So to Speak: The Free Speech Podcast – Episode 232: We Answer Your Free Speech Questions

Release Date: December 18, 2024

Introduction

In Episode 232 of So to Speak: The Free Speech Podcast, hosted by Nico Perrino of FIRE, the discussion centers around pressing free speech issues posed by listeners. This member-driven webinar delves into topics ranging from government bans on social media platforms like TikTok to forced speech in academic institutions, age verification laws, and strategic lawsuits against public participation (SLAPPs). Joining Nico are FIRE’s legal director Will Creely, special counsel Robert Shibley, and Ari Cohn, FIRE's lead counsel for tech policy. The episode provides insightful legal analysis, strategic advocacy perspectives, and actionable advice for listeners concerned about free speech infringements.

1. TikTok Ban and First Amendment Challenges

Discussion Summary: The webinar opens with questions about the recent TikTok ban and its implications for free speech. Will Creely provides an overview of the legal landscape, explaining that the D.C. Circuit upheld the ban, citing national security concerns. However, FIRE contests this decision, arguing that the government has not sufficiently demonstrated that banning TikTok constitutes a permissible exception under the First Amendment.

Notable Quotes:

• Will Creely [03:38]: “FIRE will be filing with the Supreme Court today encouraging the court to indeed grant an injunction and take a look for itself at the constitutionality of the law.”
• Ari Cohn [06:22]: “It's a maybe it could possibly happen. That just cannot be enough for the magnitude of what the government is doing here.”

Key Points:

• The D.C. Circuit assumed the ban required the highest level of constitutional scrutiny and upheld it based on speculative national security risks.
• FIRE argues that the concerns presented are largely conjectural and do not meet the stringent standards required for prior restraint on speech.
• The panel emphasizes the unprecedented nature of such a sweeping ban on a major communication platform and warns against government overreach.

2. DEI Statements in Universities as Forced Speech

Discussion Summary: Melanie's question shifts the focus to mandatory Diversity, Equity, and Inclusion (DEI) statements required by some universities. Robert Shibley explains that while some institutions are relinquishing the requirement, there are no known cases where departments have independently mandated DEI statements in defiance of the university's policy.

Notable Quotes:

• Robert Shibley [12:17]: “It does act as a very effective filter based on politics. And so it ends up unfortunately being a litmus test, I think more often than not.”

Key Points:

• DEI statements are increasingly seen as political litmus tests that filter out candidates based on ideological alignment rather than merit.
• Surveys indicate a significant portion of faculty, including liberals, view DEI statements as unnecessary and politicized.
• Robert highlights the broader issue of forced speech, where institutions compel individuals to express specific viewpoints, undermining free speech principles.

3. Age Verification Laws and Free Speech

Discussion Summary: Ricky's question addresses the upcoming Supreme Court case on Texas's age verification law for adult content websites. Ari Cohn and Will Creely delve into the constitutional challenges posed by such legislation, highlighting its impact on free speech and anonymity online.

Notable Quotes:

• Ari Cohn [19:01]: “Age verification is still unconstitutional. And as well, these warnings are compelled speech. Extremely unconstitutional.”
• Will Creely [21:07]: “Pick the defendant right now, it will give you a first amendment problem.”

Key Points:

• The Texas law mandates age verification and imposes disclaimers on adult content, which Ari argues constitutes compelled speech and prior restraint.
• The Fifth Circuit's decision diverges from other circuits by upholding the age verification requirement, but FIRE anticipates the Supreme Court may overturn this outlier stance.
• Concerns are raised about data security and the potential misuse of personal information collected through age verification processes.

4. Social Media Access Restrictions for Minors

Discussion Summary: The conversation moves to state-level regulations attempting to limit minors' access to social media. Ari Cohn critiques these measures, arguing they infringe upon minors' First Amendment rights and fail to address the root causes of social media's impact on youth.

Notable Quotes:

• Ari Cohn [25:37]: “Just talking to your kids and trying to be as present, as involved as possible is the only regulation cure.”
• Robert Shibley [32:24]: “Giving them more legal cover to decide to go after anonymous speakers... is just a power that we can't afford to give them.”

Key Points:

• Current legislative efforts, such as the Kids Online Safety Act, are viewed as overreaching and constitutionally questionable.
• The panel argues that parental involvement and education are more effective than government mandates in addressing social media's effects on minors.
• They caution against European-style regulations that impose stringent controls on online speech, emphasizing the unique constitutional protections in the United States.

5. Censorship in Public Meetings and Strategic Litigation

Discussion Summary: Trina's question brings up the issue of public comment periods in city councils and other governmental bodies, where citizens' free speech rights are often violated through regulations such as prop bans. Will Creely details FIRE’s approach to combating these restrictions through strategic litigation and public advocacy.

