← So to Speak: The Free Speech Podcast
So to Speak: The Free Speech Podcast
Ep. 226: ‘Shouting fire,’ deepfake laws, tenured professors, and mask bans
01:05:35
The FIRE team discusses Tim Walz’s controversial comments on hate speech and “shouting fire in a crowded theater.” We also examine California’s AI deepfake laws, the punishment of tenured professors, and mask bans. Joining us are: Aaron...
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- [00:00]
Adam Goldstein
Well, the part that I love is the masks are being used to rob banks. Oh, somebody noticed that finally. Well, where's my rope Transparency Act? It's being used to tie damsels to train tracks. It's like the old, timeiest justification you could find for a mask ban.
- [00:13]
Nico Perino
Freedom of speech, fundamental rights, freedom of conscience, academic freedom, freedom of press, and the right to listen. You're listening to so to Speak, the Free Speech Podcast, brought to you by fire, the foundation for individual rights and expression. Welcome back to so to Speak, the Free Speech Podcast, where every other week we take an uncensored look at the world of free expression through personal stories and candid conversations. I am, as always, your host, Nico Perino. Today we're going to do something that we haven't done in a couple of episodes. We're going to do a news roundup. We're going to look at the biggest free speech stories of the past few weeks. And we have a busy agenda. What are we talking about this week? We're going to talk about Tim Walls's controversial take on hate speech. We're going to look at California's deepfake laws, plural. And we're going to look at the three tenured professors recently fired or suspended for their expression. Plus, we'll cover Nassau County's new mask ban and the legal uproar that's ensued. To do this, joining me today in Fire's D.C. podcast studio, our Fire Zone, Aaron Tur, our director of public advocacy. Aaron, welcome back.
- [01:24]
Connor Murnane
Good to be here.
- [01:25]
Nico Perino
To his right is Connor Murnane, campus Advocacy Chief of Staff here at fire.
- [01:29]
Aaron Tur
Connor, thanks for having me.
- [01:31]
Nico Perino
Is this the first time on the show?
- [01:32]
Aaron Tur
This is the first time, first time listener, first time caller, all that fun stuff.
- [01:35]
Nico Perino
Very good. Very good. It's good to have you. Adam Goldstein. You've been on the show before, your fire's VP of Strategic initiatives. I think last time we were talking about intellectual property and copyright and fair use and all that fun stuff, but it's been a couple of years.
- [01:47]
Adam Goldstein
It has been. Glad to be back.
- [01:49]
Nico Perino
All right, Aaron, Connor, Adam, welcome onto the show. Let's start with Tim Wells's comments on hate speech and free speech. Last week during the VP debate, Minnesota Governor Tim Walls incorrectly claimed there is no First Amendment right to hate speech and cited the widely misunderstood shouting fire analogy, which is often misapplied to free speech debates. Let's play that clip.
- [02:11]
Adam Goldstein
The most sacred right under the United States democracy is the First Amendment.
- [02:16]
Nico Perino
You yourself have said there's no First.
- [02:18]
Adam Goldstein
Amendment right to misinformation Kamala Harris wants.
- [02:21]
Nico Perino
To use government and Big Tech to silence people from speaking their minds. That is a threat to democracy.
- [02:27]
Adam Goldstein
That will long outlive this present political moment. I would like Democrats and Republicans to both reject censorship.
- [02:34]
Nico Perino
Let's persuade one another, let's argue about.
- [02:36]
Adam Goldstein
Ideas, and then let's come together afterwards.
- [02:39]
Connor Murnane
You can't yell fire in a crowded theater.
- [02:41]
Nico Perino
That's the test. That's the Supreme Court test. All right, Aaron Tur, is that the Supreme Court tested theater.
- [02:48]
Connor Murnane
That is not the Supreme Court test. Although if you stop reading Supreme Court case, First Amendment case law in, in 1919, then you might, you know, you might think that it is. But, yeah, that. That. That's a phrase that goes back to a case called Shank v. United States. It was penned by Justice Oliver Wendell Holmes, and the case was actually about World War I protesters. They were encouraging people to peacefully resist the draft. And Justice Holmes used a metaphor to. To explain that there are limits to free speech. What he actually said was, you can't falsely shout crier and fire in a crowded theater and cause a panic. And he would later reform his views pretty quickly, actually. I think within months, and actually became one of the. The great justices who defended the First Amendment and started to make it into the speech protective law that it is today. But that phrase, fire in a crowded theater, of course, endures on. And it's often. You often hear it recited by people who are trying to justify censorship of things that really have nothing to do with fires or, or theaters.
- [04:04]
Nico Perino
Well, that. That's the question. Right. So can you shout or falsely shout fire in a crowded theater and have it be protected by the First Amendment? One of the things I learned is that there's a suggestion that Oliver Wendell Holmes, when he was writing that majority opinion in Shank, was making an oblique reference to an incident that happened, I believe, in 1913 in Calumet, Michigan, at an Italian hall where a group of union, I believe they were minors, but union workers and their families were having a Christmas party, and someone falsely shouted fire in the crowded theater. They think of as a union buster and something like 73 people were trampled and killed. So can you, Adam, falsely shout fire in a crowded theater and have it be protected?
- [04:50]
Adam Goldstein
Well, it gets into this idea of the constructive speech or constructive action where if your purpose in shouting fire is to create a panic that will then cause people to be harmed, you can't do that. But there might be other occasions where falsely shouting fire would be totally protected.
- [05:10]
Nico Perino
Fire, Fire, fire.
- [05:11]
Adam Goldstein
Right. Like if You're. This is an extreme example, obviously, but if you're in a play and that's the line, and you're on stage, you should probably shout fire or else the play is going to drag. So there's nothing inherent about shouting fire falsely in a theater that automatically makes it unlawful, because falsehood also isn't automatically outside the First Amendment.
- [05:32]
Nico Perino
So you can. If there is a fire in a theater, you would probably be. You'd probably want to shout.
- [05:39]
Adam Goldstein
You probably should. Yeah. It would be antisocial behavior to not shout fire at that point.
- [05:43]
Nico Perino
Yeah. But if you're in a crowded podcast studio, so to speak, and I shout falsely shout fire like I just did, and nobody is under the false pretense that there is actually a fire, then that's probably not unprotected. So context matters. Was that how we get to the 1969 decision in Brandenburg, which is the current standard for incitement? Imminent lawless action. Right. And it. It. It needs to be likely to do so.
- [06:07]
Connor Murnane
Right. The speech needs to be intended to cause imminent lawless action and. And actually likely to. To produce it.
- [06:14]
Nico Perino
So my shouting fire just a moment ago was neither likely to cause a panic nor intended to do so. So it wouldn't meet that standard. All right. But the phrase falsely shouting fire in a crowded theater is often used, almost kind of like a tick or a reflex by people in free speech debates to justify all sorts of censorship. In this case, I think Tim Walls was using it to justify censorship or mis or disinformation. What other contexts have we seen it come up in?
