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So to Speak: The Free Speech Podcast
Ep. 233: Rethinking free speech with Peter Ives
01:21:06
Is the free speech conversation too simplistic? Peter Ives thinks so. He is the author of “,” a new book that seeks to provide a more nuanced analysis of the free speech debate within various domains, from government to campus to social...
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- [00:00]
Peter Ives
I know this podcast has done a really good job at sort of going through the history of the Supreme Court. The US Supreme Court's adjudications of. Well, is wearing a black armband free expression? Yes, it is, according to the courts. What about burning a cross on somebody's feel? Things that we wouldn't think of our speech are speech, and yet the classic example of falsely yelling fire in a crowded theater isn't speech. Right. So I think the. The American courts are set up with that notion of, well, we have this absolutist free speech principle in the First Amendment, but we don't actually mean it because we do want to exclude some speech from that. And the Canadian sort of does it the other way and says we set it up as a balancing act somewhere. I read of the freedom of speech.
- [00:49]
Nico Perino
You're listening to so to Speak, the Free speech podcast, brought to you by Fire, the foundation for individual rights and expression. Okay, folks, welcome back to so to Speak, where every other week we talk about free speech, but today we're going to rethink free speech. Our guest is Peter Ives. He is a professor of political science at the University of Winnipeg in Canada, and he is the author of the new book Rethinking Free Speech, in which he argues that much of the popular conversation surrounding free speech is. Is too simplistic and would benefit from a more careful analysis, which is what rethinking Free Speech seeks to provide. Professor Ives, welcome onto the show.
- [01:29]
Peter Ives
Thank you for having me.
- [01:31]
Nico Perino
So the central thrust of your book is that free speech is, quote, persistently misunderstood and distorted. Close quote. So let's start there. What about the free speech conversation led you to be frustrated enough to write a book about it?
- [01:44]
Peter Ives
Right. Well, to some extent it's that I think most people think about free speech as one thing. And, you know, and obviously podcasts like yours offer us a very nuanced and all the complexities within it and lots of examples.
- [01:57]
Nico Perino
You're so kind.
- [01:59]
Peter Ives
But I still think there's this focus that we use this one concept, free speech or free expression. We use the term synonymously, but we mean once, one thing or one set of things by it. And I think, and in the book, I use several examples, but the basic thesis is that we're actually, and I sort of use a tool analogy to say that, sure, a screwdriver and a hammer have things in common, but they're very different things and they do very different work. Right. So. And, you know, one of the basic distinctions is again, one that comes up in your podcast quite often, which is the difference between, say, the First Amendment and the legal principle of free speech. Or in Canada, here we. We have our Charter of Rights and freedoms, and that gives us freedom of expression. But that's very different because it's aimed at the government and it's that the government can't impede upon our free expression, as opposed to what is often discussed or the desire for free speech, which is. I want a good, open, critical conversation in the public that actually has nothing to do with the government. Right. So that's the basic distinction. Like in the book, I use the example of the Harper's Letter. It was called an open letter on justice and Open Debate. I think.
- [03:21]
Nico Perino
Yeah, I got it right here in front of me. A letter on justice and Open Debate.
- [03:24]
Peter Ives
Right. And so that was a really interesting example. It was in 2020, and it sort of castigates the left for following the right's notion of being too censorious. But it doesn't mention. It's actually interesting because it doesn't mention the concept of free speech or free expression. It sort of is much more descriptive than that.
- [03:45]
Nico Perino
Yeah. It says the free exchange of information and ideas is the lifeblood of a liberal society.
- [03:50]
Peter Ives
Exactly. And it's sort of interesting because it doesn't mention the government. Right. And again, just for those of you who can't remember or weren't following back in 2020, it was signed by, I think, over 150 people on the left and the right sort of luminaries like Cornel west and Margaret ATW and people who you'd expect, like Salman Rushdie. And, you know, there's a whole list, Winton Marsalis, which is sort of an interesting one. And it's interesting because even some of the signators afterwards, because there's a bit of a controversy around how it was put together and that people didn't know who else would be signing it.
- [04:28]
Nico Perino
Yeah, that always struck me as odd. Do you really need to know who else is signing an open letter, the premise of which you agree with, in order to determine whether you're going to sign the open letter and you agree with the premises.
- [04:39]
Peter Ives
Right. Although I think in this case, a lot of the discussion was how vague it was right now. But I use it in. Sure.
- [04:45]
Nico Perino
But would that change whether you sign on to it?
- [04:47]
Peter Ives
Exactly. You can say, I'm not going to sign it because it's too vague. Right. But then people, I think, were sort of assuming, oh, well, if J.K. rowling is signing it, it must mean something differently than if Somebody if Cornel west is signing it or something. Right. But no, I totally agree with you. It seemed to be an odd criticism at that level from the signators, but. But at the same time, my interest in it is. I guess it does two things. One, it describes this sense that we get from John Stuart Mill, who I talk a lot in the book, the 19th century British philosopher who wrote On Liberty and whose argument for free expression is so influential. So I talk about him a lot. It sort of captures some of his idea that how we have good conversations or how we reach the truth or get a better understanding of the truth is through the Clash. And in the letter, the language is of caustic ideas. Right. And I found that as a really interesting phrasing because obviously, if something is caustic, like literally, it means it is corrosive. Right. It destroys things. Right. So, you know, I'm interested in how both. It describes what it wants in public debate, but at a more basic level, I argue that that's a plea for a type of free expression that has nothing to do with the First Amendment, because the First Amendment is Congress shall make no law that doesn't abridge freedom of speech. It doesn't mention any form of government. It's not talking about that. It's talking about something different. Right. And that basic confusion happens all the time in the, you know, the controversies around free speech. So the other one I use was when Neil Young, a musician who is Canadian and actually went to high school in Winnipeg. But that's an aside. That's not why I used it. But he, you know, so he was very upset with Joe Rogan's podcast because he argued that it was spreading misinformation about COVID and vaccinations. And so he said he would pull his music off of Spotify if Spotify didn't cancel the Joe Rogan show. Right. And you know, again, on Twitter, huge controversy because he's anti free speech. And then he's hypocritical because he's supposed to be from the 60s lefty generation. And in 2006, he even had a Free Speech tour. And isn't he.
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Nico Perino
I didn't know that. I read that in the book and I was surprised by that.
- [07:03]
Peter Ives
Yeah. But it's sort of fascinating in that, you know, and I normally, as a political theorist, don't lean to, you know, the musicians and Neil Young, but to some extent, he was very articulate and said no. By free speech, I mean lack of government interference and me pulling my material from the. From Spotify has nothing to do with government interference. Right. But the debate did not function like that. So the debate was basically people yelling across each other where the defenders, you know, and to some extent, I'm more sympathetic to Neil Young's point, which is, isn't it his, his freedom of expression to say, I don't like Joe Rogan's show and I'm opposed to the types of things he has on it, so I'm. I don't want to be affiliated with him through Spotify. And it, you know, again, it, it was hysterical partially because there was this notion that Neil Young was trying to cancel Joe Rogan. Well, you know, Joe Rogan at the time, and I think still is, is one of the world's most popular podcasters. And it was a fight that Neil Young wasn't gonna win, but he was using it as an expression, basically. Right. So then in a certain sense, I think Neil Young was much more consistent than his critics in saying, by free speech, I mean lack of government censorship. And this has nothing to do with that. And so I'm still in favor of free speech. I'm not contradicting my free speech tour from 2006. I just have a different definition of free speech than you do. You can still disagree with him and say, you know, his description of public discussion and public debate should have encouraged people to spread false ideas about COVID and vaccinations. Right.
- [08:48]
Nico Perino
And Joe Rogan survived the controversy, as you note, and you could argue that he is at the height of his power right now in the wake of Donald Trump's election and having him on his show and all the ink that's been spilled about how that might have contributed to the election outcome. But this open letter came in the summer of 2020, where there was concern around cancer culture more broadly and people who didn't survive the cancel culture campaigns. So in the letter they write, editors are fired for running controversial pieces, books are withdrawn for alleged inauthenticity, journalists are barred from writing on certain topics, professors are investigated for quoting works of literature in a class, A researcher is fired for circulating a peer reviewed academic study, and the heads of organizations are ousted for what are sometimes just clumsy mistakes. Now, can those outcomes contribute to a culture of free speech, or do you think a culture of free speech is too mushy a concept to really exist?
