view it as a partisan body at this point. There are people who will argue that it's a. It's a heterodox court that will stand up for constitutional rights in different instances that don't align with one party or the other. I'm curious how, as you called it, the First Amendment community views this current Supreme Court and how protective it is of the First Amendment on the whole.
- [22:32]
B
And until recently, I would not have even said on the whole. I would have just had an unqualified assertion that this court, across the ideological spectrum, has been remarkably protective of free speech, issuing a series of decisions supported by justices from the left and the right, upholding freedom for extremely controversial speech that many members of the American public think should be suppressed, including so called hate speech. The reason why I qualify this statement and say on the whole the court has a good record is at the very end of the current Supreme Court term, it issued a decision that was deeply inconsistent with free speech principles and many prior precedents in a case that upheld a state law requiring age verification on social media over a very spirited and persuasive dissent. Make no mistake about it, in addition to violating the free speech rights of minors, which the Supreme Court has has upheld throughout its history, this law also, as the lower courts almost unanimously held in many cases on this issue, adults, free speech rights are also violated because of the chilling effect of having to provide identification, which, as we know, despite any protestation of supposed security, is vulnerable to hackers and other evildoers. And many people will therefore be determined deterred from accessing sites if they have to trade their privacy and security as a condition for doing it.
- [24:31]
A
As we've gestured to in this conversation, there's the law and then there's also pressure from the government. And so far we have seen law firms, academic institutions, as you mentioned in this case, perhaps the broadcast networks, succumb to pressure without, and I want to put that in quotation marks because. Because it's not clear the motivations behind what nexstar and ABC did. There's probably a case here that they were making a business decision like you suggested, and part of that business decision may even be that they have business before the FCC regarding mergers and the like. And so as private enterprises, they're allowed to sort of conduct their business as they wish. But for somebody who probably cares about the First Amendment not just as it pertains to the law, but also as it pertains to the human right, the moral, the ability to express oneself freely. How do you address the conundrum of sometimes the law doesn't matter because the pressure. How do you address that kind of incursion into free expression rights?
- [25:35]
B
It's extremely serious, Galen. And let me expand your excellent examples into the realm of every single one of us as individuals. How do you withstand the peer pressure and the social pressure and the potential ostracism and the potential stigmatization? Worse yet, you know, people trying to get you fired from your job or suspended from school or expelled from school as a student? Everything that I'm describing has often been referred to as cancel culture. And that is a contested term, but I think it is quite accurate. Let me explain why. The critics of that term say, oh, but everybody who Is complaining and criticizing and advocating some kind of retribution, they are just exercising their First Amendment free speech rights. Yes. And as you said, companies that decide that they are in universities and law firms that decide that they are not going to go to court to litigate, they're also exercising their freedoms. And so we can't say that there has been a legal violation. But if we care about creating a society and a community and a culture, particularly in particular sectors of our society, such as academic institutions, educational institutions, journalism, then it's really, really important that we supplant the so called cancel culture with a free speech culture where people can, yes, engage in vigorous, hard hitting criticism, but do not engage in overly punitive disproportionate punishment, which is going to have the effect of stifling debate. Exactly the opposite of what the goal of free speech is. And if there is any silver lining to the cloud of the recent cancel culture from the right that we've seen very dramatically in the past week, as we've had many individuals, but also with pressure from an encouragement from government officials, seeking out and calling for the punishment and leading to the punishment, including firing and dismissal even of tenured university professors because of dislike of comments they've made about Charlie Kirk, that cancellation coming from the right, I would hope would convince the people on the left who used to say dismiss the idea of the power of cancel culture. What we've seen in the recent past is a turning of the political tables. You mentioned in your excellent introduction, Pam Bondi and others from the right calling for suppression of hate speech. I put it in quotes because not a legally recognized concept. Whereas Trump and Vance and others on the right have long denounced the concept of hate speech, which was until recently wielded by those on the left against what they considered to be racist or misogynist or transphobic speech. So you know, when we have these shifting patterns where, you know, those who used to applaud free speech are now using the very sensorial tools that they previously criticized and vice versa, we can go in two directions. We can either ratchet down so both left and right are agreeing, let's censor hate speech, let's empower cancel culture, even if it has a speech suppressive impact or and this is the hope of those of us in the free speech community, this is an opportunity to give everybody a wake up call, particularly those on the left who have been less concerned about cancel culture given their predominance in campuses and journalism and other cultures where this has been a problem. To now understand, oh this is a tool that can be used to suppress ideas and speakers that I support. Therefore, I'm going to hop aboard the Fire and ACLU bandwagon of neutrally defending freedom even for the thought that I hate. You know, there's a golden rule among those of us who advocate for for free speech evenhandedly, and that is if you want to have freedom for the speech that you love, then you must defend freedom for the speech that you loathe.