- [06:44]
Adam Goldstein
It keeps coming up a lot, because it just stands for this underlying principle that there are things that are not protected by the First Amendment, which is an observation that I think unless you're a free speech absolutist and a First Amendment absolutist, which there aren't very many of them around, everyone would agree there are some things that are beyond the scope of the First Amendment, at which point we could move on. So you could just as easily. If you're someone prone to evoking this analogy, you could simply bring up copyright infringement. My favorite topic. Hey, I got there in one that's not protected by the First Amendment. There's other types of unprotected speech. The locations of troops during war. Right. So there's no reason to use it because all it stands for is the idea that, yeah, the First Amendment isn't absolute and eternal.
- [07:26]
Nico Perino
So it's substance, it's stating something that should be obvious to all people, though the Problem is that it's just applied in contexts where the speech is clearly protected, such as in the context of hate speech.
- [07:37]
Connor Murnane
Right, right, right. Hate speech would be the other big context, I think, where you often hear it and it, and it's the idea is that you're expressing hateful attitudes that might, might lead at some point into future to people to, to act on violent ideologies and result in some kind of physical harm to people. But it's this much more attenuated connection that doesn't satisfy that narrow incitement standard articulated in Brandenburg.
- [08:02]
Nico Perino
Well, that's how we get to the other comment that Tim Walls made during the debate where he sort of is interjecting there where JD Vance is talking and saying, suggesting that hate speech isn't protected by the First Amendment. He's made comments like this before in interviews. There's a misconception surrounding hate speech. I think a lot of people think hate speech is unprotected. The Supreme Court hasn't articulated a hate speech exception to the First Amendment, has it? Adam?
- [08:30]
Adam Goldstein
No, there absolutely is no such thing. Hate speech comes up, comes up in our education work a lot because there's an obligation in anti discrimination law to ensure that students aren't deprived of the value of their education by creating a hostile educational environment. And at that point that doesn't make the speech criminal, but it does impose an obligation on the educational institution to try to ameliorate the effects of speech that would make someone feel unwelcome. But that's not a crime.
- [09:00]
Nico Perino
Connor I recall we had a case, what was it just after Covid 2020, 2021 at Emerson College where you had a turning point group that was handing out stickers that said China kind of sus on them. And for this, the college president sent out a community wide email accusing the students of anti Asian hate and bias. It was pretty clear by looking at the facts that they were just talking about the Chinese government. It was in the context of the COVID pandemic. But for this they were punished. I think their group was suspended and they were accused of hate speech. Right.
- [09:35]
Aaron Tur
You see it time and time again, especially after October, October 7th. Right. We just saw those decisions from the Department of Ed. What the cumulative harassment theory. Now if can any number of these individual instances add up to a, you know, hateful or harassing environment for Jewish Palestinian students?
- [09:52]
Nico Perino
Let's unpack that. Right. Because so individual instances of speech adding up cumulatively. We're talking about multiple different speakers here to a hostile environment. So you could have one person that says, from the river to the sea, Palestine will be free. And maybe that doesn't constitute a Title 6 violation, but if you have three people saying it, four people saying that, you know, you have 10 people that are hostile to Israel or Zionism, it adds up to this kind of cumulative hostile environment, which downstream from that, suggests that the college or university needs to punish each individual instance of speech lest they cumulatively become hostile. Right. That seems dangerous.
- [10:36]
Aaron Tur
Oh, it's entirely dangerous. Right. Fire has been railing against Speech Police on campus for how long? And this is saying, look, now you need to watch out for the smallest incident because you don't know when we're going to add them up and say, that's 10, that's enough.
- [10:48]
Nico Perino
So Tim Walls is wrong about hate speech. Going back to. You can look at the Skokie case, right, where the Supreme Court sent the case back down to lowering courts and said, no, there are First Amendment rights at play here. For those who don't know the Skokie case, and I've unfortunately found that many people don't know what that is. 1977, 78 case involving Neo Nazis who wanted to rally in a town of 6,000 Holocaust survivors outside Chicago, Illinois. But then you fast forward to Texas v. Johnson, where you have the court say that it's a bedrock principle of the First Amendment, that the government may not prohibit that speech which society finds deeply disagreeable or offensive. And then you get to Snyder v. Phelps, where you have protesters outside the funerals of dead military soldiers with signs that say God hates fags. And the Supreme Court, I think that was an 8 to 1 decision with Alito in the dissent saying, no, this is protected speech. And you have the court saying that it's. If our Constitution meets anything, it means the right to say something that we find, again, offensive. And then you have Matal v. Tam, right, where you have a Asian rock group that wants to trademark the name slants to sort of reappropriate it pejorative against Asians, and the Supreme Court upholds the right to do so. So this is, this is pretty well worn Supreme Court doc.
- [12:11]
Connor Murnane
Yeah. How many times do they have to say that there's no exception for hate speech before this canard will finally die? But yeah, it's. It is a bedrock principle, as the court itself said, a First Amendment law, that you can't restrict speech simply based on a judgment that it's hateful or offensive. And, and one of the main reasons for that is that the, the judgment of whether speech is Hateful or offensive is in the eye of the beholder. It's subjective and it's, it's strongly influenced by people's political and cultural biases. So it makes it very easy to wield that standard for both sides of the political spectrum to wield that standard to shut down opposing views.
- [12:50]
Nico Perino
But because hate speech doesn't have a definition, there are some things that would be unprotected by the First Amendment that might constitute hate speech. Right, sure.
- [12:58]
Connor Murnane
Like what can be overlap. So, so some speech that you. That meets the, the standard for incitement, for example.
- [13:04]
Nico Perino
Okay.
- [13:05]
Connor Murnane
Could also be considered hateful if you have the KKK standing with torches in front of someone's house and the, you know, the, the grandmaster or the leader or whatever orders them to set it on fire because it's the house. You know, it's a black person's house or a Jewish person's house or whatever. I think people would consider that, reasonably consider that hateful, but the reason it can be punished isn't simply because of their hateful views, but because they're about to set this, you know, it's speech that is likely to result in the imminent physical destruction and possible injury of people inside the house.
- [13:35]
Nico Perino
So that's kind of like the Virginia v. Black case, right. From the 1990s, where Virginia had a statute that said that burning across, even on private property, Klan does. This would be de facto intimidation. And the court was mixed on it, and it essentially said, no, this is expression, and it can't be prima facie evidence of intimidation, but it might contextually, if you take it all as a whole, be evidence of intimidation, which could constitute a First Amendment exception. Am I right about the retelling of that case?
- [14:08]
Connor Murnane
Yeah. And that, and that's a different First Amendment exception, which would be true threats or intimidation. Where you, where you speech that expresses a serious intent to inflict physical harm on a, on an individual.
- [14:18]
Nico Perino
Okay, so.
- [14:20]
Connor Murnane
But, yeah, but, but right. It has to. The circumstances and the context around the cross burning have to send that message of an, of, of a physical threat. And absent that, it's just speech that some would consider hateful or offensive.
- [14:36]
Nico Perino
So closing out walls here. Is he kind of half right on both of these? Like, yeah, in certain contexts, falsely shouting fire in a crowded theater might be unprotected speech. And yeah, in certain contexts, hate speech might not be protected, but it's his kind of reflexive retort to these two claims and how we've seen them wielded in the past and in different contexts. That's the problem.
