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So to Speak: The Free Speech Podcast
Ep. 227: Should there be categories of unprotected speech?
01:03:31
The FIRE team debates the proposition: Should there be any categories of unprotected speech? General Counsel Ronnie London and Chief Counsel Bob Corn-Revere go through each category of speech falling outside First Amendment protection to decide...
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- [00:00]
Ronnie London
The whole idea of having protection for free speech, one of the values of it is what we call the eternally radical idea around here, right, that you should resolve your differences, resolve your disagreements with words, not with force. And that should include words that are directed to you, that say bad things about you to you. And yet we have a doctrine under that, protection for free speech, where we say, but if it upsets you enough, then maybe it's not going to be protected. Freedom of speech, fundamental rights, freedom of.
- [00:30]
Nico Perino
Conscience, academic freedom, freedom oppressed, 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. And our guest today can be familiar to regular so to Speak listeners. We have FIRE Chief Counsel Bob Korn Revere here to my right. Bob, good to see you, Nico.
- [01:04]
Bob Korn Revere
Always happy to be here.
- [01:05]
Nico Perino
And we have our general counsel, Ronnie London, who on the second take of the introduction, is not shuffling his papers. Ronnie, thank you for being here.
- [01:13]
Ronnie London
Yeah, thanks for pointing that out, man.
- [01:15]
Nico Perino
I couldn't let it go. So, Ronnie, ever since you came aboard here at fire, you just told me it's been three and a half years now, you've precipitated this ongoing internal debate over whether categorical exceptions to free speech are justified. These are exceptions for things like defamation, obscenity, true threats and incitement, imminent lawless action. So I thought it was finally time we headed out here on so to Speak. So, Ronnie, since you're the debate precipitator, why don't you set us up here by explaining your thoughts on this question? Right.
- [01:49]
Ronnie London
Thanks, Nico. And, you know, you're probably being overly generous in calling it an internal debate so much as it is, I have a kooky idea. And everyone else says, shut the fuck up. That's stupid.
- [02:03]
Nico Perino
So we've had an ongoing Ronnie London monologue for three and a half years that everyone else at FIRE is forced to listen.
- [02:09]
Ronnie London
Yes. And regular listeners will know and who know me know. That's probably a lot more accurate. This is actually. This is actually a Perfect Friday the 13th topic, which is when we're recording this, and because it is a little bit nutty, I admit that. And to be clear, this is not a FIRE position or even a really fully formed position on my part, and it's something that I'VE just been thinking about, and I have presented this among other places besides in the hallways to fire in fire whoever will listen to me spew it. I even trotted it out at the First Amendment Lawyers association meeting and in a room full of First Amendment practitioners and diehards, I couldn't even get a single taker.
- [02:51]
Nico Perino
So did you get crickets then?
- [02:52]
Ronnie London
I. No, no, you never get crickets at a follow up meeting. That will never happen. But you know, and so, but what it is, is I have grown increasingly uncomfortable with the idea that there is this concept of categories of unprotected speech. I mean each of the categories themselves are problematic, which is among the reasons that I'd love to see their elimination. But the whole idea that things can be categorically unprotected if they simply meet a particular definition is always had been a little bit troubling for me. And really it's about maybe trying to claw back one of the arrows in the government's quiver, right? I mean, when the government regulates speech, it has the burden to prove that they've satisfied whichever constitutional standard applies, but they still have a goodly number of advantages. One, as a co. Equal branch of government, they basically have home court advantage when they're in front of a judge. Two, they get a presumption of constitutionality for duly enacted legislation. Three, you know, the first thing that they always pull out of the quiver is no, no, no, we're not regulating speech, we're just regulating conduct. Right? And when that fails, because it's always bullshit, they fall back on, okay, well we're just regulating unprotected speech. And here are the categories that it falls into. And then they try and, you know, shoehorn it into one of the categories like, like the, the, the stepsisters and Cinderella with the glass slipper. And you know, the problem with this is as an advocate, you gotta cut through all this bullshit when you're like briefing and arguing against the government before you can ultimately get to the, to, to, to the real point, which is that it doesn't satisfy the necessary burden. And so I was thinking if we could eliminate one of those and stop having those conversations, it might make the sledding a little bit easier for first amendment advocates. But again, whether there is a doctrinal basis for doing it and whether it even makes sense is kind of up in the air. So I've been rehearsing this with any first amendment advocate or interested party I can to poke holes in it. And you know, boy, have they.
- [05:06]
Nico Perino
And Bob was one of your interlocutors, I guess, at a previous falla meeting.
- [05:11]
Ronnie London
Yes.
- [05:11]
Nico Perino
And Bob, what was your take on.
- [05:14]
Bob Korn Revere
Not just at a previous falla meeting. A little bit more background here may help fill out the scene. Not all of your listeners may be aware that Ronnie and I worked together in private practice for 20 years before he came to fire, and then I then followed shortly after that. We've been having this conversation for years, including once debating the proposition at a First Amendment Lawyers association meeting, at which, as Ronnie just reminded me, I had forgotten that he didn't get a single taker on this proposition. Thank you, Ronnie. But it requires going back into a little bit of First Amendment history to really understand how these categories came about. First of all, keep in mind that the courts, and the Supreme Court in particular, hadn't found in favor of a First Amendment right for the first 141 years of our nation's history. And it wasn't until the early 1930s, 1931 to be exact, that it began to develop what we think of as First Amendment doctrine. And so in doing that, one of the things when it was first articulating First Amendment rights was to say, well, not all speech is protected. And I think most people who've been practicing this area or have studied First Amendment law would agree that the First Amendment is not an absolute in that it doesn't protect everything that involves the use of words. You know, you can't go into a bank, hand the teller a note that says, give me all your money or I'll kill you, that uses words, but it's not protected or certain expressive acts. Assassination carries a great deal of political meaning, but it's not a protected act.
- [07:05]
Nico Perino
Or falsely shouting fire in a crowded theater, that's the one you see trotted out the most often from non lawyers.
- [07:11]
Bob Korn Revere
Most often. And that's because it comes from Oliver Wendell Holmes in his Schenck opinion when he says that not all speech is protected. But he did say it doesn't protect shouting fire in a crowded theater falsely and causing a panic. You have to remember that those are the additional parts of that what evolved as a test and later became a significant test. But as the courts began to articulate what was protected, they set that apart from what wasn't protected. So in 1931, in near versus Minnesota, when the court first explained that prior restraints on speech are forbidden for the most part under the First Amendment.
- [07:54]
Nico Perino
So a prior restraint, just for our listeners who aren't familiar with the concept, is when the government comes in and tells you you can't say or publish this thing before it ever goes out into the world. Right. And the idea being that this is the most dangerous sort of censorship, but you might still be able to be held liable for what you say after it's published. Right.