Notable Quotes:

• Will Creely [37:43]: “We are just saying blanket ban on you bringing anything here. What if it's a photo of the time that the, the town garbage truck dumped all that garbage in front of your lawn?”
• Robert Shibley [40:53]: “It's censorship by lawsuit. You, you tie people up in litigation, you force them to spend a lot of money, you make them scared to speak out because what other lawsuit is going to come down the pike?”

Key Points:

• Public entities like the Edison, New Jersey town council have implemented restrictive policies against props in public comments, infringing on free speech.
• FIRE employs a model of public advocacy, using successful litigation victories as precedents to encourage similar actions in other municipalities.
• The organization highlights the tactic of using lawsuits (SLAPPs) to silence dissent, stressing the importance of defending First Amendment rights against such strategies.

6. Defamation Lawsuits and the Free Press

Discussion Summary: The episode tackles the recent defamation lawsuit filed by President Donald Trump against ABC News and George Stephanopoulos over a misquoted poll. The panel discusses the implications for the free press and the chilling effect such lawsuits may have on journalistic integrity and freedom of speech.

Notable Quotes:

• Will Creely [47:47]: “It's censorship by lawsuit. You, you tie people up in litigation, you force them to spend a lot of money, you make them scared to speak out.”
• Ari Cohn [48:46]: “Even publishing a poll because you want to hurt someone's campaign is no different than publishing a news article saying this person is an terrible candidate.”

Key Points:

• FIRE condemns the lawsuit as a SLAPP intended to intimidate and silence the free press, undermining democratic discourse.
• The panel emphasizes that defamation claims against the media require proving actual malice, a high legal standard designed to protect journalistic freedom.
• Concerns are raised about the precedent set by high-profile settlements, potentially encouraging more frivolous lawsuits against media organizations.

7. Distinguishing Freedom of Speech from Freedom from Social Consequences

Discussion Summary: An anonymous attendee poses a philosophical question regarding the distinction between freedom of speech and freedom from social repercussions. Robert Shibley references John Stuart Mill's On Liberty to elucidate the nuanced differences, emphasizing that while government-imposed consequences are unconstitutional, social consequences are inherent in free speech.

Notable Quotes:

• Robert Shibley [53:06]: “When it is the government doing it or people who have been put in authority in an official sense... that’s when the freedom of speech, you should be free from consequences, official consequences for what you say.”
• Nico Perrino [55:35]: “Free speech culture is a set of norms that support free thought and our ability to share our opinions... Where our first instinct in response to speech we dislike isn't to find a way to censor it or to cancel the speaker, but to meet it with more speech.”

Key Points:

• The panel acknowledges that while individuals face social repercussions for their speech, such as loss of employment or social ostracism, these do not equate to legal restrictions on speech.
• They advocate for a "free speech culture" where dialogue and counter-speech prevail over censorship and punitive measures.
• Emphasis is placed on the importance of maintaining a marketplace of ideas where free expression is met with robust discourse rather than suppression.

8. FIRE’s Ongoing Advocacy and Future Endeavors

Discussion Summary: Towards the end of the webinar, Nico Perrino announces his upcoming book, which explores the expansion of First Amendment rights through the stories of influential civil libertarians. The panel reiterates FIRE’s commitment to ongoing litigation, public advocacy, and educational initiatives to defend and promote free speech.

Notable Quotes:

• Nico Perrino [61:40]: “This book is going to open the aperture on that broader meta project to interview all these folks before they're gone and get their stories.”
• Will Creely [64:40]: “FIRE’s mission... promotes and defends the value of free speech for all Americans in our courtrooms, campuses, and culture.”

Key Points:

• Nico Perrino’s forthcoming book aims to document the contributions of key civil libertarians to the evolution of free speech rights in America.
• FIRE continues to handle numerous free speech cases, emphasizing the need for broader public awareness and support.
• The panel encourages listeners to engage with and support FIRE’s initiatives to ensure the endurance of First Amendment protections.

Conclusion

Episode 232 of So to Speak: The Free Speech Podcast by FIRE provides a comprehensive examination of current free speech challenges in the United States. Through expert analysis and spirited discussion, Nico Perrino and his colleagues address significant legal battles, legislative efforts, and cultural shifts affecting free expression. The episode underscores FIRE’s pivotal role in advocating for free speech, offering both legal support and strategic advocacy to protect Americans' First Amendment rights. For members and interested listeners, the podcast serves as an invaluable resource for understanding and combating free speech infringements in various domains of public life.

Find More Information:

• FIRE Membership & Webinars: Visit thefire.org to become a member and access past webinars through the Member Portal.
• So to Speak Podcast: Available on Substack and thefire.org for both members and the general public.
• Upcoming Events: Stay tuned to FIRE’s announcements for future webinars and advocacy events.

Happy Holidays and stay committed to defending free speech!