← So to Speak: The Free Speech Podcast
So to Speak: The Free Speech Podcast
Ep. 235: Cancel culture, legal education, and the Supreme Court with Ilya Shapiro
01:19:24
Over the years, elite institutions shifted from fostering open debate to enforcing ideological conformity. But as guest Ilya Shapiro puts it, “the pendulum is swinging back.” He shares his firsthand experience with cancel culture and how the...
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- [00:00]
Ilya Shapiro
As we're recording this, we have a slew of executive orders from day three of President Trump rooting out dei, reversing all the stuff that Biden had done in terms of the political commissars everywhere, suspending anyone who's at any federal agency with a view of eventually letting them go. Like a whole scale assault on institutional dei. Somewhere I read of the freedom of speech.
- [00:25]
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. Welcome back to so to Speak, the Free Speech podcast where every other week we take an uncensored look at the world of free expression through personal stories and candid conversation. I am, as always, your host, Nico Perino. Today I'm here with Ilya Shapiro. Ilya is a senior fellow and the director of Constitutional Studies at the Manhattan Institute. He previously served as vice president at the Cato Institute and and as the director of its center for Constitutional Studies. He is the author of Supreme Disorder, Judicial Nominations and the Politics of America's Highest Court. And he has a new book that just came out titled Lawless the Miseducation of America's Elites. This is the book we're going to be talking about today. At the end of the conversation, we might get into some current events. But Ilya, welcome to the show. It's been what, three years since the incident at Georgetown?
- [01:25]
Ilya Shapiro
Three years. Coming up on the the infamous tweet and I guess four years or so, four and a half since we recorded something about my last book. So I appreciate this time being actually in person, in studio, not just zooming everywhere. And I appreciate more generally we can get into this, I certainly cover it in the book. Fires friendship and allyship, as they say. And for giving me kind of at least a master's, if not a doctorate in crisis management during those four days of hell, as I describe the initial launch of what put me on this path, writing the book.
- [01:59]
Nico Perino
Yeah. So take us back to that time. You were gearing up for a big professional transition. You were going to start a new job at Georgetown. You're on a trip to visit some friends, about to put your head on your pillow. This is the time where there is going to be a change at the Supreme Court. You decide to tweet about it. What'd you say?
- [02:20]
Ilya Shapiro
Yeah. So I had been at the Cato institute for nearly 15 years, got an opportunity to take my career in a different direction, to become the executive director of Georgetown center for the Constitution under Randy Barnett. And that's an important center because as we've learned, the rest of the law school is a center against the Constitution. A few days before I was due to start that job was when news of Justice Breyer's retirement broke. And you know, this is in my wheelhouse. My last book, Supreme Disorder, was about the politics of Supreme Court nominations and all that. So I was doing media all day while in Austin, Texas, with some business meetings, a friend's celebration of his job transition. And then as you said, came back to my hotel room and was getting more and more upset that Joe Biden was hewing to his campaign promise to appoint a black woman to succeed Breyer. Not because a black woman couldn't be on the Supreme Court, of course, but because you shouldn't restrict your candidate pool, whether for janitor or Supreme Court justice, based on race and sex. And so not a best practice. I was doom scrolling Twitter, getting more and more upset and fired off a hot take, as you said before going to bed saying that, you know, if I was Biden, I would pick the chief Judge of the D.C. circuit, the second highest court in the land. Sri Srinivasan, happens to be an Indian American immigrant, very well respected, progressive, all the things. But because of today's hierarchy of intersectionality, we would end up with a lesser black woman. By which I meant less qualified. The basic logic, if I have someone in mind as the best person, then everyone else in the universe is less qualified.
- [03:59]
Nico Perino
But and this is the time before you could have a super long tweet. Elon Musk had not purchased Twitter yet. You couldn't have a, a book length tweet anymore. You were still whatever the character.
