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Constitutionally Speaking
00:50:15
A look back at our country's radical and inconsistent free speech tradition.
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- [00:00]
Brooke Gladstone
From WNYC in New York. This is on the media and on this week's show, our radical, paradoxical free speech tradition.
- [00:09]
Andrew Morantz
Whenever you write about free speech, obviously the free speech absolutists are going to come out of the woodwork. And there are a lot of absolutists on the Internet. But I didn't expect it to be so unrelated to what I actually argued.
- [00:22]
P.E. Moskowitz
It's one thing to talk about all these nice and fluffy concepts of free speech and being able to say whatever you want, but in the day to day reality of the United States that just doesn't exist for many people.
- [00:34]
John Stuart Mill
John Stuart Mill argues for one simple principle, the harm principle. The state, my neighbors and everyone else should let me get on with my life as long as I don't harm anyone in the process.
- [00:44]
John Powell
John Stuart Mill was brilliant, but this is the point that I want to make. He was wrong.
- [00:50]
Brooke Gladstone
Why? Revisiting our assumptions about speech and democracy might save us from ourselves. It's all coming up after this.
- [01:00]
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- [01:22]
Strict Scrutiny Podcast
This Supreme Court term isn't business as usual. It's a full blown battle over democracy. Justices are shattering precedent, grabbing power and even turning on their own. It's messy, it's high stakes, and it's already reshaping how this country works. And our podcast, strict scrutiny breaks it all down legally, clearly, and with just the right amount of side eye. New episodes drop every Monday. Subscribe and listen wherever you get your.
- [01:44]
Brooke Gladstone
Podcasts and on YouTube from WNYC in New York, this is on the Media. I'm Brooke Gladstone. This week we're talking about free speech, the best bedrock of our democracy. Or is it? It seems we're always being told that we're on the precipice of losing it all. The speech, the rights, the freedom battlegrounds constantly emerge under a variety of banners. What can we teach our kids in school? What politicians can say to primed crowds? What hell hath our old tweets wrought? But do we even have a firm enough grip on the First Amendment to fit fight about it? Probably not. Of course, that doesn't mean the arguments over it won't rage fast and furious. In 2019, I sat down with Andrew Morantz, a staff writer at the New Yorker Who'd ventured to ask in an op ed if free speech, as we practiced it, was in fact hurting us. It was a question not well received.
- [02:49]
Andrew Morantz
I was trying to argue against free free speech absolutism. I was trying to say free speech is really important, but we gotta worry about what free speech is doing to us in addition to just protecting it.
- [03:00]
Brooke Gladstone
So how does it feel to be called a wannabe tyrant, a wannabe Robespierre, and of course, a fascist?
- [03:08]
Andrew Morantz
Mm. Whenever you write about free speech, obviously the free speech absolutists are gonna come out of the woodwork. And there are a lot of absolutists on the Internet. But I didn't expect it to be so unrelated to what I actually argued. Arguing not against free speech, which I love and cherish, but arguing against free speech absolutism, that because we value the first Amendment and must protect it, we can't think about or protect or value anything else, including things that might be in opposition to it.
- [03:38]
Brooke Gladstone
You tweeted to boost your article as one does. Most of the comments were along the lines of, why don't you move to China? Why don't you move to North Korea? In fact, there was that video of the guy using the Yoda hand puppet.
- [03:56]
Andrew Morantz
North Korea head there immediately at 0%. Gun violence, harassment, and Nazis they have. Make for yourself a new life. You must. Andrew, look, I mean, I get the point that, you know, you can do away with a lot of problems of freedom by getting rid of freedom. Obviously, I'm not advocating for that.
- [04:21]
Brooke Gladstone
As you wrote in your piece, you're not for censoring people that you disagree with. You don't want government censorship of unpopular political views. I guess that raises the question, what are you advocating for?
- [04:34]
Andrew Morantz
I didn't even come close to advocating any government restrictions or regulations in the piece because I'm very, very skeptical of. Of any government restriction on speech of any kind. But I was trying to challenge the notion that because free speech is important, that's the end of the conversation.
- [04:52]
Brooke Gladstone
You were ratioed, which means, in the parlance of our times, significantly more replies to your tweet than you had retweets or likes, and they were overwhelmingly negative. So we know it didn't strike a.
- [05:08]
Andrew Morantz
Positive chord, not with the free speech absolutists on Twitter. I wasn't surprised by that. I mean, it's. It's. It's challenging a view that is very, very prevalent on the Internet. Specifically. It's not a random sample. The people who have anime avatars on Twitter are way more likely to be hardcore free speech absolutists than most people.
- [05:29]
Brooke Gladstone
What's the problem with free speech absolutism?
- [05:31]
Andrew Morantz
The problem is, just because we love freedom of speech doesn't mean we can pretend that it has no consequences. So absolutism is a lack of complexity that makes us unable to see the world for what it is. I mean, whenever speech is restricted in any way, the first thing you hear from a free speech absolutist is a slippery slope argument. If you restrain Nazis from speaking in Charlottesville, how do we defend against a slippery slope into more and more and more government restrictions? I'm fine with that slippery slope argument. I just don't know why. If you're worried about the slippery slope that comes from restricting Nazi speech, why aren't you worried about the slippery slope that comes from letting Nazis speak?
- [06:09]
Brooke Gladstone
Is it fair to say that you don't have a rock solid faith in the strength of our institutions to uphold democracy?
- [06:17]
Andrew Morantz
That is extremely fair to say. I don't have a rock solid faith in many things, but that is something I have very little faith in.
- [06:23]
Brooke Gladstone
Why not?