- [08:11]
Bob Korn Revere
It is a restriction imposed in advance of speech. And the paradigmatic examples of that are from English history, press licensing, that kind of thing. In near vs. Minnesota, the court said that the First Amendment largely prohibits prior restraints. And the First Amendment goes further than just prior restraints. It also inhibits the government from imposing other kinds of restrictions on speech. But then it went on to say that no one would question but that the government could prevent things like publishing the sailing times of transport ships or the locations of troops. And it also mentioned obscenity and one of those things. And so while it was defining that speech is protected and it's presumptively protected, not all speech is protected. And then later, as the Court began to develop First Amendment doctrine in the 1930s and early 1940s, you would have some elaboration on that. And we can talk about the Shaplinsky case if you want. But that's again, where the Court basically said there are certain categories of speech that aren't protected. But this was, keep in mind, when the First Amendment was in a very formative stage, when the courts were beginning to define what was protected and also what wasn't protected. And it came up with categories that then, over time, got further developed and refined without going too much into the history.
- [09:40]
Nico Perino
Right.
- [09:40]
Bob Korn Revere
Now, what I will say is that in the way that this developed and the categories being better refined, better narrowed over time, on balance, it has been a force for more speech protection than less to confine it to these doctrines to certain categories. And it's done it in a couple of ways. One, it has allowed the Court to say all speech is presumptively protected. That the First Amendment creates this baseline presumption that does not exist in other political systems.
- [10:16]
Nico Perino
But, Ronnie, didn't you just say the opposite? That the. For legislative enactments, the presumption is that the legislation is valid.
- [10:23]
Ronnie London
Funny, that, right? So all speech is presumed protected until proven otherwise. And at the same time, all legislative enactments, including those on speech, are presumed constitutional until the government fails to carry its burden. It's. It's an interesting. It's an interesting tension.
- [10:38]
Bob Korn Revere
Well, it is a bit of a tension, but it's also why courts have, in First Amendment cases, lowered the presumption in favor of the constitutionality of legislation. Once you show that that legislation focuses on an area of speech, then it changes the government's burden.
- [10:55]
Nico Perino
So I want to start at the basics here, right? If you look at the text, the plain text of the First Amendment, it reads, congress shall make no law. Abridging freedom of speech seems pretty plainly stated for me. Why is no law no law?
- [11:13]
Bob Korn Revere
Well, two things about that. First, if you accept that literal statement, that means the bank teller note is protected by the First Amendment. So now we can rob banks as long as we're using words instead of other techniques. The second thing is, keep in mind, it says, congress shall make no law. And do you really want to limit it just to that? The First Amendment over time has developed into the understanding that the government shall make no law. And after the 14th amendment was incorporated into the states, it also meant the state government and not just the federal government. So that kind of literalism isn't all that speech protective? If you want to go that way, yeah.
- [11:55]
Ronnie London
No, I was going to say the same thing. If you want to have literalism, you have to take it in all its flavors, and that includes limiting it only to Congress. Although on the bank teller example, I don't. Yes, I mean, maybe you would say that if you were being a literalist, the note would be protected and we can rob banks. And maybe that's true up until the point they hand you the money. Now you've stopped speaking and you've taken something that doesn't belong to you, and that's purely conduct, and we can maybe still criminalize that. And I want to be clear. I mean, my proposal here is not that all the speech that falls into all of these categories should necessarily be protected or unpunishable or irregular. I'm really only questioning the approach of treating them categorically and using these, the definitions that these categories carry to render speech per se, unprotected and punishable. Although with a couple of the categories, I am arguing that everything that falls into the category should be okay.
- [12:51]
Bob Korn Revere
But therein lies the problem of your approach. Because once you agree with the opening premise that not all speech is protected in all of its uses by the First Amendment, then you have to have a system for dividing what is protected from what is not protected. And if you don't have some kind of categorical approach, then you're left with just balancing and saying that, okay, this is an important enough government interest that we're going to allow the government to restrict speech because of this, as opposed to having a framework for trying to maintain the premise that speech is presumptively Protected. It's the categorical approach that has allowed, I think, greater protection over time as First Amendment law has developed.
- [13:32]
Nico Perino
And also to give the government guidance as to what is and isn't protected when it's thinking about regulating.
- [13:38]
Ronnie London
Because they're so scrupulous about following that guidance.
- [13:40]
Nico Perino
Well, what I'm saying is they could be less scrupulous if there were no sort of guidelines.
- [13:44]
Ronnie London
Yeah, and when you say the balancing, I mean what that really means is you're going to have to apply something like, depending on the nature of the regulation, strict scrutiny or intermediate scrutiny or rational basis review. Because everything that falls outside of these categories of unprotected speech is subject to regulation. Like you say. I'm not advocating that, you know, all speech should be, should be constitutionally protected, that the government shouldn't be able to do anything. I'm just saying what do we do doctrinally and structurally to determine when the government can act and when it can't? And outside of these categories, the government does have to satisfy what I think are fairly called balancing tests. Right. Strict scrutiny, compelling government interest, narrow tailoring through directly advancing it. And you know, at least restrictive means, intermediate scrutiny, slightly less, but it's still a balancing test. So if that balancing test is okay everywhere else besides these categories, I'm not that broken up about bringing it into these categories instead and maybe getting rid of their definitions and per se approaches.
- [14:50]
Bob Korn Revere
No, but I mean, the fact that speech falls into one of these categories doesn't make it invisible to the First Amendment. And that was something that the supreme court decided in RAV vs. St. Paul, which was a case that involved cross burning and whether or not that could be prohibited. And even though the city was trying to describe this as unprotected speech, the Court's opinion by Justice Scalia made clear that, yeah, even if you're dealing with an area of unprotected speech, you still have to satisfy First Amendment concerns. And you can't imply apply things like viewpoint based restrictions and things like that. So normal types of First Amendment analysis will still apply even under a categorical approach. But the categorical approach has its uses, right?
- [15:38]
Ronnie London
Obscenity, child pornography, incitement, true threats, fighting words, speech, integral defamation, false advertising. So you mean if it falls into one of those categories, those are all content based categories, Right? They look at the content of the speech. And so when you say it falls into one of those categories, does that mean that because it becomes unprotected. And when I say unprotected, I mean it's punishable or regulable without any further showing. Does that mean that it automatically satisfies strict scrutiny, or are we just basing it on. Well, but, you know, you say no, but if you say, okay, well, this satisfies the test for obscenity, right? Or this satisfies the test for, you know, fighting words, then that's it, that's the end of the analysis, right?
- [16:21]
Bob Korn Revere
No, it's not.
- [16:22]
Ronnie London
And that's the problem with the categories, that some of them actually capture a fair bit that on a lot of sets of facts really, I think, ought not be able to criminalize the speech.