- [09:53]
Peter Ives
I think it's sort of the latter. Right. That I think this idea, I mean, I think it's something we should talk about. I think it's. I think there's a Better terminology to talk about in terms of what is good and productive, acceptable public discussion. Right. And I don't think free speech inevitably and some of its power comes from the constitutional principles of our Charter of Rights and Freedoms and your First Amendment.
- [10:20]
Nico Perino
Although the concept of free speech pre existed those legal tools. Right?
- [10:24]
Peter Ives
Of course, yes. But in terms of a single concept, I think those are two very different things. Sure, right. I think, and even, I mean, the book goes deeper in that and says, so why is free speech important? And this is one of the things that I think lots of people will say free speech is important. It's hard, it's actually hard to find people who say it's not important. There's some people who, and you know, some people on the progressive left who will say, well, it's more often used as a foil or a mask or it becomes an empty concept. It's been so weaponized that there's no point to it anymore. You know, you've had Stanley Fish on your podcast as well, sort of making his argument that it's a political battle. You know, everybody just wants free speech to defend their perspective. And if you think otherwise, you're just deluding yourself. And I do not take that tack, although I do think within those arguments there are some important critiques. But my argument again is that we. It's not that it's empty and we. And there's not enough there. It's that there's too much there. We're using it to do very different things. And even within the culture of free speech like we've talked about John Stuart Mill, it was very clear in chapter two of On Liberty that his goal for free speech is the truth. Right. He says that he's a utilitarian. He's not. He doesn't see it as a self evident right. It's not a natural right like other philosophers argue it is. Voltaire, for example, argues it is.
- [11:54]
Nico Perino
Oh yeah, I had the Objectivists on this podcast recently and they do not like John Stuart Mill because he does not see free speech as a natural.
- [12:02]
Peter Ives
Exactly.
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Nico Perino
So he adjuncts the concept of natural rights altogether.
- [12:05]
Peter Ives
Exactly. So, you know, but, but interestingly enough, he argues that it does enrich the search for truth. But there's other people like Isaiah Berlin, who I don't mention in the book, but he's a, you know, very prominent political theorist who's also politically a liberal, a liberal pluralist. He agrees politically with John Stuart Mill a lot. But he says, well, actually empirically, I mean, his, his examples are, you know, the, the early Puritan United States that was very restrictive as well as czarist Russia. And he says, well, if you're actually looking at the type of artistic things that are produced under very repressive regimes, it's hard to make the argument that you need Mill's free speech to get that truth. Right. You can, you can. That truth can come out under conditions that are incredibly repressive. Still, he agrees.
- [12:58]
Nico Perino
I mean, you're risking death and punishment, but, yeah, I guess it can come out.
- [13:04]
Peter Ives
So Mill's consequentialism has lots of philosophical problems.
- [13:08]
Nico Perino
Sure.
- [13:08]
Peter Ives
But he articulates, you know, very well and very detailed. I mean, I love teaching it, although he does. He's a bit wordy and he uses counter examples to the point where my students are sort of. I thought that was his argument. And you're after sort of stop and say no. Two pages earlier he said, one might think this. And then he lays out the counter argument really, really well, which is a good teaching device, but, you know, but he lays it out very, very systematically and made a very persuasive argument, which is why it's so consequential today. But again, the goal for him of free speech is what he would call social progress and the truth. Right. And that's very different from, I think, what other people argue is the goal of free speech. And then it's also very different from this sort of just implicit notion that, well, we don't need to say why free speech is important because it's self evident. Of course it is. Right.
- [14:08]
Nico Perino
Yeah. That's one issue I might have taken with your book, is that it lays out, I believe, four different philosophies or arguments for free expression, as if they're distinct and not overlapping. So when I think about why I believe in free expression, it's not because of the search for truth or its essentiality toward democracy or the ability it has to create self fulfillment or the individual rights component. It's kind of all of those. Right. And to say nothing of the role that it plays in fighting tyranny or serving as a safety valve or an alternative to violence. But it seems like in addressing these discrete arguments, you find the flaws in each one of them without kind of bringing them all together as a whole and asking whether free speech, if you look at it from all those different perspectives, is a good.
- [15:05]
Peter Ives
Right, Yeah. I mean, but I guess my argument is that they're different concepts. Right. So John Stuart Mill, and it's sort of interesting because he begins chapter two of talking about Freedom of the press.
- [15:18]
Nico Perino
So what you're saying is they're. That they're talking about. They're not all talking about the same free speech.
- [15:24]
Peter Ives
Exactly.
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Nico Perino
Okay.
- [15:25]
Peter Ives
Yeah. So they're actually what they mean by the words. And Mill uses the word free expression. And what he means is different certainly than what Alexander Meiklejohn. And so he's the other major figure that I do talk a lot about who is. He's a very interesting figure. He was born in England. I don't want to get the date wrong. I have written down in 1872. Moved to the US when he was eight, became an educator and a university administrator. He was president of Amherst College for a while. But he was also very. He was a very strong proponent of the First Amendment. He called himself an absolutist because he argued that Congress shall make no law should mean that wartime isn't an exception. So he didn't like the clear and present danger test of Oliver Wendell Holmes to say that, well, yeah, we can abridge free speech if there's a clear and present danger there. He was very adamant that, no, if the writers of the First Amendment wanted there to be an exception for war, they'd lived through war. They knew what war was. They could have predicted it. They would have written, congress shall make no law abridging freedom of speech during peacetime. Right. And they didn't. So he argues that free speech is absolute. But then he's also very clear that by what he means about freedom of speech does not include a whole bunch of things that you and I would probably include under it and certainly that John Stuart Mill would include under it. So for him, he talks, uses these great phrases that unlimited talkativeness is not protected by the First Amendment. He does think it's protected by the Constitution under the Fifth and the fourteenth Amendments under equal protection laws and due process, but that it is like other rights, like the right to own property, it is a relative right. And Congress can do things like tax people, but they need to do it fair and equally, and they need to have a reason for it. Likewise, people can restrict talkativeness speech in general, but what the First Amendment applies to, according to Meiklejohn, is public speech about public issues. Right. So he would have no interest in commercial speech being protected by the First Amendment, for example. So that's a very different. The whole notion then, of what free speech is very different from even how the First Amendment has been interpreted by the courts since then. Right. So that's a very. But again, that's a Very different notion than John Stuart Mill, who mentions the government, but he doesn't like. He sort of. He's aware that there's a distinction between the government and public opinion, but his big argument is that because of the advent of representative democracy, the big concern is tyranny of the majority through public opinion. And he doesn't want individual geniuses suppressed in their ideas because, you know, all of their neighbors think that they're ridiculous ideas, and so they. They suppress them. Right. So the idea of. So the speech involved is very different and the limits is very different and the purpose is very different. Right. So, sure, you can, you can agree with both of them. I mean, I think philosophically there's some problems there because they have very different understandings. Like Meiklejohn is very concerned with group deliberation. I mean, I argue he comes out of a political theory tradition of Jean Jacques Rousseau, who's very much understood as a democratic thinker, but it's very much about public deliberation is where our government ideas need to come from, where our policies need to come from. Whereas John Stuart Mill is worried about democracy as tyranny of the majority, as too much democracy. And it's that notion that chapter two of On Liberty is really focused against, that it's the individual's ideas that are going to be quashed and not the public discussion. And I think so. I think those are two fundamentally different projects with different definitions of what isn't, you know, what counts as free speech, what's actually within the ambit of free speech, as well as what can be regulated.
- [19:44]
Nico Perino
Then you critique free speech scholar Jakob Mushengama's book on the history of free speech, and Jakob, I should say, as a senior fellow here at fire, and argue that he fails to define free speech and why it's important.
