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- [00:01]
A
Welcome to the New Books Network.
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B
I'm Caleb Zakrin, CEO and publisher of the New Books Network. Today I'm speaking with Eric J. Olson, Professor Emeritus of Political Science at Seattle University. We're discussing his new book, A New Approach to Political Democratic Theory, Constitutional Law and public liberty after January 6th. This book is particularly fascinating because Eric, as he puts it in his book, is a committed civil libertarian. Though after recent events that he's observed, he's noticed that the, the edges of this commitment, this faith to civil libertarianism, have started to fray. This book is a extremely fascinating look at the First Amendment, specifically the ideas around political speech, what constitutes political speech, and not only the attacks on political speech, trying to limit people's political speech, but also the way in which political speech can be used for anti democratic purposes and what to do about that aspect of it, because it's certainly one that should be guarded against much in the way that limitations on free speech should be as well. So Eric, I'm really excited to talk to you about this. I think it's a relevant book. You know, we're talking just before the 250th anniversary of the Declaration of Independence. So of course many people, you know, have the American history on their mind. Speech was a very important idea that was being thought of by the founders. So I'm excited for the chance to get to talk to you about this book today. So Eric, thanks so much for joining me today on the New Books Network
- [01:31]
A
and thank you for having me, Caleb.
- [01:33]
B
It's really wonderful to have you on and I really did find this book so fascinating to read. It's clear the extent to which you really labored over the ideas in the book and that it is a work that is not only something that you've written in response to January 6th, but something that, that you have been thinking about for a very, very long time. And before talking about the book, I was wonder if you just introduce yourself a little bit to listeners who might not know you.
- [02:01]
A
Okay. Well, I got my PhD from the University of Wisconsin in Madison and actually spent several years there because I was simultaneously studying political science and also pursuing my interest in music. So that's one thing I'll point out. I am a musician and a composer, but in terms of political science, which is my main field, my focus has been on democratic theory and constitutional law and theory, as well as issues of property and its relationship to democracy.
- [02:42]
B
And for this book in particular, can you talk about when you first had the idea for it? When was the seed planted for You?
- [02:50]
A
Well, I think there are two levels of this. I think the seed was planted before January 6 in the sense that I had been reading things that made me wonder about the relationship between speech and power. But it was January 6th that was the main catalyst. And like many people, I watched what happened on January 6th with horror and a sense of patriotic indignation, you might say. But as I started to think about it, I started to wonder if we had the conceptual tools for understanding the relationship between speech and Trump's actions on January 6th. And that led me on a long personal and intellectual journey relating to how speech, political speech in particular, relates to democracy and also about the problem of political speech sometimes threatening democracy. President Trump speaks more than any political leader we've ever had that there's plenty of political speech going on in his two administrations. Yet it's very difficult to conclude that that political speech has been in furtherance of democracy overall, certainly. And also in specific cases like January 6th. So that's what led me to this book.
- [04:32]
B
Yeah. And we'll certainly dive into the events surrounding leading up to January 6th, because, you know, as your book shows, it wasn't like a surprise. I mean, the extent to which ended up developing, you know, to people actually breaking into the Capitol building and disrupting the proceedings of the certification of the election. Obviously, the extent and violence was. Was unexpected, I think, for many. But, you know, you have this great timeline at the beginning of the book that I think shows that there was an expectation of something like this, that something like this could happen. And then also your timeline shows the kind of the play by play of the day itself and the after effects, the aftermath of the event itself. But what I think is useful about this book is that instead of just looking at January 6th in isolation, you know, you really look at political speech in general. You look at how theorists have understood political speech in both the jurisprudence around it, but also the political philosophy of speech. And, you know, most Americans, I would hope, and many non Americans are very familiar with the First Amendment. It might be, you know, the First Amendment and the Second Amendment might be the only amendments that they're even aware of. And, you know, they're familiar with it, or at least they believe themselves to be familiar with it. Your book deals with a narrow aspect of speech, namely political speech. And, sorry, if you talk a little bit how political speech differs from other forms of speech, especially in the conception of the First Amendment.
- [06:07]
A
Okay, yes. Speech is a very broad idea, of course, and there are lots of debates about what's relevant to The First Amendment in terms of communication and expression. Political speech, though, is a core value in modern free speech jurisprudence. The idea is that political speech furthers democracy and that that is broadly in line with what at least many framers thought about free speech. There are many other kinds of speech, of course. There is artistic expression, there is scientific speech, there, there is commercial speech. So political speech is narrow in that sense, but it is, as I was saying, also just central to First Amendment jurisprudence. So if you look at the foundational free speech cases starting early part of the 20th century, almost all of them dealt with political speech even before there was something like a political speech doctrine. So it is narrow, but also fundamental to the First Amendment. There are interesting questions, however, as to how we should value other forms of speech in addition to political speech. There's a long standing debate about how much protection commercial speech should get. And I'm a pluralist, not so much with commercial speech, but with other forms of speech like artistic expression. I believe that there are many values to be served by the First Amendment and the protection of freedom of speech. But I do believe that what is distinctive about political speech is its connection to self government and to what I call public liberty.