- [14:59]
Connor Murnane
I think it can be confusing with a. To just an average member of the general public to hear. If you just hear a politician saying there's no First Amendment protection for hate speech, I think in their mind they may easily think, right. That it's not just that there are these, you know, specific, very narrow circumstances where hate speech might meet an established First Amendment exception and therefore the government can restrict it. But I think they're more likely to just think that, oh, okay, like if you, if you just say things that are. That seem racist or bigoted towards or hateful towards a certain group, then the government can ban that. And it's just not that expansive of a government power.
- [15:36]
Nico Perino
All right, let's move on now to California's package of deepfake laws. They passed three laws, and it seems like the impetus, at least for one of them, if not all three, stemmed from a unique engagement that Elon Musk had with the governor of California, Gavin Newsom. There was this video created by Christopher Coles that's. You could call it a deep fake, a deceptive video of Kamala Harris. It's a campaign ad.
- [16:04]
Connor Murnane
I wouldn't call it deceptive, but yeah.
- [16:06]
Nico Perino
Because it's parody and satire. And I think anyone who's watching it, maybe we can cut some clips of it in here. Unless we fall afoul of the deepfake law, though it's enjoined. And we'll get to that.
- [16:17]
Adam Goldstein
I, Kamal Harris, senior Democrat candidate for president because Joe Biden finally exposed his senility of the debate.
- [16:24]
Aaron Tur
Thanks, Joe.
- [16:25]
Adam Goldstein
I was selected because I am the ultimate diversity hire. I'm both a woman and a person of color. So if you criticize anything I say, you're both sexist and racist.
- [16:35]
Nico Perino
It's very clear that it's not Kamala Harris. She's talking about how she's a DEI hire and Joe Biden is senile. Like, this isn't stuff that if you know anything about Kamala Harris, would be in a Kamala Harris ad. But nevertheless, it was put out. It was retweeted by Elon Musk and. And Gavin Newsom got upset by this video, presumably, and said that he was going to pass a law with the state legislature to make this sort of content unlawful. And so you get AB 2839, which is a law that regulates materially deceptive content that is distributed by people's committees or other entities with malice. It applies 128 days leading up to an election, and in some cases up to 60 days after it creates a private cause of action, which my lawyers helped me out here. That means that people can sue each other over this.
- [17:29]
Connor Murnane
That's right.
- [17:31]
Nico Perino
And it does create an exception, though, for satire or parody. So long as you note, and it's clearly labeled, that this image, audio or video has been manipulated for purposes of satire or parody. Nothing screams satire parody like a label telling the audience that this is satire or parody. What's the problem with this? People have a huge concern surrounding mis and disinformation and the way that artificial intelligence can accelerate the mis and disinformation in society. What's wrong with the way that California approached it here? Or is nothing wrong?
- [18:06]
Adam Goldstein
I mean, I agree with the. The judge who enjoined it. If we want to move on to that part.
- [18:11]
Nico Perino
Yeah, let's talk about October 2nd. On Wednesday, a senior US district judge, John Mendez, temporarily halted the law and said that while California has a valid interest in protecting the integrity of the electoral process, this law is unconstitutional because it lacks the narrow tailoring that a content based law requires. Under strict scrutiny, most of the law acts as a hammer instead of a scalpel. He went on to say, and it's a blunt tool that hinders humorous expression and unconstitutionally stifles the free and unfettered exchange of ideas.
- [18:44]
Adam Goldstein
Yeah, California went into this conceding that strict scrutiny applied. They said it was a content based regulation. Strict scrutiny is the highest form of scrutiny the government has to use to review a law. It means that there must be a compelling government interest and the law must be as narrowly tailored as possible in order to avoid infringing another speech. And the problem here was requiring mandatory labels is not a narrow tailoring thing. There's a narrower tool we have here which is other speech. And to tell people it's a deep fake and also to assume people can identify parody. There's some modification of Poe's law at work here where it's sort of like the further opposed two viewpoints become, the harder it is for one extreme viewpoint to identify satire of the other. Because it all sounds absurd to them, I think, because like the idea that anybody saw this Kamala Deepfake and was genuinely confused seems improbable to me. But I guess if you really want to believe that the other side believes anything, then I guess, maybe. But nevertheless, you still have a remedy that is short of labeling, which is you tell them it's fake.
- [19:56]
Nico Perino
But you can't even share this to tell people it's fake. Right. Isn't that one of the weird things about this law.
- [20:02]
Connor Murnane
That's one of the problems with this law and a lot of similar laws that states around the country are passing to regulate AI and deep fakes is that they often don't have. They either don't have an intent requirement at all. So it's just, it's sort of like a strict liability where just sharing the content itself is a crime. Right. Even if you have the intent to call it out as fake or to criticize it in some way or, or you just have a very watered down standard, like if you reasonably should have known that it was fake. So, and then we're just leaving it to the government, right, to decide when should someone have known that this video was fake? And that's enough to bring a criminal prosecution. So it, yeah, it's, it's really. You can just see from that how massive a chilling effect these sort of laws can have.
- [20:48]
Nico Perino
California does have a knowledge requirement, right? It says with malice, knowingly distribute the advertisement.
- [20:56]
Connor Murnane
There's a difference between just knowing that you're sharing something that is that you're sharing the content. I mean, I guess you always know that you're.
- [21:04]
Nico Perino
Well, if you're, if you're sharing the content to point out that it's false and deceptive. You're knowingly sharing the content, right. Are you doing it with malice? I don't know.
- [21:13]
Adam Goldstein
In the context of. I keep going back to the context of copyright infringement. When they say knowingly distribute copyright infringement, they don't mean knowing you infringe, they mean knowing you distributed.
- [21:21]
Nico Perino
Mm. Okay.
- [21:22]
Adam Goldstein
So if that's where they're getting this from, this might actually be. I could be, I could have no idea it's fake and redistribute it. And that's my. And I have, I have the mental state necessary to violate the law.
- [21:32]
Connor Murnane
And by the way, there's also. And so another problem with all these laws, including this one, is that there's also no requirement of actual harm to anyone. So I believe the language they use is something like reasonably likely to hurt a candidate's reputation or reasonably likely to influence the outcome of an election. But it doesn't actually have to do any of this.
- [21:49]
Nico Perino
Isn't that what political speech is meant to do? You talk about candidates in order to influence the outcome of the election or learn more about candidates or other reputation.
- [21:58]
Aaron Tur
Political cartoons for centuries.
- [22:00]
Connor Murnane
Yeah, but even when you talk about exceptions to the First Amendment, like defamation, for example, there's a requirement that you prove that you actually speech actually caused. Hurt your reputation.
- [22:11]
Nico Perino
You need to know what the actual damage was to determine damages. But this wasn't the only law that California passed. There was also one that places requirements on the platforms where this deceptive content might be posted. So this is AB 2655 and it's, under this bill, platforms must block deceptive content about politicians respond every single public complaint about deceptive content within 36 hours and filter and block any content that's substantially similar to that previously removed content. That seems like an incredible burden. I don't know how social media companies or any, any platforms that host third party content would be able to comply with that with any sort of consistency.
- [22:59]
Connor Murnane
Right. And, and, and they're, what's, what's going to happen is that they're going to, are on the side of caution by suppressing speech that could even questionably violate this loss to avoid constantly being dragged into court. And that's why this particular law is not not only as a First Amendment problem, but a Section 230 problem, which is the federal law that broadly immunizes platforms from liability for what their users.