- [19:59]
Peter Ives
And don't get me wrong, it's a wonderful book. If I was the editor, I'd say you need to define it. And the historical richness of many of his examples are really rich. But again, I think they're describing different things.
- [20:12]
Nico Perino
Yes. And that's what you do with your four different philosophers on freedom of expression. What are they trying to describe in talking about freedom of expression? And what are the justifications for free expression?
- [20:26]
Peter Ives
Right.
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Nico Perino
But you also write, quote, I repeat, I'm not anti free speech. Quite the opposite. Which begs the question, how do you personally define free speech and why do you think it's important?
- [20:38]
Peter Ives
Right. And thanks for that question. I mean, in a certain sense, again, I think that there's not one thing that is free speech that you can either be for or against. And I think that that framework that I think gets us into so many of these quagmires because you're either for or against it. And then we talk about what it is. Right. So certainly I think there's, you know, I think there's a problem with governments amassing too much power. So I think that, you know, I'm very much in favor of things like the First Amendment and the Charter of Rights and Freedoms in Canada. The fact that they're quite different in whether they. And, you know, the First Amendment is phrased in a very absolutist way. Congress shall make no law abridging the freedom of speech. I mean, it's nice because it's directed clearly at Congress, so it should be clear. But you still have people like Donald Trump taking Twitter to court under the First Amendment for, you know, for canceling him, for closing down his account when Twitter is not Congress. So it doesn't make, you know, and obviously the courts threw it out and all the pundits said that would be thrown out, but in the public realm. And even, you know, Josh Hawley, who went to Yale Law School, did the same thing with Simon and Schuster and his book. I mean, he didn't actually take it to court. He just tweeted out that, you know, see you in court. This is against the First Amendment when it's ridiculous. It's not. It has nothing to do with the First Amendment. Still might be about, you know, it still could be free speech culture. You know, I'm sure Simon and Schuster, it was about the contract. Right. And what were the fine points of the contract that I'm sure he signed? Right. So there was no court case because, you know, so it was all just bluster.
- [22:12]
Nico Perino
But you make a good point, because the First Amendment, Congress shall make no law applies to the federal government through the incorporation doctrine of the 14th Amendment, applies to the states. But if you look at the constitutional history, there was a version of the First Amendment that said something to the effect of the right to free speech should not be abridged. And I'm just paraphrasing that in earlier iteration, which then makes the question who the First Amendment applies to. Right. Although you could argue that the Constitution, because it applies to the federal government, the implication is there. But that's kind of what Canada did. Right. And it had to be clarified in the courts that it applied only applied to the government or the free speech protections only applied to the government.
- [22:53]
Peter Ives
Yeah, I mean to be a bit more fair. So the Section 1 of the Charter of Rights and Freedoms says that all Canadians are guaranteed these rights and freedoms subject only to the limitations that could be argued in a free and democratic society. Right. So it automatically, unlike the First Amendment, there's automatically a balancing act there. Right.
- [23:15]
Nico Perino
No, I agree, but what I'm saying, what I'm saying is you could have someone who creates a. Makes a creative claim that because YouTube took down my video, they're violating my free speech. And because the charter doesn't say it only applies to the government, then the courts have to determine whether it also applies to a private company like Google, which owns YouTube.
- [23:32]
Peter Ives
Right. Except it wasn't the courts because it was. It's way down. It's section 32. It says on the application of this charter, it says the charter applies to the federal government and the provincial government. So just to be clear, it wasn't the court cases that I mentioned in the book was whether universities are part of that government. Right, but it is. The charter does make it clear that it only applies to the government.
- [23:54]
Nico Perino
Gotcha. Okay.
- [23:55]
Peter Ives
Under section 32, that's sort of that the differences, you know, but it's a very, at one level, it's a very different structure. And if you're going to say sort of what is my. What would my preference be? There is. I mean, it's sort of fascinating and I know this podcast has done a really good job at sort of going through the history of the Supreme Court. The US Supreme Court's adjudications of. Well, is wearing a black armband free expression? Yes, it is, according to the courts. What about burning a cross on somebody's feel, you know, things that we wouldn't think of our speech. Our speech. And yet the classic example of yelling, falsely yelling fire in a crowded theater isn't speech. Right. So, you know, I think the American courts are set up with that notion of, well, we have this absolutist free speech principle in the First Amendment, but we don't actually mean it because we do want to exclude some speech from that. And the Canadian sort of does it the other way and says we set it up as a balancing act. Right.
- [24:58]
Nico Perino
Which is kind of a million approach to it. Right. To the extent you're balancing harms.
- [25:03]
Peter Ives
Well, I mean, there's different interpretations of mill. Right. So there are many of those people who say, you know, the best way to read on liberty is to say that there's this harm principle and anything that doesn't harm others then. And in that sense, I think you're totally right that Mill can be seen as a way of thinking through how the First Amendment has been interpreted. There's other people who sort of say, yeah, but the harm principle isn't mentioned that often in On Liberty. It seems to be mentioned at those important points where he's setting up the framework. But there's an argument. There's an one academic argument says it's not mentioned in chapter two. So you would have thought if. If the harm principle was important for free expression, he would at least have mentioned it once in a fairly long chapter. And he doesn't. Right. So their argument is he's much more of an absolutist in terms of free expression than having everything set up to the harm principle. And that the implication there is that because it's speech, it can't harm. And then it is the opening of chapter three, where it's the. If you're, if you're saying that corn dealers are starvers of the poor in front of an angry mob, then that sentiment is riling up the mob. And that can be regulated. But not the argument that corn dealers are stars of the poor or property is theft is his other example.
- [26:23]
Nico Perino
One distinction between America's approach to free expression legally and Canada's is the regulation of hate speech. So if I'm getting this correct, Canada's criminal code, offenses against the person and reputation, applies to speech that promotes or incites hatred against any identifiable group defined as any section of the public distinguished by color, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity, or expression, or mental or physical disability. If that code were passed by a state in the United States or public university campus, it would be struck down as unconstitutional because in America, we don't have a hate speech exception to the First Amendment. Now, some might argue that certain examples of incitement, Tim, and lawless action might be hateful in their animus. And hateful. But it's the incitement, imminent lawless action that is punishable, not the animus necessarily behind it.
- [27:30]
Peter Ives
And just to sort of clarify, and it might be a little detail, but it's not as if Canada has an exception and says that, you know, we have free expression except for hate speech. But it's that Section 1 of the Charter that said if it can be reasonably argued in a democratic society, society, then we can infringe upon free expression. Right. So the important court cases, and it did have to go through the Supreme Court, and it was the Holocaust denier James Keegstra who was A high school teacher who was teaching Holocaust denialism. And he was taken to court and he defended himself based upon his charter right to free expression. And the judgment was that it was an infringement upon his free expression, but that that was justifiable in a free and democratic society. Right.
- [28:24]
Nico Perino
Well, how is someone supposed to know then what speech might fall afoul of that balancing test? That's one of the things about a liberal democratic society that I so revere, is that you have a reasonable understanding of what the law is that you could break. Now, if it's arbitrary and. Well, if it's always a balancing test, you never know what side of the balance you're going to fall on.
- [28:47]
Peter Ives
Sure. Yeah. Although I would say the same thing is true of the First Amendment. Right. Did you know in the, in the cheerleading case, the recent one, would, would we know whether the. A cheerleader who's denied being on the squad, who posts on Snapchat, whether, you know, is that protected by the First Amendment or not? And the Supreme Court couldn't really decide it. Right. They're very wishy washy about their final decision.
- [29:14]
Nico Perino
Yeah. The Mahanoi case. Yeah, yeah. The B.L. mahanoi case. Or I might have that backward. Yeah. There are certain.
- [29:21]
Peter Ives
I agree with you that there's gray areas to some extent in the Canadian hate speech, at least it's confined to as exactly as you read out, that it has to be about those identifiable categories. Right. So that gives you some, you know, if it's. And then there's another section. I think it's 319. That's. Or 318 is specifically about Holocaust denial was written in there.