- [08:23]
B
A lot of this book is extensive analysis of what you call the classical liberal paradigm of political speech. And I was to introduce listeners to this paradigm. Maybe some of the primary thinkers that you consider to be the most thoughtful expositors of this paradigm. Yeah. Why don't we start there?
- [08:40]
A
Sure. I think the best way for me to summarize the classical liberal paradigm is by looking at two assumptions that I think are central to it. And the first assumption is that free speech rights, indeed all the political liberties in the First Amendment, are fundamentally private rights that are to be distinguished from and protected by, from, excuse me, the public authority of government. This is what I call the private public binary. In the classical liberal paradigm. The second assumption is that speech is qualitative, qualitatively different than action or conduct. And this is what I call the speech action binary. And so it's that binary structure that I have in mind with the classical liberal paradigm. There are many other ideas associated with it. We're familiar with the idea of a marketplace of ideas, which, which leads me to one of the most important thinkers in establishing this paradigm, and that's Oliver Wendell Holmes. Lewis Brandeis is another foundational thinker. Now, the paradigm has roots in classical liberal political theory. Thinkers like John Locke and John Stuart Mill are definitely very important in the development of this paradigm, but it is also distinctive in the context of American constitutional law. And it developed in the early 20th century in relation to the well known clear and present danger test, and also in relation to the idea of a marketplace of ideas leading to truth which can never be shut down in some civil libertarian views. And then I think it became solidified as what I call a civil libertarian consensus in the latter part of the 20th century through thinkers like Thomas Emerson and a variety of constitutional theorists. But it's rooted in these two assumptions in my view, the private public binary and the speech action binary. And that's where I try to unpack and also provide an alternative to.
- [11:19]
B
Right, so. So the alternative that you advocate for is a democratic republican paradigm. Could you explain a little about this paradigm? I mean, I think you've, you've already sort of insinuated for listeners what the different how this paradigm differs. But could you extrapolate a little bit?
- [11:35]
A
Sure. Well, I think there are two ways to understand it. One is in contrast to what I call republican political morality, it's the political morality of classical republicans and in the American context, the political morality of thinkers like James Madison. And this is centered on public liberty. And I mean that in two respects. One is popular sovereignty and the other is the shared rights of self government that are associated with the First Amendment. It's also associated with classical republicans with the idea of the importance of civic virtue and sustained self government, and also with the idea of corruption and recognizing recognition, recognizing corruption and political systems. So my democratic republican paradigm is partly an attempt to democratize that republican political morality, to make it inclusive by modern democratic standards, and also to expand the protection of political speech. The other way of looking at it is simply in terms of my response to the binary structure of the classical liberal paradigm. So instead of saying that there's a private public binary, I say wait a minute, there's a kind of civic space of civic agency where political speech in particular serves as a kind of governing power for self governing citizens. And second, and this is different certainly than the framers, I say that speech should be understood not just as something in contra distinction to action and conduct, but often as a form of communicative action by which we govern ourselves.
- [13:43]
B
Could you dig into a little bit of this idea of communicative action?
- [13:47]
A
Yes, that term is out there in political theory. I have just a very broad view of communicative action. Jurgen Habermas has a very specific view of communicative action. I'm not going there in terms of the pursuit of mutual understanding and things like that. I simply have in mind how speech is combined with. With action many times and in many contexts, particularly when we're dealing with political decision making. I can talk about the performative dimension of speech in this context if you want me to. That's a key part of my perspective. And I draw on the linguistic theory of J.L. austin and others to. To focus on how, especially with political speech, there are forms of communication in which action is embedded in the speech, where the speech enacts things in terms of action. And the classic examples from linguistic theory are making a promise. I promise. Well, that's not just a description of one's views. It is engaging in the action of promising, or I forgive so thinking things like that. Well, what I'm talking about is not just speech that is performative in those restricted, more narrow senses, but how speech and action get combined in a lot of politics. And I use the example of Trump's effort to overturn the 2020 election as an example of that. That. So when he was saying stop the steal, he wasn't just exhorting the crowd on January 6th or even before January 6th to march down to the Capitol or to try to obstruct the proceedings. He was actually engaging in an action of trying to overturn the election. So he was involved in communicative action to try to overturn the election. I think that's the kind of key example from my book of what I'm talking about.
- [16:19]
B
And that is a very. In a way, it's a specific case. It's a kind of a radically exceptional case in many ways. And I want to dig into it. But what if we talk about maybe a more general case of subversive speech? So a person that might be advocating for revolution or the overthrow of the government, if I was on here ad saying, eric, the two of us, we should go and we should overthrow the US Government, what about that type of speech of just someone like me engaging in that sort of speech? How do you think about that in terms of political speech?