- [04:09]
Ilya Shapiro
There are other grammatical errors and awkwardness in that twee. Anyway, that's how it came out. So I fired that off and went to bed and overnight all hell broke loose. My ideological enemies went for my head, went for my job. Because of course, you know, if I had just been a Twitter, a Cato tweeting this or now at the Manhattan Institute, I don't think anything would have really happened. But I was trying to go onto their turf, onto the left's turf at Georgetown, academia. And away we went, you know, protests on a mob protest letter writing campaign. I survived thanks to fire and many other friends. Camille Foster, Barry Weiss, National Review, Wall Street Journal, all these folks coming out publicly and privately, behind the scenes to try to push at the dean, the lone decision maker. And so I wasn't fired the first 24, 48 hours. It was hellacious as my four days of hell and Ultimately, I was onboarded, but immediately suspended pending investigation on whether I violated the university's harassment and anti discrimination policies.
- [05:15]
Nico Perino
What was the first thing you heard from the university?
- [05:21]
Ilya Shapiro
Well, the next morning I woke up and I saw that this thing was, had taken off and not in a good way, and was being willfully misinterpreted, saying I was racist and sexist and all these things. And I thought, oh no, this is not good. And so I, I took it down and I said, you know, do you regret doing that? No, no, I have a, you know, the question, you know, should you have apologized? All that. I wrote that up for the City Journal. Mis.
- [05:47]
Nico Perino
We advised you not to apologize.
- [05:49]
Ilya Shapiro
You did you, did you advise me not to do any of that? I came out with, what, a very limited apology in the sense that, you know, I wasn't going to say, you know, sorry, I'm racist, I need to do the work and educate myself. And none of that. I just said, look, this was a failure of communication and it's become a distraction to my underlying point that you should have merit based, not race based hiring and all that. So I took it down and that was it. I very quickly had a phone call with Randy Barnett, who hired me, who said, we need to get ahead of this. And eventually the dean, I think around lunchtime that day issued a statement calling my words appalling and, and all of this. And you know, he didn't know what to do. You know, he neither, not, not exactly a profile encourage Bill Trainer. He neither fired me right away or rescinded my contract nor, you know, upheld my speech rights. He could have said, you know, I don't agree with this, this is not good. Ilya needs to be a better communicator. But clearly protected by our speech and expression policy. He could have done that and it.
- [06:55]
Nico Perino
Probably would have ended. Maybe not that day or the next day, but it would have ended.
- [06:59]
Ilya Shapiro
Yep, yep.
- [07:00]
Nico Perino
That's what we've seen in the past.
- [07:02]
Ilya Shapiro
You know, I ended up zooming with him that Sunday night. And this is the kind of, the. Another surreal overlay to all of this was Covid mania was still in full effect at Georgetown. So I never met with either Dean Treanor, the DEI office, or human resources that were investigating me in person because then we'd all have to be wearing masks. So it was kind of eye roll. But anyway, so when I zoomed with the dean that Sunday night, he was like a deer in headlights. He kind of showed up, you know, looked like clearly he hadn't been sleeping this Was like a, a big scandal in his world. And he, you know, I said some opening lines and I said, you know, so where do we go from here? Is like, well, where should we go from here? I'm like, well Dean, like your policy is pretty clear. You should, you know, I've said, you know, again, not taking fire's advice. I did say, you know, sorry for the tweet. It was in artfully phrased. What I meant was clear. 76% of Americans agreed that, that Biden should have considered all possible candidates, at least according to that rabid right wing news source, ABC News. And I said, you know, Dean, you know, say what you want about not agreeing with me or whatever, but like this is seems pretty clear cut but you know, he didn't do that. And he punted, he, you know, punted to the DEI and HR offices. And away we went with this weird investigation which very quickly became clear was not an investigation, but just kind of, well, an inquisition in some sorts. When I had the zoom with the DEI office at Georgetown called the Office of Institutional Diversity, Equity and Affirmative Action idea, we had this zoom and they just kept asking me, what did you mean by the tweet? Do you understand why it's offensive? What was the context again? They kept asking me again and it was like it was so banal and they weren't lawyers. It wasn't like I didn't feel like pressured or Gotcha. And you know, after a while, you know, soon after that, my lawyer was like, look, which fire helped me out with Jesse Benald who set me up through, through Fires Network? He was like, look, do your job. Go back to commenting on the Supreme Court, go back to tweeting, whatever, don't, you know, criticize Georgetown or comment on the investigation, but do your job. Especially now, you know, at that, by that point Justice Jackson was nominated or hearings were happening, all of this, he's like, do your job, write about it, speak about it, do your job. And the longer it went, it became clear that this was not some meaningful invest. There was nothing to investigate. They could have given it to a junior law professor there to look at the, the short facts, the tweet, the very short, you know, policies at issue and apply a lot of facts. And, and that's that.
