Podcast Summary: So to Speak: The Free Speech Podcast
Episode: Ep. 226: ‘Shouting fire,’ deepfake laws, tenured professors, and mask bans
Release Date: October 10, 2024

Hosted by Nico Perino from FIRE, Episode 226 of “So to Speak: The Free Speech Podcast” delves into several pressing free speech issues, including controversial statements on hate speech, new deepfake legislation in California, the dismissal of tenured professors for their expressions, and Nassau County’s new mask ban. The episode features insightful discussions with FIRE’s Aaron Tur, Connor Murnane, and Adam Goldstein.

1. Tim Walls’s Comments on Hate Speech and Free Speech

Overview:
The episode begins with an analysis of Minnesota Governor Tim Walls's assertion during the VP debate that there is no First Amendment right to hate speech. He erroneously references the "shouting fire in a crowded theater" analogy to justify censorship.

Key Discussions:

• Clarifying the "Shouting Fire" Analogy:
  Connor Murnane explains that the phrase originates from the 1919 Supreme Court case Shank v. United States, where Justice Oliver Wendell Holmes used it to illustrate limits on free speech during World War I protests. However, the phrase is often misapplied in modern free speech debates.

  Connor Murnane (06:06): “The speech needs to be intended to cause imminent lawless action and… likely to produce it.”

• Context Matters in Free Speech:
  Adam Goldstein emphasizes that context determines whether falsely shouting fire is protected speech. In a movie or play, it might be acceptable, whereas in a real crowded theater causing panic would not be.

  Adam Goldstein (05:09): “There might be other occasions where falsely shouting fire would be totally protected.”

• Misconceptions About Hate Speech:
  The hosts clarify that the Supreme Court has not established a specific hate speech exception to the First Amendment. Instead, hate speech may fall under other exceptions like incitement if it meets the Brandenburg standard.

  Connor Murnane (07:26): “It's a bedrock principle… you can't restrict speech simply based on a judgment that it's hateful or offensive.”

Notable Quote:

Adam Goldstein (06:14): “You can't yell fire in a crowded theater.”

2. California's Deepfake Legislation

Overview:
California has introduced three new laws aimed at regulating deepfakes, inspired in part by a deceptive video of Kamala Harris created by Christopher Coles and retweeted by Elon Musk. Governor Gavin Newsom pushed for these laws, leading to significant controversy and legal challenges.

Key Discussions:

• Details of the Legislation:
  AB 2839 regulates materially deceptive content distributed maliciously around elections, allowing private lawsuits. AB 2655 imposes stringent requirements on platforms to block deceptive political content swiftly.

  Nico Perino (16:06): “There was this video created by Christopher Coles… retweeted by Elon Musk and Gavin Newsom got upset by this video.”

• Judicial Response and Criticism:
  Judge John Mendez temporarily halted the law, citing it as overly broad and unconstitutional under strict scrutiny for being a "hammer instead of a scalpel."

  Adam Goldstein (18:43): “They said that strict scrutiny applied… requiring mandatory labels is not a narrow tailoring thing.”

• Chilling Effects on Free Expression:
  The hosts argue that such laws could lead to excessive censorship, forcing platforms to remove content even when it's satire or parody, out of fear of legal repercussions.

  Connor Murnane (20:48): “You can just see from that how massive a chilling effect these sort of laws can have.”

Notable Quote:

Adam Goldstein (18:43): “They went into this conceding that strict scrutiny applied. They said it was a content-based regulation.”

3. Dismissal of Tenured Professors: Academic Freedom Under Siege

Overview:
The podcast discusses the recent firings and suspensions of three tenured professors for their expressions, raising concerns about academic freedom and due process on college campuses.

a. Joe Gao at University of Wisconsin-Lacrosse

Situation:
Joe Gao, a tenured professor and chancellor at UW-Lacrosse, was fired for running an OnlyFans account featuring vegan cooking and sexual content.

Key Discussions:

• Impact on Teaching:
  The argument centers on whether his extracurricular activities compromised his ability to teach effectively. Connor Murnane questions the actual harm posed by Gao's private life to his professional role.

  Aaron Tur (34:15): “There was no impact on his teaching. What he was doing in his spare time was public concern.”