- [29:43]
Nico Perino
Yeah. It leads you to wonder whether even a presidential candidate like Donald Trump who talks about immigrants entering the country illegally, poisoning the blood of the country, could that fall afoul of Canada's hate speech law?
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Peter Ives
Yeah. I mean, immigrants would be a hard category to put in that.
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Nico Perino
Well, national origin, presumably, let's say for. When you talk about Mexican immigrants.
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Peter Ives
Yeah. I mean, you know, the court has been very clear that it's a very high bar. Right. But again, yeah, it's a gray area. And you know, there's lots of, I mean, there's lots of Canadians and lots of Americans who find it who don't like hate speech laws. Although, you know, the US Is the exception in the world in that most countries, the most democratic democracies have things like hate speech laws, and it's the US which is the exception. Right. But it's very important in terms of like one of the themes of the book is for a Canadian audience to say, you know, you absorb a lot of American media and a lot of American TV and learn a lot through it. And you think that Canada is the US Sometimes sort of in the opposite of Tim Waltz's thinking that.
- [30:51]
Nico Perino
And so does Donald Trump, apparently.
- [30:53]
Peter Ives
Well, exactly. I was going to. Well, I guess that that's a bit of a different question. But. So after the. It was December last year, there was five prominent Liberal MPs who wrote to 2015 or 25 of the research universities in Canada with a letter coming straight out of the US Context and the congressional hearings from the university presidents there demanding to know whether the codes of conducts at these universities prohibited the promotion of genocide against Jewish people. And of course it does because it's against the law. Right. So it was sort of a ridiculous enactment of this thing. You know what in all of the university press, professor said, University president said, yes, of course it is. Right.
- [31:53]
Nico Perino
It depends how you define calling for genocide. This is the problem I always have with it. Right. Which is the allegation that from the river to the sea, Palestine will be free as a call for genocide, or in Fada as a call for genocide or supporting Israel's war in Gaza is a call for genocide, or opposing gender affirming care as genocide against trans people or supporting abortion as a form of genocide against the unborn. I went on CNN with Jake Tapper and made this argument a couple of days after the hearing. And people like, what are you talking about? And at that point the argument was that, was that it that from the river to the Sea and Intifada were cause for genocide. Right. But you know, you see it go many different ways and it was an unpopular argument to make after that. So it wasn't actually clear to me that that simple amorphous call for genocide should be unprotected under the First Amendment. Now, these are private colleges or universities not bound by the First Amendment, but to the extent they have free speech policies commensurate with them, as the president of Penn, Liz McGill explicitly stated the day after the hearing, then no, I mean, you can, you can call for the genocide of peoples so long as it's not, it doesn't meet the very high standard in the Supreme Court case Brandenburg for the call of imminent lawless action and likely to actually result in that lawless action.
- [33:21]
Peter Ives
Exactly. But I guess to me that's the, the key point is that in the U.S. you know, and I think all of those presidents were listening to their Lawyers and they, you know, I agree, they, they're very, you know, prominent presidents of prominent universities and maybe they should have been more eloquent or whatever. But the content of their answer, as, as you pointed out, I think is correct. The context, it depends on the context. Right. And if it's just speech in the American context, it is, it is protected by the First Amendment. If it is just speech in the Canadian context, it can fall under hate speech legislation and is not protected by the charter. And that's the big difference.
- [34:04]
Nico Perino
Well, that's, it's not an abstract question necessarily for Canada, because I'm looking through my notes here. Doesn't Canada, isn't its online Harms act going to punish Holocaust denial or calls for genocide by up to life imprisonment? I don't know where that law stands, but I read this earlier in the year. So I mean, if it's life imprisonment, you don't know what calls for genocide or opposing the Holocaust means. I mean, you're really not going to talk, right? Yeah, because I think it prior, prior to the proposal it was. Or currently it's five years in jail if you violate.
- [34:40]
Peter Ives
Yeah, yeah, no, I agree that there's lots of discussion around and it hasn't passed yet. It's still making its way through. And so it is, it becomes very important in terms of how it gets used one way or the other.
- [34:59]
Nico Perino
But were the presidents in. I guess it's worth saying, because you briefly referenced this earlier. Canadian colleges and universities, public institutions bound by the charter, not bound by the charter.
- [35:13]
Peter Ives
Yes, that's an excellent point. I'm glad you brought that back up again. So that was the court case. So, and it's actually sort of fascinating. It was McKinney versus the University of Guelph and the actual issue was mandatory retirement. So the university had a mandatory retirement policy and he took it to the, you know, went all the way up to the Supreme Court and he said that's a discrimination against me based on my age. And the court said that even though they're public universities. And another big difference is we don't have, you know, many private universities up here at all. You know, so it's very different from the US Where a lot of prominent universities are private.
- [35:52]
Nico Perino
I'm curious as to why that is, but maybe that's a separate conversation.
- [35:56]
Peter Ives
Yeah, I mean, that's a, that's a, you know, I mean, historically there have been attempts and things, but there's a very strong, there's a notion that post secondary education should be public and the vast Majority of universities are public. But the Supreme Court, and it was a contested decision, it was 5, 4, but decided that because universities are very much at an arm's length and they have autonomy, and this goes into this question of academic freedom, they are not considered part of the government. And it was sort of an interesting discussion because it said that much like private companies, you might want to have a mandatory retirement policy because it's important for universities to have newer and younger professors who teach different ideas. And you can only afford that if you can have a mandatory retirement policy. But the long and the short of it is that the charter doesn't always apply to universities or other institutions. And so it gave a list. And then there's further jurisprudence that sort of said, well, hospitals are, they are part of the university, they're performing a direct function of the government, whereas universities are sort of at an arm's length. So they do not. So it is. Yeah, it's a gray area and it becomes really important. And there's lots of legal scholars here as well as activists who don't like it and think the charter should apply to universities. And there's been cases in Alberta, and most of them have been anti abortion activists protesting on public, the public spaces of campuses. And they have decided that they have charter rights to free expression. But that has not gone up to the criminal, to the Supreme Court. And there's been cases in Ontario that sort of say the opposite. And then we saw this, this summer when they were clearing out the pro Palestinian protesters at University of Toronto. And the court said, well, ultimately it's private property, even though it's not. I mean, it's. They're public universities, but for purposes of.
- [38:04]
Nico Perino
Free expression, it's treated as private property. That's just going to strike Americans as odd.
- [38:09]
Peter Ives
Yeah, exactly.
- [38:10]
Nico Perino
But so although some of the same.
- [38:12]
Peter Ives
Arguments were made at Columbia, you know, areas of the campus that are very much public and normally people use them as public spaces, you know, and there's been, I don't know too much about the jurisprudence in terms of other, you know, malls and other.
- [38:25]
Nico Perino
Oh yeah, don't even get First Amendment scholars going on whether private malls, their public spaces and private malls should be public forums for purposes of the First Amendment. That's a Supreme Court case from a couple of decades ago that really just rankles First Amendment scholars. But to your earlier point, to circle back, so these MPs sending these letters to college and university presidents asking whether their policies would prohibit calls for genocide, these colleges can have policies that say, theoretically, no, we Don't. Unless.
- [39:01]
Peter Ives
Well, I mean, they would have to say that we allow people to break the law because the hate speech laws are not protected by the charter. So the charter is immaterial in this question. It's the hate speech laws which are important.
- [39:12]
Nico Perino
Yes. And so they would be implicated by this online Harms act that's being proposed. And I found the language now that it would update the criminal code so that, quote, every person who advocates or promotes genocide is guilty of an indictable offense and liable to imprisonment for life. The charge again, is currently a term not more than five years.
- [39:33]
Peter Ives
Five years. Yeah.
- [39:35]
Nico Perino
You write in your book, you talk at the beginning about how you were born in America, I believe.
- [39:42]
Peter Ives
Yes.
- [39:43]
Nico Perino
And lived here for about 20 years. Went to Reed College from the Portland area. Area. Spent some time there.
