← In Good Faith With Philip DeFranco
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- [00:00]
A
Sup, you beautiful bastards. I hope you've been a fantastic day. Welcome back to the podcast. Today, the focus is on how the First Amendment is under attack in a way that we really haven't seen since maybe the First World War. So to talk about that today, I've brought in Ari Cohn from fire. And FIRE is the foundation for individual rights and expression. And they're kind of a rare organization in America. You know, we're so divided as a nation that everything and everyone, it has a partisan slant. But fire, they're a non ideological and nonpartisan group, and their goal is to protect the First Amendment from everyone who seeks to infringe on it. Public universities, the president, law enforcement, billionaires, and the government. And you actually have some in America saying that FIRE is filling the role of what the ACLU used to be, which was an organization that defended everyone's speech and rights, because as Thomas Paine put it in common sense, if you want to protect your own freedom, you must also protect your enemy's freedom, because if you allow oppression against them, you create a precedent that could later be used against you. And our guest, Ari Cohn today is a First Amendment lawyer, the lead counsel at fire, and a former civil rights attorney at the Department of Education. And also somehow very weird. He is now our third guest in a row from Chicago. So, I mean, I think, you know, if you've been listening to the podcast, what question is coming next? So, Ari, you are from Chicago. Oddly, you are our third guest in a row from Chicago. Two weeks ago, we had Governor Pritzker, and this has been like a weird point of contention with part of the Internet. I don't, I don't know why it is drawn so much attention, but we're just sticking with it. He said, you don't put ketchup on hot dogs. Last last week, Terry Moran comes on. He says, hey, I go both ways. Now it falls to you. Does ketchup belong on a hot dog?
- [01:41]
B
I'll give you an answer in multiple parts. It's not a Chicago dog with ketchup. I mean, I'm a lawyer. What do you want from me? It's not a Chicago dog with ketchup. You can't ask for the ketchup at a restaurant or they will like shish kebab you. But if you want to enjoy ketchup on your hot dog, like live and let live, just don't ask for it at the restaurant. Bring your own ketchup. But I have been following your Chicago dialog, and I will say the one thing I'm going to add is deep dish pizza is not the real Chicago style pizza.
- [02:14]
A
Why you got it? Why you got to do this to me? I hate the food conversation is more vitriolic than most of the. The political BS I've experienced over the past decade. People are very defensive about their food. And I don't, I don't. I appreciate the. Hey, the context matters. The, the situation specifically matters. It's. It's crazy to me. The only thing that I, that that is wrong in this world is well done steak. If you do that, I think you're a bad person and you shouldn't be trusted. Which actually brings me to that question. How do you get your steak done?
- [02:54]
B
The rare side of medium rare, about 118 degrees. Yeah, I'm a psycho. You're asking the wrong question.
- [03:03]
A
No, when I was a, when I was a server, I remember I was just so weirded out. One day someone asked for a Pittsburgh Rare steak and I had to go back and I was like, well, I. To them, I was like, absolutely. And then I went to the back and they're like, yeah, it's essentially just raw meat. We just sear the outside. And I was like, that's an insane person. But okay, I don't get away with that with tuna.
- [03:24]
B
But not steak.
- [03:26]
A
But. But isn't there like this beef tartare? I don't, I don't. Here's the thing. I go to a fancy place, they say beef tartare. I'm like, I don't think they'll kill me. I don't. Because I'm, I'm just. I'm like a hamburger hot dog kid that now I get to do some omakase menu here and there. And I'm like, so this is. People say this is good. Like, I'm like the person they, they, they took. They tested lobster with. They're like, it's technically prison food, but we can do it. And I'm like, oh, as long as you say it's good and you get paid for it, I'll trust you. Which is. That's dangerous. I'm skeptical.
- [03:58]
B
I'm not going to accept. I'm not going to a fancy restaurant for them to not cook the meat.
- [04:02]
A
Yeah, well, hey, do the work. Whatever the chef says, if some, if someone has some random ass title that I don't understand the real background behind of like a Michelin star, Michelin recommended, I'm like, someone he hasn't killed, he or she hasn't killed anyone. To my Knowledge. But anyway, I want to get away from the hot dog talk. We are living in a very crazy, serious time. You have a very interesting background and mindset. And so I'm just going to start with, on a scale of 1 to 10, how in danger do you say the First Amendment is today?
- [04:41]
B
Oh, boy.
- [04:42]
A
Is in today? Rather not. How, how dangerous is the First Amendment?
- [04:47]
B
It's a very different question. Yeah, yeah. I mean, we're, we're probably in an 8 right now, at a bare minimum. I mean, I, you know, First Amendment lawyers are kind of always, you know, teetering on the brink of, you know, thinking we're at the edge of some free speech calamity. But, I mean, it's as bad as I've seen it right now. It's, we're in dark times now.
- [05:09]
A
Do you, does that stem from things like the, you know, the president trying to ban flag burning via executive order, which also isn't something they should be able to do given that the court has said that that is free speech, though also it feels like it's meant to test that and work its way to the Supreme Court. I mean, how do you see that playing out as. Well.
- [05:30]
B
Yeah, I mean, the executive order. Well, first of all, when Donald Trump announced the executive order, he said, if you burn a flag, you're getting a year in prison. But that's not exactly what the executive order said. I mean.
- [05:41]
A
Right.
- [05:41]
B
But, you know, obviously, if you, say, commit a crime while burning the flag, you can be prosecuted for that crime. But it's deeply troubling that they're, this administration is going to try to single out people for prosecution not because of the crime they committed, but because of the thing that accompanied it that offends them. That is antithetical to everything the First Amendment stands for. So, you know, I, I think you're exactly right. It is intended to test the waters at the Supreme Court and see if they can get movement on it. I am not sure that there's appetite for that, but that's certainly what it seems to be aimed at. You know, fingers crossed that it doesn't have any purchase in this current court, but who knows these days? I mean, it's a chaos tornado out there.