- [16:33]
Bob Korn Revere
Well, but it's important to look at where it began and where we are now. It began in the 19th century, before that, actually, but in the United States, it began to develop in the 19th century under Anthony Comstock with enforcement of the Comstock Act. And there anything that was considered to be immoral in any way, in his very expansive view of what that meant, could be prohibited as being obscene. And that law, the Comstock act, was applied to prohibit everything from art to information about contraceptives to information about abortion to home medical guides, because Comstock was convinced that it taught women too much about their own bodies, on and on and on, anything that he thought was immoral. And it was applied under the only judicial test that was available at the time, which was imported to the United States from Victorian England. So there you have your categorical approach that is very bad. It doesn't protect speech at all. But over time, as the Court began to develop a more refined categorical approach, it began to do what we call constitutionalizing an area of law. It happened with obscenity, it happened with defamation, and it has with all of these other unprotected categories, where the Court begins to develop very high hurdles and very high barriers before something falls off the edge of the constitutional earth for First Amendment protection purposes. And that began in the United States in the middle of the 20th century, when the Court was really beginning to define what obscenity means, starting in 1957 with Roth versus the United States, developing a test for obscenity that began to look at the work as a whole, which hadn't been the case before, and look at whether or not the work had serious merit, and began to look at whether or not the work applied primarily to the prurient interest to adults, and not just the most.
- [18:29]
Nico Perino
So this would be like a book. You have to look at the whole of the book. You have to see if it has artistic value, if it appeals to the prurient interest, that is to. Like sexual interests.
- [18:37]
Bob Korn Revere
Exactly, exactly.
- [18:39]
Ronnie London
Well, a more a morbid interest in sex. Not just a interest in sex, like a.
- [18:44]
Bob Korn Revere
A morbid and basically perverse interest in sex, which is something to meet a.
- [18:51]
Nico Perino
Morbid interest in sex. Is that a sort of fetish?
- [18:53]
Bob Korn Revere
That's been part of the problem of the obscenity definition since. Since I. I understand. And this is one of the reasons why I think this is a category we could do without. But that being said, as the court began to refine the definition for obscenity, just as it did for defamation, it began to exclude more and more things from the risk of being prosecuted under obscenity. So you go from the 19th century, where you have a wide range of things that. And are prohibited as being obscene, to the 1950s and 60s, where they're still prosecuting spicy novels and in some cases, comedians for obscenity, to the 1970s when you're doing things like prosecuting. Prosecuting hardcore porn films like Deep Throat, to now, when that basically doesn't happen anymore. It does a little bit. But primarily the interest in enforcement in this area has moved on to child pornography, which is a whole nother category that is separate from obscenity. And so what is permissible, over time, as the test has become more constitutionalized, has gotten more and more expansive, and that's been true in all of these categorical areas of trying to fence off those areas that are unprotected. And because of that, levels of protection for speech in general in the United States has gotten much more expansive than it was in the past.
- [20:21]
Ronnie London
I mean, I think we're in agreement here. I mean, I'm glad it's a high. A high burden to be declared obscene. And I'm glad it's a increasingly shrinking category. And you or anyone else who. Who knows me won't be surprised to hear me say I'm not satisfied.
- [20:36]
Bob Korn Revere
Well, let's.
- [20:37]
Nico Perino
Let's talk about what is the standard. Is this the Miller test? So it's whether the average person, applying contemporary community standards would find that work taken as a whole appeals to the prairie interest. Whether the work depicts or describes in a patently offensive way sexual conduct. Whether the work taken as a whole lack serious literary, artistic, political and scientific value.
- [20:55]
Bob Korn Revere
Correct.
- [20:56]
Nico Perino
Is there anything that one could publish right now that would be on the other side of the Miller test? That is to say punishable, censorable, or is this pretty much, for all intents and purposes, a dead.
- [21:08]
Bob Korn Revere
Not in print? I mean, you wouldn't.
- [21:10]
Ronnie London
Probably not. Yeah.
- [21:11]
Bob Korn Revere
You Wouldn't be able to, I believe you wouldn't be able to successfully prosecute a, a racy novel. Even if it's wall to wall descriptions of sex.
- [21:21]
Ronnie London
How about if it's wall to wall descriptions of sex with children?
- [21:24]
Bob Korn Revere
I think it would be unconstitutional to try and prosecute something that is just fictional descriptions of sex with children. Because again, what makes, what sets child pornography apart from obscenity is the fact that it is the visual depiction of actual child abuse, of sexual child abuse. And so for that reason it is prohibited not as a branch of obscenity, but as a speech that is integral to criminal conduct. Okay. You are to produce it, you are engaging in criminal conduct.
- [21:58]
Nico Perino
What if there is no criminal conduct involved in it? It's like an anime depiction in that.
- [22:02]
Bob Korn Revere
Case, then it is protected speech. And the Supreme Court said that in the Free Speech Coalition case.
- [22:06]
Ronnie London
That's not entirely true. You can in fact create child pornography without engaging in child abuse. And we know this from the raft of cases where someone has taken a particularly innocent picture of kids frolicking naked on a, cropped it the wrong way and spent the rest of their lives in jail. Now, I'm not advocating that, don't get me wrong. But I mean it, it does begin to show some of the over breadth of the child pornography definition. I don't want to, you know, spend too much time getting.
- [22:38]
Nico Perino
So it could be a parent who's taken a photo of their kids in the bathtub, for example.
- [22:42]
Bob Korn Revere
They just think it's a cute photo that has happened.
- [22:45]
Ronnie London
Yeah.
- [22:45]
Bob Korn Revere
And there are also cases involving that where the parent was a. But again, that is sort of an outlier in those areas. And I agree with Ronnie that the categories aren't perfect. It's one of the reasons why I think that we could do without the obscenity category altogether and just focus on protecting children from actual abuse.
- [23:05]
Ronnie London
Yeah. But this does illustrate why the categorical approach is problematic under these categories. Because as a practical matter, once you satisfy the definition, that's the end of the analysis. Right. There's no as applied challenge. There's no saying, hey, there's no child abuse here. I was 17 years, 360 days old and my girlfriend asked for that picture. Right. I mean, that's still gonna put you on the sex offender registry and it's still gonna potentially put you in jail. And there's no opportunity whatsoever to argue that this does not serve any of the interests that the government has in prohibiting this speech.
- [23:42]
Bob Korn Revere
But you're still, I mean, you're still faced with the problem of separating protected speech from unprotected speech, regardless of what test you use.
- [23:49]
Ronnie London
Sure.
- [23:49]
Bob Korn Revere
And so you're still going to face that same fact pattern and that same problem, regardless of whether or not you're dealing with a categorical approach or some other approach to protecting first.
- [23:58]
Ronnie London
But with every other approach, and as applied challenge is available to you with the categorical approach, it is not.
- [24:08]
Bob Korn Revere
I'm not sure about. About that proposition.