- [30:36]
A
Today's podcast is brought to you by you, the listeners. We've been making this podcast for about six months and it honestly wouldn't still exist if not for our paid subscribers. Because of you, we could pick up where FiveThirtyEight left off and continue covering politics with curiosity, rigor and a sense of humor. So first, I want to say a huge thank you for all of your support. I feel the community that we've built here at GD Politics. Second, if you have not yet taken the plunge, come join us. The water's warm. Paid subscribers get about twice the number of episodes, access to the videos and you can hang with us in the paid subscriber chat. Now that it's post Labor Day, we're heading into this fall's off year elections. Before long we'll be talking about the midterms in earnest. Make sure you never miss an episode and become a paid subscriber@gdpolitics.com that's gdpolitics.com See you there. I want to actually get into some of the ideas and law behind hate speech and deeper into cancel culture. And I do have to say it is remarkable the speed with which shoes have switched feet in this instance and the shamelessness on both sides with which shoes have switched feet in this cancel culture debate. But sort of really honing in on what's happening in this moment in American politics. Do you think there is currently a serious threat to free speech that we haven't experienced in modern politics? And if so, so if there's no legal recourse, what's to be done?
- [32:12]
B
Well, I do think it is an unprecedented barrage of assaults. We've probably most of the individual kinds of problems we have seen, but never in such concentration and never such brazen disregard of Supreme Court precedents and of federal statutes. I mean, Supreme Court precedents. We know that the Supreme Court has twice with votes across the ideological spectrum said that laws against flag burning or desecration of the flag are unconstitutional. And yet Donald Trump issues an executive order purporting to make it a crime. Likewise with respect to the federal statute that clearly says that the FCC may not engage in censorship. And yet we have the chair of the fcc, who, by the way, before he became chair of the fcc, issued very strong pro free speech statements. We can quote him in a lawsuit against his very own policy, where he said quite eloquently and forcefully that the FCC should never engage in content censorship. So there seems to be this arrogant attitude that the law doesn't matter because we have power on our side and we can act more quickly and swiftly. The courts move more slowly. That is truly unprecedented, to the best of my knowledge, in American history, long before I was born, too. That said, you can't be an activist without being an optimist. And there is great reason for optimism, as I indicated earlier, with one exception that was disturbing but very specific, the recent Supreme Court decision about social media and age verification. That exception aside, the court has been highly protective of free speech and in particular has very, very strictly enforced the viewpoint neutrality principle. And if I may say so, Galen, I've mentioned the recent Supreme Court, except strong speech protection involving age verification. That was to protect kids from access to sexually oriented expression. That's what the laws target. I mentioned the one exception to the FCC's staunch wall between what it does and any kind of censorship, the one exception is to protect kids from access to sexual expression. So there's something pervasive in American culture that has consistently seen sexual expression and kids as a uniquely dangerous mix. I think that those decisions and measures are wrong, but they are to the side from the major issue we're talking about here, which is the abuse of the power of the executive branch of government specifically to suppress political speech, or for that matter, you know, entertainment or satirical or comedic speech. But that is addressing public policy issues, that is criticizing the president's policies. All of those actions, I think, can very strongly be challenged in court. And those of us who want the court actions to be brought have to do everything in our power. That includes organizations such as fire, making very clearly available our resources to defend faculty members and students whose rights are being violated. Before doing this podcast, I was reading the Chronicle of Higher Education and Inside Higher Education, you know, very important publications for those of us in the academic community. And I was very happy to see very big ads from FIRE and ads not in the commercial sense, because the work is done pro bono. If your free speech rights are being violated, contact us. We can provide a lawyer. We can provide legal services, services. So that's really important. Other members of the pertinent communities should file friend of the court briefs. That was very important in the Harvard case, for example, because it means they're sticking their necks out, right? They're taking a stand. Other universities to file briefs in support. Everybody who is a voter or a constituent or a consumer. Raise your voices in that capacity. Even if powerful private sector companies will not respond to principled concerns about the First Amendment, they certainly are responsive to consumer complaints, right? How about organizing a boycott of networks or other broadcast outlets that capitulate too quickly or to law firms or universities? We can use our consumer power, our power of the purse, if you will.
- [37:29]
A
Taking everything you've said, how would you advise Americans, broadly, journalists, academics, the political opposition, about how stable their First Amendment rights are in America today?