- [39:50]
Peter Ives
I grew up in Colorado, but yeah.
- [39:52]
Nico Perino
Oh, you grew up in Colorado and then you moved to Portland for Portland, got a reed. And you write of Canada that you're glad to be living in a country with laws against hate speech, especially when it's used to organize white supremacists. And you reference an incident that you witnessed. You didn't witness the incident itself, but you were living in Portland at the time where hate speech was essentially on trial. And the First Amendment's protection for even offensive, despicable speech was held to, not to protect the speech at issue in that case.
- [40:26]
Peter Ives
Yeah. Well, it's in the preface and I'm sort of trying to describe how I got to this. And one of the big themes again of the book is the differences between the US And Canada. Right. So I sort of want to say sort of, you know, thinking about free speech ideas both as a political scientist and a political theorist. And I do most of my work is on language in other contexts and standardization of language and politics of global English and those types of questions. But questions of free speech were, you know, in me both having grown up in the States and then moved to Canada, as well as this one particular instance where you had, you know, it's very clear it was the. It was.
- [41:05]
Nico Perino
Their acronym is war.
- [41:07]
Peter Ives
War. So it was White Aryan Resistance organized by Tom Metzger and then later his. His son, you know, and it was very clear that he'd sent an organizer up to organize disaffected white youth in Portland to have them go beat up black people. Right. And sure enough, they killed an Ethiopian man. I want to get his name right. Mulla geta sera. And the interesting thing that really hit me as a 20 year old was that the court case, the Civil court case was a huge success for anti racist progressive forces because the family took him to court for damages and the jury awarded them. I think it was 12.5 million. So it basically put war out of commission because they, you know, it defunded them, basically. Right. So this was seen as a huge success for anti racism. But it just sort of hit me and again, I was learning about the difference between civil law and criminal law. And I thought, well, you know, this guy was organizing white supremacists to go kill people. Isn't that a crime against the state and society at large and everybody? It's not just a damage to the family. So it was that sort of, you know, young sense of what is the law for and where is justice in this? And versus the pragmatic notion of, well, we can use civil law to do work because we can't do it under criminal law because it's because of the First Amendment.
- [42:38]
Nico Perino
Was he not convicted?
- [42:41]
Peter Ives
No, no, he wasn't convicted criminally.
- [42:45]
Nico Perino
Of what? I mean, what were the charges on this case?
- [42:47]
Peter Ives
I forget the details, like I have the footnotes and the things. But it. He. I mean, it was the harms that he had. He had caused the family. And obviously, as you know, that the. The bar is much lower in civil cases.
- [43:05]
Nico Perino
Yeah. And what I'm trying to parse out though is assault's not protected by the First Amendment. I know very few people, the young.
- [43:13]
Peter Ives
Teenagers who actually did the killing were found guilty criminally.
- [43:16]
Nico Perino
Okay. So.
- [43:17]
Peter Ives
But it was the organization that was explicitly white supremacist that had clearly organized, you know, and sort of was looking for young, disaffected white youth to carry out this type of crime. It was their strategy, and that was deemed protected. Right. And then when I was in Canada a couple years later, Tom Metzger had been let in. He had been invited by another white supremacist group to give a talk, and then he was deported based upon the hate speech laws.
- [43:49]
Nico Perino
Yeah. I would have to do a deep dive in the case because there are exceptions to the First Amendment for criminal conspiracy, silly murder. You can't coordinate the murder of people and then claim First Amendment protection when that murder happens, even if you are not the one who carries it out. But if you're mailing pamphlets arguing for the supremacy of the white race, if you're holding meetings about that, if you're giving speeches, arguing for a white master class and not actually meeting the standard for incitement to imminent lawless action, and that action likely to occur, then it would be protected Speech. So that's.
- [44:28]
Peter Ives
Yeah, it was the organizational thing that if I remain. Again, it was a long time ago, and I went back and looked at it for the book in terms of refreshing my memory. But if I remember right, it was the organizational piece where it was very clear he sent one of his organizers up to organize the Portland area, you know, but it didn't meet that criminal standard that you were talking about that it did in Canada.
- [44:50]
Nico Perino
But you are glad, as you write in the book, to be living in a country with laws against hate speech.
- [44:55]
Peter Ives
Well, yeah.
- [44:56]
Nico Perino
So do you agree with Canada's laws on hate speech?
- [44:59]
Peter Ives
Well, I do. I mean, I guess the.
- [45:01]
Nico Perino
And not only what they say in the statute, but also how they're enforced.
- [45:05]
Peter Ives
Well, I guess the point that I make in different ways throughout the book is that the line. And again, it goes back to John Stuart Mill. I think the only way to really read John Stuart Mill is this idea that there's speech. The sort of sticks and stones argument that whatever speech is, we can disagree about how to define it and whether wearing a black armband is it or not, but that speech can't hurt people and actions can. And there again, I, you know, I'm trying to write it for a more general audience. I didn't want to go into all the philosophical questions about what is speech.
- [45:38]
Nico Perino
No, and you did a good job of doing that. The books. The books, about 150, 160 pages, immensely readable, and so appreciate that.
- [45:44]
Peter Ives
There's a couple paragraphs where I mentioned Wittgenstein and Austin, you know, but all of them were arguing that the line between something being speech and something being action is impossible to determine. And there's a whole field of speech act theory based upon the notion that speech is action. Right. And so it's that. No. And I think you see it in American journalism jurisprudence, where how do we define this line between speech and action when there's lots of things that are obviously speech, yelling fire in a crowded movie theater that are not speech, apparently. And lots of things that wouldn't be seen as speech, like burning crosses on somebody's lawn, which are. Right. So the speech action distinction, I think, fails. And the critiques of hate speech laws are always based upon a speech action distinction.
- [46:38]
Nico Perino
And also, who decides what's hate speech? The trust that you might place in Joe Biden's administration to wield hate speech codes. That trust might not exist for Donald Trump, but Donald Trump's gonna have access to the very same codes. I think that's a very core argument to the people, including myself, who oppose hate speech codes.
- [47:03]
Peter Ives
But I think that's always. I mean, obviously there's lots of debates now around. Well, I mean that in the US you have hate laws. Like, you know, a law, a murder that's motivated by hate is a different category and is punished more than one. Not. So you have to make that distinction.
- [47:22]
Nico Perino
And I disagree with that. Actually. There are a lot of free speech advocates who say that to the extent there's a motivation behind. Behind a murder, and there always is.
- [47:30]
Peter Ives
Right, right, right. Yeah.
- [47:33]
Nico Perino
It's not necessarily or shouldn't be the viewpoint. It should be the action that's punished. You do write in the book it's naive to try to separate the realm of speech and the language from that of violence and harm. This is where free speech advocates might take issue with even some of America's First Amendment jurisprudence. For example, fighting words is a category of unprotected speech theoretically, although in practice it's hardly ever evoked. It's more or less a dead letter at the Supreme Court at least, although it might still live some dying breaths at the state courts. But this is speech that rests upon the listener's subjective reaction to it that creates its punishability if that sticks. And so it's also. It's like the concept of Heckler's Veto, right? I might say something or I might express a viewpoint, but we shouldn't let the subjective reaction of the listeners determine whether I can speak or I can't speak. The government has a responsibility to protect the speaker in those situations. But you could see how this speech equals violence equals harm argument can create a slippery slope. I think back to Lisa Feldman Barrett's op ed in the New York Times back in 2017 titled when is Speech Violence? And she argues that chronic stress shrinks the telomeres in our chromosomes, which can advance aging. And since speech can cause stress, speech can accelerate death. Her. Her direct quote is, if speech can cause stress and if prolonged stress can cause physical harm, then it seems that speech, at least certain types of speech, can be a form of violence. Where does that end? My. My disagreements with my wife or my long term simmering disputes that I might have with my extended family cause me stress over time. That doesn't mean that their response to me is a form of violence. But you could see how, if you accept that as the logical conclusion of speech, that theoretically it could be punishable.