- [09:28]
Nico Perino
And so they brought in a high powered white shoe law firm.
- [09:31]
Ilya Shapiro
I imagine they spent like a million bucks on this thing, Wilmer Hale. I mean they had several people there, the head of their, I mean, very high powered, you know, at the end of which four months later, once the students were off campus, you know, surprise, surprise, to get it away from controversy. You know, they had a junior associate look at a calendar and determine, oh, Ilya wasn't employed by Georgetown when he tweeted. So none of these policies even apply. The, the good old jurisdictional knit. And, and so I was reinstated. I celebrated that technical victory. But then I got the fine print, this long report from the Idea Office, which I reprint for the first time ever in full in my book with, with some, some annotations and comments about it, which made clear that anytime that I said or wrote something that would offend someone, that would create a hostile educational environment, and I'd be back in the star chamber. And so I realized over that weekend in June. So I was reinstated June 2. On June 6, I resigned. And over that weekend, I put together probably my best ever legal work, my resignation letter, which is available on fire's website. Thanks for hosting that. I know a lot of reporters have gone there to look at it. A summary of that I published at the Wall Street Journal, as one does, and then the next day announced my move to the Manhattan Institute on Tucker Carlson show on Fox, again, as one does. And since then I've been using that platform, which I was not seeking, which I've been given to shine a light on the. On the rot in higher education.
- [11:01]
Nico Perino
I should note why FIRE doesn't advocate for apologies. In some cases, you might feel like the apology is warranted, like you really, truly feel bad for what you said or what you did. But it doesn't in the end help with the disciplinary process or with the fight in the court of public opinion, because in many cases, these are witch hunts. And apologizing just self identifies you as a witch to the mob and doesn't put them at bay. We've never seen it a controversy end because someone apologizes. It just throws more gasoline on the fire.
- [11:38]
Ilya Shapiro
Just to give a precis of why I did issue that limited apology, it was because I didn't care about the Twitter mob. They were not my audience. I didn't care about anybody who was criticizing me. I had an audience of one, Dean Treanor, and I was strongly advised that it would help not get me fired. In those first 24, 48 days, for 48 hours, if I simply said, yeah, this is bad wording, I need to take it out. And that's how I felt it was. It was an error in hot take Twittery. You know, who among us hasn't done that?
- [12:13]
Nico Perino
But anyway, people wouldn't even blink at it today. I don't think.
- [12:16]
Ilya Shapiro
I think that there's been a vibe shift, as we all say. But I wrote this up in detail in City Journal, I think, in their spring issue last year. You know, you set the goal. You know, what is your goal? Is it to become a martyr and monetize? Is it to become some sort of free speech hero? Is it, you know, to get in good graces with xyz? My goal was to keep my job, period. This new job that I was transitioning to.
- [12:42]
Nico Perino
And I can say that was honestly your goal. Going through these four. Four months, we were. We were in constant communication. And you wanted your job.