• Free Speech Implications:
  The hosts debate the appropriateness of penalizing professors for their personal expressions outside the classroom, emphasizing that personal freedom should not infringe on academic responsibilities unless directly impacting the educational environment.

Notable Quote:

Connor Murnane (35:13): “Is what a professor says or the expressive activity that they engage in in their personal lives outside the classroom going to affect student perceptions?”

b. Amy Wax at University of Pennsylvania

Situation:
Amy Wax, a conservative law professor at the University of Pennsylvania, faced sanctions for making racist remarks and inviting a white supremacist to a mandatory lecture.

Key Discussions:

• Allegations and Sanctions:
  Wax made several controversial statements about race and academic performance, leading to her being removed from teaching mandatory courses and eventually suspended as a tenured professor.

  Connor Murnane (40:39): “She was already punished for that.”

• Due Process Concerns:
  FIRE highlighted that Wax was not provided with written notice of the charges against her, violating the university’s faculty handbook and due process rights.

  Nico Perino (47:56): “Despite being notified of the investigation… Wax has yet to receive written notice of the charges against her.”

Notable Quote:

Adam Goldstein (41:35): “It's kind of outlandish. Right. You said unprofessionalism was the sanction.”

c. Maura Finkelstein at Muhlenberg College

Situation:
Maura Finkelstein, a professor at Muhlenberg College, was fired for pro-Palestinian advocacy after reposting a contentious Instagram story criticizing Zionists.

Key Discussions:

• Nature of the Speech:
  Finkelstein’s repost was deemed hateful by the college, leading to her dismissal amidst federal investigations for potential Title VI violations concerning discrimination based on race, color, or national origin.

  Nico Perino (50:10): “After this professor learned about the investigation… she gets fired in May.”

• Academic Freedom vs. Discrimination:
  The conversation explores the fine line between expressing controversial political opinions and creating a hostile environment for students, questioning whether Finkelstein's actions warranted termination.

  Connor Murnane (52:58): “You can't automatically assume that every opinion that a professor expresses on social media automatically translates into unprofessional conduct in the classroom.”

Notable Quote:

Adam Goldstein (42:41): “If there's some truth to the underlying accusation that some groups are underperforming at Penn… we are perpetuating a form of systemic racism.”

4. Nassau County’s Mask Ban

Overview:
Nassau County, New York, enacted the Mask Transparency Act, banning the wearing of masks in public except for health, safety, religious, or cultural reasons. The law aims to curb the use of masks in criminal activities but has faced legal challenges.

Key Discussions:

• Law Specifications and Exceptions:
  The ban classifies mask-wearing in public as a misdemeanor, with exceptions for medical reasons and traditional mask-wearing events like Halloween.

  Connor Murnane (56:23): “He puts an N95 mask over his face… they have exemptions for health and religious reasons and also for holidays.”

• Constitutional Concerns:
  The hosts debate the First Amendment implications, noting that masks can be expressive and essential for anonymous speech, which is protected under the Constitution.

  Adam Goldstein (57:53): “Masks themselves can be expressive… they implicate the right to speak anonymously.”

• Historical Context and Modern Implications:
  Referencing past mask regulations aimed at suppressing groups like the KKK, the discussion highlights the slippery slope of such bans potentially targeting political dissenters.

  Connor Murnane (60:05): “It's an inseparable thing, Anonymous speech and freedom of speech.”

Notable Quote:

Adam Goldstein (56:10): “The masks are being used to rob banks. Oh, somebody noticed that finally… it's like the old, timeiest justification you could find for a mask ban.”

Conclusion

The episode underscores the fragile state of free speech in various domains, from political discourse and academic freedom to technological advancements and public safety regulations. The hosts advocate for careful consideration of First Amendment protections, cautioning against overreaching legislation that could stifle legitimate expression and academic inquiry.

Final Thoughts:

Adam Goldstein (45:47): “We have to focus on the people who are the bad actors.”

Connor Murnane (53:54): “The government can't just rush in to regulate speech that it thinks is false without showing that counter speech isn't an effective remedy.”

Additional Resources:

For those interested in supporting FIRE and advocating for free speech, visit fire.org/shop to explore and purchase the “Free Speech Makes Free People” T-shirt and other merchandise.

This summary encapsulates the critical debates and insights shared in Episode 226, providing listeners a comprehensive overview of the discussions without needing to access the full podcast.