- [06:25]
Andrew Morantz
I just think we've seen that institutions are human creations. Humans are extremely fallible. There's. There's no guiding hand drawing us inevitably into some shining future. If you really ask people, are we guaranteed to enter into some shining utopian future? If they really thought about it, they'd say no. But we often act as if the answer is yes. In the old, old days, it used to be because there was the divine hand of Providence, or. Or there was some telos that we were bound to arrive at. Telos, a fulfillment, some place we are bound to end up. The kind of American myth is that our telos is greatness, manifest destiny, shining city on a hill. You know, we might hit bumps in the road, but ultimately we are making our union ever more perfect. This is a big part of why people just didn't think it was possible that Trump could be president, because the myth was so strong that it wasn't possible.
- [07:17]
Brooke Gladstone
The arc may be long, but we incline toward justice.
- [07:21]
Andrew Morantz
Maybe sometimes we do, but there's no guarantee. So one of my favorite philosophers is this guy named Richard Rorty who relies on a concept called contingency. Contingency just means there's no predetermined arc. The arc is made by People. In 1989, he has a book called Contingency, Irony, and Solidarity. So there was this notion that we used to be mired in superstition and that we used to be mired in oppressive politics, and that the Enlightenment solved both of those things, that there was this movement toward rationality being the center of our philosophical universe and democracy being the center of our political universe. And Rorty is critical of that for.
- [08:01]
Brooke Gladstone
Many reasons, some of which are manifestly.
- [08:03]
Andrew Morantz
Obvious, some of which are obvious politically. You can't think that the Enlightenment was the end of the struggle for freedom when people were literally owning other people. It just doesn't make sense. And Rorty thinks that you can't think of the Enlightenment as the end of philosophical trajectory either, because basically, he thinks we were replacing one kind of superstition with another. Instead of having the superstition that some divine hand would carry us into our inevitable future, we replace that with man or rationality or the universe. And I use man advisedly because there weren't a lot of women around at that time doing this work, which is itself a problem. So Rorty says no. Instead of getting stuck in this predestined arc thing, the idea that will bring us out of that is contingency.
- [08:44]
Brooke Gladstone
You brought us a piece of tape from a philosopher named Eduardo Mendieta.
- [08:49]
Andrew Morantz
Yeah. So unfortunately, Rorty is not with us anymore. He died in 2007. But I spoke to a guy named Eduardo Mendieta, who's a philosopher at Penn State, who spoke to Rorty many, many times through his life, has a book of interviews with Rorty, and we talked about contingency. A lot of people would just sort of tacitly assume, you know, we're on a path toward progress.
- [09:11]
Brooke Gladstone
We're.
- [09:11]
Andrew Morantz
We are making our union ever more perfect, and that on some level, they're just kind of waiting for that to inevitably happen.
- [09:17]
Eduardo Mendieta
That's correct. What Rorty was saying, we have to not use that as banisters or alibis for our commitment toward the institutions that we have created. They're fragile. They were inventions that resulted from a lot of creative and struggle. They're fragile, and that means they can be abolished, they can collapse, and ultimately they can be defeated. We have to not only protect the institutions that we have created, but make them durable and wherever we need to transform them, to make them more inclusive.
- [10:01]
Brooke Gladstone
I wonder if that's what really gets people angry.
- [10:04]
Andrew Morantz
Yeah, maybe. I think that people want to have that faith in the American myth. I think people want to see whatever path we're on as a path toward progress.
- [10:13]
Brooke Gladstone
Once you start picking apart the idea that seems to define America. That our system is unique and uniquely resilient and exceptional. Exactly.
- [10:25]
Andrew Morantz
And that we, the American people are pure and good. Our institutions are made of us. So if you suggest that they could be tending in a terrible direction, then maybe we're terrible.
- [10:35]
Brooke Gladstone
So your idea is we need to deal with this issue of speech because our system can't take it.
- [10:43]
Andrew Morantz
I don't think our institutions are inherently unable to break or inherently always breaking. I don't think the inherent stuff gets us anywhere. I just think things could happen in the future that are surprising. And that, to me, that idea is called contingency. If we think of ourselves as contingent and our national character as contingent and our future as contingent, then we just actually have to look at trends and do the work of getting to where we want to go instead of waiting for it to happen automatically. Freedom means work. It's a struggle, and sometimes it means looking in unpleasant directions. It's very easy to fall into some kind of narrative. Marx has a narrative of history. Hegel has a narrative of history. Even people who are arguing against a previous narrative, often, at least according to Rorty, fall into their own narrative without sometimes realizing it.
- [11:34]
Brooke Gladstone
Ayn Rand.
- [11:35]
Andrew Morantz
Exactly. Ayn Rand is a perfect example. It's very easy to see all of human events as reducible to, well, this is what human beings are, and this is how history works. And we're just kind of spectators waiting for it to play itself out. And any version of that narrative is something that Rorty would have a problem with. The model is wrong. The correct model is a contingent model. The way free speech plays into that is that if you just take care of making sure that the government doesn't get in people's way and that it lets them say whatever they want. You can't just sit back and automatically wait for the arc of history to carry you to where you want to go.
- [12:16]
Brooke Gladstone
You can't adhere to the notion that it can't happen here.
- [12:20]
Andrew Morantz
Right. Talk about myths of American identity. One of the core parts of that is that phrase it can't happen here. The it referring to fascism, totalitarianism. The 20th century was a pretty scary time throughout the world, and yet the American exceptionalist myth was so strong, people persisted in believing that the scary things that happen in other countries can't happen here.
- [12:45]
Brooke Gladstone
So tell me about, I don't know, maybe you'd call it a prophetic vision that Rorty shared back in the late 90s. He predicted that both white collar and blue collar workers would eventually feel an existential threat and rather than unite, would sort of turn on each other.