- [23:22]
Nico Perino
Say that Hillary Clinton wants to get rid of. Yeah, we see that in the news. Yeah, And I posted about this on social media. It's not just Hillary Clinton that says we need to remove Section 230, it's also conservatives. Conservatives have wielded the repeal of section 230 as a way to go after tech platforms that they think censor too much. But if you remove this third party liability shield, they're just going to censor more because they're going to be more risk adverse. Right. They're going to take down more content. So it's just, it's as I said, on social media, it's not rocket science. Right. It's just incentives.
- [23:54]
Connor Murnane
And by the way, requiring the platforms to respond to 36 hours to every complaint that they receive and make it make a, you know, a snap decision. I mean, that's just so obviously going to be weaponized by people who are going to file complaints to target satire and political criticism that they don't like. Even though, like the Kamala Harris video, it's obviously not deceptive or intended to deceive, but it's just satirical political commentary. And I mean, after all, right, that's what Governor Newsom, that was like the whole impetus for him announcing that he was signing this law soon was that he was going to make videos like the Kamala Harris defect parody, illegal. Right. So like, you're just going to see much more of that. And these laws aren't enjoined yeah, and the judge. And this one's being challenged too, by the way.
- [24:39]
Nico Perino
Oh, is it?
- [24:39]
Connor Murnane
But the Babylon B, I think, is challenging this one. Gotcha as well. Babylon. And they, and they real quick, like they, they recently put out a video after these laws were signed as a deep fake of Governor Gavin Newsom. Where like another obvious, like, parody where he starts out by saying something like, hello, this is a message from Governor Newsom in my 100% authentic non AI created voice.
- [25:06]
Nico Perino
Hi, I'm Gavin Newsom, the Governor of California. This is a message for the people of America given in my authentically recorded non AI voice. Thanks to my leadership over the last several years, California has become a world leader in extremist left wing governance. My policies were so effective that almost 1 million people are now fleeing the state every year. We even ran out of U Hauls.
- [25:29]
Adam Goldstein
I like that it says you have to filter and block any content that's substantially similar to what's been previously removed. Isn't the whole point of a deepfake is that it's substantially similar? So if it's substantially similar to a deep fake, isn't it anything with that person in it?
- [25:40]
Connor Murnane
That's a good point.
- [25:41]
Adam Goldstein
It just seems like, like the exception swallows the rule here. And also like, why is it only like, things that might negatively influence the election? Or if it just says influence the election, should we be policing, you know, photo retouching? If something's just too much makeup, Kennedy should have been out of there. That was cheating.
- [25:56]
Connor Murnane
Yeah, or like you, I don't know, you make a deep fake of yourself, like saving, like a drowning child or something like that. Right, Right.
- [26:02]
Nico Perino
Well, did you guys see that article in Pessimist Archive, which is this great sub stack that I encourage all of our listeners to subscribe to, where he goes deep and looks at efforts in Congress to pass a law in 1912 outlawing photo editing. Because I guess there was something that was happening around that time where people were doing the analog equivalent of photoshopping themselves into pictures with William Howard Taft. And this was. People were very concerned about this. And Congress even got to the point where they were about to pass law. They didn't. Right. But this speaks to a larger panic that folks have. I won't go so far as to use moral panic, but anytime a new technology comes about, people get anxious. And it seems like one of the first reflexes is that government needs to pass a law to regulate this. Conor, I see you nodding your head over there.
- [26:56]
Aaron Tur
I mean, we saw it with the printing press. We Saw it with social media. Now it's AI, right? People are afraid of a computer being smarter than them, so they're going to come out. And when I look at these bills, I'm not a lawyer, I say that time and time again. I see the government saying, you know, people are morons and can't parse the content themselves. That's a problem. I don't want government making that decision for me or my future kids or whoever.
- [27:17]
Nico Perino
Yeah. What we're going to get to at some point after the anarchic period over is over is just more media literacy, I think, like we did with Photoshop, like we did with television. I don't think if Orson Welles did his War of the Worlds broadcast today that people would be in Times Square panicking. I, I am not opening up any emails from Nigerian princes promising me millions of dollars anymore. I think I've gotten the message on what email is credible and what is not. But AI is new, right?
- [27:49]
Connor Murnane
Yeah, but I think, like already at this point, media literacy is improving. I mean, I think. And also going back to your point about, right, 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. And I feel like every time that there's been a deep fake in the last few years of like a politician or a prominent public figure, there's been mass media coverage of it. It's been all over the conversation's, been all over it on social media, like pointing out that it's not a real video, even in cases where it's like, pretty clearly not intended to deceive anybody. So I think that's counter speech in action, showing that it does work. And fire Senior fellow. I want to give a plug to Jacob Mashegama, who recently wrote an op ed about how despite widespread fears about AI and deepfake and disinformation upending elections this year, there's no evidence that they had any significant influence on any of the European Parliament elections or other elections around the world.
- [28:55]
Nico Perino
I think he cited elections in India as well.
- [28:57]
Connor Murnane
So, yeah, I mean, I think it kind of is a panic and that the government is rushing to regulate in this space based on the, on the, you know, the worst imagined scenario of what could happen in the future. But I think right now there's really no reason to believe that this is going to be the end of democracy or just completely obliterate our ability to discern fiction, reality from fiction.
- [29:20]
Nico Perino
Well, yeah, one of the risk here is of course, not Only that you undermine the First Amendment, but undermine a new tool for communication and creative expression. I mean, we might get to the place where AI allows individuals on their own, without any coding expertise to create video games and their own worlds for themselves. Right. But if the government comes in and overly regulates it, that power for this new communication technology will be forestalled.
- [29:44]
Connor Murnane
Yeah, there's, there's a lot of positive applications of it too, that we don't have to get into all of them. But just like give another example in creatively and in TV shows and movies where they might use AI to, to bring back a character by like the.
- [29:57]
Nico Perino
From a deceased against they did in Star Wars.
- [29:59]
Connor Murnane
Yeah, exactly. Princess Leia. Right. There's even a really interesting use of AI to create a deep fake voice of people who have a condition that caused them to lose their voice. There's actually, there's actually a congresswoman who is used like AI of her own voices would be able to reproduce her voice and sort of be able to speak again.
- [30:21]
Nico Perino
Well, this allows me to pivot into something that I did want to talk about, which is you can regulate the use, but you shouldn't regulate the technology. Right. So for example, we have exceptions, regardless of whether it's artificial intelligence or Photoshop or video editing, video or audio editing tools whereby like you can't appropriate someone's name, image or likeness for purposes they've not given permission for. Like there's a Scarlett Johansson case surrounding right to publicity where they. It is alleged that OpenAI pilfered Scarlett Johansson's voice to be the spokesperson for their new audio tool. Right. There are, there are torts that we have. There are exceptions that are well worn to the First Amendment, such as fraud and forgery, right to publicity that we can use and apply to new technologies. We don't need to create new exceptions to the First Amendment to apply to these technologies.
- [31:17]
Connor Murnane
Right. AI itself is a neutral tool of expression. It can be used for good and be used for ill. The same way that like a pen, you can use a pen to write a beautiful poem and you could use a pen to defame somebody.
- [31:29]
Nico Perino
Yes.