- [12:50]
Ilya Shapiro
That's right. That's right. I mean, I went to Georgetown for a reason. I could have stayed at Cato. I could have done any number of things. I eventually got a great offer from mi, but it seemed, you know, for that matter, had I just wanted, like a payout, I could have asked my lawyer, you know, in month two of the, of the purgatory, the so called investigation. Well, let's get a settlement. You know, here's the number I need to go away. And I'm sure there was a number like that for Georgetown as well, but we never started those kinds of discussions because again, I was just, you know, this needs to be vindicated. This needs to. I need to see this through. So, you know, anyway, in light of that, in light of that goal, this was not trying to placate, you know, I agree with what you said about the general thing about don't apologize or, like, right now there's a, as we're recording this, an imbroglio about Elon Musk. Did he give a Nazi salute? I mean, it's all bullshit, but. And so he shouldn't be explaining himself or apology. Cause that's, that's, you know, who would he be apologizing to? There's no Dean Trainor. That's the target. You know, that's the decision maker or whatever. But in case I. I still feel, you know, what I did, I. I don't think in terms of process, I look back, I don't think there's anything that I could have done differently.
- [14:07]
Nico Perino
Yeah. Amidst all of this, you're going out, you're still speaking, you're still writing, and you have another experience at a different law school. And your book is about the unraveling of law schools, essentially. And you're at California Hastings College of Law, I believe, on March 1st to give a talk that you ultimately were not able to give. You stood there for what, an Hour. An hour, as you were essentially just yelled at.
- [14:33]
Ilya Shapiro
Yes.
- [14:34]
Nico Perino
Right.
- [14:34]
Ilya Shapiro
It was like an Occupy Wall street rally. There was chanting and banging and all of these things, like signs. I don't mind. You know, they were holding signs in the back, which is fine. The signs actually weren't blocking people's view. You know, there have been other disruptions where the, you know, people hold up signs up front and between the speaker and the audience. That wasn't the case. It was. It was the chanting, the banging. Sometimes the chanting started to die down and I would try to, you know, speak half a sentence and it'll pick back up again. And the topic was the subject of my last book, you know, Supreme Court Politics at this point. There was. There was a nominee A month later, after. After my tweet, and there was a professor there to comment, he eventually egged on the mob when I briefly stepped out to discuss with the Federal Society officers who invited me what we should do. And I told them, look, you've paid for me to be here for an hour. I'm going to be here for an hour. But, yeah, just. This is the same month, by the way, that Yale had a speaker shut down, ironically, with lawyers of the left and the right who agree on little other than the importance of free speech. Then it happened at the University of Michigan. This didn't get national media because for some reason nobody was live tweeting out that one. But. So it was a real problem that, that, you know, spring of 2022, I'm actually coming back to what used to be called Hastings. It's since been renamed. It's now UC Law sf. I'll be back there next month in February. This three years later. So completely different cohort of students. It's like, what is that? Dazed and Confused. I get older, they stay the same age. So we'll see. We'll see what happens.
- [16:04]
Nico Perino
What was the university's response or college's response in that situation? Was it a dean trainer response?
- [16:12]
Ilya Shapiro
So there were a couple of deans that showed up. First there was the dean of students, who was kind of a diminutive Asian American lady, and nobody listened to her. One of the small ironies, she was trying to. She was trying to get them to calm down and to tell them, like, our policy does not allow this kind of disruption. And they just spoke over her. They chanted. They didn't. Had no effect whatsoever. Then a tall white man, basically the deputy dean, the head of academics, Morris Ratner, I believe is his name, came up and read them the riot act. And they quieted down for that. At least that is, they let him speak. And to say what the university's policy was, what the law school's policy was, that is you can't disrupt. You can have your signs, you can ask questions, you can't disrupt. Very standard stuff from Fire's perspective. I just saw a Fire tweet out this morning about the Columbia disruption of the class, the class yesterday, this history of Israel. Yeah, this is not exercising your First Amendment rights. You don't have a First Amendment right to disrupt student programs and classes. Very basic stuff. And anyway, he said, he reiterated that, that policy. Then he went away. I came back up to the podium and they continued chanting and banging. And then the next day there was an email from the chancellor. I mean, this is a standalone law school, so the chancellor is effectively the dean reiterating what the policy was and that there'd be an investigation about things. And you know, these rules both in favor of free speech and against disruption would be enforced. But they weren't enforced.
- [17:55]
Nico Perino
Yeah.
- [17:55]
Ilya Shapiro
And about a month later there was like a further deanly memo, 20 pages of basically nothing.