- [13:07]
Andrew Morantz
So he was a pretty analytical philosopher. But in the 90s, he took a turn toward the public intellectual. He gives this series of lectures at Harvard. He calls it Achieving Our country, which is after a James Baldwin line. And he has this vision of what might happen. And it's funny because he calls himself a utopian in many ways, but this is a dystopian vision. And again, there's contingency for you, right? Sometimes you envision what the future will be like if everything works out according to your hopes and dreams. And sometimes you envision the opposite. And it's important to hold both in your head. So this one was the vision of what happens if things don't go the way Rorty wants. And in his view, Bill Clinton and what we would now call the neoliberal left was ignoring workers needs and was not paying attention to the things that give rise to populism. And only the right was paying attention to those needs. He said at that point, something will crack. The non suburban electorate will decide that the system has failed and start looking around for a strong man to vote for. Someone willing to assure them that once he is elected, the smug bureaucrats, tricky lawyers, overpaid bond salesmen and postmodernist professors will no longer be calling the shots. One thing that is very likely to happen is that the gains made in the past 40 years by Black and brown Americans and by homosexuals will be wiped out. Jocular contempt for women will come back into fashion. All, all the resentment which badly educated Americans feel about having their manners dictated to them by college graduates will find an outlet. 1997.
- [14:39]
Brooke Gladstone
Wow. Did he predict when that something would crack?
- [14:45]
Andrew Morantz
Not in this speech. But there's another thing he wrote for the New York Times, looking back from this speculative fictional vantage point of the late 21st century. And in that piece he said that the year that things started to crack, the beginning of the dark ages, was 2014, not 2016.
- [15:04]
Brooke Gladstone
I guess it was a couple years off.
- [15:06]
Andrew Morantz
Well, maybe. But I actually would argue that the rise of the alt right and the deep fractional polarization of American politics, I might put that at 2014, the sort of toxic blend that eventually gives rise to Trump. You know, Steve Bannon starts recruiting lonely video game teenagers in 2014, right? Not 2016.
- [15:26]
Brooke Gladstone
Okay, let's just stipulate that our institutions are in fact vulnerable now. It's time to bring it back to the First Amendment or speech, the defining element of what it is we want to protect.
- [15:39]
Andrew Morantz
Right? Absolutely.
- [15:40]
Brooke Gladstone
The marketplace of ideas and so forth.
- [15:43]
Andrew Morantz
The marketplace. I don't even believe that the actual Marketplace solves everything.
- [15:47]
Brooke Gladstone
There is no free market, so we'll never know.
- [15:49]
Andrew Morantz
Exactly. Well, and I don't think there's a free marketplace of ideas either. There's corporate speech, there are censors and police of all kinds. Whether we see them or not. There's all kinds of speech that the government restricts. Libel, child pornography, harassment of certain kinds, threats of certain kinds. And we don't call that, you know, North Korea. We've just learned to live with it.
- [16:10]
Brooke Gladstone
There's so much we've learned to live with that we can't see. It's just. What do you choose to restrict?
- [16:16]
Andrew Morantz
Just before a change in how we think about or regulate speech, right up until the moment that happens, we take for granted that it can't possibly change. No new restrictions could possibly come into effect. That would be tyranny. That would be North Korea. And then right after it changes, we kind of get used to it.
- [16:34]
Brooke Gladstone
Well, what about then, the view of John Stuart Mill?
- [16:39]
Andrew Morantz
John Stuart Mill wrote this amazingly perceptive book called On Liberty, where he really just laid out the case for free speech. I mean, it's kind of all. In that book, he lays out a multi pronged argument for why we should listen to our ideological opponents. Even if they're wrong, they will make our ideas sharper. When they're right, they will make our ideas better. It's actually amazing for a book written in 1859 to be so similar to the way we still talk about free speech today. It's almost uncanny. In fact, people find this stuff so useful and so contemporary that there's a video of the actor Harry Shearer just essentially explaining Mill as a guide to our free speech debates today.
- [17:25]
John Stuart Mill
In his book On Liberty, John Stuart Mill argues for one simple principle, the harm principle. It amounts to this. The state, my neighbors and everyone else should let me get on with my life as long as I don't harm anyone in the process. One way of thinking of this is my freedom to swing my fist ends at the tip of your nose. Mill favors free speech, too, up to the point where it inflames violence. But merely causing offense, he thinks is no grounds for intervention, because in his view, that is not a harm.
- [17:56]
Brooke Gladstone
He believed that free speech was the fundamental right, the right that gives rise to all the other rights. The bottom of the pyramid.
- [18:05]
Andrew Morantz
Yeah. That is, for him, the pillar.
- [18:07]
Brooke Gladstone
And for you.
- [18:09]
Andrew Morantz
I don't think it's the only one. Speech matters enormously, but so does harm. And I think Mill was wrong to think that speech can't cause harm. To the extent that he did believe that. I mean, if we interpret Mill as thinking that speech is always just about me and my beliefs and it can't harm you, I think that's wrong. I think speech can cause individual harm and it can cause societal harm. And so of course we need to take speech rights into account, but we need to take other things into account too.
- [18:36]
Brooke Gladstone
Coming up, more with Andrew Morantz, wherein he answers the question, is the whole philosophy undergirding our First Amendment fatally flawed?
- [18:46]
Andrew Morantz
I don't know about fatally, but it's definitely flawed.
- [18:49]
Brooke Gladstone
This is on the media.