- [06:26]
A
Well, so when you were saying you don't, you don't, you don't know if there's an appetite for it. When we had Terry Moran on last, he had that same mindset. He doesn't think that the, the Supreme Court would go that way, even with, you know, the three Trump appointees and the Conservative majority. Are you. You're in that camp as well?
- [06:42]
B
Yeah. And, you know, even some of the justices that, you know, Trump himself appointed, you know, Brett Kavanaugh, love him or hate him, his First Amendment doctrinal perspective is. Is pretty solid. So, you know, I'm not worried that there's five justices that would, you know, vote to, you know, overturn Texas versus Johnson, but, you know, there's a lot of mischief that can happen in the wings in these cases. I, you know, I hope the Supreme Court doesn't think it's worth their time to take up at all, because, I mean, look at everything else going on. Who has the time?
- [07:16]
A
What are your thoughts of people saying, well, it is different. Flag burning specifically is different because that's. That's more akin to arson than it is saying something, well, it's arson if.
- [07:28]
B
It'S not your flag. But, you know, if you're burning your own flag, it. It's pure expression. I mean, that is like the executive order acknowledges that it is intended to convey a message which, you know, thanks for. For saying that out loud. That helps. But, you know, I get the argument a lot that it is different in the flag is a sacred symbol that symbolizes, you know, our freedoms, and people fought and died for it. And that is all true, and that is all well and good, and you don't have to love flag burning, but if you ban flag burning, you have reduced that symbol to something that, personally I would find pretty meaningless. If the flag stands for anything, it stands for the freedom to burn it, and it must.
- [08:10]
A
So then also, and a lot of this is me, like, kind of just, I like to take whatever criticisms I see out there whenever there's pushback to stuff like this. So, I guess what would you say to people going, well, where was the people that are angry about the. The attempt to. To make this illegal? Right? Where were they necessarily where, you know, a pride flag or a BLM flag where it was burned? Do you think that that is a different situation, or do you think. You think across the board it's something that should be allowed?
- [08:43]
B
So, you know, I think in most of the cases that people point to, with those other flags being burned, the accompanying factor is that they usually stole somebody else's flag to burn it or to destroy it. And, you know, that's. That's a property crime. That's theft, that's V. But no, I think you should be able to burn whatever flag you want to. And, you know, that actually kind of raises a really good point about why we're in such trouble. And that is because it only occurs to people to care about free speech when their speech is on the line. And the current partisan situation we find ourselves in doesn't really lead to people caring about the rights of the people they disagree with. And I, you know, if anything should be stressed, it is that you have to look out for the First Amendment, especially when it's the people that you hate, the people saying things that you really just disagree with. Because if you don't do it, then not only do you weaken the protections for yourself, but you also create the situation where those people who feel that their rights haven't been stood up for, when it's their time in the seat of power, they're going to go after it. It just creates this cycle.
- [09:55]
A
All right, you get, do you get shots taken at you from a lot of people on the left and right?
- [09:59]
B
Oh, on any given day, I'm called like a socialist communist, also like a, you know, right wing fascist. You know, it's, you always end up getting tagged with the content of the speech. Even though defense of First Amendment is famously, you know, if you're doing it right, you're not defending the speech itself, you're defending the right to engage in it. And it doesn't matter what it is. If it's protected, it's protected. But, yeah, I mean, that's something you get used to pretty quickly in this job. But when I come to.
- [10:26]
A
Yeah, I mean, when it comes to things like, I mean, I'll stick to the flag burning for just another second because I'm interested in your thoughts here. When, when it comes to, let's say, that argument that, and that debate that plays out of like someone burning their own American flag or someone birding, you know, they went to a store and they purchased their own pride flag or they got, you know, some BLM flag on Etsy or something and they, they burnt that. What would you say to people that say, like, the destruction of. That would be like a false equivalency to say that those are two different things, like, that affects different groups.
- [11:02]
B
I guess I understand the perspective, but at the end of the day, offending one group is no less protected than offending another. And you might have personal feelings about why it's not the same, but that can't matter in the eyes of the law, because if it does, then we start down this road of very, very bad line drawing that just favors whoever is in power at any given moment. And you know, that's, that's a dangerous road to go down. So, you know, it's fine to think that way is a normative matter, but we shouldn't incorporate that into the law.
- [11:34]
A
Because it does seem like Trump's trying to use that the, the idea of the act is meant to incite. It's almost like that you're yelling fire in a. In a movie theater or, or that it's. It's something along those lines. And I guess, you know, I guess people to a certain degree might say something about, you know, both situations, but do you think that it just doesn't hold water?
- [11:57]
B
Yeah, and I think, you know, particularly with the argument that it's, you know, meant to incite. You know, first of all, incitement is a very narrow category of speech, and this obviously does not fit it. But more fundamentally and philosophically, do we want to live in a world where you can't say anything that's going to make someone mad because their action is then going to be bad? No, we want to hold somebody who does a bad thing responsible for that instead of shutting up the person who made them angry. Because once we start down that road, that also just incentivizes getting really mad about everything, and we are already getting too mad about shit.
- [12:32]
A
And I mean, how do you think that Trump in general is trying to reshape the First Amendment? And I mean, how. How do you think he will?
- [12:40]
B
Well, I hope he doesn't at all, but he is certainly trying. And that is just. There are so many different angles from everything. From the FCC using its power, you say, in the Paramount Sky Skydance merger, to basically settle an unrelated and also completely meritless lawsuit that he brought against cbs, you know, to the point where as part of the settlement, they literally, Paramount had to. Has to install a person to take complaints from the administration about what is on the network, which is just absolutely, like, unprecedented and crazy town. So, you know, he's pulling the levers of regulatory power frequently so far.