- [37:41]
B
I'm going to go back to a statement that was made at the beginning of the last century by a Harvard law professor named Zechariah Chaffee, who was the first First Amendment scholar, free speech scholar. He wrote an excellent book about free speech in America. He was also an activist, a founding member of the acl. And he said something then that was true then and continues to be true. Galen. In the long run, people will have just as much freedom of speech as they want. If there is not public support for free speech. We're going to elect government officials who do not respect free speech, who get away with violating it with impunity. And by the way, that was the situation for most of American history. To put this in context, the First Amendment, of course, was added to the Constitution in 1791. Even before that, under the original Constitution, the government didn't have any power to engage in censorship. So the First Amendment was like kind of a belt and suspenders approach. But it wasn't until the second half, half of the 20th century that my lifetime, that the Supreme Court seriously began to enforce it, to turn it into a meaningful right. And continuing with the Chaffey observation, if we elect officials who don't care about free speech, they're going to nominate judges who don't care about free speech. And we know from history that the First Amendment Amendment can return to being a dead letter, as it was through most of our history.
- [39:27]
A
You get at something that's near and dear to this podcast's heart, which is public opinion. You say that free speech is as free as you'd like it to be. And when you ask Americans about their views of free speech, they're very supportive. Upwards of 80% of Americans will say that. It's very important across different polls. But I'm quoting a new York Times Siena College poll here, where 30% of respondents called for shutting down anti Democratic, bigoted or untrue speech, just roughly equal to the percent who say that they support free speech in all circumstances. Although overall, 84% of respondents in this poll said that it's a serious issue, free speech and protecting free speech. So how do you, from the perspective of, you know, a free speech advocate, engender an interest amongst the public of supporting and especially in this particularly partisan time, where there's an instinct to say, as we see very clearly in society, there's an instinct to say, oh, I love free speech, so long as I like the speech. How do you engender tolerance across the ideological spectrum when it comes to the First Amendment?
- [40:38]
B
The polls that you cited, Galen, are completely consistent with polling that I've seen forever, which is everybody believes in freedom of speech in general, but when it comes down to, to particularly controversial kinds of speech, the support drops off enormously. And every year for the past six years, FIRE has been doing a very comprehensive survey of the attitudes of college students, working with College Pulse. Just last week, the most recent survey data came out. It was the largest survey that had ever been done of college students. 70,000 students on 257 campuses. And FIRE had, for all six years that it's been administering these surveys with, College Pulse has asked students whether speech should be protected on their campus. For speakers that were giving six controversial messages, Three were controversial from the rights perspective, three were controversial from the left left's perspective. And this year, for the first time, a majority of students across the board said all six messages should be censored. And these are serious matters of public policy, such as, you know, trans rights and police violence, I mean, abortion, topics that you would want to be vigorously discussed on a college campus. So how do we overcome it? The way I overcome the hesitancy to protect a particular message or a particular speaker is to demonstrate to the person who is advocating that kind of censorship that the underlying rationale they are giving could be used and in fact has been used against the diametrically opposite message on that issue that they support. So you can show that speech that is very controversial at one time or place is very much supported in another time or place. So let me give you just one example that's particularly dramatic. Many people, when I say, or when they hear the word Skokie referring to Skokie, Illinois, will know that that refers to probably the best known free speech case in the modern era, where the ACLU very controversial in the court of public opinion. Easy case in the court of law. We came to the defense of a group of neo Nazis to peacefully demonstrate in Skokie, Illinois, in the late 1970s. It had not only a large Jewish population, but many of the residents of Skokie were actually holocaust survivors. And we had people all over the country saying, you know, we believe in free speech, but not this particular message in this particular place. And one of the arguments that the ACLU made was that just a few years earlier, we had encountered the same opposition. You know, emotional distress, psychological distress, potential violence. And these are serious concerns. I don't mean to dismiss them, but the very same objections were made to exact exactly the opposite group, type of group with exactly the opposite message. Not very far away, another town in Illinois called Cicero, which was deeply, I'm trying to think of a neutral way of saying this, let's say not supportive of the civil rights movement. Time magazine, a major magazine at the time, described Cicero, Illinois, as Selma, Alabama, without the southern accent. And the ACLU had to come to the defense of Martin Luther King and pro civil rights demonstrators to peacefully march in Cicero, where their views were seen as as dangerous, as offensive, as subversive as the Nazis expression in Skokie. And, you know, I can easily give sadly so many other examples you pro life demonstrators being shut down on some campuses, and yet on other campuses, pro choice speakers are being shut down. So it's kind of appealing to people's self interest. If you want speech, I already said it. If you want speech that you love to be protected, you have to defend speech that you loathe or freedom for it. And that, as I said earlier, Galen, is the silver lining to the cloud we're seeing now, fairness, especially since October 7, when many pro Palestinian protesters have had their speech suppressed. And those protesters tend to be aligned with the progressive end of the ideological spectrum. So we've seen many students and faculty members, progressives, who in the past said, censorship is not a problem, cancel culture is not a problem, problem, becoming committed to free speech and against censorship in a way that they weren't until they were bearing the brunt of it.