- [18:55]
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- [19:18]
Strict Scrutiny Podcast
This Supreme Court term isn't business as usual. It's a full blown battle over democracy. Justices are shattering precedent, grabbing power and even turning on their own. You it's messy, it's high stakes, and it's already reshaping how this country works. And our podcast strict scrutiny breaks it all down legally, clearly, and with just the right amount of side eye. New episodes drop every Monday. Subscribe and listen wherever you get your podcasts and on YouTube.
- [19:45]
Brooke Gladstone
This is on the Media. I'm Brooke Gladstone to continue our interrogation of free speech with New Yorker staff writer Andrew Morantz, we turn to the problem of definition and how our understanding of what free speech really means remains hazy.
- [20:04]
Andrew Morantz
In fact, John Powell, who's a law professor at UC Berkeley, he compared the way we understand free speech to the way most of us understand gravity.
- [20:12]
John Powell
We all think we know what it is, but if you talk to a serious astrophysicist, which I've done, they would say we have no idea what gravity is, why it works, how it works, and we've been working on it for 100 years.
- [20:24]
Andrew Morantz
According to John Powell, there are inherent tensions in the Constitution between different key rights. And he thinks that these tensions are so fundamental that we actually should look at our Constitution as two documents in one. There's a pre Civil War Constitution, one written before most Americans had full rights. And there's a post Civil War Constitution which was designed to extend new rights to more and more groups of Americans. He thinks these are two conflicting documents that are still in a sense, at war.
- [20:54]
John Powell
When Lincoln gave his Gettysburg Address, he used the phrase four score seven years ago. Afterwards, there was a Firestorm, because people were pissed, some people, because what Lincoln was doing was criticizing the Constitution. Four scores seven years ago was the Declaration of Independence, not the Constitution. And he was saying that the Constitution was a flawed slave document. And he ended by calling for something radically different than essentially a slave constitution. Here we just had the bloodiest war in US history. It's still a war which killed more people than all the other wars combined. And clearly there was an effort to do something radical.
- [21:39]
Andrew Morantz
The post Civil War Constitution, the one that began with the 13th, 14th and 15th amendments, that was supposed to make all people born on US soil citizens, full citizens with the right to vote, the right to participate fully in democracy. According to these amendments, they now enjoyed equal protection under the law.
- [21:56]
John Powell
The 14th Amendment is designed to bring the freed slaves and blacks generally into political community. If you're born in the United States, you are a citizen, full stop.
- [22:08]
Andrew Morantz
So the problem, according to Powell, is that we never really implemented the post Civil war Constitution fully. And the court has never really reckoned with the tensions that can arise when you strengthen one right at the expense of another. So if you consider freedom of speech, you can see how strengthening one person's speech rights can actually limit someone else's ability to participate fully in democracy. If someone's speech terrorizes someone else into silence.
- [22:35]
P.E. Moskowitz
It's one thing to talk about all these nice and fluffy concepts of free speech and being able to say whatever you want, but in the day to day reality of the United States, that just doesn't exist for many people.
- [22:47]
Andrew Morantz
P.E. moskowitz is a journalist and the author of the Case Against Free Speech, the First Amendment, Fascism and the Future of Dissent. Their book, PE uses they them pronouns, by the way, argues that free speech is not extended equally to all Americans. What Moskowitz is arguing is that we should think less about abstract rights when we think about free speech and more about actual power.
- [23:11]
P.E. Moskowitz
I mean, in the early 1900s, two hardcore union supporter brothers conspired to try to blow up the LA Times, which was a virulently anti union newspaper. They didn't want to hurt anyone. The point was to call attention to the anti union behavior of the paper. They ended up hurting people. They ended up getting caught. And the ACLU defended them. You know, they were saying, well, we don't condone blowing things up, but you have to agree that it makes sense that people are this angry because no one is listening to them. Does someone who works 60 hours a week and therefore has no time to attend that council meeting where you could exercise your free Speech. Do they have a right to free speech? Technically they do, but. But in reality, in materialist reality, they do not.
- [24:01]
Andrew Morantz
In the middle of the First World War, there was an activist named Charles Schenck who was handing out anti war flyers urging men to evade the draft. He was sentenced to jail for violating the new Espionage act, which banned interference with military operations or recruitment. Schenck said that the act infringed on his First Amendment rights, but the Supreme Court upheld the conviction. In fact, one Justice, Oliver Wendell Holmes, wrote an opinion saying that Schenck's pamphlets met a clear and present danger standard and that therefore the government could send Schenck to jail. Holmes compared nonviolent political protest to shouting fire falsely in a crowded theater.
- [24:44]
P.E. Moskowitz
The US Government has decided time and time again that that line between speech and violence should be enforced when it comes to things the government doesn't like, such as leftist agitation, civil rights agitation, and expanded speech, usually at the behest of corporations or the far right.
- [25:03]
Andrew Morantz
That precedent was largely upheld for another 50 years. Then, in 1969, the Supreme Court went in a pretty different direction. This was in a unanimous opinion in a case called Brandenburg vs Ohio.
- [25:16]
Susan Benesh
Brandenburg was a white supremacist who stood in a field in Ohio and yelled out a speech at a relatively small group of followers.
- [25:30]
Andrew Morantz
Susan Benesh teaches human rights at American University, and she's the director of the Dangerous Speech Project, which studies how certain kinds of public rhetoric can lead to mass violence.
- [25:41]
Susan Benesh
He said things like black people should be sent back to Africa. And he called for also terrible things to be done to Jews. And he was convicted. He appealed his conviction, and the United States Supreme Court decided to overturn his conviction. The Supreme Court decided that it is lawful under the First Amendment even to incite to violence as long as there is not a likelihood that your incitement will lead to what's called imminent lawless action. So that means that I can actually stand in front of a crowd of people and try my absolute best to convince them to go and attack another group of people, and as long as I'm likely to be unsuccessful, that's entirely legal.