- [24:10]
Nico Perino
Well, explain it, explain it for us because some of our listeners might. Might not be familiar with this as applied challenge.
- [24:15]
Ronnie London
Right. So you've got, you've got a statute that prohibits or, you know, criminalizes a certain kind of speech, and you can challenge it on its face. Right. You could say in every application or in an overwhelming number of applications. Or it's, as you know, it's substantially overbroad. That is its unconstitutional applications substantially outweigh its legitimate sweep. It's plainly legitimate sweep. Sorry.
- [24:41]
Nico Perino
So someone who'd be likely to fall under that statute could challenge it on its face without that statute ever having had applied to them.
- [24:47]
Ronnie London
Right.
- [24:47]
Nico Perino
The at applied challenge is as applied.
- [24:49]
Ronnie London
Challenge says, okay, maybe there are some constitutional applications, but in this instance, as applied to me with this particular speech, it's still unconstitutional because the government can't carry its burden of showing it has a compelling interest in. In restricting this speech, that this speech creates a problem, that this is the least restrictive means of addressing whatever that interest is. As to this speech with a categorical approach, you lose that opportunity.
- [25:14]
Nico Perino
Okay, so obscenity. It seems like the both of you don't like this as a category. Even if, Bob, you don't like Ronnie's argument that we should get rid of categories altogether.
- [25:25]
Bob Korn Revere
That's right.
- [25:25]
Nico Perino
Okay, so let's tie a nice bow on obscenity and move on to fighting words. We're going to 1942 where you have a Jehovah's Witness. Walter Chaplinski, who's in Rochester, New Hampshire, is passing out pamphlets calling organized religion a racket. And a large crowd apparently doesn't like this message begins blocking the roads, causing a disruption. You have a police officer who comes up to Chaplinsky, takes him to the police station, presumably for disturbing the peace. And the argument, or what's said to have occurred is that Chaplinsky called the police officer a goddamned racketeer and a damned fascist. Chaplinsky agrees with the words that are featured in the complaint to large part, but says that he did not use the Lord's name in vain.
- [26:15]
Bob Korn Revere
That's right.
- [26:15]
Nico Perino
He called the Police officer, a damned racketeer, and a damned fascist. The case makes its way up to the Supreme Court, where the Supreme Court rules that fighting words are those words which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace. And it has been well observed, according to the Court, that such utterances are no essential part of any exposition of ideas and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. So this seems like a balancing test, right? Of sorts.
- [26:52]
Bob Korn Revere
I mean, well, again, it focuses on the relative value of speech. It also has a smile when you say that. Partner exception, because it says those words are likely to provoke. Provoke a fight unless accompanied with a disarming smile. So there is that. And Chaplinsky is really a low point in trying to develop these categories. It was the first case to articulate this test for fighting words. And it's interesting, the context in which it came up. You mentioned that it was a Jehovah's Witness, and the Witnesses were responsible for a great deal of development of First Amendment law. This was one of them. Their lawyer, Hayden Covington, argued 44 cases in front of the Supreme Court and won 37 of them. This wasn't one. He won, sadly. But the problem was you had this guy out there haranguing a crowd. But it happened in 1942, in the middle of World War II, when the Jehovah's were basically. The Jehovah's Witnesses were basically hated by everybody because they refused to salute the flag. And in fact, in the melee that followed Shaplinsky appearing on the street, one of the crowd members tried to grab a flagpole and impale him with it that he was so inflamed by the fact that this religious guy would not salute the flag. So the cop comes along, takes Chaplinsky in, and not the guys who are trying to impale him with a flagpole. The Chaplinsky calls him a damn fascist and a goddamn racketeer. Hardly what you would think of as fighting words today. But nonetheless, this doctrine gets developed. But what's important to recognize about it is that, like those other categories that I was talking about, it has been continually narrowed over time to the point that most people think that fighting words doesn't really exist as a thing anymore. Just last term, in Counterman vs Colorado, a case analyzing the category of true threats, both the majority opinion and the concurring opinion made the point that there hasn't been A prosecution for fighting words upheld in 80 years, which is really saying something. Now, I know what Ronnie's going to say, and maybe I should just shut up and let him say it. But go ahead and tell me why fighting words is still a thing.
- [29:20]
Ronnie London
I thought it wasn't a thing also, I mean, you have a 4th Circuit decision that says one of the worst rape racial epithets we had isn't enough to be fighting words. And if that's not, I can't imagine what is. And yet, every few months, I see a case that, you know, upholds a prosecution or an arrest, or at the very minimum, let's police off on qualified immunity by invoking, you know, fighting words as a category. And, you know, I mean, one of my problems with obscenity is that it relies on the temporary community standard, which runs completely counter to the whole idea of having a First Amendment that protects the views of people that don't fall within the contemporary community standards.
- [30:01]
Nico Perino
The minorities. Yeah, the dissenters.
- [30:02]
Ronnie London
And much in the same way, the whole idea of having protection for free speech, one of the values of it, is what we, you know, we call the eternally radical idea around here. Right. That you should resolve your differences, resolve your disagreements with words, not with force. And that should include words that are directed to you, that say bad things about you to you. And yet we have a doctrine under that protection for free speech, where we say, but if it upsets you enough, then maybe it's not gonna be protected. This strikes me very much like the awful look what you made me do line that abusers use. And I think it just puts the incentive in the wrong place. The incentive should not be on the speaker to hold their tongue. It should be on the recipient of the words to hold their fists. And I just don't think that there's any place in a speech protective regiment to say that if it's upsetting enough, if your emotional distress at hearing it is enough, then a violent reaction isn't justified because you'll still get arrested for the assault, but we can still punish the speaker. And that has ramifications outside of fighting words, by the way.
- [31:08]
Bob Korn Revere
But this is. Again, we're in violent agreement on this, oddly enough, for fighting words, because, you know, the fighting words doctrine has faded away to next to nothing. Now, I will acknowledge that every now and again, you will find a prosecution for fighting words, just like in 2014 in Missouri, there was a prosecution for flag burning, notwithstanding the fact that the Supreme Court in 1989 and 1990 issued two opinions saying that that was a form of protected speech. So, yeah, it does take time for these things to fade away completely. But that being said, the court has made increasingly clear over time that speech doesn't have to have a certain value before it's protected, which chips away at some of the foundations underlying what was applied in the area of obscenity. We also have an increasing number of cases saying that it doesn't matter if speech upsets you, that that is protected speech. So, again, that's all indicative of progress. And all of those exceptions that you're talking about have grown increasingly narrow over time.
- [32:16]
Ronnie London
Well, then, great. We're making great progress here. We're going to cross obscenity off the list. We're going to cross fighting words off the list. If we can get all of them off the list, then I can drop my whole kooky idea.
- [32:25]
Bob Korn Revere
Keep in mind, commercial speech was on that list.