- [46:17]
A
Yeah, I want to talk a little bit more about this idea of hate speech cancel culture or censorship of speech that we don't like. Trump and Bondi have suggested that there is a category of hate speech that might not be protected by the first Amendment. Can we be clear about what exactly the speech is that is not protected by the first Amendment? We've already said hate speech is not a legal term. So what are the exceptions to the First Amendment.
- [46:50]
B
And I would say that they're not really so much exceptions, but they are not within the concept of free speech. And I can explain this. It's a very complex body of law, but it really can be boiled down to to two fundamental complementary principles which make a great deal of sense. The bottom line is that the most dangerous form of censorship is outlawed, and government also has the power to outlaw the most dangerous speech. So let's start with the most dangerous form of censorship. I already referred to it. That is censorship, that is viewpoint discriminatory. Where government is violating what the Supreme Court has called this bedrock principle of viewpoint neutrality. The speech is censored solely because of disapproval, dislike of the viewpoint, the idea, the message that is never appropriate in our society. If you dislike or loathe the idea, then respond, refute it, debate it, or ignore it. Use whatever strategy you consider effective to mute the potential impact of that speech, but don't call on the government to censor it. However, here's the second major principle often referred to as the emergency concept. If you get beyond the content, the viewpoint, the message of the speech, but you look at it in its overall all context, in all of the facts and circumstances, if in particular circumstances the speech either directly causes or imminently threatens certain specific serious harm, then it can and should be punished. Now, Pam Bondi tried under great pressure, and I was very happy that the opposition to her pledge to prosecute hate speech. The opposition came from Republican conservatives as well as others. And when she backed down, she tried to fudge and say, well, hate speech, that is a true threat or incitement to violence. But really those concepts have nothing to do with the content of the speech. Standing alone speech with any message, including a hateful message or a loving message, if in a particular context it is used in a harassing, threatening, intimidating or inciting fashion, it can and should be punished. And sadly, there are many examples where hate speech, speech that conveys a hateful message is conveyed in punishable context. If it's targeting a particular individual and means to instill a fear on the part of that person that they're going to be subject to violence, that's a punishable true threat. If it's stated at and an audience intending to imminently incite that audience to engage in imminent violence, that is a punishable incitement and can and should be punished. But that's conceptually different from just saying the message conveys a hateful idea and therefore it should be punished. And let me underscore Galen, the reason why it would be so dangerous to move in that direction is because of the inherent irreducible nature of the concept of hate speech. You know, one person's hated message is somebody else's loving message. And the same is true of other categories of controversial expression that also are not excluded from the Constitution, but that many members of the public want to suppress. And I'm going to use scare quotes to underscore how inherently inescapably subjective and vague they are. Disinfecting information, misinformation, extremist speech, terrorist speech. Those epithets have been used to stigmatize and seek to censor a whole range of messages, many of which many people consider to be very positive. One example I like to use is Black Lives Matter advocacy, which many of us in the human rights community consider to be positive and, you know, the antithesis of hate speech and so forth. And yet Black Lives Matter advocacy has repeatedly been attacked and sought to be suppressed as hate speech. Hate speech against white people, hate speech against police officers. It has also been attacked as extremist speech and terrorist speech. It's also been attacked as disinformation, including by powerful government officials.
- [52:00]
A
America is pretty unique in this regard because a lot of other liberal democracies do have restrictions on speech. Can you give us some sense of what those laws look like and the type of speech that they would restrict that isn't restricted here in the States?
- [52:15]
B
Yes, sadly, Western European countries, the U.K. canada, the Anglosphere, quite frankly, just about every other country in the world does allow government to suppress hate speech, even if it is not in a context that is likely to or directly causes specific harm. But what we see in countries all over the world are serious politicians, members of the clergy, entertainers and comedians, journalists. Journalists, ordinary members of the public are constantly being subject to investigation, prosecution, and even imprisonment for making statements about public policy issues that are deemed to be hateful. The subject of religion is very much on my mind having just watched video from the Charlie Kirk public memorial yesterday. And I think if anybody in this country who is a Christian who thinks that you might support the kinds of hate speech laws that exist in European countries, every single one of those countries has brought successful prosecutions against members of the clergy and by the way, not only Christians, but imams from the Muslim religion, simply for reading verses, certain verses from the Quran of the Bible that listeners consider to be, or government officials consider to be discriminatory against women or discriminatory against gay people.