- [18:00]
Nico Perino
Yeah, behavior that gets rewarded, gets repeated. And when you have these disruptions and nobody gets punished, they just. You're incentivizing it happening again. And unfortunately that's what we see far too often in these shout downs. But we'll see if college administrators start to grow a spine as they seem to have political cover and they don't have the ex mobs coming out the same way that they used to.
- [18:24]
Ilya Shapiro
That publicity nobody enjoyed. I mean, these deans are generally not woke radicals or social justice warriors. They're careerist bureaucrats. And so they shy away from bad publicity or donors making noise or what have you. And so a few weeks later, I mentioned the University of Michigan after there was a disruption of Jonathan Mitchell, who had been one of the authors of the Texas Heartbeat bill. This is back before Dobbs now. Seems like years ago. It does. And again, that didn't make news because nobody was live tweeting or whatever. But. But the following week I was due to speak at Michigan and the deans apparently sat down, the heads of all the student organizations and said, we are not going to be Yale and Hastings. Now here are rules. If you do something, there will be concert. They read them the riot act, you know, and the following week when I showed up and they changed my topic to discuss model civil disagreement with a professor they brought in from Northwestern, their DEI dean even stood up and said, or not the D. I Guess their dean of students stood up.
- [19:28]
Nico Perino
I hate when they do that, though. So, like, let's have this milk Tokes conversation because we can't have a real substantive one.
- [19:33]
Ilya Shapiro
Well, we. I mean, we didn't. We weren't having a meta conversation about the importance of having conversations. We actually, we actually did discuss certain things. I mean, he. The Andy Koppelman was. It was. That was the other professor, and he opened with, you know, Ilya said much worse things than that tweet. I mean, come on, did you see what he wrote about the. During the Obamacare litigation? He wants kids to work in mines and things like that. Right. So it went off about this, and it became much more of a kind of a typical left right thing, rather than this postmodern thing about what speech is and what your privilege is. And what happened to Judge Kyle Duncan a year later at Stanford with is your juice worth the squeeze? And, you know, all of these harms and things like that. So, anyway, this is fixable. It's not rocket science. We don't need to theorize whole new approaches to public policy to deal with these issues.
- [20:16]
Nico Perino
Yeah. During that shout down at Hastings, you decided to stand up there for an hour and essentially just take the hate. Why did you decide to do that? Most. Most speakers are just going to leave the podium.
- [20:27]
Ilya Shapiro
I was bemused. It might have been a bet. We were all wearing masks again. There was still that. So I was. I was. I was kind of like smiling or smirking behind a mask. And I never really felt physically threatened. I mean, at certain points, they did literally get right in my face without touching it and blocking access to the. To the podium and things like that. But I never felt physically endangered. So I'm like, okay, if I'm not feeling physically endangered, if this doesn't seem like on the brink of a huge, you know, melee or something, I'm just going to see what's. What happens, whether I can speak. And. And literally, as I told the students who invited me, you know, you're paying for me to be here for an hour. If they let me speak for five minutes, I'll speak for five minutes. If they don't let me speak at all, well, that's too bad. But I'm. I'm just gonna, you know, you paid for my time. I'm gonna be here.
- [21:22]
Nico Perino
Before we look at the challenges of law schools today, let's zoom out and get your story. Why did you decide to go into law?
- [21:34]
Ilya Shapiro
So I was born in the Soviet Union in Moscow, and my parents got me out just as soon as they could. I was four when we came to Canada, and I grew up in and around Toronto and always was interested in legal, political institutions, which is kind of a nerdy and precocious thing, but there it is. I was also into sports. I mean, it wasn't just a thing.
- [21:55]
Nico Perino
To do with the family history.