- [31:30]
Adam Goldstein
The same sort of thing that came out when the VCR came out. Right. And there was this argument is, is the VCR burglar's tools for content. And ultimately the court said no, there's substantial non infringing uses. You might just want to watch the game a little bit later in the afternoon after your kid's soccer game, come home and watch and, and watch football or whatever. And so the question Is are there substantial non infringing uses or non criminal uses or non offending uses for AI? Clearly there are. Clearly we've just listed a bunch of them. So the approach of we're going to regulate this technology to prevent people from using it is going to be wrong headed 100% of the time. We have to focus on the people who are the bad actors.
- [32:06]
Nico Perino
Let's turn now to college campuses. There was a week here a couple of weeks ago where three tenured professors were punished. Two of them were fired, one of them was suspended for their expression. Let's start with the one that I think is perhaps the most interesting because it's the most unique. This is Joe Gao at the University of Wisconsin Lacrosse. He and his wife had an only fans account or something like that where they on the side would go cook vegan food and then have sex on camera. I think their account was called Sexy Happy Couple. And last December it was revealed that Joe Gao, who was the chancellor of the University of Wisconsin Lacrosse and also a tenured professor, did porn on the side. And UW lacrosse was very quick to fire him in his role as chancellor. And then it began this long process to fire him as a tenured professor. There's. There are more protections, I guess I should say to firing a tenured professor. So it takes longer to do. Connor, was it okay from fire's perspective for him to be fired as chancellor? Let's start with that first decision.
- [33:26]
Aaron Tur
The school, more often than not administrators don't have the academic freedom. Right. The extramural speech protections that faculty member would. You also as the chancellor representing the institution, more than a faculty member. So we focused predominantly on what you cover there, his teaching role. And for us it boiled down to the fact that there was no impact on his teaching. And what he was doing in his spare time was, you know, public concern. Right. Vegan cooking, I guess that could be public concern. Sex, positivity, adult relationships. And if I remember correctly, it wasn't just the porn account, right? I think he had the, the porn on one half and then he had a what a Safe for Work YouTube where he'd do the cooking and the interviews. So you know, hitting multiple target audiences. It's being a smart businessman.
- [34:16]
Nico Perino
But people have pro problems with. There's something about porn, right, that make. I mean, is sexuality different? The, the concern here, right, is that it'll make his job as a teacher hard because you have some segment of the students who have perhaps seen him naked, engaged in intercourse with his.
- [34:36]
Adam Goldstein
Are you telling me college Students are watching pornography. What? Who else knows this?
- [34:41]
Nico Perino
I think something like 60% of Americans have watched porn or actively watch porn at any given time. Right.
- [34:46]
Connor Murnane
But at least two people at this table.
- [34:50]
Nico Perino
But college students are college students. They're going to go seek this stuff out. Right. It's interesting, presumably. So does that compromise his ability to perform as a college professor? And does the college university system have a vested interest in ensuring that his classes stay focused and that his performance isn't compromised?
- [35:14]
Connor Murnane
Well, I think, not to use the old term slippery slope, but I think it's apt here where you start going down that road of. Is what a professor says or the expressive activity that they engage in in their personal lives outside the classroom going to affect kind of students perceptions of them or, or in the other cases, I think we're going to talk about like their. Whether they can be treated fairly in the classroom. And you know, you can, you can start applying that to all sorts of political expression too. Right. Where a professor expresses a certain political view on social media and then, and then people argue that, oh, that they can't possibly be an effective or fair teacher given the view they've expressed on this. They're going to have students who disagree with that.
- [35:59]
Nico Perino
You could have, for example, a political science professor who's a very big Second Amendment advocate and on the weekends creates YouTube videos at the firing range where he's shooting all sorts of different guns and reviewing them or who weighs in on Second Amendment issues in the public sphere. You could have students say, I don't know, this guy is interested in guns. I don't want to be sitting in his classroom.
- [36:19]
Connor Murnane
Sure, sure, yeah. And, and it's. I do think there is something about, there is something about porn and sex that maybe just has. Can be traced to sort of deep rooted puritan influence attitudes in this country about sex where it's just kind of seen. Sexual expression is seen as taboo outside of a few narrow contexts.
- [36:45]
Nico Perino
But it is protected by the First Amendment, right?
- [36:47]
Connor Murnane
It is, yeah, yeah. I mean, the same way like other performances, right. That don't involve fucking would be protected by the First Amendment too. But in this case in particular, I think the way he was mixing it with the. Promoting a vegan lifestyle and like everyone needs their lifestyle.
- [37:06]
Aaron Tur
It's educational content.
- [37:07]
Connor Murnane
There's like some commentary mixed in there on matters of public concern too. Right. So, but, but attitudes. It's interesting to think about Whether or not 20 years from now, because attitudes about sexuality have evolved in a more liberal direction in this country over time and so in the future, will we look back at this and kind of view it as moralistic and outdated, these sorts of punishments, the same way we now look back at premarital sex or cohabitation? I don't know. But yeah, but, but also like is there ET Eccentric professors, I don't think are a new thing. Right. Like, I don't know, I feel like we all, we all had one. You kind of wanted it didn't jeopardize your education. Yeah. Sometimes it was like, yeah, if you.
- [37:53]
Aaron Tur
Don'T want to take the class. Right. College students are adults for the most part. They don't, don't take the class. And moreover, I think it was someone on the board who made the argument, you know, is it going to harm our enrollment numbers? And then it's a small sample size, just one semester so far, but no harm whatsoever. Right. So I, I have a tough time and I've thought long and hard about this. Where, where would the harm come from?
- [38:13]
Nico Perino
So it was a University of Wisconsin La Crosse faculty committee in June that recommended the school take action against him. And then there was a hearing in front of the board of regents of the University of Wisconsin system on September 20th and that's when they decided to, to fire him and Connor, correct me if I'm wrong, we've been supplying him with an attorney.
- [38:33]
Aaron Tur
Yeah, we hooked him up with an attorney. And they are pursuing this in district court, I believe.
- [38:38]
Nico Perino
Yeah, that would be the first place. Right. If it's a First amendment claim for it to go. All right, let's move now to the University of Pennsylvania where we've had a years long effort there to go after Amy Wax, who's a professor at the law school for things she said in op EDS and interviews and allegations of things she said to individual students. She's very conservative. Many people say she's racist and that's why she's been targeted at the school. Some things she stated in a 2017 interview. For example, she said, I don't think I've ever seen a black student graduate in the top quarter of the Penn Law School class and rarely, rarely in the top half. Went on to say, I can think of one or two students who've graduated in the top half of my required first year course. She also stated that black students tend not to graduate at the top of the class and added, anybody who teaches law school knows this to be true. Stated that no law professor can honestly say that blacks are evenly distributed through the class, top, middle and bottom. So there she's Talking about what she's seen in her experience as a University of Pennsylvania law school. Presumably falsifiable. Right? That's something you can look into, although I think they have line grading at Penn. She also invited Jared Taylor, a noted white nationalist white supremacist, for a mandatory lecture in her law school course. She stated our country will be better off with more whites and fewer non whites, stated that Asians have an indifference to liberty, lack thoughtful and audacious individualism, and that the United States is better off with fewer Asians and less Asian immigration. She's described some non western countries as and said that women on average are less knowledgeable than men. So that's a litany of commentary there that she's where she's commented on the performance in different contexts of minorities.