- [13:23]
A
I mean, do you think that the. The goal is to just have a. Have a chilling effect of. I just don't want to deal with this. Like, there's a lot of stuff that, separate from news where, you know, I'm like, is that worth the battle rather than an actual changing of the laws? Like, do you think. Do you think there's one goal or another, or is it just both? Why not?
- [13:44]
B
Yeah, it's definitely both. But that, that chilling effect of not wanting the hassle is, you know, exactly why we have this concept. Strategic lawsuits against public participation, bogus defamation lawsuits for Example that aren't intended to win. They are intended to inflict punishment via process. And it's very expensive to defend against lawsuits. And so that's of a, a corollary. But yeah, he's, he's trying to basically do that with the levers of government. And it's deeply troubling. We have a big problem with just private lawsuits. Chilling speech these days when you bring the government into it, it's just a whole other level of like, oh, my God, this is going to be a headache.
- [14:19]
A
Punishment via process does feel like it's the, the name of the game right now. Well, okay, so since Trump took office, you know, customs inside of airports, they've been seemingly detaining citizens and tourists alike for sometimes, I mean, for things they've said online that appear to be critical of Trump. The court has also ruled that you can't search someone's phone without a warrant. But also it feels like a weird carve out for the border where you can do this. And it does feel like the administration is taking advantage of this to at the very least, potentially intimidate critics. And, you know, a court in New York, they ruled a few weeks ago that the government needs a warrant now, but that's also limited to just jfk. I mean, do you see that, that, that could potentially go nationwide. Do you see the government appealing it to the Supreme Court?
- [15:09]
B
The government will almost certainly appeal it. And, you know, this has been a problem at the border since before Trump. You know, this has been a long standing problem since 9, 11, basically of, you know, you basically don't have rights at the border, which is troubling in its own right. But, you know, you've seen a lot of seizures of phones and say, hey, I'm going to look through your social media. And this administration is taking that certainly to another level. And this is, it's a systemic problem because this is, this has always been the case.
- [15:37]
A
Yeah. And you know, Ari, I was going to talk about, you know, the campus protester situation next, but is there, is there any singular thing right now that you're seeing? Or maybe it could be like a single instance or an area that we're seeing, a crackdown on free speech that you're most concerned about.
- [15:57]
B
I am concerned about all of them. I spend my day entirely concerned about everything, which is very tiring, I'll tell you. But, you know, it's, it's coming from all directions right now. It's really hard to pick because you also have this attempt to basically reshape higher Education. You have, you know, the broadcasting issues. You have Andrew Ferguson, the chair of the Federal Trade Commission, going after social media platforms because he doesn't think they allow enough free speech, which is really none of his business. It's just, it's coming from all directions. It is just chaos.
- [16:28]
A
I think. You know, something I've noticed when I'm talking about this every day is I'm just kind of explaining what's wrong, what's scary, where it's going. And those are important things. I mean, from, from your standpoint and with once again, your background, I mean, is there, is there a way that people can resist or push back or best navigate or is it just know and endure? Like where, where, where are you at on that?
- [16:56]
B
The number one thing is to not back down. You know, you've seen like some of the higher education institutions like Columbia, like settling with the Trump administration for hundreds of millions of dollars. And if our institutions are caving, then what hope do any of us little guys have? So, you know, institutions need to stand up and fight back. They have the wherewithal to do so. And you know, Harvard just got a good ruling the other day against the administration and it's lawsuit. So, you know, we were really glad to see that. But first and foremost, the institutions, the people with the power and the money to do it, have to stand up. And you know, everyday people also need to not be cowed into silence. Don't let the chilling effect work. If anything else, don't let that silence you because then they've won.
- [17:46]
A
Do you think that the judicial is going to be able to, to withstand this for at least the next three and a half years? I mean, based off of what we're, we're seeing in these first, what, seven months now?
- [17:55]
B
Yeah, it's, it's going to tough. There's an onslaught and you've already seen kind of a few cracks here and there. But, you know, this sounds super doomery but, you know, we, we have to, you know, we just got to hope, you know, there's, there's nothing else we can do except, you know, try and hope for the best. You know, the judiciary has a very important role to play in, you know, stymying these attempts to, you know, rein in free speech and just have to get out there, make the right arguments and appeal to, you know, the, their sense of justice in law. That's really the only thing we can do other than speaking out.
- [18:40]
A
And when it comes to lawyers and law firms, obviously, you know, especially in the first few months of this administration, there was a lot of focus on all the firms that were, you know, bending the knee and trying to navigate their new reality. And then, you know, with that, seeing what firms and what people were willing to stand up in cases like Harvard and elsewhere, I mean, do you, do you see that as a shifting trend or are those that are standing up, do you see being more outliers?
- [19:13]
B
Right now I am hoping that the atrocious publicity that the law firms that caved to Trump right at the outset got and the defections of high profile lawyers from those firms, I hope that that sent a message to other firms thinking about it, that they're much better served standing up for yourselves. If you, if you're a lawyer and you can't stand up for your own firm, how are you, how is a client supposed to trust you to stand up for them? I mean, it's just, I can't even imagine and there are probably business, you know, rationales that I could not possibly know, but it's troubling. And fortunately, I think, you know, this administration has a little bit of, you know, goldfish attention span. So, you know, it's thing to thing and we haven't seen a whole lot of that coming back. But who knows, it could start back up again whenever, you know, Donald Trump decides that he's bored and says, I want to see if I can get another law firm to donate a billion dollars of free legal work to my causes. I'm sure he wakes up some mornings and just thinks that.
