So to Speak: The Free Speech Podcast – Episode 235 Summary

Host: Nico Perino
Guest: Ilya Shapiro, Senior Fellow and Director of Constitutional Studies at the Manhattan Institute
Release Date: February 6, 2025
Transcript Reference: [00:00] – [78:44]

Introduction

In Episode 235 of So to Speak: The Free Speech Podcast, host Nico Perino engages in a comprehensive discussion with Ilya Shapiro, a prominent legal scholar and author. The conversation delves into the pervasive issues of cancel culture, its ramifications on legal education, and recent Supreme Court developments. Shapiro's insights are particularly shaped by his personal encounters with cancel culture, as detailed in his latest book, Lawless: The Miseducation of America's Elites.

Personal Encounters with Cancel Culture

[00:00 – 07:00]
Shapiro recounts a pivotal moment three years prior when he was transitioning to a new role at Georgetown University. Anticipating a change at the Supreme Court, he tweeted a controversial opinion advocating for merit-based appointments over race and gender considerations. The tweet, sent during a period when Twitter's character limit was restrictive, sparked immediate backlash.

“I was doom scrolling Twitter, getting more and more upset and fired off a hot take... if I was Biden, I would pick the chief Judge of the D.C. circuit, Sri Srinivasan...” ([02:19])

This unsolicited foray into the left-leaning academic turf triggered protests, a letter-writing campaign, and widespread accusations of racism and sexism. Despite initial support from allies like Camille Foster and Barry Weiss, Shapiro faced suspension pending an investigation into alleged policy violations.

[05:15 – 07:00]
Shapiro describes the university's response as inadequate, highlighting the dean's reluctance to uphold speech rights effectively. The prolonged investigation ultimately led to his reinstatement followed by his resignation, emphasizing the futility of the institutional disciplinary process in such scenarios.

“So I was reinstated. But then I got... a long report... which made clear that anytime that I said or wrote something that would offend someone, and I'd be back in the star chamber.” ([09:28])

Impact on Legal Education and Law Schools

[21:33 – 29:55]
The conversation shifts to the broader implications of cancel culture on legal education. Shapiro criticizes modern law schools for deviating from their foundational mission of fostering open inquiry and objective truth. He asserts that the infiltration of critical theory and ideological biases has compromised the quality of legal training, leading to a generation of lawyers ill-equipped to handle diverse legal challenges.

“Law schools churn out the next generation of our institutional leaders... This goes against all professional norms and really threatens... the pillars or the rules of the game on which our whole society is based.” ([28:25])

Shapiro underscores the American Bar Association's (ABA) problematic role in this shift, portraying it as an ideologically driven body that undermines traditional legal principles. He laments the absence of originalist perspectives in legal education, which he believes hampers the development of well-rounded legal advocates.

American Bar Association (ABA) and Its Role

[39:48 – 47:00]
Shapiro offers a critical analysis of the ABA, highlighting its monopolistic control over law school accreditation and its drift towards ideological advocacy. He argues that the ABA has transformed into a left-wing interest group, diverging from its original mission of regulating legal education and ethics.

“At this point, the ABA is just another left wing interest group... it purports to speak for the legal profession.” ([44:16])

He contends that the ABA's overreach into political controversies dilutes its effectiveness and alienates a significant portion of the legal community. This ideological entanglement, according to Shapiro, compromises the ABA's authority and undermines its role in maintaining professional standards within the legal field.

Supreme Court Cases and Free Speech

[55:14 – 67:34]
The discussion transitions to recent Supreme Court cases, notably the TikTok case and Free Speech Coalition v. Paxton. Shapiro elucidates his stance on the TikTok ruling, emphasizing that the case centers on national security and foreign ownership rather than content-based regulation.

“It didn't say TikTok has to change its algorithm because it's rotting teenagers brains... it's a divest or stop operating because of the concern of data mining by the Chinese communists.” ([55:14])

Regarding Free Speech Coalition v. Paxton, Shapiro expresses skepticism about the application of rational basis review, suggesting that higher scrutiny levels should govern content-based regulations to protect First Amendment rights effectively.

He articulates concerns about mixed motive legislation, where laws possess both content-based and neutral justifications, potentially leading to broader free speech implications and judicial challenges.

Free Speech and Anonymity in Public Protests

[68:04 – 71:54]
Shapiro addresses the complexities of enforcing mask mandates related to anonymity in public protests and criminal activities. Drawing parallels to historical cases like Lamont v. Postmaster General (1965), he debates the legal boundaries of anonymous speech and its implications for public safety and law enforcement.

“Someone who wears a mask is generally up to no good... if I'm not feeling physically endangered... I'm just going to see what's happening.” ([20:15])

He advocates for a balanced approach that upholds free speech while ensuring accountability and the effectiveness of law enforcement in identifying and prosecuting criminal behavior.

Defining Anti-Semitism and Systemic Racism

[72:05 – 77:56]
The conversation touches on the International Holocaust Remembrance Alliance (IHRA) definition of anti-Semitism and its unintended consequences when adopted by institutions like Harvard. Shapiro critiques the expansion of anti-Semitism definitions to include anti-Zionism, raising concerns about First Amendment implications and the potential for misuse in suppressing dissenting views.

“I've had this disagreement with FIRE in the context of the Anti Semitism Awareness act... it's a definitional thing.” ([75:07])

He warns against the slippery slope of broadening definitions to encompass a wide range of discriminatory behaviors, which could inadvertently infringe upon free speech rights and institutional policies.

Conclusion

Throughout the episode, Ilya Shapiro offers a nuanced critique of current trends in higher education, legal education, and corporate America concerning free speech and ideological conformity. His firsthand experiences with cancel culture underscore the pressing need for institutions to uphold merit-based principles and safeguard constitutional freedoms. Shapiro's insights call for a reassessment of institutional policies and a recommitment to the foundational values of open inquiry and diverse thought within the legal profession and beyond.

Notable Quotes:

• Ilya Shapiro [02:19]: “… if I was Biden, I would pick the chief Judge of the D.C. circuit, Sri Srinivasan... because of today's hierarchy of intersectionality, we would end up with a lesser black woman. By which I meant less qualified.”

• Ilya Shapiro [28:25]: “Law schools churn out the next generation of our institutional leaders... This goes against all professional norms and really threatens... the pillars or the rules of the game on which our whole society is based.”

• Ilya Shapiro [44:16]: “At this point, the ABA is just another left wing interest group... it purports to speak for the legal profession.”

• Ilya Shapiro [55:14]: “It didn't say TikTok has to change its algorithm because it's rotting teenagers brains... it's a divest or stop operating because of the concern of data mining by the Chinese communists.”

• Ilya Shapiro [75:07]: “… the Anti Semitism Awareness act... it's a definitional thing.”

This episode of So to Speak: The Free Speech Podcast provides a critical lens on the intersection of free speech, legal education, and institutional policies, urging listeners to reflect on the balance between progressive ideals and constitutional liberties.