- [16:57]
A
Well, that's a very good question, and it's one of the questions I have struggled with. But ultimately, my perspective is one that gives really quite extensive protection to advocacy. And there's a technical, theoretical reason for that, which is that advocacy by itself is only minimally performative. It's just the action of advocating. So it really doesn't have much of an impact. So I actually argue that we should defend all sorts of radical and revolutionary advocacy. That's the first point I want to make. The second point is, well, you have to look at two things is that advocacy combined with action in such a way that it threatens the integrity of democratic rights, practices and processes. That's important. And is there really a substantial connection to action? And I argue that in a lot of cases where the court was talking about advocacy of sedition and things like that, that they really didn't focus on the connection between speech and action, and they really didn't present evidence of any kind of pattern of a threat that was posed, say, by communists, anarchists. So I guess that's where I come out on things that it's going to be difficult to draw lines sometimes. A key part of my argument has to do with the development of an exception to First Amendment protection, which I call substantial abuses of public liberty. Well, that's going to. That involves some line drawing and it's going to be difficult. But I say err on the side of allowing advocacy to take place by itself, certainly.
- [19:09]
B
So in a way, you see a different standard, possibly for public officials, for people in positions of power, than, let's say, you know, your, your average citizen. Would that be accurate?
- [19:24]
A
I think that's accurate in a, in a general way. I think this would apply to all speakers, all people exercising that right, and all citizens. But one reason for focusing on the effort to overturn the 2020 election is it definitely underscores the issues associated with people in power, people like Trump. And so I do think that they have a greater capacity to abuse public liberty, to abuse their speech rights that they share with other citizens. But of course, there were people doing some terrible things on January 6th itself, and they were ordinary citizens, and they were, you know, they broke into the Capitol and committed violent acts against the police and threatened Mike Pence and did all sorts of things. So, so they're responsible and accountable, too. But yes, the nature of my exception of a substantial abuse of public liberty certainly draws attention to those with power who have the capacity to abuse public liberty.
- [20:46]
B
I couldn't believe when reading this book that January 6th was like just around five years ago. It really feels in a way that not only has it been memory hold, but that there's been also some revisionist history around it. Like even, you know, even in the news, to a certain extent, there seems to be an unwillingness to, to deal with it. In a way, it was, you know, part of it was, you know, and as we'll get into it, part of it was the failure of the, you know, the various proceedings related to it and also the Supreme Court's ruling on it that basically made it a moot point to continue to deal with it. So I think people have sort of moved on because of that. But, you know, without asking you to kind of give a play by play or remind us what happened on January 6, can you tell us a little bit of what it was like for you to review the events of that day and what stood out to you as maybe relevant or important for people to remember if they've forgotten some of the details of the event?
- [21:51]
A
Sure, sure. I think the first thing that stood out to me was that it was not just about January 6th, and that this was a larger event that started right after the election in 2020 and involved a variety of forms of speech and action that were quite public in some ways, at least in terms of the speech, but also in terms of many of the actions. So January 6th, to me is a symbol for. For the effort to overturn the election. But I actually think that there's been too much attention on January 6th itself, and also on the issue of incitement, because I'm not a big fan of conceptualizing what happened on January 6th in terms of incitement alone anyways. And that has kind of helped to normalize it. Oh, that was just January 6th. And we can debate whether Trump. Trump incited people to do what they did in the Capitol, but January 6th should be seen as part of a larger pattern of speech and action that involved an attempt to overturn an election and prevent the peaceful transfer of power. And I think we have to constantly remind people that Trump is the first and only president to do these things. So what does it involve? Well, it involves a variety of things that. That Trump and people around him tried to do to overturn the election. They put pressure on the Justice Department. They put constant pressure on various state officials and swing states to overturn their results. You know, the famous example being, can't you just find me 11,000 votes? Or whatever it was. And they put pressure publicly on Mike Pence and they developed a fake elector scheme, so they tried to send fake electors. So this is a wide ranging effort to overturn the election. And again, it started right after the election. So I think we also have to keep in mind that all of those actions were accompanied by public political speech. We forget that Trump was on, well, then Twitter now X talking about putting pressure on state officials, ridiculing those who wouldn't accede to his demands, constantly talking about even what the attorney General should do, constantly talking about how it was a fraudulent election. And so this is very much about word and deed combined. And it went on for several months, and certainly it culminated with January 6, at least in terms of the basic effort to overturn the results and to obstruct the counting of the Electoral College votes. But this was a pattern of speech in action, and that's what stands out to me. So, on the one hand, I get it that people reduce all that to January 6th, not only because that's a kind of convenient shorthand, but also because a lot of people who tried to hold Trump accountable focused on January 6th. Certainly the House Democrats in their impeachment focus simply on him inciting people at the Capitol. And so I think we've kind of missed the forest here and focused a lot too much on the trees. And I think, again, that has helped to normalize what happened. Oh, well, that's just one political event, and there was violence. And after all, think about all these protests that occurred after George Floyd or whatever, you know. But I guess what I'm trying to do is say, wait a minute, there's something that should stand out to us about trying to overturn an election. And if we're really serious about public liberty and the values associated with it, we should find that abhorrent. And that's a very serious violation of Democratic Republican political morality, to use my term.