- [20:15]
A
And is any of that, that shifting landscape and the focus that appears apparently is like on and off. Does that affect your day to day or your general career? What, what, what's, what's your day to day situation right now in regards to the law?
- [20:31]
B
It absolutely does affect the day to day because you just never know what's going to happen. Like the, just the joke is these days, like inevitably at 4:50pm something crazy is going to happen every single day for the foreseeable future. And it's insane trying to keep up with it, trying to keep on top of it. And everyone, you know, has their ideas of what's the most important issues. You know, you also getting a lot of armchair quarterbacking from, you know, the peanut gallery, you know, which is fine. People can have their opinions. It's just there is. I start off with a plan of what I'm going to do every day and I can probably count on one hand the number of times that has worked since November.
- [21:12]
A
You know, something I wanted to ask here because Trump does appear to want New York Times v. Sullivan overturned, which I guess just for the audience, is the case that enabled this broad freedom of the press that we have today. And, you know, he wants to be able to sue news outlets for libel and defamation, which, you know, Sullivan essentially made impossible for public officials. Do you do see Trump ultimately pursuing that goal? And if so, do you. Do you think the court sides with them there? If you don't think that, you know, they're going to go for the flag burning?
- [21:42]
B
Well, so the court actually just rejected a request to overrule Sullivan, so I'm pretty confident that we're not getting there. And actually, just, just the other day, the Court of Court of Appeals for the 11th Circuit issued a ruling that, you know, stayed by Sullivan. So I think that particular danger, while I was incredibly worried about it a year ago, I think has abated with the Supreme Court's signaling that it has really no interest in going down that road. So it's one thing I cannot worry about every single day for the rest of my life, I suppose.
- [22:18]
A
For. For what? For all the things that are intended to, and you think most, most likely to make their way to the Supreme Court that could have an impact. Is there, is there a top one, top three that you think could go Trump's way?
- [22:31]
B
I worry about the immigration powers in terms of rounding people up and deporting people who are here lawfully simply because they said something that the administration doesn't agree with. And, you know, we filed a lawsuit on behalf of the staff of the Stanford newspaper challenging the administration's authority under a couple of those laws. I'm, I'm very, very worried about where that might take us. And that's, that's why we filed that lawsuit. It's. Immigration is notoriously tricky, so who knows what happens? We think we have a good.
- [23:15]
A
And I mean, yeah, I mean, well, it does seem like the administration. I mean, it's been less in the news now, but it does feel like the administration's gone after campus protesters. But also, they've feels like, for the most part, they haven't gone after protesters generally. And, you know, we haven't seen incitement charges or, or any attempt to really silence them outside of, you know, I guess, sticking the military on them. And they've been no small, very aggressive. Well, yeah, I'm just thinking, like, it will, in the sense of, you know, there are situations where you have the guy that, like, threw the sandwich and they, they try to go. That, go after that guy. But, I mean, when it comes to the campus protesters, it seemed very largely they were just saying things. And it seems, it seemed to, I think many that they were using the anti Semitism argument as a shield that was very all over the place as a way to justify it. And I mean, we've seen Jewish lawmakers even saying, like, you're trying to use something else to justify essentially fascism or something that's authoritarian. Like, what are you. Do you feel like there's just not the political will regarding protesters in general, whereas the idea of protecting or the other, that that's where it does work for the schools or the school protesters?
- [24:32]
B
Yeah, I mean, I think it's actually kind of nefarious because what they're doing to go after the protesters isn't necessarily. Sometimes they are going after the protesters, particularly ones on student visas, but what they're doing is they're going after the schools and saying, you have to crack down on these protests. So they're, they're trying to accomplish, through these settlements and findings of, you know, violating Title 6 or what have you, they're trying to accomplish silencing protesters and dissent through these other mechanisms that doesn't. That don't make it as obvious that it's really the government doing it and not the school, which is deeply, deeply disturbing. And this, again, this is why the schools have to stand up to the administration when they're issuing these demands that, hey, you have to not let anyone criticize Israel on your campus. I mean, baloney, just baloney.
- [25:22]
A
Right. It does seem like there has to be a balance of, sure, protecting people, making people feel safe, but also not doing this crazy crackdown on free speech where everyone's scared to call out what they see as an atrocity.
- [25:38]
B
Yeah. And you know, that's. They are trying to wrap into a definition of anti Semitism, which they can then give legal effect through, you know, anti discrimination laws. Basically this, you know, the idea that, hey, your, if your criticism of Israel is too strong for our liking, we're going to say that you've discriminated against Jewish students. And you know, personally, as a Jewish person myself, I find that patronizing and offensive. You know, it's. But, you know, it's, it's not good faith at all. The, you know, I have to say, like, I don't think they actually care about anti Semitism. I think they care about silencing speech that they disagree with.
- [26:18]
A
So, you know, well, so something I'm interested in there. I've seen this conversation popping up sometimes in podcasts and in Just general conversation. Do you feel like the way that the government's attempting this crackdown and their public reasoning for it, I mean, in addition to a number of other things that are happening, do you think that that is then making it less safe for Jewish people in America or hurting the image of Jewish people in America?
- [26:47]
B
I certainly think that is a possible side effect. You know, I personally, I didn't feel unsafe a year ago. I know other people disagreed and I don't feel unsafe now. And that's just my personal, you know, how I feel. But I also happen to live in an area where it's, you know, not particular likely for me to feel unsafe. But you know, yes, it can have those knock on effects and you know, it's. Again, that's the, the trouble of not actually caring about anti Semitism and really just using it as a cudgel to accomplish other things is you actually end up making the problem sometimes that you are saying that you're trying to fix a whole lot worse and that we've seen that happen in a whole bunch of different contexts, you know, over the course of history.