- [49:42]
Peter Ives
But this gets back to why is free speech important? Right. And I do think that more and more, you know, in John Stuart Mill. I, I'm critical of him for making this distinction that I don't think holds philosophical water in his context, but especially in our context. We live in a world of zeros and ones on the Internet, right. We're talking over this medium. You know, everything is speech, right. In a way that, and for us to limit the concept of violence or harm so much so that all speech is protected when that would be everything on the Internet and most things in people's daily lives, I think is a very, very radical position and sort of goes back to. So why would speech be that important to everybody if it, you know, what's the, you know, it's such a radical argument for a small government that does so little that I think it's, it doesn't meet people's actual realities where people feel they can be much more hurt by verbal violence and verbal abuse and doxing and, and all the implications that that has for their lives and their livelihoods and their emotional well being. And they would rather, you know, they'd rather be punched in a, on a public street than have to, you know, than have to live through a lot of the verbal and the sort of attacks in the realm of speech. Right. So it does get back to this notion of, you know, again, I'm a political theorist, so I'm going to go back right to Aristotle and for Aristotle, we're political animals. We exist in the polis, we exist in political societies. There's lots of other positions. I would say Rousseau has a very similar positions. I would say many indigenous worldviews have this notion that we're social beings to begin with, which includes language. And it's not until the European Enlightenment that we have this idea that we're isolated individuals and then we form governments out of a necessary evil to just to prevent us from harming each other. I think that's a very particular social contract idea that comes out of Locke. I think John Stuart Mill doesn't fit that because as we talked about, he's a consequentialist. But he does have a notion that we're individuals first and our social connections are second. And I know those are sort of deep, abstract philosophical points, but I do think that the, I mean, you're right, of course there are some free speech absolutists who do think that, you know, there shouldn't be any limitations anywhere. But I think most people in their daily lives experience their life in which the words that hurt them are much more problematic for their lives than some of the actions. I actually have action Distinction is something that I don't think holds water philosophically, given the linguistic turn in the 20th century. But more than that, I think it doesn't hold water for many, many people's daily lives.
- [52:48]
Nico Perino
You mentioned free speech absolutists, and I know it's often used as a shorthand to describe people who have very expansive views of what free speech should entail. But for my part, I've never actually met a free speech absolutist who think there is no use of words that can't, that can be limited. What we at FIRE like to call ourselves, coined by my colleague Greg Lukianoff, is opinion absolutists. We think there should be absolute protection for the expression of opinion. This would still leave room even for the concept of defamation, at least in the United States, insofar as it only applies to statement of fact.
- [53:31]
Peter Ives
Right? Yeah. I mean, I'm not sure for me. And actually in the book, in the introduction, I do say that that's another example of the discourse of free speech where we're talking past each other and it's. What is a free speech absolutist. Right. So see, Edwin Baker, who I talk about, calls himself an almost free speech absolutist, basically for this, I think some of the reasons you're talking about. But for him, it's only applies to the government. Right. He basically endorses cancel culture, as far as I see. Whereas Alexander Meiklejohn calls himself a free speech absolutist because he's confined speech so much that it doesn't include much of speech. Right. In the book, I sort of point out that one, philosophically, one of the terms of free speech absolutist is from the pluralist perspective where human beings have different fundamental values. We can value justice, equality, security and freedom. And the freedom absolutists are those who see that relative to the other human goals, it is the top one. Right. So if equality is in conflict with freedom, then freedom should win out if stability or security is in conflict with freedom. So that's one definition of free speech absolutism which is different from the one that you just put forth. But again, different people have different definitions of this word. And, you know, and I guess FIRE ran into the problem and so coined a different one.
- [55:00]
Nico Perino
Right.
- [55:01]
Peter Ives
But it does. It's a great example of how we have these public discussions that our people talking past each other because the words they're using mean different things.
- [55:09]
Nico Perino
Yes. Yeah, We. We have these debates all the time and often a justification for free speech, as you Mentioned at the top of the show is John Stuart Mill's marketplace of ideas theory that's largely adopted by the Supreme Court. It was at least the precipitator of a lot of the the First Amendment jurisprudence that started to percolate and begin in the early part of the 20th century. But fire's argument surrounding the marketplace of ideas isn't so much that truth is going to win out in the long run, but that it's just important to know what the world as it actually is. Even if people believe insane things. Right. It's important to know that your neighbor believes in insane things rather than to not know.
- [55:52]
Peter Ives
Right.
- [55:52]
Nico Perino
Which is often characterized as the information theory of free speech.
- [55:56]
Peter Ives
Right. So, I mean, I don't know, but I think John Stuart Mill might roll over in his grave when he's. When it. The idea of the marketplace of ideas is attributed to him because he was an economist. Right. So not only did he not ever use the marketplace as a metaphor for a realm of free discussion. That was Oliver Wendell Holmes. You know, there's reasons why this sort.
- [56:21]
Nico Perino
Of picking up on John Stuart Mill and the search for truth, the notion.
- [56:27]
Peter Ives
That the search for truth requires a conflict of ideas and that ideas clash. And this goes back to my interest in this word caustic in the Harper Letter, sort of what are these conversations supposed to look like, I guess is the deeper question. But I did want to sort of come back to, because one of the things that, you know, I find it fascinating that the marketplace of ideas is such a prominent metaphor. There's lots of academic and lots of legal scholars who say it's a ridiculous metaphor. Metaphor, but lots of jurists who still keep on using it. I mean, my argument in the book is it's a ridiculous metaphor because market, the whole premise of a market is if I sell you an apple, I can't eat it. Right. It's a thing which is distinct and the market functions because we exchange one thing for another, usually money for an object. And I can no longer use the object once I've sold it. And ideas don't circulate like that. So commodities circulate like that, as economists know, as John Stuart Mill writes, many of his other books about ideas do not circulate like that.
- [57:31]
Nico Perino
I think you're splitting hairs here, Peter.
- [57:33]
Peter Ives
Well, no, I think. But I think it's very important because, I mean, it shows why does this, what are we getting at with this metaphor of the marketplace of ideas? And you're talking about how ideas, what is a good conversation, I guess is what's going on. Right. And I guess part of my book is to sort of say that, you know, I understand firm limits in the legal sense and that you're trying to restrict government, but if you have this enlightenment idea, I mean, the big question of the marketplace of ideas is exactly what you just brought up, which is it is this notion that the best ideas will rise to the top, right? So again, the marketplace of ideas, to me, you know, I don't know if you've been to the Dollar store or Walmart recently, but they're not the best products, right? They're the cheapest products or the, you know, the products people choose to buy. But the question is, what is the mechanism that Mill talks about? And again, you said that that's not why you, you defend free speech, but many people do and they refer to the marketplace of ideas within. I think it was Chaffee who sort of says, you know, it's like a mixer. You throw everything in the mixer, you mix it up and then the best ideas rise to the top. Right? And I think that that is sort of Mill's idea, and I think Kant actually expressed it in very similar terms earlier, that the great thing about free speech is that reason is so powerful that somehow when people are exposed to reason, they can't deny it. Or what Jurgen Habermas called the non coercive coercion of the better arguments. Right. And it's a very enlightenment optimistic view of reason that gives us that idea. And I think it's behind many of the impetuses behind ideas of free speech. And I don't think it works in our world and especially in the world of social media.
- [59:23]
Nico Perino
Do you think it works in the long term? Is there a certain time horizon by which you can judge whether truth will win out? I think often in the short term it loses, loses, but I think in the long term it wins out more often than not.
- [59:38]
Peter Ives
Well, I mean, I think not. I mean, I think in my own experience as well as I would say, you know, I would argue philosophically as well that having a good conversation where you actually have diversity, you have different ideas is rarely reached by just lack of constraint. Right. So this idea of a negative freedom of you just let people say what they want to say. Right. I think that's one of the differences between Meiklejohn and Mill. Whereas for Meiklejohn, his metaphor was the town hall and he was very clear that he's a free speech absolutist. But that doesn't mean that the moderator at the Town hall, can't call a meeting to order, can't rule things out of order, can't say, well, we've already heard that point. You're being repetitive. Can't construct the dialogue so that information and arguments can actually happen. Right. And that's the same thing I find in my classrooms. I think, you know, some of my students might disagree with me, but I think most of them agree with me that we create an environment where good discussions can happen. I don't think that environment is created by just a lack of restraint.