- [26:39]
B
Part of the larger literature that you're situating this work within is the literature on democratic backsliding and this idea, an analysis that various scholars have put forth on what are the marks that demonstrate a democracy slide into, you know, populism or forms of authoritarianism, you know, like we've seen in places in Hungary, you know, examples, of course, being attacks on the press. And what do you think that this literature tends to miss, that your intervention takes, you know, a finer focus on?
- [27:19]
A
Well, the literature is vast at this point, so I, it's, it's difficult to generalize. But if you, if you focus on, on thinkers like Levitsky and Ziblatt, I think, which makes sense because they're so singularly important in this literature, I think you can get a sense of some of the problems in their account. Can I back up and say what they got right here? I think the literature on democratic backsliding has correctly pointed out that these days in the contemporary political world, authoritarianism doesn't arise through things like coups and, and violent insurrections, but through democratic processes or, and then that leads to efforts to undermine those democratic processes. So I think that's a, that's very important that, that they, they have, have that insight into authoritarianism in the contemporary world. I think that's important partly because, you know, people think of authoritarianism in terms of coups and, and violent civil wars and things like that. But it hasn't happened that way in Hungary, for instance, and Poland, at least for a long time. You could include Venezuela and that effort to institute authoritarianism within democracy. So I think that's very important. And that got me going in some respects on this idea that, well, democratic liberty, these can be used against democracy. And I think I owe that to them. Where they go wrong? Well, one area where I think they go wrong is in not paying enough attention. At least this is true of many of the scholars in this area, to things like social media, mass media, the right wing media ecosystems, and the relationship of all that to these authoritarian populist movements like maga. So there are some scholars that get into that more than others. But the main thing for me was that they focused too much on the suppression and curtailment of civil liberties and not on how civil liberties, like speech and political speech in particular, become instruments for the development of authoritarianism. And that's a key point of departure for my work.
- [30:21]
B
Yeah, the other thing, just to bring in this classical liberal paradigm, once again, that I find really interesting is the way that you look at the failure of the federal investigation of Trump and the general failure to prosecute January 6th. Obviously, I think over, you know, a thousand people were arrested and many of them spent several years in jail, though of course, all their sentences were commuted later. But if you could look a little bit about this at how this paradigm was deployed in the investigation and why you think it was part of the source of the failure.
- [30:59]
A
Well, let me start, if I might, with the House Democrats impeachment, because I think that's where things cut off on the wrong foot originally by focusing on incitement. And incitement is relevant to what happened, at least on January 6 itself or the days immediately prior to it. But incitement implies a certain kind of relationship which I referred to earlier, which is Trump as speaker, inciting all the other people who engaged in the violent or illegal actions. And there is where things go wrong. Now, it turns out that Jack Smith and the federal prosecutors also considered incitement, and that was the one area where they were interested in including issues of speech. Part of the problem here is that the speech issues, the political speech issues relating to the effort to overturn the election got reduced to a question of whether involved incitement by Trump or not. Rather than looking at the pattern of communicative action which led to January 6th. So I think that's part of it. Now, Jack Smith didn't really. He decided not to pursue an incitement of insurrection charge, thought it was too difficult, thought he had evidence for it, but he thought it was going to be difficult to prove. And it was kind of an unprecedented case in this context. So he did what prosecutors understandably do when there's this kind of anti democratic speech and conduct. And that is, he just said, well, that's conduct, that's not speech. And this is, in constitutional law, the criminal conduct exception to the protection of free speech, where conduct is integral to. I mean, speech, excuse me, is integral to criminal conduct. So that's a classic move. I associate that with what I call the classical liberal shell game. So you just kind of move speech from the speech side of the binary of speech action to the action or conduct side, and then you don't have to deal with these troubling issues of political speech. But this, in my view, does not capture what these events were all about. You cannot understand what was going on with January 6th and before and with the overall effort to overturn the election, unless you realize that the conduct had meaning in relation to speech. The speech was constitutive of the actions. And so the shell game basically distorts what this problem was. It distorts it in that it prevents us from seeing it as an abuse, a substantial abuse of public liberty, because Trump was abusing his liberty as a citizen ruler, you might say. So that's where I think it goes wrong. But let me be clear. Jack Smith is something of a hero in my view. He's the protagonist in that story, and he was stuck with these options because of the classical liberal paradigm. And to his credit, he focused on things like election subversion. So in that sense, he was getting at issues of public liberty. But I just think we don't fully understand what happened unless we understand this as an attempt, an insurrectionist attempt, to overturn an election in which political speech was central to that attempt.
- [35:17]
B
Could you talk a little about the Supreme Court case, Trump versus United States, and this their. Their kind of ruling related to presidential immunity and how it relates to this broader issue of political speech. As you know, when political speech, especially done by a president or someone in a position of immense power.