- [27:31]
A
Yeah, I mean it just, it does seem like something that's been playing out where, because there's been this conflation of being like anti Netanyahu or anti. What the Israeli government is doing in Gaza that that's somehow anti Semitism, that you're against all Jewish people. It feels like it's created the situation where it maybe has actually even led to a rise of actual anti Semitism of people bulking the group. I mean, have you seen or experienced that yourself?
- [28:04]
B
I mean, I have thought about it a lot because it strikes me as like when you treat a group like, as a monolith like that in any situation like that tends to happen. I haven't experienced it, but I've given a lot of thought to it because I. Exactly, I think you're exactly right, that that is a very serious consequence of this. You know, it's, it's never good to assume that an entire group of people believes in any particular thing. You know, it's, it's just, it's deeply offensive. It should be deeply offensive to that group of people, I got to say.
- [28:35]
A
Yeah, I mean, I don't know. It's, it's something that I, I think about a lot as we've, you know, had to cover Israel, Gaza a lot and then how that affects the United States. It's been this very interesting horseshoe thing of people on like that are very on the left and very on the right coming together on this, this issue where all of a sudden you have, you know, people on the left going, well, even Marjorie Taylor Greene saying this. And it's like, well, Marjorie Taylor Greene might be saying it because of other reasons. Other reasons that why you might agree or have issues with what Netanyahu is doing.
- [29:14]
B
Yeah. Generally speaking, when people from both sides of the political aisle agree on something, that's when I say that's a big red flag like we need to figure out what's going on here because that's a danger zone. When people all of a sudden decide that they are bipartisan and agree on something, that means there's funny business afoot.
- [29:29]
A
And it's where I think a lot of people, there's a lot of possible political shifting and as far as who that, that, that helps or hurts the most, we'll see. I mean when, when we've been looking at polling especially for young Dems, support has, you know, drastically shifted on the right. It's stayed it seems like relatively 7030 though there is this, there's this growing anger towards Trump on it which has been, I don't know if it's enough to shift votes or affect his political power. Whether it's going into the midterms or the next election. I don't know. I'm interested to see where that is going to go. But you were going to say no.
- [30:11]
B
Just, just hard to say.
- [30:13]
A
Yeah. I do want to ask, because you are in Chicago right now. I'm not going to ask about hot dogs again. What are your, what are your thoughts about, you know, it seems like there's going to be this, this standoff between Trump and Pritzker and the military getting in involve, well, I guess also Abbott. What are you, what are your thoughts there? As a resident of Illinois?
- [30:34]
B
I am very disturbed by it. I don't want the military patrolling my streets. And you know what do we have crime issues? Sure, every city does. I walk my dog through the city all the time, including it like two o' clock in the morning when he decides that he's going to be awake and keep me awake. You know, I've never, I don't feel perpetually unsafe, certainly not to the extent where we need Texas to launch a military invasion of Illinois. I mean that's really like the crazy part is you're going to do this without federalizing it. So basically Greg Abbott is invading the state of Illinois, which to me is just Looney Tunes.
- [31:10]
A
Yeah, I just, I don't know. I don't know where this ends because there is this issue I on the left and there's been a lot of debate regarding, you know, stop just calling things distractions. I think it can serve as a distraction, but also actually have real, real effects and change on the ground. I, I don't know. I mean, based off of what we're seeing, or is this just a situation where you're like, oh no, this is completely illegal, or you see like the hoops they're trying to jump through?
- [31:42]
B
Yeah, I'm not, I won't claim expertise in National Guard law, mercifully for everyone, probably. But, you know, I think one thing is clear. I think this is meant as a show of power, a show of force, and I think that to bring it back to free speech is a very real possibility of chilling speech protesters and, you know, especially they want to come here during the Mexican Independence Day parade day like they are. They're going after speech, if not directly, indirectly. This is meant to put people on edge. It's meant to make people nervous. And you know, that's unacceptable.
- [32:19]
A
Sorry, I'm going to jump back. No media company so far has taken Trump's lawsuit against them to court. Right. Paramount wanted their, their merger approved. They appealed a rollover, appear to roll over. You have Disney wanting him to just kind of go away. And there was reportedly fear inside ABC about how the courts could curtail freedom of the press if they didn't settle. I mean, do you see that happening or do you, do you think ABC is, I don't know, just coping?
- [32:47]
B
I mean, look, there are probably very good business reasons to roll over, but when you are the media, when you are that line of defense for a free press, like it is incumbent on you to stand up to this and to not roll over. Like, I know that Paramount wanted its merger, but they are not buying themselves peace. You know, one of my colleagues wrote an article kind of when this started out. He said, you're not buying peace, you're buying a four year supply of lube. This is, you are, you're encouraging it. And it's, he's going to keep coming back with new complaints over and over and over again. And that's just, you're, all you're doing is buying this one tiny slice of this is okay. And then it's, the second he sees something else he can, you know, put you over the barrel on, it's going to happen because he sees he rolled over the first time.
- [33:39]
A
Well, whoever I talk to, it could be different fields. I mean, we had Dr. Mike on recently, it feels like that is the majority take at least as far as individuals, because for individuals, it feels like. I understand why it probably feels insurmountable. And it just, it seems, it seems to be too much where it's just like, put your head in the sand, endure, maybe things get back. But I do, I think, more agree with your take of, you know, people do have to stand up, but not many people want to take those shots. Understandably. Like, I don't know. There's a. I don't know. I'm very interested about the, The Gavin Newsom situation right now because there's some people that see him as the, the definitive nominee right now because he's, he's so out there. Others seeing him kind of as the one that's just taken all the shots. Like, he's just, he's, he's, he's the tank meant to take all the hits. So then whatever the next thing is comes up. I do. And so I guess bringing it back. I don't know how much will there is for a company that. And industries that are run by millionaires and especially billionaires, you know, how much they want to deal with that. Like, when you talk about people that have power, most people. No one knows those fucking names. No one knows those people. And they prefer it that way. And they're like, why all of a sudden I'm Will, like William Wallace from, from Braveheart. I gotta be that guy. I didn't sign up for that. I signed up to have a yacht. All of a sudden I have to stand up for free. So I understand why. I'm not just like, saying that's a good thing. I, I just, whenever it, it happens, I'm like, yeah, that makes sense. It makes sense that that person would do that.