- [32:29]
Ronnie London
I understand.
- [32:29]
Bob Korn Revere
Until 1976. I understand.
- [32:31]
Ronnie London
I'm just trying to speed things along here, man. You know? I mean, how long has it been since they crossed one off the list? It's been a little while.
- [32:37]
Nico Perino
Let's go to defamation next, because I think there might be a little bit more agreement here than there would be on incitement. I'm trying to scale up where I think we'll find the most disagreement. So I thought I knew obscenity you guys would largely agree on. I knew fighting words you would largely agree on defamation. Now, this is a category of speech that I believe Hugo Black, the Supreme Court justice, thought shouldn't exist. I know Nat Hentoff, the old civil libertarian, because there's a debate on YouTube where he argues against defamation as a categorical exception to free speech. And for our listeners who aren't familiar with this, they might hear of defamation as libel or slander. Those are two types of defamation. But defamation is a false statement of fact that is communicated to a third party and is made with the requisite guilty state of mind and harms an individual reputation. It's got to be a statement that's asserted as a fact and capable of being proven false. Now, there's standards a little bit different for a public figure, Right? This comes from New York Times via Sullivan. In that case, the person speaking or the person who is suing for defamation must prove actual malice, namely that the speaker made the statement either with the knowledge of its falsity or with reckless disregard for the truth. Should this be a categorical exception to the First Amendment?
- [33:59]
Ronnie London
This is the one that I always say, I'm not sure it Actually is on the list or belongs on the list. List.
- [34:05]
Nico Perino
Because the list of what?
- [34:06]
Ronnie London
Of unprotected categories. Because the fact of the matter is, if you think about defamation or really any lies, you know, especially in recent Supreme Court precedent. Right. Any lies you get. It's actually a really highly protected category of speech. I mean, you have to jump through all.
- [34:23]
Nico Perino
So what you're saying.
- [34:25]
Ronnie London
I am, I am. I'm giving you this one, man. I'm giving you this one. And you also have to have damages. I would add that to the, to the elements that you just listed.
- [34:32]
Nico Perino
What does that mean?
- [34:33]
Ronnie London
Well, you actually have to have damages. Not just that has to harm your reputation. It has to actually cause the harm to the reputation. Has to cause damages. Like you hear some people being libel proof because their reputation is so in the. In the crapper that, you know, you can't really say anything about them that would lower that. There, I mean, you have.
- [34:51]
Nico Perino
So there's something. There's some. Needs to be some sort of recourse to at least make someone whole or.
- [34:55]
Ronnie London
You have to show that you have a tangible harm. Not just that I'm upset because people think less of me. I mean, I go through my whole life like that. I'm fine, I'm loving, I'm generally managed to be happy. I mean, so I mean, I think, I think we do kind of agree on this one. I don't even think it necessarily belongs on.
- [35:11]
Bob Korn Revere
Well, you kind of have to divide it down between civil libel and criminal libel.
- [35:16]
Ronnie London
Yeah, right.
- [35:16]
Bob Korn Revere
Because what you're talking about is someone being able to sue because they. Their reputation has been harmed by a falsehood. But this had its origins in criminal defamation against the Crown. Right. And so if you're talking about making it a violation of criminal law, then you're talking about a category that shouldn't exist.
- [35:39]
Nico Perino
Yes, well, this was.
- [35:40]
Bob Korn Revere
This is one of the earliest and largely it doesn't.
- [35:43]
Nico Perino
Yeah. This was one of the early free speech controversies in the American colonies. The famous trial of John Peter Zenger, who I believe is a New York publisher, who criticized the colonial governor of New York.
- [35:54]
Bob Korn Revere
Yes.
- [35:54]
Nico Perino
And actually said true things about those governors, but they were unsavory.
- [35:57]
Bob Korn Revere
And the doctrine at the time was if it's true, it is all the more damaging to the Crown.
- [36:02]
Nico Perino
So this is the doctrine of seditious libel.
- [36:05]
Bob Korn Revere
Exactly.
- [36:06]
Nico Perino
And there was actually a jury nullification in that case.
- [36:08]
Bob Korn Revere
We have come a long way prevent.
- [36:10]
Nico Perino
The conviction of John Peters anger. There is actually the first. My first introduction to free speech because my fifth Grade class put on a play of the trial of John Peters.
- [36:19]
Bob Korn Revere
Oh, my God.
- [36:20]
Nico Perino
So you come full circle here. So, Ronnie, what you're saying is that this is one that could be on the list. Well, of the. Of exceptions to the First Amendment that you can get on board with?
- [36:32]
Ronnie London
Well, if I get my way, then it becomes a list of one. So there's no more list. Right. It's just defamation sitting out there by itself. So, you know, I'm not unreasonable.
- [36:40]
Nico Perino
All right, defamation. Let's ask. I mean. I mean, let's. Let's talk here about a use case, right? The Dominion Voting Systems v. Fox News case, right. In which Dominion Voting Systems argued that Fox News defamed Dominion by broadcasting numerous false claims about the company's voting technology. And it resulted, I believe, in the largest ever settlement in one of these cases. You know, just because you settle a case doesn't mean you're necessarily admitting guilt.
- [37:14]
Ronnie London
But you do with that price tag.
- [37:17]
Bob Korn Revere
When you're shelling out something on the order of $780 million. That kind of speaks for itself. But again, no culpability was acknowledged.
- [37:28]
Nico Perino
So, Bob, are you on board with defamation as a categorical exception to free speech?
- [37:34]
Bob Korn Revere
I am in that, you know, if private parties, and, you know, it can extend to public officials, but generally it's private parties feel they have been defamed by knowingly false statements and actually have been harmed, then the law of defamation gives them recourse. Now, what I will say is that this is one of the primary examples of where having categories and having categorical exceptions has resulted in a ratcheting down of the test, or ratcheting up, I guess, of the test, so that to find something to be defamatory, particularly against public officials and then by extension, later public figures, it has required a very, very high level of proof. The actual malice standard that you described before, you can find someone responsible for those damages. And the Dominion Voting case that you mentioned is one which I think shows that New York Times versus Sullivan works. Right. That it required a heavy level of proof that was being developed for the trial and never did go to trial, but to demonstrate that the reports the allegations were. Were knowingly false. There has been a lot of debate in recent years about whether or not New York Times versus Sullivan should be relaxed. I think the Dominion Voting case is sort of Exhibit A for saying that the New York Times standard is working.
- [39:14]
Nico Perino
But just because we believe something should be a categorical exception to free speech, the contours of that category are important because England, for example, has A different standard for defamation than the United States does, which allows for plaintiffs to bring many more cases and win.