- [26:31]
Andrew Morantz
Brandenburg essentially enshrined John Stuart Mill's harm principle into law. So for the government to restrict speech, there has to be evidence of physical harm. For instance, neo Nazi rhetoric about gassing Jews that might inflict psychological harm on a Holocaust survivor. But as long as there's no immediate incitement to physical violence, the government considers that protected speech. Skokie, Illinois, in 1977 was home to some 7,000 Holocaust survivors. That year, a group of neo Nazis filed for a permit to march there, promising to wear swastikas and hold signs reading free speech for white Americans. This is freedom of speech, man. I use the hysteria of the Jewish community to propel the issue of First Amendment rights for National Socialists and for.
- [27:20]
Brooke Gladstone
People who speak up for the white.
- [27:21]
Andrew Morantz
The village of Skokie tried to stop the Nazis from marching, but the ACLU took the case to the Supreme Court and the court upheld the Nazis right to march.
- [27:31]
John Powell
The speech absolutists try to say you can't regulate speech.
- [27:35]
Andrew Morantz
Berkeley law professor John Powell.
- [27:37]
John Powell
Why? Well, because it would harm the speaker. It would somehow truncate their expression and their self determination and say, okay, what's the harm? The harm is a psychological harm. Wait a minute, I thought you said psychological harms did not count. Make a choice. They don't count or they do count. It can't count for the speaker, but not the listener.
- [27:59]
Andrew Morantz
The retort of the free speech absolutist is to say, well, the best answer to speech you don't like is more speech. But in practice it doesn't always work. For instance, in the 1970s, as more and more women started to enter the workplace, their male coworkers were often hostile or outright intimidating. So again, this is the tension between the first and 14th Amendments between the right to speech and the right to full public participation here. The right of the male co workers to sexually harass the women in their workplace, which is speech after all, and the rights of those women to fully participate in the workplace. In 1986, the Supreme Court made a decisive turn away from a free speech absolutist position. In the case of Meritor Savings Bank FSB vs. Vinson, the court declared unanimously that creating a hostile work environment for women was not protected speech.
- [28:53]
John Powell
This actually is a harm. It creates a hostile workplace. Women can't perform.
- [28:58]
Andrew Morantz
The Court says that sexual harassment in the workplace is a form of discrimination.
- [29:03]
John Stuart Mill
And therefore against the law. It indirectly requires employers to ensure an atmosphere that is not conducive to sexual harassment and warns them that should they fail, they may be held legally accountable.
- [29:14]
John Powell
That doctrine was later extended to race, but it took a long time. Both of those are saying there's some conditions where you cause a harm and it can't simply be fixed by more speech.
- [29:26]
Andrew Morantz
It's not just a workplace issue. If you're an African American intending to vote and people are holding up signs outside your polling place saying I know where you live, those signs are speech, but they're speech that is designed to diminish your full participation in our democracy. Another place where this tension between speech and participation shows up is in the influence of money in our politics. A lot of people are very worried that money has a voice that normal citizens don't. Don't worry about that, says Mitt Romney. Corporations are just like you. Corporations are people, my friend. We can raise taxes. Of course they are. Everything corporations earn ultimately goes to people. So where do you think it goes? In their pockets. Whose pockets? Whose pockets? People's pockets. In a Supreme court decision in 2010 called Citizens United versus the FEC, the court granted corporations and unions an almost unrestricted right to use their general funds for, quote, electioneering communication. This released rivers of cash for political ads. Justice Anthony Kennedy, who authored this ruling, said that these expenditures do not give rise to corruption. And even if there's an appearance of influence, voters still will not, quote, lose faith in our democracy.
- [30:42]
Susan Benesh
Political speech is indispensable to decision making.
- [30:44]
Andrew Morantz
In a democracy, and this is no less true because the speech comes from.
- [30:48]
Susan Benesh
A corporation rather than an individual.
- [30:50]
Andrew Morantz
Justice John Paul Stevens wrote an impassioned dissent, and he said, under the majority's view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech.
- [31:04]
P.E. Moskowitz
If you take that kind of hard line, we'll defend anything as long as it's related to free speech. Then you end up defending something that I think is extremely harmful for the.
- [31:13]
Andrew Morantz
U.S. pe Moskowitz, you know, the ability.
- [31:15]
P.E. Moskowitz
Of people to spend unlimited amounts of dark money getting their preferred candidates elected.
- [31:21]
Andrew Morantz
Any argument over the First Amendment is ultimately an argument about harm, about that tension between speech and equal protection under the law. How can it not be? August 12, 2017.
- [31:33]
Susan Benesh
The governor of Virginia says three people are dead following the violence in Charlottesville. A state of emergency declared after white supremacists and counter protesters clashed. Replace us, you will not.
- [31:49]
Andrew Morantz
Replace us, you will not.
- [31:52]
Susan Benesh
The common rhetorical pattern in dangerous speech it is when you accuse another group of doing to your in group what you'd like to get the in group to endorse doing to them.
- [32:02]
Andrew Morantz
Susan Benesh, again, she says that the Jews will not replace us chant is textbook dangerous speech, specifically the kind that she refers to as accusation in a mirror.
- [32:14]
Susan Benesh
There are striking patterns that emerge when you look at a lot of this stuff, although I don't recommend doing that across languages, across cultures, certainly across religions and even across historical periods. So I thought, huh, if there are these striking patterns, could it Be that there is what I call dangerous speech, the category here of language that does something to people such that it's at least a precursor, if not also a prerequisite, for mass intergroup violence.