- [35:37]
A
Yes, I should say I think it's one of the worst decisions in the history of the Supreme Court precisely because it doesn't recognize the fundamental importance of public liberty, and also because I think the theory of the executive that accompanies it just doesn't have sufficient support, historically or otherwise. So there are two ways in which it is problematic. One is the way the court handled it, the kind of, the way they slow walked the case. If you compare it to how the Nixon Watergate case was dealt with, they, they took their time getting to this and they did not have a sense of urgency. And that itself told me that they didn't appreciate the kind of moral and theoretical architecture of the First Amendment relating to the public liberty and its corruption. So they took their time. And because of that, and also because of how they defined and elevated presidential immunity, they made it impossible to have a trial before the election. We don't know how that trial would have gone. There certainly was strong evidence to convict Trump, but we do know that that would have cast the events in a very different context. There's a sense of the importance of events that attaches to a public trial. And there's a kind of educative value of a trial where people learn about the issues and also about or are reminded of the events. So all that was lost because of what the Supreme Court did. But fundamentally, I think the problem is that the case based on the unitary executive theory undermines foundational values relating to public liberty and the rule of law. So I describe it at one point as an anti Republican, smaller Republican, anti liberal and anti democratic decision. And it certainly, regardless of the Court's self understanding, contributed to democratic backsliding in this country and the rise of authoritarianism, I would argue.
- [38:31]
B
So, you know, so much of the core of your idea is that there's, there's certain form of political speech that can in a way serve to attack speech in general or the other principles of democracy. You look at the way in which political speech can be used to attack, for example, people engaging in their right to the freedom of the press, et cetera. And I think this is an interesting line. You also look at not just your own critique of this liberal paradigm, but you also look at postmodern criticisms, or what you generally call postmodern criticisms. And sort of, if you could explain a little bit what the general postmodern critique of classical liberal paradigm is and how it differs from yours. Because, and I have to say, like, you know, I found that the postmodern critique quite confusing and a little bewildered. I didn't quite understand the basis, what the critique was. And obviously there are different individuals involved. So I would love if you could explain it a bit, because I found myself quite confused.
- [39:39]
A
Oh, okay. Yeah, let me try to work through that. Well, there are two thinkers I focus on in that section. One is Stanley Fish, kind of well known critic of First Amendment jurisprudence. And the other is Judith Butler, well known feminists, postmodernists, political theorists. What I argue there is that they make two kinds of arguments, two kinds of criticisms of First Amendment jurisprudence that don't hold up. And the first one is that, and this is especially associated with Fish, the First Amendment is so indeterminate, or the cases and issues of the First Amendment are so indeterminate that the idea of a clear doctrine or perspective on the First Amendment collapses under the weight of that indeterminacy. Of particular interest to me is the idea that the speech action binary inevitably collapses because kind of civil libertarian judges and scholars just don't have a good way to explain why speech is an action. And so that, in Fish's view, undermines the whole approach to freedom of speech. That indeterminacy argument is also found in Judith Butler's work, but she has a different kind of argument, and that is that the model, and also a lot of linguistic theory presupposes a sovereign self, you know, so that the self is truly an agent who can bring about actions that the self intends. And instead she argues that, well, now the self is constructed through a variety of historical and social and linguistic practices. So if you can't have a sovereign self as speaker, how can you say that this model accurately captures what goes on with speech and political speech as well? Because speakers are actually just participating in a history of discourses, as it were. So she is also arguing that we should not understand performative speech as something that the sovereign self enacts. Right. Well, in relation to both of these arguments, I guess I'm sympathetic to what they're saying. My whole idea of communicative action kind of draws on their work, also the work of Michel Foucault. So I'm not totally against what they're saying, but I don't think the indeterminacy argument itself is dispositive, because any effort to apply a doctrine or standards to the enormous complexity of speech situations is bound to lead to some indeterminacy and difficult lines to draw and so forth. But more than that, I think Fish in particular presupposes the classical liberal paradigm, and that's the only way he can say that it's a problem that speech is always collapsing into action. Well, from my point of view, yeah, of course, lots of speech is about action, so we need a different way of understanding the First Amendment. As for Butler, I do contest the idea that, or I should say I do contest her deconstruction of the sovereign self. And my argument there is that we don't need some grand theory, say Enlightenment theory of the self, the autonomous sovereign self, to understand that a civic self becomes meaningful in the context of our lived experience as citizens. And we have a sense of our own self directed civic agency. When we're engaged in politics. Does that mean that everything we do gets enacted? No, of course not. There are winners and losers in politics. So yes, I agree that we can't assume that we have sovereign selves that always accomplish what they intend and therefore there are limits to our performative speech. Certainly I agree with that. But I think my other criticism is perhaps more important in terms of my own alternative paradigm and that is that given indeterminacy and the lack of kind of sovereign self governing citizenship, we have no way of understanding corruption. And here I appeal to not just democratic backsliding, but also to the classical republican ideas of corruption. Because you need a certain stability in your practices and processes and rights of self government to understand when the integrity of those practices, processes and rights has been threatened or undermined. And that is what I mean by recognizing corruption. So if everything's completely indeterminate and open ended, well, you can't really have that sense. Granted, you need some indeterminacy in democracy, a determinate series of outcomes would be authoritarianism itself. But we also need to understand the corruption of our practices of self government.