- [53:52]
A
In your book, it's called Hate why We Should Resist it. With free speech, not censorship, you make the case about effectiveness. And you say that in countries that have hate speech laws, like you mentioned, it's not effective at suppressing the ideas or stemming the ideas. What's the research behind that and why aren't these kinds of laws generally effective?
- [54:17]
B
The research can show correlation, although I think it's very, very difficult to show causation. But the evidence is overwhelming that there is no correlation between very strict enforcement of very strict anti hate speech laws and any reduction in discriminatory attitudes and even more disturbingly, discriminatory conduct and discriminatory violence. My book cites many, many examples, including from many countries, including, and I think this is really important, Galen citing human rights activists from countries all over the world who oppose, oppose censoring hate speech not because it violates the free speech guarantees in their country, not at all their countries allow that kind of censorship, but precisely because they have concluded based on experience that the laws are at best ineffective and at worst counterproductive. Why ineffective? Why potentially counterproductive? Many social scientists and anthropologists and social media forth have so often observed the phenomenon that when you try to censor something, when government or even cancel culture tries to suppress an idea, it has exactly the opposite impact. So we have several terms that have been coined to describe this phenomenon. One is the Forbidden Fruits phenomenon. Another one is the boomerang effect. You know, I speak from my experience, every time I read a book that's being censored, it gets added to my library. I become very curious to see what the message is. But to give a very serious example, the Weimar Republic in Germany during which Hitler rose to power had very strict anti hate speech laws which were very strictly enforced according to the leading Jewish organization in Germany at the time. Leading Nazis were prosecuted and even imprisoned. Hitler and himself was banned from speaking for a long time in a major part of Germany. And obviously this did not lead to the suppression of the Nazis message to the contrary, they welcomed the trials which became propaganda platforms, opportunities for them to spread their message and therefore garnering sympathy. We've certainly seen it in the United States with certain campus provocateurs who clearly were welcoming efforts to deplatform them and shut them down, because that's what got them media attention. And then let me mention one really important counterproductive impact which has also been flagged by human rights advocates around the world. And that is precisely because of the inherently subjective nature of the hate speech concept. It vests any enforcing authorities with basically unfettered discretion to pick and choose which messages they can consider to be hateful. And therefore, not surprisingly, the consistent pattern is that hate speech laws are disproportionately invoked against the very minority groups that were hoped to be protected by the law and also by political dissidents and critics of the government.
- [57:51]
A
So we spent a lot of time here describing just how protective America's free speech laws are, freedom of expression expression laws are, and yet we are. We're in this moment nonetheless. So I'm curious what your takeaway is from all of it. You know, both being a country that is unique in how accepting we are of expression and speech, but also with a president who seems, you know, to put it mildly, extremely skeptical of that freedom.
- [58:21]
B
It is an opportunity for us to no longer take for granted an incredibly precious right that I think too many Americans have taken for granted. As I travel and speak around the world, I'm always struck that the citizens support. The general population's enthusiastic support for free speech is most palpable and most influential in countries that have fairly recently, recently experienced overt forms of oppression and censorship. So, again, you know, the eternal optimist that one has to be as an activist, and the optimism is borne out through American history and even world history. Sometimes progress is slower than others. But I have reason to hope, and I'm already starting to observe, that the censorship has raised people's concerns, people who were not previously concerned about it as a problem and therefore will redouble their commitment to join in raising their voices to advocate freedom of speech not only for themselves and for messages and government officials and politicians they support, but also for everyone, recognizing that all of our free speech rights are indivisible and really essential not only for individual happiness, happiness and fulfillment, but also for the survival of our democracy.
- [59:58]
A
All right, well, I think that's a good place to leave things. Thank you so much for joining me today, Nadine.
- [60:02]
B
Thank you so much, Galen.
- [60:03]
A
My name is Galen Drook. Remember to become a subscriber to this podcast@gdpolitics.com and wherever you get your podcasts. Paid subscribers get about twice the number of episodes and access to the video for the podcast. You can also join in our paid subscriber chat. Like I mentioned, we're going to do a mail that bag episode soon. I'm going to prioritize those paid subscriber chat questions. You can also, what else can you do you ensure that this podcast continues to exist, which is I guess, maybe the most important part of all of it. Anyway, thanks for listening and we will see you soon.