- [35:27]
B
Yeah. And you can't. It's hard to stand up for the rights of someone who doesn't want to stand up for themselves. But the danger is that the weakening of the First Amendment and the encouragement of Trump to keep doing this happens when people don't stand up. And then you ultimately end up like the, the effects roll downhill and then ultimately it is going to hit the little guy. And the, the pump has been primed at that point because he's gotten away with it so many times. Like, what, what reasons do you have not to keep doing it?
- [35:54]
A
And also, who knows, you play ball, apparently the fucking government can own part of your company now, and that's not going to affect, like, the fairness of the free market. You know, maybe I play ball all of a sudden, America is a 10% owner in the company and we get sweet deals from here on out. But actually, I want to, I want to go back recently, you know, the doj, they rescinded Biden era guidelines that say when you're, when you're doing a leak investigation, don't raid journalists because it could give the image of infringing on press freedom. And now we're seeing various reports of reporters actually prepping for raids. Do you think, you know, this, we are going to see those raids, or this is just an intimidation thing and people are being a little panicky. What are your thoughts there?
- [36:40]
B
I think when journalists publish embarrassing information about the administration that came from a leak, I fully expect that we're going to see it play out. That is just in line with everything they've been doing so far. And, you know, they're sending the guidance and they're just, they're gearing up for it. I don't, I don't see it not happening, but that way.
- [37:04]
A
And I mean, do you see, with what you're doing right now with fire, like, do you feel like you're, you're filling a role of, you know, what the ACLU used to be? I've seen some people kind of say that. I want to know your thoughts with that.
- [37:18]
B
Yeah, I mean, you know, we work with the ACLU on a bunch of different cases. So, you know, we, we view them as a partner in the fight. You know, I think the more dedicated free speech advocates you have, the better I want everyone to be doing this work full throat. You know, I would rather not be replacing anyone. I think, I think the more the merrier. And we need all the help we can get at this point. So, you know, by our objective here is to put our heads down and just go full bore, do every single thing we possibly can and hope that other people join us.
- [37:55]
A
And I mean, regarding, I mean, regarding the aclu, have you, do you feel like that's that organization has changed for the better or worse over what we've kind of seen, I don't know, let's say the past 10 years?
- [38:08]
B
I mean, I think it's, I think it's complex. I think there's a lack of nuance in that whole conversation. You know, are there perhaps decisions that I would have made differently? Sure. But that's, you know, true of every other organization that I agree with fully. You know, I, you know, I don't want to sit here.
- [38:28]
A
Sure. Well, okay. Well, before we step away from judgment, when you say you would have done things a different way here. And there. Is there, Is there at least one situation that stands out in your mind? And if so, what was it?
- [38:43]
B
I don't think it's a particular situation. I think, you know, a lot of people misunderstood perhaps the complexity of the, you know, case selection guidelines that people got all open arms about. I think, you know, I might have explained it a little bit differently and also I might have drawn lines a little bit differently than those, than those guidelines personally. But, you know, I think there is a lot of rush to, you know, demonize them as having, you know, given up on free speech. I work with, you know, in fireworks with ACLU lawyers on a bunch of different cases, and I know them all to be, you know, devoted free speech advocates. So, you know, I'm going to want to keep working with them.
- [39:27]
A
Well, yeah, it does, it does seem like you have to have this, this blinder of, okay, this is, this is what we stand for. This is what we say we stand for. We have to follow it through regardless of our feelings. Right. Because what Ira Glasser's ACLU is this, you know, this legendary thing in American legal lore. You know, they, they defended the KKK and Nazis right to free speech while also representing, you know, black defendants to protect their civil rights. So, I mean, when, when is that the kind of energy that you, you, you bring to fire? Is that your mindset? When, when dealing with the First Amendment?
- [40:02]
B
Absolutely. And that's fire's mindset. You don't get to pick and choose. You know, you're where these situations and where these attacks come from and who they target, and you just have to put your head down and you have to defend people's rights when speech is protected, regardless of what you think about the people speaking it or the underlying speech. Because the principal defense, the First Amendment demands that you can't have it both ways. You can't pick and choose what speech is worthy of defense and then expect to maintain your own expressive freedom. Even, you know, it just doesn't work like that.
- [40:36]
A
How do you, how do you separate that from then, like your own personal feelings? Are you able to compartmentalize really well or how does that work?
- [40:42]
B
Yeah, I mean, I think for me personally, the knowledge that the work that I'm doing, even if I think that the speech, the speech that the speakers I'm defending engage in is vile as all get out, I know that what I'm doing is protecting the rights of people to counter that speech with their own speech and to engage in better speech, and that's, that's the way it's got to be. And I, I keep that in mind, you know, when I'm engaged in, you know, defensive troubling speech. You know, you have to, you have to find that way to say, hey, this is what it's all about. This is the ultimate good. And, you know, my feelings about the speech are not particularly relevant to the law. And, you know, if. If I expect that other people have that attitude, I sure have to have it.
- [41:33]
A
Are you, Are you familiar with the. It's obviously a different country, different laws. Are you familiar with the. The. The Graham Linehan situation over in the UK right now?
- [41:41]
B
I am familiar with it. Not in depth, but yeah, I mean, that's. I'll say. It's. It's troubling.