- [40:34]
Adam Goldstein
So when we do surveys to see if professors are okay with speaking their minds, I know which group she's in.
- [40:39]
Nico Perino
Yeah, right, right. But the initial response by the University of Pennsylvania Law School, I believe in her comments surrounding black students and their performance in law school was to remove her from teaching mandatory first year courses.
- [40:55]
Connor Murnane
Right. So she was already punished for that.
- [40:57]
Nico Perino
She was already punished for that. And then it was the Jared Taylor invitation and some of her other comments that were subsequent to that where I don't believe she was necessarily talking about the performance of law students in her class, although I could be mistaken talking about the performance of Asians in American society more broadly. Where the university picked it back up again, issued this very long report that ultimately ended on the recommendation that the school take a major step. I think they described it as a major sanction against her and she's a tenured professor. What are your guys thoughts here?
- [41:36]
Aaron Tur
It's kind of outlandish. Right. You said unprofessionalism was the sanction. Right. So for unprofessional sanction.
- [41:42]
Nico Perino
For unprofessionalism. And thanks Connor. I should note what she was, what the actual sanction was. It was just announced nearly two year after a two year investigation of wax, that she'll keep her tenured faculty role, she'll serve a one year suspension at half pay and she'll keep her benefits, which is important because she's currently battling cancer.
- [41:59]
Aaron Tur
So they've had a long time to investigate wax and zero discriminatory conduct in the classroom has popped up. Right. So they use this unprofessionalism standard and they, you know, hammer her for speech outside of the classroom. She wasn't giving these lectures to her first year law students. Right. She was writing about these, speaking about these on the circuit, it. To me it seems like a weird justification. They were just looking for something to get her with.
- [42:23]
Nico Perino
If there was evidence, though, I think what you're getting at there of her discriminating against actual students based on these beliefs, grading black students, for example, or Asian students harder than she's grading her white students. That would be something the university can and probably should take action against, no?
- [42:41]
Connor Murnane
Yeah, absolutely. But this, this again, it kind of calls back to what we were discussing earlier about the, about. Do you actually have evidence of the teacher failing to fulfill their professional responsibilities or, or violating the law by discriminating against students based on a protected characteristic like the race or gender? Or are you just projecting or predicting that's going to happen based on the views that they've expressed on sensitive issues like race and gender? And I think that's what's happening here. And again, the problem is that you can potentially apply that standard to a lot of other faculty members who have this. Amy Wax is not the only one who has said something inflammatory or controversial about sensitive political issues, right?
- [43:26]
Aaron Tur
And so long history of these kind of double standards, right? Wasn't it just, just past couple of months a professor posting on social media, you know, Zionists drinking blood and all these things, right? You go back all the way to Fire's founding with the water buffalo incident. So now they're, they're establishing the precedent that, you know, speech outside the classroom is grounds for sanction if students, parents or donors complain. And I don't see how they can put that back in the bottle in today's environment on campus.
- [43:55]
Nico Perino
Well, let's, let's steel man this, right? Like, why should faculty members to be able to speak freely on issues of public concern, even if it is caustic, even if it is a little bit racist or a lot of bit racist or even if it is offensive, right? Like, why should they have the freedom to do that?
- [44:14]
Adam Goldstein
Well, we want colleges to be the crucible of truth, right? And like any other crucible, it's going to get hot. We want people to have the widest range of free expression in this environment, which is sort of microcosm of our country, a lab for the rest of our country to look at. Because that's when, when we have that free, uninhibited expression on campus, we have the broadest possible range of ideas coming out through that process. And if someone says something that is really outlandish and provably outlandish, well, we prove them wrong. If someone says something that isn't provably true, and we disagree. We express that too. But then having done that, we go out through the rest of the world with that knowledge and comport ourselves accordingly. If we start putting our thumb at the scale, putting our thumb on the scale in the college context for speech, we're now saying we're not really looking for truth in these places anymore. We're looking for truth within the acceptable window of what we think should be true. And the problem is humans have a really long history of being wrong about things we thought should be true. My personal favorite is there's a monument outside Case Western Reserve. And as a monument to a failed experiment, it was scientists who were going to prove the properties of voluminous ether, which is what we thought filled the universe because we knew nature abhors a vacuum, so space couldn't be a vacuum. And they did their experiment, which was trying to measure the movement of light through the waves of the ether. And it turns out, no, actually space is a void. And I appreciate the monument, like a monument to recognize our willingness to be wrong and how important that is sometimes times.
- [45:47]
Connor Murnane
And, and I think all the things we were saying earlier too about the problem of the government regulating hate, hateful or offensive speech apply just as strongly slippery slope. Right. The context of, of, of higher education. Right. And academia, where. Yeah, exactly. Like the, using applying a vague standard like unprofessionalism to expression of political viewpoints. I mean, it's just very easy to see how that's to go wrong on campus, particularly when you have a lot of campuses that very lean very heavily in one direction, politically or ideologically. Right. Like that. That standard is very unlikely to be enforced in an even handed, consistent manner against people across the political spectrum. It's more likely to, it's going to be much more likely to be enforced against people, faculty and students, who are in the minority and who have dissenting views from the campus consensus.
- [46:36]
Adam Goldstein
I mean, for example, let's say, for the sake of argument, and I have no information at all about Penn's class rankings, what if there was some truth to the underlying accusation that some groups are underperforming at Penn? Well, wait a minute. If that's true, now we need to investigate why that is and try to figure out how do we assist these groups. If we instead make a rule that you can't say that group's underpouring at Penn because that is biased, we are actually going to miss when that happens. And essentially we're perpetuating a form of systemic Racism. Because we can't actually say the system is failing people.
- [47:08]
Aaron Tur
The concept of settled issues freak me out.
- [47:10]
Nico Perino
Right.
- [47:11]
Aaron Tur
Assuming we've pick your topic, everything we know, that's it. We're not going to push the boundaries any further. To me, that's what college is for. If you're saying, you know it's unprofessional to discuss certain things, you're accepting that advancement in that category is done.
- [47:23]
Connor Murnane
Is it the same. Remember the same thing happened at Georgetown where the professor was caught on a hot mic, I think, saying that she. Something about like the minorities in her class, like she weren't performing as well. She was like expressing her honest opinion to someone. She didn't think she was being recorded and Georgetown fired her.
- [47:39]
Nico Perino
Yeah.
- [47:40]
Connor Murnane
Instead of, instead of like you're saying, saying like, oh, maybe this is a problem. We have to look into and see what we can do to ensure that students, regardless of their demographic category, are performing, have an opportunity to perform well in our school. They just said, no, let's just fire this professor and prevent this issue from being examined.