- [32:49]
Andrew Morantz
If you are, say, a white supremacist group that is toying with the idea of, oh, I don't know, getting rid of the Jews, then you might start by accusing the Jews of wanting to get rid of you.
- [33:02]
Susan Benesh
So I began to think about how that could be prevented. I eventually went to law school to become a human rights lawyer. In my first summer in law school, I worked at the UN Tribunal for the former Yugoslavia, the war crimes tribunal. I was assigned to the prosecution team working on the case of Radovan Kardi, who was a Serbian civilian leader.
- [33:23]
Brooke Gladstone
A litany of cruelty, murder, a crime against humanity committed in a war that cost over 100,000 lives, created millions of refugees, and became the darkest chapter of post war European history.
- [33:37]
Susan Benesh
And I began to wonder, what was it that somebody like Kardi did that helped to bring about social transformation that makes genocide and ethnic cleansing and other atrocities possible? Since, after all, thousands of people don't wake up all of a sudden one morning and decide that it's a good idea to massacre their neighbors or even to condone the massacre of their neighbors. If you look at the 1930s in Germany, a remarkably short period passed between the point at which most Germans regarded the Nazis as a disreputable small bunch of street thugs and the point at which a critical mass of Germans began to regard them as a legitimate political force and even to support them. There has to be some kind of a collective psychosocial transformation to make people believe that violence against another group of people is not only acceptable, but necessary.
- [34:40]
Brooke Gladstone
Andrew?
- [34:41]
Eduardo Mendieta
Yeah.
- [34:41]
Brooke Gladstone
Can I just cut in here for a second?
- [34:44]
Andrew Morantz
Yeah, what's up?
- [34:44]
Brooke Gladstone
Where are we going with this? Have her observations led you to conclude that white supremacists, whose visibility and noise level have admittedly grown since at least the Obama administration, that they'll ultimately influence the minds of enough Americans that our democracy implodes? Is that what you really believe?
- [35:08]
Andrew Morantz
I'm not saying that will necessarily happen, or that it is happening, or even that it's likely to happen. What I'm saying is that given contingency, that is possible. Let's play one more piece of Susan Benish.
- [35:20]
Susan Benesh
If you wait until a country's about to explode, then you're unlikely to be able to prevent violence. It makes much more sense to start when the situation is not dire. And that's where I think we are in the United States. I am, of course, very worried but somewhat reassured by the large number of people who are expressing concern about it, since that is one of the important ways, in my view, to diminish the power of such speech.
- [35:59]
Andrew Morantz
So since the 60s, the Supreme Court has really been focused on the rights of individual speakers, on protecting that right. So the question is, if they were to expand their scope to protect everyone else's rights, the rights of people who are harmed by that speech, what would that actually mean? What would it look like? Would that just destroy free speech as we know it?
- [36:18]
Brooke Gladstone
Well, that's coming up next. This is ON the media.
- [36:27]
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- [36:49]
Strict Scrutiny Podcast
This Supreme Court term isn't business as usual. It's a full blown battle over democracy. Justices are shattering precedent, grabbing power, and even turning on their own. It's messy, it's high stakes, and it's already reshaping how this country works. And our podcast, strict scrutiny breaks it all down legally, clearly, and with just the right amount of side eye. New episodes drop every Monday, so subscribe and listen wherever you get your podcasts and on YouTube.
- [37:16]
Brooke Gladstone
This is on the Media. I'm Brooke Gladstone with Andrew Morantz, New Yorker staff writer. Hi.
- [37:21]
Andrew Morantz
Hey.
- [37:21]
Brooke Gladstone
So earlier in the show we talked about how John Stuart Mill's harm principle stipulates that my right to throw a punch ends at the tip of your nose. Here's another clip of John Powell speaking at UC Berkeley questioning Mill's assumption that there's a clear line between physical and psychological harm.
- [37:43]
John Powell
John Stuart Mill was brilliant, but this is the point that I want to make. He was wrong. What we've learned over the last 40 years in the mind science is that many psychological harms from the brain's perspective are almost indistinguishable from what we think of as physical harms. And in fact, the body is not neatly divided. So when you have a psychological shock, you have a physical reaction. When you have a physical shock, you have a psychological reaction. The law is actually struggling with that.
- [38:16]
Brooke Gladstone
But you spoke to Susan Torres Harding. She's a professor at psychology at Roosevelt University and she studies exactly this sort of thing.
- [38:26]
Andrew Morantz
She's saying that when people experience the effects of radio racism on a daily basis, it affects Their physical bodies, they experience hypertension, chronic diseases, even lower birth rates.
- [38:37]
Brooke Gladstone
Race in itself is a completely made up category. There's no kind of biological indicator to it. But if people act like it's true, then it can have very real, serious consequences on people's health, on people's life chances over lifetime.
- [38:55]
Andrew Morantz
We expect that those effects may add.
- [38:57]
Brooke Gladstone
Up like any other kind of chronic stressor.
- [39:00]
John Powell
Many conservatives are nervous about that because it's like, well, if we acknowledge that, where does it end? If we start recognizing implicit bias, we start recognizing psychological harms, it will radically change society, and it would, and it should.
- [39:16]
Andrew Morantz
When Powell talked about that, it reminded me of this other case where the judges were worried about unraveling the whole system underneath the case they were looking at. So there was this case called McCleskey vs. Kemp in 1987, and the. The Supreme Court had to consider whether the death penalty was being disproportionately applied against black offenders, and they found that it wasn't. But in a dissenting opinion, Brennan, one of the justices, he said that their finding wasn't based on data. It was based on what he called a fear of too much justice, because.