- [60:45]
Nico Perino
So when you're talking about restraint, you're talking about restraints put on a conversation with the goal of arriving at a truth or the best conception of truth that we. You're not talking about North Korea shutting down the Internet or are you?
- [60:58]
Peter Ives
No, I'm not talking about North Korea shutting down the Internet because those are.
- [61:01]
Nico Perino
Restraints, but a certain type of restraint.
- [61:03]
Peter Ives
No, I know, but I'm saying there's other reasons to say there shouldn't be restraints, and one of them is to prevent overly powerful governments. Right. I think there's other reasons for free speech, but the idea of a good public conversation directed at democracy and self governance rarely happens with this free for all idea that we have free speech. Right.
- [61:27]
Nico Perino
So what you write in your book, you write in your book, if we view social media as a massive experiment in unfettered free expression, the results currently seem far from positive. In what way and judged by what standard?
- [61:40]
Peter Ives
Well, I think certainly just. I haven't done a sort of discourse analysis of, of media talking about the Internet, but certainly in 2010, most of the discussions of the Internet was the time of the Arab Spring. And there's lots of people who were talking about how important the Internet was for democracy and social justice and progress, and now you have huge complaints about it. You have lots of, you know, millions of people leaving Twitter because they find it is not conducive to a good discussion. You know, whether they're moving over to blue sky and they think that's better or not. You know, there's lots of discussions about it. You know, in the book, I sort of focus on the profit motive and saying that, you know, it's not the technology itself, but it's the business models and the way that we've developed those technologies that mean that these private companies responsible in making profits as social media platforms, that they're not induced and they're not likely to create the conditions in which we would have proper and good exchange of ideas.
- [62:50]
Nico Perino
Yeah, I hear the argument often that social Media is eroding the public conversation. I don't always buy it, at least insofar as social media is how I learn what the public conversation is in most cases. I guess if you revere the days where you had four or five gatekeepers determining what the news is and you liked getting your news once a day from the 6:00pm broadcast or from the morning broadsheet, then that would be a preferable outcome. I admit that social media is more messy. It requires a degree of media literacy and perhaps some looking into claims in a way that where before you could just trust what was said. But then we learn you can't always trust what you said. Look at weapons of mass destruction for example. We sent the world to war over that one because the claim was accepted uncritically. But it's hard to see what an alternative universe looks like where social media doesn't exist. And is the progress that we see now to the extent there is progress still there in a world with more constrained or narrow conversation?
- [64:05]
Peter Ives
Yeah, I mean I don't think you need to look too far to say that lots of people. And I'm sure that discourse analysts have done some studies of this, although I haven't come across them, so maybe I should. But between 2006, when Facebook was first taken off to 2014, in that realm where the algorithms were not used to sort people's feeds, et cetera, et cetera, then the public sphere was much better in terms of actual discussion. You would actually hear what the people you followed said. You wouldn't have these algorithms manipulating everything so that you don't hear what the people you follow say. You hear other things.
- [64:48]
Nico Perino
Well, you can still on X or many of these other platforms now switch to a timeline that's just people you follow.
- [64:54]
Peter Ives
But well, but that came off of pressure because people didn't like it, how it was. Right. And obviously what's driving all of this is the profit motive. And these are not altruistic non governmental organizations doing this out of the goodness of their hearts. They're businesses that are trying to make money and they make a lot of money by targeting ads. And this is a field where I'm not an expert, although I learned a lot writing that last chapter on social media. And again, I'm very clear that I'm not trying to make an argument about social media per se. I'm trying to make an argument about free speech and whether social media platforms are likely to be places where free speech can be productive and meet the goals. And whether it's John Stuart Mill's goals or Alexander Meiklejohn's goals or C. Edwin Baker's goals, that social media is not meeting any of them. Right. And I think most of the scholars that I cite today there. Not all, and I do cite Jacob Machingama. Yeah, Machingama, yeah. I cite him to sort of that notion that it's overplayed, which I think is your argument. Right. That the dumpster fire that is now social media has been overplayed. I think it's hard to describe. So what's. Why, why all the twists and turns around Twitter and X, for example, why all the ups and downs, even the controversy around TikTok, you know, all of these questions, and to some extent it is like the. The basic thesis of that chapter is our public debate about social media right now is to regulate or not. And part of what the chapter tries to do is draw on other people's work to say social media has always been regulated. Section 230 of the Telecommunications act gives it a very special spot, which is different from other publishers and is different from common carriers. And that structures it. Right. But even more basically, language structures things. The idea that we speak spontaneously and freely is always something. I'm a bit suspicious of, going back to that notion because I think we're social animals and we learn from other people. So it's more those questions, but coming up to this notion that the Internet wouldn't exist if it wasn't for the US military backbone and those initial fiber optic cables that were then privatized in the 90s. And it's that privatization which structures our current social media. And then it's the permission of the use of cookies to invade to follow our privacy issues, which enables social media platforms. So we've created this business environment that is aimed at, you know, allowing these very powerful companies to make a lot of money. And then we expect them to sort of somehow create an environment where we can have good discussions about, you know, public issues that can contribute to democracy. And I don't, I don't think that's going to work.
- [67:56]
Nico Perino
Yeah, I do think we disagree on this. I think even if you take those theorists at the beginning of your book at face value and agree with their theories, I do think you get a more robust democratic public conversation as a result of social media. I do think to the extent one of the theorists, I think it was Baker talks about it being an individual. Right. Like it. It obviously allows for self expression. And I do think ultimately it helps us arrive at a greater truth. I admit Again, that it's messier perhaps, and there's more sorting that needs to happen. But I think you have more truth claims that are put out that you can sort from. Whereas previously you just had to trust those in power to tell you something was true. You have.
- [68:43]
Peter Ives
I think, I think you're underestimating the importance of small newspapers and alternative media outlets, which, you know, obviously the vast majority of Americans or Canadians got their news from the big networks and the big newspapers. I totally agree with you there. And there's a problem of concentration of power. And then that sort of flipped because, you know, as you know, Timothy Woo and the other people I cite talk about, you know, the sort of abundance of information. We used to have scarcity of information, now we have abundance of information. Now it's a question of cutting through all of the stuff that's out there. Right, but that goes back to that.
- [69:18]
Nico Perino
That goes back to the printing press. And Erasmus, as you write in your book, there's more to sort through. I love that quote, by the way. I hadn't seen that one before.
- [69:26]
Peter Ives
Yeah.
- [69:27]
Nico Perino
So Chris Hughes, who was co founder of Facebook, apparently you only hear about Mark Zuckerberg, but apparently there were other co. I know about the Winklevoss twins because I watched the movie. Right. And maybe Chris Hughes is in that movie too. I don't remember. It's been a long time since I watched the Social Network Network, which I think is the title of that book. But he talks about the need to break up big tech and how, and I'm quoting him here, the biggest winners would be the American people. Imagine a competitive market in which they could choose among one network that offered high, higher privacy standards, another that cost a fee to join but had little advertising, and another that would allow users to customize and tweak their feeds as they saw fit. And I read that and I'm like, wait, that marketplace exists higher privacy standards? That's Telegram. Another that costs a fee to join but had little advertising. That's X Premium. You pay a fee and you don't have any advertising on the platform. Allows users to customize and tweak their fees as they sell fit. That's Mastodon and Blue Sky. So it's not like there isn't any competition happening.