- [41:50]
A
It's troubling in, in what way? Based off of, like, what you've seen.
- [41:53]
B
The idea that you're gonna get arrested for tweets, even if they're kind of gross tweets like that those things might incite violence, strikes me as kind of a preposterous claim. You know, people say a lot of, like, dumb things on the Internet. People say a lot of, you know, people have a lot of bravado online, and, you know, it seems flimsy and it seems like a shot across the bow. And, you know, we've seen in the UK a whole bunch of, you know, we've seen them sw. Keeping, you know, anti Israel protesters off the streets. You know, they've got a problem too. So, you know, that's, that's part of why I think we are in such dire straits right now, is that it's not even just in this country. It's coming, you know, across international borders, and that makes it just all the more challenging to, you know, get everyone back on the right track.
- [42:44]
A
Yeah, well, I mean, that situation stood out not only because it's happening, but also, I guess the, you know, know the Met police chief coming out saying, we need to really review the laws here so we have a clear understanding of what we're supposed to do as, you know, officers of the law, critics of. I'm going to mispronounce his name, but of Grams, they're. They're coming out and supporting him. I guess that's where I have a question regarding, like, where. Where do you think it does. Where does something cross a line? I'll use something that was essentially memed over the last two years. But when someone would say something like, you know, so and so should get someone should kill so and so in Minecraft. Right. So like, as, like, like a. It was like a memed workaround of incitement of some. Some sort of degree. Do you. Where do you think that there, there is a line where something does cross as someone, you know, that does protect the. The First Amendment?
- [43:43]
B
Yeah, I mean, so the, the test for incitement be intended to, and likely incite immediate lawless action. And when. When we say immediate, we mean right away. And I am.
- [43:55]
A
Okay.
- [43:56]
B
I'm not convinced that I've seen a situation where a tweet or a post online is a threat to the kind of imminence and immediacy that's required for incitement. You know, I'm sure that there is a, you know, fact pattern in which that could plausibly happen. But generally speaking on the Internet, you know, you don't read that post and then you happen to be right next to the person with a knife and stab them. You have to get up from your computer, choose to go out and do it, and at that point it's on you.
- [44:27]
A
You know, now I'm just interested in your career. I mean, what, what, what gets you interested in the law and the specific focus in the first place? Was there, was there a singular moment or was there, was there something that got you interested in it?
- [44:39]
B
Well, actually, it has a lot to do with growing up in Skokie, Illinois, which is the site of the famous ACLU case where they represented the Nazis and defended their right, even though it had the highest proportion of Holocaust survivors outside of New York City. I grew up learning about that. My parents made sure that I learned about that frequently and they talked about it a lot. And I kind of. I guess I'm a hipster civil libertarian in that way. I liked it before. It was cool. But, you know, that had a really formative experience. You know, that was a really formative experience. And then, you know, I had a couple friends in college who had gotten into trouble for, you know, putting things in the newspaper that offended people. So I kind of also saw the impact on somebody that I knew of having to go through this. So, you know, but I was already, you know, the pump had been primed at that point. My parents had, you know, already instilled in me that this is an important thing and also, you know, tend to offend people. So, you know, generally speaking, it's in my best interest to care about this.
- [45:42]
A
Through your job or just you as a person? Like, no, just me as a person.
- [45:45]
B
What do you mean?
- [45:47]
A
Okay, so okay, so. So you're the, like, if. If people went back and went through your text, it's like, it's not. It's not. It's not a good time. You're like, I might not be able to be on the bar. I. Here. Okay, question. So I usually ask people about their news diet, and I'm gonna ask you that first. What is your news diet these days?
- [46:09]
B
I try to read as broad a cross section as possible. I get some from social media. I read, you know, I read the big papers. I read the Chicago Sun Times, Chicago Tribune, the New York Times, Wall Street Journal. I will scroll through them in the mornings. I like a news aggregator on my phone called Smart News that has a really, actually diverse set of sources that they pull from. So I feel that that gets me a little bit broader of an exposure than, say, just, you know, Google News, which I also use heavily. I. I do my best when, you know, I have the time to actually go out looking for things. Usually they find me, and then I'm just swamped with them. But, you know, you know, I try to keep as balanced as possible, and it's, you know, it's difficult, but it's worth doing.
- [46:58]
A
I'm glad you actually said read, because my second question is, what three books. It could be recent. It could be old. Do you recommend that people read in general regarding. It could be about this moment, America. What. What? Just something that you. That. That is close to you, that you care about.
- [47:16]
B
I'm actually gonna give you three books all in one. They're all written, and I'm gonna. I'm gonna. Only. I'm gonna use that as one. They're all by the same author.
- [47:23]
A
Okay.
- [47:24]
B
Jeff, who wrote the 26 words that created the Internet, Liar in a crowded theater and the United States of Anonymous, all having to do with different aspects of free speech. And he does a masterful job of going through and telling the human stories behind the doctrine. And I think, particularly with respect to Liar in a Crowded Theater and United States of Anonymous, like, right now, people have questions about anonymous speech and about false speech. And I think, you know, right now we're in a particularly perilous time for anonymous speech. We see, you know, age verification laws being passed that require you to hand over your sensitive, you know, your identity documents. And in this administration, which seems to like to go after critics, that can pose a real threat. You know, it's something you only think you'll come across in another country with less, you know, strenuous rights and less vigorous democracy. But it's happening here now. So I think, you know, people should really be attuned to the issues of anonymity when speaking.
- [48:25]
A
Are you. So you would say you're a really big advocate for anonymity?
- [48:30]
B
Yeah, I think it's essential, you know, if you want to criticize the powerful. And the powerful have indicated that they're going to come after you if you criticize them. It will destroy our discourse if everyone simply says, well, I'm not putting my name on that and I'm just going to shut up and can't feel free to relieve themselves of the fear of, you know, prosecution, persecution, retaliation, and speak their mind. You know, that's baked into the founding of our country, you know, Federalist Papers, the anonymity stuff.