- [39:29]
Bob Korn Revere
Well, it's funny you should mention England, because I think comparing European law and US Law is a good example of why the categorical approach has been more effective than the approach used by Europe and also in England, not just in defamation, but generally because they do have the European Convention of Rights that recognizes freedom of speech, but it doesn't create freedom of speech as the presumption that all speech is protected. It says it's protected, but along with other values, and then contains a number of exceptions. Article 10 and Article 17 of the European Convention sort of create this list of protections and exceptions that sometimes protect speech and sometimes don't. But here, where we have the presumption that speech is protected unless it falls into specific categories, has overall given us much more protection.
- [40:27]
Nico Perino
So obscenity, we agree it should be eliminated. Fighting words gone. Eliminate.
- [40:35]
Bob Korn Revere
I. I would. I would suggest that fighting words is pretty much gone already.
- [40:40]
Ronnie London
You know, what's the saying? Let fighting words die. Kill it if you have to. I do think we need a definitive deathstroke.
- [40:46]
Bob Korn Revere
I agree. I agree. And I think the Court made progress on that last term in Counterman vs Colorado, where you have two of the opinions saying that there hasn't been a conviction for 80 years.
- [40:57]
Nico Perino
Well, to all the Supreme Court justices who listen to this podcast, please take up a good fighting words case and eliminate that doctrine. That's just me manifesting.
- [41:04]
Ronnie London
Well, no, we're only speaking to future justices here, right?
- [41:07]
Nico Perino
That's right. Harbor no illusions, but that's right. So eliminate fighting words. Eliminate obscenity. We both are on board for the categorical exception of the First Amendment. That is defamation. Now let's move on to the one that I think is the most, where there'll be the most disagreement, incitement and true threats. So incitement to imminent lawless action. This is not the mere advocacy of lawbreaking. This goes back to 1969's Brandon Brandenburg v. Ohio case. Speech remains protected as long as it is not intended to and likely to provoke immediate unlawful action. Right. You don't like that standard?
- [41:50]
Ronnie London
Well, this is where.
- [41:51]
Nico Perino
Or you don't like that category that uses that category.
- [41:54]
Ronnie London
There's so many things I don't like for some, many reasons. But this is where we start sliding into what I consider the categories where there are other legal doctrines that already adequately cover this without saying, but if you meet this definition, we can do whatever we want to you. If you engage in this speech and incitement is one of them. And I have two problems with incitement. One is, again, like fighting words, it puts the incentives in the wrong place. But beyond that, I also think that if you engage in speech that sufficiently contributes to lawless action that you can be said to be a conspirator or you can be said to have aided and abetted the lawless action, then we already have doctrines that cover that. I'm just. I'd like to get rid of any unnecessary or surplusage speech regulations or speech doctrines that make speech more fraught. And this strikes me as one we could probably do without. And yes, you do need to be responsible for your own actions and not have a response of but he said, get him.
- [42:55]
Bob Korn Revere
But therein you've just undermined your own argument because what you're saying is we're going to prosecute it not as speech, but as something else. We're prosecuting your conduct because what you said was really part and parcel of illegal conduct, and therefore we didn't go after you for that. And that speech versus conduct dichotomy has been used over time to try and say, well, as long as we can call it conduct, we can do whatever we want to. The same argument that you're making about unprotected categories, when you talk about incitement specifically and you look at the way First Amendment law and doctrine has developed over the 20th century until now, having that category actually has resulted in more protection, starting with the clear and present danger test articulated in the World War I Espionage act cases, where basically you could say the fire in a crowded theater thing that falsely. Yeah, exactly that. You know, if we could, if we, if there was any risk that there was a bad tendency to what you said, that it could lead to bad things, then you could prosecute it for incitement. Until Brandenburg, where you then have the court refining that test and constitutionalizing the area of incitement and saying that you had to have both the intent to cause immediate lawless action and the probability that your words were going to cause that immediate lawless action. You have the same thing happening in this area as the others. Tightening the doctrine has led to greater levels of speech protection, and you don't get more protection if you follow Ronnie's suggestion of simply treating it as conduct, because.
- [44:35]
Ronnie London
Well, tell me then, what is the gap between being able to be prosecuted for incitement and simply being an aider and abettor or a conspirator?
- [44:46]
Bob Korn Revere
Well, we've already seen how slippery, aiding and Abetting can be right. I mean, here we have in some cases the government arguing that simply speaking about an illegal subject can be taken as aiding and abetting. So again, I don't buy that you get more protection by trying to.
- [45:05]
Nico Perino
But aren't those also categories of exception speech?
- [45:07]
Ronnie London
Ronnie, let's lump in speech, incident to criminal activity here, because I think this, converse, this discussion encompasses incitement and speech and speech incidents, criminal conduct, equally. Don't you think?
- [45:19]
Bob Korn Revere
Yeah.
- [45:20]
Nico Perino
Okay, well, let's lump them. Let's lump them in then. So you say that we already have speech, integral criminal conduct. We already have conspiracy to commit. Commit a criminal act. So we don't need incitement to imminent lawless action. But aren't those other categories other also implicating speech, and therefore we shouldn't have those categories as well?
- [45:38]
Ronnie London
I mean, it's funny how no one refers to aiding and abetting and conspiracy as categories of unprotected speech, isn't it?
- [45:47]
Nico Perino
Well, I don't know. They involve speech, right?
- [45:50]
Ronnie London
Well, I mean, but, but again, no.
- [45:51]
Nico Perino
One, no action has been taken yet. They're just speaking about taking an action in the future.
- [45:56]
Ronnie London
And that's, and that's an important distinction, I think, because, you know, you can have, I mean, and now we're kind of parsing into criminal law a fair bit, right? Can you criminalize attempt? Is there at least one, you know, material step towards the actual conduct? I mean, but I think that's an important.
- [46:12]
Nico Perino
So the material step is the conduct. So like if you're, if you're the, if you're the terrorists who want to fly planes into the World Trade center, you buy a ticket, 9, 11. It's when you buy a ticket, that's the conduct. Is that what you're saying?
- [46:24]
Ronnie London
Yeah.
- [46:24]
Bob Korn Revere
So give me one example. Example.
- [46:26]
Ronnie London
And I think, and I think the distance is likely to produce imminent lawless action. And actually producing imminent lawless action. There are First Amendment lawyers and we've had this debate, and Bob and I are on the same side of this one. We, I think, are. Have had this debate about whether what happened January 6th is incitement. Right now at the end, what happened January 6th? I don't know. They did some remodeling in the House. But here's the thing. If incitement's a thing at the end of that speech, that's either a prosecutable offense or not, regardless of what happened. Even if everyone else would have kind of said, he's really gone around the bend this time. Let's go Home. That would still arguably be incitement if it was likely to prove you don't get to look at it after the fact. You don't get to do Monday morning quarterbacking when it comes to incitement. Right. So, I mean, maybe that's the distance between aiding and abetting and conspiracy is that you have to have at least one over towards the crime before the speaker can be punished. And maybe I'm just more comfortable with that than being based on a predictive standard.