- [70:23]
Peter Ives
But I think Chris Hughes and I think other people might do it more explicitly. I think Cory Doctorow is the one who goes into most detail about it says that, yeah, but that there's a huge impediment for, you know, if I'm on, if I'm already on Twitter and I have all my followers. I can't easily move them over to Telegram. Right. I can't. And so all those people are talking about the. You're sort of making protocols that are much more like email so that we don't have to have the same email provider, and yet we can exchange emails, but we can't, you know, Meta and, sorry, Instagram and Facebook, you can go between the two because they're both owned by Meta, but you can't go to other social media companies. Right. So that's a vision which is, again, to me, it's a technological solution to a political problem, and I don't think it'll work. Or I think it's a reformist notion that doesn't get at the heart of the issue. But that sort of technological solution does sort of say that we can force companies not to get into free speech issues and monitoring their free speech, although I think the companies would fight back and say, well, it's, it's how we operate. We want to run our algorithms like we want, and we're private companies, we want to decide what our members can and can't do and if they can go to another social media website. Right. And that's, you know, I think there's a robust discussion which I'm interested in. I'm no expert on, in terms of social media now, but to me, part of the point of that chapter was to say there's all of these different sort of approaches to this problem. And unlike you, they all see it as a problem and I see it as a problem.
- [71:54]
Nico Perino
I admit I'm a minority here.
- [71:58]
Peter Ives
And the differences aren't going to solve what is ultimately a question of how do you create a good discussion. And that's why I quote Jack Balkan and the legal scholars who say, well, actually, the First Amendment doesn't really help here. Right. Because again, it goes back to this model of a good discussion can, can happen by just free, you know, getting rid of the restraints, allowing people to say whatever they want.
- [72:26]
Nico Perino
Let's talk about solutions. Then at the end of your book, you say those of us engaged in these dominant free speech debates need to seek out and learn from diverse perspectives, especially those people and traditions that have and continue to experience colonialism and racist oppression. Such dialogue needs to include a general diversity of perspectives and positions, and more specifically, it needs to include the viewpoints of people who have diverse experiences. The recent push towards what is labeled viewpoint diversity is a backlash that tries to obscure differences and experience and elevate conservative Voices that feel unheard or unsuccessful in convincing others of their ideas. Thus, by inclusive, I do not only mean that each of us as individuals needs to feel included, but that people who have been and continue to be discriminated against, oppressed, marginalized and exploited need to have their perspectives taken seriously. The question I was left with at the end of this is what does it mean to take perspective seriously?
- [73:19]
Peter Ives
Yeah, that's a good question. It does seem to me that in free speech debates it feels a bit like the basic, you know, obviously the new examples and the new context and social media changes a lot. So I don't want to say that nothing has changed in the new Supreme Court cases or whatever, but really, you know, the, the basic ideas, the notion that there's this line and it's a question of where, where the line is drawn about free speech and what's permitted and what's not, and that they tend to circulate and repeat themselves. And yet one of the things that free speech promises is that we, is that new ideas will come up. And yet I don't, I'm not seeing a lot of new ideas. And I think part of the reason is sort of this hubris that free speech is a monopoly of the so called Western tradition or sort of, sort of the European tradition that goes from Mill to Oliver Wendell Holmes up to us. And there's no broader looking at other ways to think about a good conversation and how important decisions are made, where people disagree with each other, where critique is not only allowed but fostered and accepted. And that's where I look to some, you know, and again, it's not, it's an area where I'm focusing on what I know, which is this Western tradition and the cracks within it. But I do, you know, it's a self critique against me as well that I should know more about Indigenous scholars. I use the fairly prominent John Boroughs, who's a Canadian Indigenous scholar who writes about legal frameworks and he, you know, in his descriptions, and he doesn't talk about free speech per se, but he has very rich descriptions about how to handle disagreement. Right. And similarly, I draw on David Newhouse's work and what he calls sort of academic freedom through a Cree lens, where he describes, you know, exactly what people who relish free speech sort of say, well, you need to be able to have disagreements and speak honestly and all those values are there, but it's articulated in a way that seems to me much more conducive. It's not as combative, it's not as caustic. It's not saying that. You know, it's not the sort of John Stuart Mill model where in order for me to confirm my truth, I need to have it tested in battle against the falsity. It's not a good or evil contest, you know, And I do. I know there's, there's. I don't agree with it fully, but John Durham, Peter's description of the sort of history of free speech as really a sort of righteous Protestant notion, I think really gets to some of those views. Right. That, you know, the reason why the apocryphal Voltaire quote, which he never said.
- [76:12]
Nico Perino
Yeah.
- [76:13]
Peter Ives
And I mean, and it's interesting that people point out he didn't say that, but it's as if. Yeah, but he should have or he would have. Whereas, you know, I don't. You know, if you've read much Voltaire, he is very ironic and cynical, and I don't think he would ever be that sort of righteous and earnest to say, I will. You know, I detest what you say, but I will fight to the death your right to say it. Seems like a very un Voltaire thing to say.
- [76:36]
Nico Perino
Yeah, I liked that in the book, and I'm just trying to find it here very quickly because you do take that on. And it's Evelyn Beatrice hall, who I guess is his biographer, trying to summarize his perspective. But I think you make a particularly strong case that given Voltaire's nature, he would never say something as righteous as that directly.
- [76:57]
Peter Ives
Well. And he was ironic. So I have my students read his argument for freedom of the press, which is sort of funny because he basically says it's not worth focusing so much on this. And often the point that lots of free speech advocates make that trying to suppress free speech often has the opposite effect and the Streisand effect, those types of ideas is exactly what he's saying, that, you know, Spinoza's book that was burned is now more popular because everybody's asking, why was it burned? And, you know, so he captures that dynamic very well. But again, it's sort of ironic because he must believe that writing has some import on the world. But he's an ironic writer.
- [77:40]
Nico Perino
Yeah. I guess that passage that I read out previously from you struck me because some of the most vociferous advocates for free speech, and now you might say this might be related to government censorship rather than a culture, although I think many of these people would argue it in both directions, come from people who experienced censorship in the Soviet Union or experienced it in Hong Kong recently under their National Security law, or one of my colleagues who's from Venezuela and had their family members in prison because of their expression contrary to the dictatorial government. So some of the most vociferous advocates, and we have a joke within fire that it's the immigrants who understand free speech and appreciate free speech more than we Americans. And often these immigrants are non Western as well. So it depends, I guess, what, you know, who we're talking about there. Maybe the indigenous population is a unique, is a unique case. But I hear these arguments all the time from people coming out of non Western countries.
- [78:44]
Peter Ives
Right. And I do think you're. Again, the distinction between whether free speech means freedom from government censorship or a vague notion of culture is a hugely important there.
- [78:58]
Nico Perino
Yeah. But, you know, even if you don't fear the government, the government can create a culture where it's stifling. So I believe John Stuart Mill was right, making his arguments in Victorian England where the way he wanted to live his life, you couldn't even talk about it without being ostracized. Now that's an expression of free speech, ostracism. Oh, but it's, it's, it doesn't give you the sense and feeling of freedom when you live in such a society, if that makes sense.
- [79:30]
Peter Ives
Yeah, I mean, I tell my students that we shouldn't over psychologize it, but his relationship with Harriet Taylor Mill was seen as, you know, terrible. And his father was very upset about it. And I think that it is that sort of personal level that he's writing from.
- [79:48]
Nico Perino
This was fun.
- [79:49]
Peter Ives
Yes, very fun.
- [79:51]
Nico Perino
And I do think you're. I do think your book is great in raising some very important and critical questions about what we actually mean when we're talking about freedom of speech. So I would urge our listeners to check it out. It's a fairly quick read at about 150, 160 pages. And again, the title is Rethink Free Speech. Peter Ives, thanks for coming on the show.
- [80:15]
Peter Ives
Thanks for having me.
- [80:16]
Nico Perino
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 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. We're also on X by searching for the handle Free Speech Talk. We're on Facebook and you can send us feedback@sotospeakire.org that is so to speak@the fire.org if you enjoyed this episode, please consider leaving us a review on Apple Podcast or Spotify Reviews. As I tell you every other week when we have an episode, they help us attract new listeners to the show. And it's the single most important thing you can do to spread the messages that are discussed during the show. So until next time, I thank you all again for listening.