- [49:04]
A
So interesting to me because I'll see people out there saying, you know, like protesters or people like that are speaking out. They shouldn't even be able to wear like masks. But then in the same breath, they'll defend ICE agents being completely unidentifiable, Just scooping people off the streets, like that's not going to be misused. It's. It's. Yeah, it's. To your point that you hit on earlier. It's all. It feels like it's at a place where it's just been teams and does it support my point? And I mean, I imagine more so for you, it's gotta be like hitting your head against the wall. Because, I mean, to your credit, I think that to be able to, you know, if you're, if you're out. If you're out there having to defend the most despicable at the same time as the most vulnerable, you know, you have to be. You gotta be made of something special. And a lot of people, you know, especially these days, because it's. It's kind of what serves my side. And, you know, there's. I don't want to fucking both sides. It. But there are a lot of people guilty of it all over the place.
- [50:12]
B
I mean, it's a human impulse, you know. Right. It's. It's very baked into, you know, our, you know, what we do just naturally. So it takes effort to break out of that, you know, and I think. Think we'd all be better off if we put a little more effort into it. Because sometimes when it comes to something as important as free speech, the impulse to be tribal about it is the worst thing you could possibly do.
- [50:35]
A
Still, hitting on anonymity, it does feel like there have been more and more pushes for, for our government ID to have to be tied to everything that we're doing online. On YouTube recently there was a, there was a change where YouTube said, hey, like our system. I forget if they said it was AI or not, but let's say AI will look at your viewing patterns. And if we have a question of if you're over 18, you're going to have to provide an ID. And you know, there was, there was some backlash. It was, it was kind of that at that level where it wasn't big enough to probably matter for them because people I think, care more about, you know, ease of access and ease of use rather than full on privacy. That's something that has trended a certain way, especially over the last 10 years. I mean, and I mean, I don't know, I'm in a state where certain adult websites are now blocked because they're, they're like, yeah, you get, you're gonna have to show your id. I mean, do you think, do you think that's just. In 10 years, everything we do online, do you think it's going to be tied to like our public government id? And that's, that's like, that's the push that we're seeing. And is one side pushing it more than the other, do you think, or.
- [51:49]
B
That sounds like a dystopian hell to me. You know, the problem is, you know, people always say, especially with, you know, porn, is that like, oh well, you know, you have to show your ID to get into a strip club, which perhaps is true. However, when you show your ID to the bouncer at the strip club, you're not creating a permanent record on the Internet that you were at that strip club. Like the real danger here is that like, like this information, once it exists online, does not go away and it just aggregates and builds and it's there for anyone to find. You know, these malicious actors are going to get hold this information. We've seen it already that age verification providers have been hacked. It's a treasure trove of incredibly sensitive information. And it's just there are so many. Like we collect and steal and misuse data at a galactic level these days. Like, why are we creating more of this stuff? That's not like, that's a terrible idea.
- [52:47]
A
But do you think so? I mean, I know you said you hope not, but it doesn't feel like, do you feel like there's been enough pushback or is it a, is, is there a way to push back other than, you know, pushing congress people? I don't know.
- [52:58]
B
Yeah, so I Mean, I think, unfortunately, the Free Speech Coalition versus Paxton case came out the way it did because people think sex is icky, and that's kind of always somewhat of a canary in the coal mine. But fortunately, there are very, very good reasons and very persuasive arguments with long standing First Amendment law that that cannot extend to anything past pornography. It cannot extend to social media. Forcing people to verify their identity before using social media is still unconstitutional. We are making that argument in the courts. A lot of people are making that argument in the courts. So I am cautiously optimistic that we will be able to stave off a deepening of that particular problem. But, you know, crazy things are happening right now. So, you know, it's kind of like all up in the air.
- [53:50]
A
Aria, the last thing I want to hit on is touching on that word optimism. If. Is there. Is there. Is there a reason to be optimistic even to the slightest slimmest degree moving forward? And if so, can that be the. The last note that you. That we leave you on?
- [54:09]
B
Well, yes, I have two answers to that. And first of all is, yes, there is a reason, and that is that the alternative is giving up. And that's far worse. The alternative is just throwing your hands in the air and kind of being nihilistic about it and saying nothing matters anymore. But where does that get you? They just, just. That just makes you more miserable, like, at least fight to be happy. But, you know, I think you are seeing a lot of people mobilizing. I think you're seeing unlikely allies you might not have seen in other contexts coming together to push back against this stuff slowly but surely, you know, it's not always as fast as we would like, but I think we are seeing enough mobilization that, you know, if we can keep it going, keep it rolling and keep reaching out to people we might not otherwise agree with on literally anything and say, hey, our democracy, our freedoms, our liberty is worth, you know, working together on. If we can do that, then, you know, I think there's cause for hope, not just in getting through this, but of what we can do afterwards after we've reached that kind of share, come back to that shared mutual understanding of what's really important. Because that's what's lost in a lot of partisan politics, is we don't remember what we have in common anymore. And I think this could be ultimately a catalyst for remembering that. So that's my. That's my optimistic take.
- [55:28]
A
Love it. Ari, thank you so much for the time, man.
- [55:30]
B
Thanks for having me. It's been great.
- [55:32]
A
But that, my friends, is the end of your podcast today. I've been putting out one a week for you, so definitely check out the last few if you have missed any. And also if you haven't already, you know, follow us on Spotify and Apple podcasts, subscribe to us on YouTube wherever you most enjoy getting filled in. Rate us five stars. Hit that like button. But whatever you do, just know that next week I'll see you again with another fantastic guest.