- [47:39]
Bob Korn Revere
Maybe so. But again, let's take the January 6th speech on the Ellipse as the example. Here you have the outgoing president speaking to supporters, not worrying about the magnetometers that they were bringing in potential weapons, but, you know, making a number of some direct statements, some ambiguous statements. And the question was whether or not what he said to the crowd on that date could constitute incitement to attack the Capitol. And I've seen seasoned First Amendment lawyers reach opposite conclusions on that proposition. Was former President Trump's speech incitement or was it not?
- [48:22]
Nico Perino
But is that because they know what happened after the speech?
- [48:27]
Bob Korn Revere
Well, I think for those who think.
- [48:28]
Nico Perino
Because if you look at the speech, he's saying, fight, fight, fight, the whole context, you might say, stop this deal. What does it mean to actually stop this deal? But then he does say peacefully march.
- [48:35]
Bob Korn Revere
Right. There are all of those factors to consider. That's right.
- [48:38]
Ronnie London
They're special people. Yes.
- [48:40]
Bob Korn Revere
And the first, the first question that you ask is whether or not this was intended to cause imminent lawless action. And there's no way to really know what was in his mind at the time. And that is difficult, but you have to look at the surrounding circumstances to be able to make that determination.
- [48:55]
Nico Perino
But what I'm saying is, I think.
- [48:57]
Bob Korn Revere
But the second question is whether or not it was likely to produce imminent lawless action, which means just what it says immediately. And so because of the. Some of the weasel words that were used, because of the fact that it wasn't an imminent response, there was time for people, if they had been so inclined to think about things and to cool down in the time it took them to get from the Ellipse to the Capitol. And the question is whether or not the words on their own were enough to be a crime. I think not.
- [49:28]
Ronnie London
Well, here's the thing. I agree with that, but I put much more. I think I probably put all my eggs in this particular basket on the fact that it's a 20 minute walk from where the speech happened to where the ensuing criminal activity happened. And I Think at that point, you simply have to be responsible for your own actions and not blame them on a speaker. Now, had the same speech happened on the steps of Congress instead of where it did, I think you might get a different outcome on.
- [49:58]
Bob Korn Revere
You might.
- [49:59]
Nico Perino
But. But. So, Ronnie, you were saying earlier in the context of fighting words that there is something that stands between the words that are uttered and the anticipated or believed to be response, which is the mind of the listener, the individual agency of the listener to determine how they are going to respond, and that through categories like fighting words, through categories like incitement, you remove the agency from the listener. But. And the burden in these cases should always be placed on this, on the speaker. So as a categorical exception, incitement should go away because you're incite. The word incitement presumes there is someone to incite, and that person loses agency. If there's this categorical exception that says.
- [50:46]
Ronnie London
Well, it's not that they lose agency because of the categorical exception, but it. It. The. The logical underpinnings of treating it as a categorical exception is that the speech is enough to remove the agency of the listener, to make them act as they might not have acted otherwise. And, you know, and again, I think I said. I said this before. I think where I ultimately come out is, you know, if the, if the. If the issue is that incitement can happen, even if the ensuing unlawful activity never occurs. And that's why I have a problem with that as an unprotected category, maybe. All I'm really saying is once you have an overt act toward. Toward a criminal court of criminal conduct, then you simply treat it as aiding and abetting and conspiracy and move on, and we eliminate this as. As a. As it. As an unprotected category.
- [51:42]
Nico Perino
So where do we end up on this one? Because I do want to move on. So. And I don't want to linger here too much.
- [51:47]
Bob Korn Revere
Well, I'm not sure there's all that much distance between what happens as a practical matter and. And the only real difference is really sort of splitting the doctrinal hairs about whether or not this should be expressed as a speech category or as an element of some other crime.
- [52:05]
Ronnie London
Okay, so you want to go to true threat.
- [52:07]
Nico Perino
Well, I do. Yeah. I do want to ask about true threat, because we were talking about the agency question that you have, this listener who is going to respond in this certain way. And true threat. It's not as much about the listener. Or is it?
- [52:19]
Bob Korn Revere
It is in part because the words have to be reasonably interpreted to be threatening. That's sort of the threshold. And then the question is whether or not the speaker was acting in reckless disregard of whether or not his words would be perceived as. Or her words would be perceived as a threat.
- [52:41]
Nico Perino
So one of the big cases in this respect is Virginia v. Black, Right, which is a case involving a Virginia statute, and there was a group of Klansmen and women who burned across on private property. And that burning of the cross was prima facie evidence according to the statute of intimidation or a true threat.
- [53:05]
Bob Korn Revere
Two things are important to take away from this. One is the statute was essentially upheld that you can prohibit burning a cross with the intent to intimidate. The problem with the statute, though, was that it took burning the cross itself as prima facie evidence.
- [53:26]
Nico Perino
So you didn't even need to look at intent.
- [53:27]
Bob Korn Revere
That's right. And the court said, no, you really can't do that. That you actually have to show some intent, which is something that the Supreme Court last term in Counterman vs Colorado underscored in holding that you really do have to have criminal culpability in showing intent to have this bad result.
- [53:46]
Nico Perino
So the Elena Kagan in that case wrote that the defendant. That the prosecutors in a. In a case have to show that the defendant had some subjective understanding of the threatening nature of his statements. And the state must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence.
- [54:05]
Bob Korn Revere
That's right. And drew heavily on New York Times versus Sullivan and what reckless disregard means in setting a high bar for what kind of recklessness is required.
- [54:15]
Nico Perino
So, Ronnie, presumably you wouldn't say that calling in to a school and saying there's a bomb in the school should be protected speech, right?
- [54:27]
Ronnie London
No.
- [54:27]
Nico Perino
Okay, so you'd have a categorical exception.
- [54:30]
Ronnie London
And again, the idea here isn't to say that everything that falls into these definitional categories should be protected. And it's. Okay, that's not. That's really not the point here. Here's a quote. Words do not make the actor liable unless together with other acts or circumstances, they put the other in reasonable apprehension of an imminent harmful or offensive contact with his person. Sounds like true threat, more or less, Right. This is a restatement of torts with respect to what assault is. And, you know, I. Again, this is kind of another area where.
- [55:06]
Nico Perino
Oh, so you're saying. What you're saying is that a true threat is just another way of describing.
- [55:10]
Ronnie London
Either it's an assault. Either it's an assault or it's not.
- [55:12]
Nico Perino
But here, here are we just getting into semantics.
- [55:14]
Bob Korn Revere
But now you're bleeding into fighting words. Right? Because fighting words are face to face contact, whereas threats can be from a distance. So.
- [55:24]
Ronnie London
And if you have no practical ability to carry out the threat, it doesn't, it doesn't, it doesn't count, does it?