- [45:54]
B
That helps a lot. I think. The notion of the kind of critique of the sovereign self I found to be confusing just on pragmatic grounds. I feel like, you know, how, how can anyone be guilty of a crime or any sort of actress? You know, how can the legal system even work at all unless you have some, you know, even, you know, just pragmatic notion of what the self is. So I think that that was, that was my confusion. It was less to do with your, you know, extrapolation and more to do with the idea itself. Yeah, and I've always been a bit perplexed by this, by some of these ideas. I think that the indeterminacy critique is an interesting one though. That does seem to have some truth to it though. Obviously putting these things into practice can lead to different. It can be harder when you're trying to put these things into practice than to identify the philosophical weakness of the ground. Of course there's weakness to the grounds of, of the, of, of these things, but we have to make do on some level I think
- [47:02]
A
I agree with you. I, I, I had those same concerns and, and I ultimately, I can't understand how you can even conceptualize constitutional democracy in any meaningful way unless you have some sense of the self as a self governing agent. So yeah, so that's, that's why I went.
- [47:27]
B
I think it's certainly, you know, it's, I think it's important just for the case of your book because part of what you're doing is just exploring a kind of a full, you're doing a kind of a full 360 view on political speech. So looking at the kind of the philosophical criticisms of some of that, the notions central to the liberal paradigm, I think is important. Whether or not it then leads to an actual alternative is another question. And you look a lot then afterwards at the. Please correct me if I'm pronouncing his name wrong, but the work of Alexander michaeljohn.
- [48:07]
A
Michaeljohn. Michaeljohn mikaeljohn I think is most common pronunciation.
- [48:11]
B
Yeah, you have quite a detailed analysis of his ideas and drawn on his work, quite a bit of, of Democratic, Republican sort of ideas. Could you talk, just tell listeners a little about who he is and his ideas and how you draw on them and also your critiques or your amendments of some of his ideas.
- [48:33]
A
Sure, yeah. He's a, he's a central figure in this book. He's one of the people that got me thinking about communicative action, or what he calls speech action. He is a foundational thinker in the development of the modern political speech doctrine. And he even went so far as to say that political speech should be absolutely protected. Turns out he backed away from that in some ways. But he's important in the context of a book about political speech precisely because his work was very influential and established in the doctrine. And yet he is also, in my view, one of the most incisive critics of the political speech doctrine understood in terms of the classical liberal paradigm. So he's also a critic of the classical liberal paradigm, which has dominated political speech and other free speech issues. So in one way he criticizes the classical liberal paradigm is to say, wait a minute, you know, we're not talking about private rights here. We're talking about public governing powers of citizens. And indeed, he connects quite directly political speech to practices like voting. Voting is a form of communicative action, and that itself had a big impact on me. I think that's true. I've always thought that in some way. But to hear a leading constitutional law scholar talk about it was an Eye opener for me. And he also, as I suggested before, brings us to an understanding of political speech as communicative action. So he basically criticizes both of the two main elements of the classical liberal paradigm. And yet he develops an argument for the protection, he calls it the absolute protection of political speech that has influenced many, many Supreme Court justices, from William Brennan to Justice Breyer. And so I'm trying to work through this. On the one hand, he's a leading figure in the development of the very paradigm of political speech that I'm criticizing, but on the other hand, he's very critical of that paradigm. And honestly, I don't think the literature on Meiklejohn gives him or pays enough attention to how he's a radical Democratic critic of that same paradigm.
- [51:32]
B
So
- [51:34]
A
that led me to wonder, well, where does Meiklejohn lead us in terms of an alternative paradigm? And then it seems to me he starts playing that shell game that the classical liberal paradigm often falls into and start saying things like, well, we don't want to protect mere talkativeness, including talkativeness that is disruptive in a meeting, for instance, or disruptive more generally, one assumes he means, and what's protected is speech that is worthwhile. So I realized immediately that, you know, his absolute protection is not very absolute at all. And so I think he does not. He did not follow through on the implications of his own insights with regard to the problems with the classical liberal paradigm, especially with regard to the relationship between speech and action. And when you recognize that and don't just, you know, kind of put it into the conduct side of the binary, and don't just talk about mere talkativeness or unworthy speech as if it was simply meaningless conduct, you start to see that political speech can be linked to action in ways that threaten democracy, and you certainly can't sustain an argument that it is to be absolutely protected.
- [53:13]
B
So obviously, this particular case that anchors this book of January 6th, and, you know, the particular usage of political speech and the kind of defense, you know, using the defense of political speech to hide behind a type of speech that is maybe advocating for something that might go against the kind of the actual spirit of the First Amendment, you know, I was wondering if you, if, if, if, if you had to sort of drill it down into a kind of like a line or, or sort of a lot with the kind of the exception, you know, that you would see as being necessary to carve out for certain types of political speech.
- [53:59]
A
Well, you mean in terms of my substantial abuse of public liberty?
- [54:02]
B
Yeah, yeah. Yeah, and to just explain that sort of phrase a bit.