- [39:48]
Brooke Gladstone
The data would show that, of course, the death penalty was disproportionately affecting black defendants.
- [39:54]
Andrew Morantz
Yeah. That data was presented to the court, and Brennan was basically saying, the rest of my colleagues don't want to look at this because they're afraid of what it would mean.
- [40:02]
Brooke Gladstone
What would it mean?
- [40:03]
Andrew Morantz
Well, if the death penalty is racist, then maybe the whole criminal justice system is racist, and they don't want to do that work of undoing the entire system they've built.
- [40:11]
Brooke Gladstone
Hmm.
- [40:12]
Andrew Morantz
And there's kind of an analogy here to free speech. Right. What Powell is saying is if we really took the 14th Amendment seriously, equal protection, equal protection, full citizenship. It might undo all the work we've done to interpret the First Amendment the way we have. So we kind of just don't want to look at it.
- [40:28]
Brooke Gladstone
So Powell says the judges are worried that we're going to have to rethink our whole approach to free speech, maybe pass more laws restricting it like they have in Europe.
- [40:39]
Andrew Morantz
That idea worries a lot of people, including P.E. moskowitz, even though Moskowitz wrote a book called the Case Against Free Speech. Moskowitz, they're actually arguing against more laws restricting speech like they have in Europe, because why? Because Moskowitz does not trust the government.
- [40:57]
P.E. Moskowitz
More often than not, those laws are used to just limit speech that the government doesn't like. I know in France, for Example, there have been a couple times where their anti anti Semitism law has been used to clamp down on pro boycott, divest sanctioned speech, which, you know, I think is a legitimate form of speech. And as a Jew, not one that I find inherently anti Semitic.
- [41:19]
Andrew Morantz
So obviously not everyone agrees with that way of talking about the BDS movement. But the point is free speech restrictions, when they get weaponized, they can be weaponized by the left or by the right. Susan Benesh, who's the director of the Dangerous Speech Project, she does not want to get rid of this Brandenburg standard, the standard that says that all speech is permitted unless it incites imminent physical violence. Even XI wants to keep that standard in place because she thinks it might even create more problems than it would solve.
- [41:48]
Susan Benesh
I'm quite skeptical that law, especially criminal law, is a useful tool to control speech. When people are prosecuted for hate speech, for example, in other countries where hate speech is a crime, the prosecution publicizes them and their speech, and they end up with even more followers than before they were prosecuted.
- [42:12]
Andrew Morantz
She also said that we need to remember Brandenburg only applies in public spaces, and we live our lives in a lot of private spaces. You know, workplaces, universities, even online spaces that are built by private companies. So the First Amendment doesn't apply there in the same way. And Benesh thinks that a lot in those spaces can be achieved by shifting norms rather than shifting laws.
- [42:35]
Susan Benesh
What is the likelihood that an American politician will use the N word knowing that the microphone is on? The likelihood is very tiny because that person will then lose that election. The person will be punished, not by law, but in another way.
- [42:53]
Brooke Gladstone
The norms that were supposed to keep a troll from winning a presidential election didn't quite work in 2016, did it?
- [43:01]
Andrew Morantz
Definitely true. I think she's making a more minimalist point there, that even though Trump is a troll, even he understands he's not supposed to say the N word in.
- [43:10]
Brooke Gladstone
Public, at least at the time of this recording.
- [43:13]
Andrew Morantz
Right, Exactly. So this goes back to what I was saying about Richard Rorty, the philosopher.
- [43:19]
Brooke Gladstone
You talked about at the beginning of the hour, who believes there is no arc of history that's gonna deliver us towards justice, that everything is possible, and that our future turns on contingencies.
- [43:32]
Andrew Morantz
Exactly. So his whole thing was that the way history moved forward was that people, they don't just change laws or tweak this or that idea. Their beliefs and behaviors have to change at a really deep, fundamental level. They're assumptions that they hold without even being able to articulate them often. And those assumptions when those assumptions change, we can change things that used to be considered quite strange, and those can just become normal or vice versa. And the deepest social norms, the assumptions that we carry around that we don't even always think about consciously. For him, he referred to those as.
- [44:08]
Brooke Gladstone
Vocabularies, assumptions on which we build our view of ourselves and our nation, our behavior, everything.
- [44:17]
Andrew Morantz
They're so core to us that we don't even articulate them.
- [44:20]
Brooke Gladstone
And.
- [44:20]
Andrew Morantz
And so when we hear norms, we think like etiquette or politesses or whatever, but it's really much deeper than that.
- [44:26]
Brooke Gladstone
Yeah, but right now, we're all really worried about, you know, the new normal. How did we get down here so fast? And how do we climb out and reach for a less rageful, less ugly vocabulary, as you'd say.
- [44:44]
Andrew Morantz
Yeah.
- [44:45]
Brooke Gladstone
Benesh says that the Germans sunk really fast into Nazism and climbed out of it quickly, too. Although, admittedly, it had the foot of the Allies on their necks.
- [44:58]
Andrew Morantz
Right. And it might be that the acuteness of the crisis is related to how quickly you build your way out. Luckily, we've never had a crisis that bad.
- [45:07]
Brooke Gladstone
And she says we're not there yet.
- [45:08]
Andrew Morantz
She says we're not there yet. So our rebuilding is likely to be more slow and gradual. And we've seen examples of this. You know, we had a civil rights movement, we had a women's movement. More recently, we had a marriage equality movement. These social norms can change. We've seen it happen in our lifetimes. And at first, you know, it seems really scary to certain people. They can't imagine abiding by it, and pretty quickly they integrate it into their vocabularies, and it becomes a thing they take for granted.