- [47:57]
Nico Perino
Yeah, that was ridiculous. I'm looking at some of the letters that we've sent to the University of Pennsylvania Law School around Amy Wax, and it wasn't just free speech issues. I'm looking at a letter from June 1, 2021, where we talk about due process concerns with the investigation of Professor Wax. We write, despite being notified of the investigation on May 18 and making repeated requests to your office for copies of the relevant complaints, Wax has yet to receive written notice of the charges against her. Penn Law's faculty handbook clearly provides that should a question arise regarding the possible infraction of university behavioral standards, the dean or provost shall provide a written description of the charges to the respondent, if requested by the respondent in writings. This is something we often see, and it's one of the reasons Fire got involved in due process work from our founding, which is free speech violations. Academic freedom violations are often paired with, with due process violations. It's hard to defend yourself when you don't have the complaint and the evidence in front of you. But too often that is the case on college campuses. I want to turn now to the third Professor Moral Finkelstein at Muhlenberg College, which is a private Lutheran school in Allentown, Pennsylvania, who was fired for her pro Palestinian advocacy. This past January, Maura Finkelstein posted or reposted, I should say reposted, an Instagram story from a Palestinian American poet that stated, do not cower to Zionists. Shame them. Do not welcome them in your spaces. Do not make them feel comfortable. Why should those genocide loving fascists be treated any different than any other? Flat out racist. Don't normalize Zionism. Don't normalize Zionists taking up space. She was fired this past May, and there might have been their suggestions, added pressure from the Department of Education for the university to fire Professor Finkelstein. Department documents released last week state that Muhlenberg received eight shared ancestry complaints about her speech online and in the classroom. And then once this news that she was being fired came out, Muhlenberg resolved a federal investigation with the Department of Education surrounding its investigation into violations of Title 6 of the Civil Rights act of 1964. So what you have, because that might have gotten a little confused, is a Department of Education investigation some complaints about this professor. After this professor learned about the investigation, I believe the next day she tweeted out that that Instagram repost that I or tweeted out, I'm mixing platforms here that do not coward a Zionist post. Then she gets investigated. She gets fired in May and we first learn about it. And I believe this is the first time since the October 7th terrorist attacks that a tenured faculty member in the United States has been fired for pro Palestinian advocacy. So you have conservative law professor fired at Pennsylvania, a liberal professor at Muhlenberg fired as well. Both of them are tenured. What does the state say about the state of academic freedom, Connor?
- [51:15]
Aaron Tur
It sucks, right? Everyone points to the McCarthy era. It's at least the darkest days for tenure and academic freedom in my lifetime. You know, I point back to the Amy Wax professionalism conversation.
- [51:27]
Nico Perino
Right?
- [51:28]
Aaron Tur
If we're going to start using these, you know, justifications to kick faculty off of campus, where does it end? You know, Amy Wax on race one day, a liberal professor on pro Palestinian advocacy the next. That's. That can be weapon weaponized too easily for my liking.
- [51:46]
Nico Perino
But you know, if she reposts something that says do not cower to Zionists, shame them, do not welcome them to your space, isn't there a reasonable suspicion or idea that she maybe won't welcome Zionist students in her spaces?
- [51:59]
Adam Goldstein
There could be. And that there were complaints suggest maybe there were students who felt that way. What the federal obligation here is, it's very technical. The school has to do something. It has to take some ameliator of step to ensure that students feel welcome. It does not have to censor anything. It does not have to fire anyone. So that's what the legal obligation is. The school must take some step. And next step could have been reaching out to those students and saying, hey, we, we talked with her. She understands her obligations. Let us know if things continue. It could be get everybody therapy. It could be helping people switch classes if they want to switch classes. There's a great deal of the only thing bounding what schools can do here is their creativity and the first Amendment and I guess really civil rights law in general, there's nothing about the situation that compels them to take disciplinary action or to censor speech or to fire.
- [52:59]
Connor Murnane
Anyone kind of re make the point again that we can't if we want to have academic freedom. You can't automatically assume that every opinion that a professor expresses on social media automatically translates into unprofessional conduct in the classroom. I think especially when you consider that social media kind of rewards sensationalism and overheated rhetoric. And so I think if you have actual evidence of unfair treatment in the classroom, that's certainly something a professor can be disciplined for. Or if they're pervasively using class time to just as the soapbox for their political opinions that don't have to do with the subject of the class. The university doesn't have to tolerate that either. But otherwise you just want to be careful not to set a precedent where no matter where any strong opinion a faculty member expresses on social media or outside the classroom can be used against them.
- [53:54]
Nico Perino
Yeah, and we've been Talking about Title 6 here, which governs race, color and national origin. Colleges and universities can't discriminate on that basis. But it's been interpreted since 2004 to expand beyond that toward shared ancestry, national origin that has a kind of religious characteristic to it as well as ethnicity. And so that's how you get Jewish students covered. Their query whether it would protect Zionism, which is a political movement but has deep connections to the state of Israel, for example. All right, our last topic for the day, Nassau County's mask ban. New York. Nassau's county banned wearing masks in public except for health or religious reasons. Nassau County Executive Bruce Blakeman signed the legislation named the Mask Transparency act on Wednesday, Aug. 14. Blankman said this is a broad public safety measure. What we've seen is people using masks to shoplift, to carjack, to rob banks. And this is activity we want to stop. The law in Nassau county considers it a misdemeanor punishable by up to one year in jail and a thousand dollar fine for individuals to wear face coverings. They conceal their identity in public. As I noted, there are exceptions for those wearing masks for health Safety, religious or cultural reasons, as well as for the peaceful celebration of holidays or events where masks are traditionally used. Plug for Halloween, which is coming up, one of those holidays where masks are traditionally used. A lawsuit was filed by the Disability Rights of New York that sought a temporary restraining order and a preliminary injunction to and stop the enforcement of, of this Nassau county mask law. The lawsuit involved two plaintiffs with different health conditions who wear medical grade masks for protections. They express concern about being harassed or potentially arrested due to the newly implemented mandate. And a judge dismissed the lawsuit last week stating wearing masks for medical reasons is expressly excluded from the Mass Transparency act reached by its health and safety exception. But this question of masks more broadly. Right. Covid came about. Everyone under pain of punishment, in some cases had to wear a mask. And now we're saying, no, no, no, can't wear masks because they're being used in the commission of crimes. Or at least that's the justification.
- [56:11]
Adam Goldstein
Well, the part that I love is the masks are being used to rob banks. Oh, somebody noticed that finally. Well, where's my rope Transparency act? It's being used to tie damsels to train tracks. It's like the old timeiest justification you could find for a mask ban.
- [56:23]
Connor Murnane
Also, they, they've arrested, I think, one person under this law so far. And was he robbing a bank or carjacking? No, he was wearing a keffiyeh over, over his face at a pro Palestinian protest. And by the way, I guess with these exemptions for, for what?
- [56:40]
Nico Perino
Health and religious reasons and also for holidays.
- [56:44]
Connor Murnane
So I guess all Bonnie and Clyde had to do was she puts on a burqa.
- [56:47]
Adam Goldstein
That's what it was.
- [56:48]
Connor Murnane
And then he, he puts an N95 mask over his face and then they never get caught.
- [56:51]
Nico Perino
But these, these laws, some of which had to be suspended during COVID are sort of ancient, right? These. You had states pass the laws to go after the Klan?
- [57:02]
Adam Goldstein
Well, yeah, in New York, the law was from 1845. Tenant farmers were uprising against their landowners and would dress up as. As women and natives to obscure their identities. And then that law was on the books until it was, until the repeal was signed by Governor Cuomo. So we lived through a long period of this. Now there was one big incident in the 90s about the Klan wanting to rally in New York and Giuliani as mayor, refusing to give them a permit. And then they sued. And eventually the court said, you gotta give them the permit, but they can't wear the masks. And it ended up being 18 people standing for 90 minutes silently while a very angry crowd, some of them wearing masks of Mayor Giuliani, assaulted cops. So it was a very strange energy. But, yeah, this has been. This has been New York for a long time.