- [54:08]
A
Right. Well, as part of the effort to kind of envision an alternative normative and theoretical structure for the First Amendment and political speech in particular, I develop an argument for a new exception to the protection of political speech. And that is what I call the substantial abuse of of public liberty exception. So as the name implies, that means it's focusing on public liberty and the practices associated with public liberty. And there really aren't exceptions like that in current constitutional law. So given the importance of public liberty and Republican and Democratic Republican political morality, it seems that we need some attention to that. And because of the anti democratic possibilities with some performative forms of communicative action, we need to allow for the possibility of some forms of unprotected political speech that otherwise are within the meaning of the First Amendment. They're about public affairs, they're about politics. It's speech that talks about elections, various political issues. So then the question for me was, well, you know what, what, how do we delineate this exception? And I came up with two rules of application, just basically to give the reader a sense of how this would work out. I didn't have the space to elaborate them fully, but one rule of application would be the rule of specificity. Before you start restricting political speech, you have to be talking about circumstances involving a very specific threat to specific democratic rights, practices and processes. So it can't be over broad and you can't just talk about a bad tendency towards some harm involved with those practices. So it has to be very specific. And also the abuse, as the name of the exception implies, has to be substantial. It can't be just like a little comment here or there that was linked to some kind of maybe demonstrable action, but really didn't go anywhere. It certainly can't just be advocacy alone. And so the question then becomes, how is this speech related to action that threatens the integrity of specific democratic practices, specific practices of public liberty? And then you can talk about the context of the speech in action. Always. I referred to the effort to overturn the 2020 election, but there are other examples. You talk about attacks on the media. Well, that was part of what happened on January 6th, and that's an example. Now just attacking the media verbally is one thing, according to my argument, but when that is combined with actions, then that speech is no longer protected. It's truly anti democratic, anti public liberty. Another example that I spend some time on is voter intimidation, where you clearly have a combination of speech and action or conduct that we should single out as a substantial abuse of public liberty, even if it doesn't meet some of the standard for the other exceptions. Basically, to this point, although we're going to have to see how this develops, the Court, the Supreme Court has said that in order for intimidation to be unprotected, it has to be a true threat, which is a very high standard. We don't have to get into all that. But what I'm saying is, no, let's single out voter intimidation as a specific abuse of public liberty. And it doesn't have to be the hurdle to establishing. It doesn't have to be so high, as the Supreme Court would say, in terms of true threats. So that's another example. I'm also, as you know, attracted to the idea of expanding the hostile audience doctrine in constitutional law. The hostile audience doctrine basically says that when people are rightfully demonstrating or protesting or doing something political in that way, audiences don't have a right to veto them through heckling or harassing them. I think that's perfectly consistent with my Democratic Republican paradigm, though I would also add that because of the connection between political speech and democracy, that hostile audience argument also applies to attempts to obstruct democratic practices as well, which usually involve communicative action as well. Then the last area that. Well, I explore two other areas, if you want to get into them in the book. One is hate speech and the other is campaign finance laws. I'm very sympathetic to the argument, and it's an argument that Judith Butler makes, that we should be able to target hate speech in the context of speech that is unprotected. And as a result of a case called rav, the Court has adopted a very strict notion of viewpoint and content neutrality, which says that even in unprotected speech, you can't target particular kinds of viewpoints relating to that unprotected speech. But I think that's wrong. And I certainly think that we can single out hate speech, for instance, using my exception as a substantial abuse of public liberty. But I also argue that a general ban on hate speech would go too far. It would be over broad. It would talk about simply hate speech having a bad tendency, and essentially it would violate the rule of specificity I was talking about before, or at least there'd be a danger of calling an abuse an abuse when it really didn't substantially threaten the integrity of democratic rights and practices. So I'm sure that'll be controversial with some people. And finally, and in a different way, I talk about campaign finance restrictions in relation to a substantial abuse of public liberty. This is different than talking about whether individuals abuse public liberty or groups abuse public liberty, because campaign finance laws would not be about criminalizing individuals so much as criminalizing collective practices of campaign finance contributions. Although you could have specific individual violations too there. I do argue that the reasoning behind a substantial abuse of public liberty suggests that the Supreme Court has gone off in a very wrong direction with Citizens United States and related cases. And in a case that just dropped today, which I haven't had a chance to read, and that they have, but also that the debate has misconstrued that money is both speech and action. It's a form of communicative action. But the other problem is. So the Supreme Court has not recognized it as action, just tried to confine campaign contributions to the speech side of the binary, but is also in elevating corporations as persons with speech rights has also taken the private public binary in a direction which allows for free speech protection for oligarchy. So those are some of the specific areas where I try to delineate this substantial abuse of public liberty. That's probably more than you wanted, but I thought I'd give you and the listeners a chance to see where this all comes out.
- [63:20]
B
I think it's very useful to hear, you know, for listeners to hear like all of the ways in which you are considering political speech and its, its many forms. I mean, there are other things that you can talk about. I mean, you talk about political speech issues on college campuses, for example. And you know, that's something that I, an issue that I think a lot about. And I would say that actually like the way in which I've probably like looked at or examined speech issues most is like the way in which they've sort of come about on campuses. And I'm, I'm curious just, you know, if you feel in a way because you identify yourself, you know, in the book as a civil libertarian and if, if you still feel like that, like you would identify yourself in such a way or if, you know, over time you have felt yourself, you know, I mean, you do say that you felt it fret you, you, you felt the fraying. But you know, how you think about it in general just in terms of the, you know, the value of, let's say exposure to good faith arguments or ideas that people with very anti free speech views might just, you know, classify as, you know, I mean, like you say, for example, like hate speech has to be specific, it can't be general. So you couldn't just define Something as hate speech because you didn't agree with the opinion because you thought that they meant something that maybe they were implying or you thought they were implying, but they weren't. So, yeah, just that sort of, you know, can of wor. Let's open the can of worms. Worms in a can.