- [55:32]
Bob Korn Revere
Well, again, it has to be on an objective level, something that is reasonably understood to be a threat. So I guess the answer to your question is yes, but again, that just shows that there are both subjective and objective elements to demonstrating whether there was a threat.
- [55:51]
Ronnie London
Yeah, And I will say, I mean, and this should be obvious by now, I mean, different of these categories offend me on different levels and to different degrees. I mean, like you say, I'm not advocating that you can call a bomb threat into a school and it probably doesn't fit the definition of assault, but nevertheless should be punishable.
- [56:07]
Bob Korn Revere
No, but it would be punishable as a true threat.
- [56:09]
Ronnie London
Yes.
- [56:11]
Nico Perino
There are categories of speech that we did not talk about here that might fall as a category unprotected by the First Amendment. I want to ask about two that people often think are categorical exceptions to free speech that aren't right. Hate speech and false speech. You could call it fake news or misinformation. Those are categories of speech that the Supreme Court has said are protected by the First Amendment generally. Right?
- [56:46]
Ronnie London
Yeah. Let me just say that if we didn't have this thing called categories of unprotected speech, there wouldn't be any misapprehension that there are some other things that are also categories of unprotected speech.
- [56:58]
Nico Perino
But are you saying that people would, People still wouldn't think that they're.
- [57:02]
Ronnie London
Yeah, they would. I know. Come on. And you know, hate speech, Hate speech. Hate speech isn't a thing. Right. Hate speech is in the, is in the ear of the beholder. It is by definition a viewpoint based perspective that goes to the subjective opinion of the person who's calling something hate speech. And you know, it's very. I mean, you said it. I mean, there's not a lot more to say. I mean, the Supreme Court has been very clear that speech that is hateful, that doesn't fall into one of these categories is protected speech.
- [57:40]
Bob Korn Revere
That's right. And you know, it's so often said that hate speech is not speech that's protected by the First Amendment in just sort of general discourse. And as Ronnie just pointed out, that is completely wrong. But it's the same way that people will say pornography is not protected because they, they Mix it up with a obscenity. Pornography isn't a legal category. It's not a thing. In this, in the world of law, it is simply a pejorative description of sexually oriented adult entertainment. Whereas, you know, if you are getting to the legal definition of obscenity, then you have the three part structure from, from Miller that, that we were talking about earlier. There's no corresponding category for hate speech. There's no corresponding definition that would allow you to distinguish one type of unpleasant or hateful speech from anything else. And that's one of the things that prevents that from being an unprotected category. And one of the reasons why the court numerous times has said that the First Amendment does protect that kind of speech.
- [58:47]
Nico Perino
And when I say hate speech and false speech are generally protected by the First Amendment, you could have false speech that falls under defamation too, Right. If it meets the standard or false advertising or that could be fraud. Right?
- [59:00]
Bob Korn Revere
Yeah. In the brief that Ronnie and I filed in the case of US vs Alvarez, which said that lying is protected under the First Amendment, one of the things that we made clear that this.
- [59:10]
Nico Perino
Is a person who said that they had the medal of.
- [59:13]
Bob Korn Revere
There was a federal statute called the Stolen Valor act that prohibited people falsely claiming they had military honors. This guy was an inveterate liar and he got prosecuted under the law. And the question was whether or not telling a lie in and of itself is unprotected by the First Amendment. And the argument that we made in our brief to the court was that where there are exceptions that allow the prosecution of false speech, it is always falsity plus falsity plus something else. So fraud, for example, where you are cheating someone out of their money by telling them lies, that is something that you can prosecute. Or in the case of defamation, where you're knowingly using a falsehood that damages someone, then they can collect damages if they go to court and win. But simply telling lies because you're an asshole doesn't qualify as something that the government can prosecute.
- [60:08]
Ronnie London
Unless you've raised your hand, put your other hand on a stack of books, and promised that you wouldn't, then it is punishment.
- [60:14]
Nico Perino
So perjury, for example.
- [60:15]
Ronnie London
Exactly.
- [60:16]
Nico Perino
You can purge yourself. The Supreme Court's probably not going to eliminate categorical exceptions to the First Amendment. Correct. So is this. Is this just kind of a fun.
- [60:25]
Bob Korn Revere
We should have had drinks over this.
- [60:26]
Ronnie London
We should have. It's Friday afternoon, for God's sakes.
- [60:29]
Nico Perino
But you often hear people accuse free speech advocates of being First Amendment absolutists. If you look at the conversation we're having here, I don't know that I actually know of any First Amendment absolutist who reads, congress shall make no law abridging freedom of speech and interprets that to mean that any speech, even perjury, even fraud, even criminal conspiracy, should be protected because it is just speech.
- [60:59]
Bob Korn Revere
I've been doing this for over 40 years, and I've never met a First Amendment absolutist. But it's a. It's a label that people who want to undermine free speech protections often make. They'll simply call someone an absolutist by that, think that they are simply waving them away or waving their arguments away. But no, I think we all agree the First Amendment is not an absolute. And the question is what analytical test you use to get to that conclusion.
- [61:29]
Ronnie London
Yeah. And, you know, but at the same time, I would say that in addition to my, you know, carving away this as a tool and in the government's toolbox, my net is that I want to believe. And I mean, I have no empirical evidence for this or haven't done any research on this at all, as I said at the top. But I think that the net. Net that I'm aiming for is for there to be more speech that winds up getting protected than currently. I mean, that's the aim, but I'm not pushing towards zero.
- [62:03]
Nico Perino
Yeah, well, that's kind of the work here of fire. Of course, we want to keep the starch in the First Amendment standards, but there are also areas of the law that we think can be improved, that there's more speech that should be protected under court doctrine than is. And that's the work that we continue to do here day after day. So.
- [62:24]
Bob Korn Revere
And the point that we all agree on.
- [62:26]
Nico Perino
Yes, yes, yes. Okay. Well, I think that's a good place to leave it. Bob, Ronnie, thanks again for coming on the show.
- [62:33]
Bob Korn Revere
Thanks, Nico.
- [62:33]
Nico Perino
That was Fire Chief Counsel Bob Korn Revere and Fire General Counsel Ronnie London. I am Nico Perino, and this podcast is recorded and edited by a rotating roster of my FIRE colleagues, including Aaron Reese and Chris Maltby, and co produced by my colleague, who is in here in the studio with us, Sam Lee. To learn more about so to Speak, you can subscribe to our YouTube channel or substack page, both of which feature video versions of this conversation. And we're also on X and Facebook. Please. If you had feedback on this show or have a thought about categorical exceptions to free speech, you can email us@sotospeakhefire.org, we'd love to hear from you again. That email is sotospeakhefire.org and if you enjoyed this episode, please leave us a review. Apple Podcasts, Google Play, Spotify, wherever you get your podcasts, reviews help us attract new listeners to the show. And until next time, thanks again for listening.