- [45:35]
Brooke Gladstone
It sounds so easy. All we have to do is interrogate a few assumptions that have led us to this moment and maybe get rid of some. Right, Exactly.
- [45:44]
Andrew Morantz
Piece of cake. So, I mean, we can start thinking about how to chip away at it. Right. We can drop that view we talked about earlier, that the arc of history will just naturally deliver us where we need to go. We can drop our view of American exceptionalism, that we are this shining city on a hill. We could just, you know, be a.
- [46:02]
Brooke Gladstone
Little more humble at the beginning of the hour. You alluded to an essay that Rorty wrote in 1996 called Looking Backward from the Year 2000 96. And he envisioned a dark age beginning in 2014, a kind of Margaret Atwoody autocracy, in which our cherished rights and our freedoms, they all implode in a kind of orgy, of violence and chaos. And then he imagines us climbing out of that hole and starting to rebuild. And he was a little light on the details when it came to how he did that.
- [46:43]
Andrew Morantz
It's true, it's all sort of general and speculative, but I think the closest he comes to imagining the specifics is when he talks about getting away from focusing on individual rights, the John Stuart Mill stuff, the where I can swing my fists and where the tip of your nose is, getting away from that framework and shifting to a framework about fraternity and social compacts and solidarity.
- [47:05]
Brooke Gladstone
And so, listeners, we've pulled a few paragraphs from Rorty's speculative essay so we can hear it in his words. You start, all right.
- [47:16]
Andrew Morantz
Our long, hesitant, painful recovery over the last five decades from the breakdown of democratic institutions during the dark years 2014 to 2044 has changed our political vocabulary as well as our sense of the relation between the moral order and the economic order. Just as 20th century Americans had trouble imagining how their pre Civil War ancestors could have stomached slavery, so we at the end of the 21st century have trouble imagining how our great grandparents could have legally permitted a CEO to get 20 times more than her lowest paid employees.
- [47:54]
Brooke Gladstone
That is a really big shift from where we are now.
- [47:57]
Andrew Morantz
Big shift. It's also kind of quaint that he thought 20 times more was so obscene. But yeah, so you can see how for Rorty, the whole game, it's not about replacing one law or even replacing one government with another. It's about replacing the whole framework. Right. So we're not doing the individual rights thing anymore. We're changing out our whole discourse for a new one.
- [48:18]
Brooke Gladstone
He says how to formulate a principle of fraternity. Fraternity is an inclination of the heart, one that produces a sense of shame at having much when others have little. It's not the sort of thing that anybody can have a theory about or that people can be argued into having.
- [48:37]
Andrew Morantz
You just arrive at that new vocabulary. It's not winning or losing an argument.
- [48:42]
Brooke Gladstone
Yeah, and he talks about humility, the America that he describes at the end of this century, we're no longer an economic powerhouse and we no longer believe that's our destiny. He wrote. We are citizens of an isolationist, unambitious middle grade nation. Our products are only now becoming competitive again in international markets. And politicians continue to urge that our consistently low productivity is a small price to pay for union control of the workplace. And worker ownership of the majority of.
- [49:20]
Andrew Morantz
Firms make America middle grade again. So, he continues, American exceptionalism did not survive the dark years. We no longer think of ourselves as singled out by divine favor. We are now once again a constitutional democracy. But we have proved as vulnerable as Germany, Russia and India to dictatorial takeovers.
- [49:43]
Brooke Gladstone
We have a sense of fragility, of susceptibility to the vicissitudes of time and chance, which Walt Whitman and John Dewey may never have known. But our chastened mood, our lately learned humility may have made us better able to realize that everything depends on keeping our fragile sense of American fraternity intact. So Rorty believes there's no way to force people to feel empathy.
- [50:15]
Andrew Morantz
Right. So as I was talking about earlier, part of what he thought was broken about the Enlightenment framework was that you can't just throw more speech into the mix if the conversational framework is broken. You can't just compete with more and more noise. You have to change the framework itself. And it is a. It's a chicken and egg thing, I should acknowledge. You know, in order to change the society, you have to change the vocabulary. In order to change the vocabulary, you have to change the society.
- [50:42]
Brooke Gladstone
Yeah, I don't know, it just sounds literally like wishful thinking.
- [50:46]
Andrew Morantz
You know, this is how a guy who was an analytical philosopher starts writing utopian sci fi fiction. He actually believed that in order to make a better world, you have to start by just making one up.
- [50:58]
Brooke Gladstone
And he starts by imagining a horrific.
- [51:01]
Andrew Morantz
Dark age in his version of the imagined future of America. We have to hit rock bottom before we start building our way back up.
- [51:09]
Brooke Gladstone
And so this is what passes for hope for you, Andrew.
- [51:14]
Andrew Morantz
I did tell you before, I'm the guy who thinks our institutions are not deserving of any real faith and that we might be teetering on the brink of democratic collapse at any moment. So from me right now, this is probably as close to optimism as you're gonna get.
- [51:28]
Brooke Gladstone
I'll take it. Thanks for the hour.
- [51:32]
Andrew Morantz
Absolutely. It was fun.
- [51:38]
Brooke Gladstone
We spoke with Andrew Morantz in 2019. He's a staff writer at the New Yorker and author of the book Antisocial Online Extremists, Techno Utopians, and the Hijacking of the American Conversation. And that was this week's show on the Media is produced by Leah Feder, Michael Loewinger, Eloise Blondio, Rebecca Clark Callis, and Molly Schwartz. Our technical director is Jennifer Munson. Katya Rogers is our executive producer on the Media is a production of WNYC Studios. I'm brooke Gladstone.
- [52:34]
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