- [64:51]
A
Yeah, let's open the can of worms. Yes. Well, this is why it was both a personal and an intellectual journey to write this book, because as I point out in my, I guess in the introduction, you know, I, I come from a family of card carrying ACLU members and, and so I was raised thinking that the civil libertarian view is the truth. Right. Which I suppose is ironic since it's all about the marketplace of ideas in search of the truth that you never really uncover. I guess. So, yeah, I've struggled with this. I do value free speech in general. I'm a musician and I've written music for, for musicals and so I value artistic expression very much. And I also value academic freedom very much and have been disappointed that some of my colleagues don't value it quite as much as I do. And I think the free exchange of ideas is extremely important in a university, but also in a democracy. So I remain committed to those things. And as I say early on in the book, the book is an attempt to develop a perspective which provides expansive protection for political speech while taking into account those anti democratic forms of speech and action that threaten democracy. It's a bit of a puzzle, as it were, and that's what I'm trying to work through. So why did it become frayed? Well, you know, one reason is the rise of social media. I don't get into that in the book. That would have required an extensive additional analysis. But of course, many of my examples of Trump's speech are from social media. So social media made me more skeptical, made me for a number of reasons, whether it's algorithms or just the kind of debase level discourse that you often find trying to confine political speech to certain small messages, basically. And that's one thing that made me skeptical, but certainly the Trump years in connection with Democratic backsliding made me more skeptical. It frayed my commitment because I began to see that, you know, speech is simultaneously an extremely important instrument of self government, but also something that can be used and abused to undermine it. Even before January 6, I started to consider some of these issues in relation to the work of Foucault. Foucault got me thinking that, you know, authoritarianism is not simply about power being exercised to limit liberties but it is about power being used productively through the abuse of, of those liberties like speech. So that, that's, that's part of my thinking. So I've had to try to work through this to a kind of reflective equilibrium, you might say, between this enduring, though frayed and somewhat attenuated commitment to speech and the protection of political speech in particular, on the one hand, and on the other hand, confronting all these situations, which suggests that the equation of political speech and democracy just doesn't hold up all the time. When you talk about democratic backsliding, as Levitsky and Sublat recognize, it often starts with speech, but it's more than just starting with speech. It's authoritarians engage in communicative action and certainly in the context of democratic backsliding. So I had to deal with that. And it was a kind of struggle with my beliefs, but also a struggle to try to find a way through these issues and still come out with some still fundamental civil libertarian commitments and in combination with a commitment to democracy.
- [69:46]
B
And I think balancing, you know, goods that can come into conflict with each other is such a challenge. And I think that sometimes people don't want to recognize that multiple goods can be in tension with each other. And I think that everyone finds their different ways to try and square that, whether it's to not observe it or to end up holding one good over another good, even if it harms the other. And I do think that it's, you know, the way in which you address that, that challenge is extremely thoughtful. And I, and I, you know, I'm very curious to see how people engage and interact with it, whether it's just on the front of, you know, the speech, presidential speech, but also just in general, like how to think about political speech and what really is political speech, especially given how it's been, like you said, it's been so dramatically modified. I mean, I do think that you, that even without saying it, the social media is a, is a important part of it because it is the, it is the direct line between the president and the people. You know, they can't go on the news media. They can't go on. I mean, suppose they can't go on the radio. There are examples obviously of dictators controlling the airwaves and control, you know, being able to reach, you know, listeners or voters or constituents directly. But of course, you know, it's. Social media provides a very unique challenge, I think, and, and challenge, you know, this idea of the marketplace of ideas. It's a. Marketplace is an interesting, it's not so much a marketplace of ideas as it is a swarm sometimes. And it's challenging to deal with. And it's certainly something that I'm constantly confronting in my own sense of what's right in terms of address and the fear, because I do think that there is a fear fear that gets drilled in so deeply, you know, for those that are, you know, that, that are, you know, quite partial towards civil libertarianism, like I feel, or like you feel like, it's hard to then deal with those challenges. So that's part of the reason I was so intrigued and I think enjoyed your book so much is because of the way in which you dealt with them in such a thoughtful manner. So, you know, I'm really curious to see what listeners think of the book and I do recommend that people go and check it out. So, yeah. Eric, thank you so much for being guest on the New Books Network. It was really wonderful to get the chance to speak with you.
- [72:31]
A
Well, thank you so much, Caleb, and thank you for your thoughtful reading and your questions. I really appreciated them and really enjoyed the conversation.
- [72:40]
B
Of course. I look forward to more conversations.
- [72:42]
A
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