- [57:53]
Nico Perino
Well, are there problems with mask bans from a First Amendment perspective?
- [57:57]
Adam Goldstein
Yeah, yeah. Oh, yeah, I think so, from.
- [57:59]
Connor Murnane
From two angles. So one is that masks themselves can be expressive. So that. That's one way in which I think the bans implicate the First Amendment. The other way is that they implicate the right to speak anonymously. So you might want to wear a mask, like, for instance, if you're a member of the Ku Klux Klan. But not only that, I think people really focus on that. And that's what. Where a lot of the case law and the plaintiffs or the defendants in criminal prosecutions are Klan members. And I actually think that's unfortunate. And in that, I think it influenced some of the bad decisions, kind of the bad facts make bad law. Old expression. But. But, yeah. So the idea is that you may want to disguise your identity if you're expressing a particularly unpopular viewpoint. That can result in you facing harassment or retaliation from the government, from your employer, or just for people, you know, putting a video up of you on social media. And I think that that thread is even more acute today where you have government using facial recognition technology because we have social media, everyone's walking around with a phone in their pocket. So it's in a lot of these decisions, including the ones that upheld mask bans, you know, they were from, like, the early 2000s, from the 90s. And I do wonder if maybe some of those courts will come out differently today, given the kind of changing landscape and the greater threat of retaliation and harassment for speech in public.
- [59:23]
Nico Perino
Could you have a mask law that makes wearing a mask in the commission of crime an aggravating factor? For example, like, let's say you have a law against robbing a bank. Right. Theft. I guess we should do that.
- [59:39]
Adam Goldstein
If we haven't, by the way.
- [59:40]
Nico Perino
Yeah, yeah, we should.
- [59:40]
Adam Goldstein
We should definitely make that not legal.
- [59:42]
Nico Perino
But if you do it wearing a mask, like, the punishment is greater. Right.
- [59:47]
Connor Murnane
Because I think that's perfectly constitutional.
- [59:49]
Nico Perino
Okay.
- [59:50]
Adam Goldstein
And that might actually be a deterrent for the crimes in particular that they're concerned about, where. If it's 30 days to smash a window and 90 days, if you do it wearing a mask, I might just prefer to, you know, throw the brick and see if I can't run faster than the copy. Yeah, well, not me, but the hypothetical person in that.
- [60:06]
Connor Murnane
In that situation that you're describing, you're not. You're not doing collateral damage to protected speech. And the problem with a lot of the existing mask bands is that they'll just more broadly just say, you can't wear a mask to conceal your identity for any purpose. All right, so. And then that's how you get. I'll give you another example of, like, an older case that struck down mask bans under the First Amendment from the late seventies, Iranian American students who are. Who are protesting the Iranian government. And then one of the cases, they put pamphlets in between their glasses and their face to conceal their identities because they were, I would say, reasonably afraid of retaliation from the Shah of Iran or against the relatives who were still living there. And the court took that into account and said, yeah, this is a burden on your right to anonymous speech. And that grows out of earlier Supreme Court decisions like NAACP v. Alabama that said that the state of Alabama couldn't force the NAACP to disclose its membership list to the state, and they provided evidence that they would likely face harassment retaliation. I think this is like back in the 1950s where that was a very unpopular view. So, again, don't get fixated on the. On the fact that this is often enforced against the Klan because it just is easily enforced against other views that people won't find as abhorrent. And it's even more recently also been enforced against people protesting racism and police brutality.
- [61:31]
Nico Perino
Yeah, political speech has a deep connection with anonymous speech here in the United States. Obviously, the Federalists, the anti federalist paper, is common sense. People didn't know that it was Thomas Paine who wrote that. Initially, I think the byline was just.
- [61:45]
Adam Goldstein
An Englishman, precisely because the fear of seditious libel like this was this. These were things people could be executed for. So fear of retaliation from the government for their speech was what the founding Fathers were trying to avoid, in part when they crafted the First Amendment. So it's an inseparable thing, Anonymous speech and freedom of speech. And to see how anonymity has been treated poorly both in the case of people. Think you can regulate online speech and require people who identified people who want to wear masks as part of their protests. It's kind of depressing because it's a piece of First Amendment doctrine that needs to be understood better by the public. It's up there with fire in a crowded theater.
- [62:28]
Connor Murnane
Yeah, it'll be interesting to see if the Supreme Court will ever take up this issue. It hasn't spoken on this issue of whether or not mask bans are Constitutional. There's just various conflicting lower court rulings, some of which extend naacpv, Alabama and other cases where the government's forcing people to disclose their names or addresses or identities to masks to requiring people to unmask themselves. Some courts have said that also implicates right to non speech just as much. Some have said no. It's different when you say you have to disclose your name or address versus just saying you have to appear in public with your face exposed. So we'll see if the Supreme Court ever settles that.
- [63:11]
Nico Perino
We'll see. We'll see. Fingers crossed, right? We need to get some clarity on that. But I think if you extrapolate, as you know, existing First Amendment principles, you arrive at the conclusion that you can speak anonymously. We've seen this being used in other countries. For example, during the Hong Kong protests, you had the protesters carrying yellow umbrellas to help prevent the facial recognition technologies that are prevalent there because the Chinese government very much wanted to target political dissidents.
- [63:36]
Connor Murnane
In Hong Kong, Occupy Wall street protesters wearing those Guy Fawkes masks, FIFA vendetta, which again you could argue is both expressive and a way to to remain anonymous.
- [63:48]
Nico Perino
Can I call out my T shirt before we wrap up here? Fire just relaunched our store on our website. You can find it at the top of the website, the fire.org or go directly to it@shop.thefire.org this is our Free Speech Makes Free People T shirt that is incredibly popular. We've got this and much else in that store. So if you're interested in getting the FIRE swag and signaling your support for free expression and supporting the organization by shopping at our online store, please do go to shop.thefire.org or just go to our website, the fire.org and go there to the Shop button at the top of the webpage. I want to thank you guys for joining us. Every couple of weeks, if not months, it feels like lately we do this news roundup, so we'll try and get another one in before the end of the year. Thanks again for joining us.
- [64:38]
Connor Murnane
Thanks.
- [64:39]
Aaron Tur
Thank you for having me.
- [64:40]
Nico Perino
All right, that was fire's news roundup with Fire employees Aaron Tur, Conor Monane and Adam Goldstein. I am Nico Perino and this podcast is recorded and edited by a rotating roster of my Fire colleagues, including Aaron Reese and Chris Malpe and and co produced by my colleague Sam Lee. To learn more about so to Speak, you can subscribe to our YouTube channel or our Substack page, both of which feature video versions of this conversation. We also put the full video up on X. You can find our handle there by searching for free Speech Talk. You can also find us at Facebook and you can send us feedback @sotospeak the fire.org Again, so to speak@the fire.org and please, I ask you every episode, if you enjoy enjoyed this episode, please consider leaving us a review on Apple Podcasts or Spotify. Those reviews are the single best thing you can do to help us attract new listeners to the show. And until next time, I thank you all again for listening.