- [21:56]
Ilya Shapiro
Yes, absolutely. My parents taught me that communism was bad and the family history with my dad's dad being arrested by Stalin's secret police, and then he and his mom were exiled to Siberia. You know, all of these sorts of things that are not atypical of the Soviet period and especially of Soviet Jewry. So the way that we were able to get out was Brezhnev was letting Jews go to Israel in the late 70s, early 80s, and we got a visa that way. Didn't end up going to Israel, ended up going to. Going to Canada, the first country that gave us a visa. And so, yeah, growing up, I had this interest in why some countries are good, some are bad governments, all these kind of. As my understanding grew, and also very early on, I began to prefer life, liberty and pursuit of happiness to peace, order, and good government, which is the Canadian equivalent. So I also, you know, one of the chips on my shoulder growing up for many years was that I wasn't American and that we took a wrong turn at the St. Lawrence Seaway for all sorts of ideological reasons as well as meteorological ones, I suppose, as well.
- [22:57]
Nico Perino
Did your parents feel the same way about America?
- [22:59]
Ilya Shapiro
Eventually, yes, because they had some hardships growing their careers, and there definitely would have been more economic opportunity for them in the US they were both material scientists, chemical engineers, working on piezoelectric ceramics and superconductors and things like that. They both got jobs at a defense contractor in Ontario. But they would. They definitely would have had more opportunities in the US I think. So I got to the US as soon as I could as a separate discussion about the immigration system. But it was pretty much harder to get a green card than to come from the Soviet Union to Canada. I ended up getting the green card only in 2009, long after college and law school, which was in the US and became a citizen 10 years ago now.
- [23:44]
Nico Perino
But why law?
- [23:45]
Ilya Shapiro
Yeah. Yeah. So I think by the time I got to college.
- [23:49]
Nico Perino
And where'd you go to college?
- [23:50]
Ilya Shapiro
Princeton. And, you know, my parents said, you know, fairly early on in high school, even though I was good at math and science, I told my parents, like, this isn't where my passion is. Like, I think I'm really more into like reading and writing and the history is really exciting and I don't know what that means. You know, the lawyers seem to do interesting things. I, you know, like LA law and it's Canadian equivalent, that sort of thing. I recognize that's not, you know, reality, but anyway. And they were like, yeah, that's why we brought you to this country, so you could be whatever you want. I just realized we can't help you with your homework anymore. That's okay, I got it. I got it. So. So when I got to college, I pretty sure I was going to end up going to law school. And that's what I did at the, at the University of Chicago with a year in between to get a master's in at the lsc. I studied beer, theater and rugby and I think they gave me a degree in international relations for traveling around Europe while I was there. A good experience. And then came to the University of Chicago for law school and it was an intellectual delight. Still didn't know what I wanted to do or what kind of lawyer I wanted to be. Had never heard of any big law firms. Didn't know there was such a thing as clerkships. I ended up clerking for a 5th Circuit judge, which was amazing. And the way that I look at the law, the way that I organize my own team, very much like Judge Jolly in Jackson, Mississippi did, but it's all about, you know, I wrote my undergraduate thesis comparing constitutional development in Russia and Argentina because I spoke Russian and Spanish and got funding to visit places and talk to constitutional lawyers and stuff. But this, the way societies organize themselves, how to promote and preserve freedom. Those were kind of core things with me from, from very early on.
- [25:23]
Nico Perino
It seems like you like your experience at University of Chicago.
- [25:26]
Ilya Shapiro
It was great. It was great. I was actually just talking to their development office this morning. They reached out. You know, I've been a donor for a while and every five years I'm on my class reunion committee and things like that. As I detail in my book. University of Chicago, certainly among the so called elite schools, has been the exception and not bathing itself in mud over the last recent years. It's kind of a low bar, but they're doing something right.
- [25:52]
Nico Perino
So what do you see as the major problem with law schools today that have them bathing in mud?
- [25:57]
Ilya Shapiro
So it's a microcosm of our broader crisis in higher education, which came to the national for, I think after October 7, after Hamas's attack on Israel and then the disastrous testimony at the university presidents where it became clear that something is fundamentally wrong and public confidence in higher education, and especially in the Ivies and the so called elite places really plummeted. Anti Semitism as, as Bill Ackman, the Harvard donor billionaire, would write the same day as it happens that Claudine Gay, the resigned the Harvard presidency. Antisemitism is the canary in the coal mine that wherever it flares up historically, is an indication of pathologies underneath. And here that's everything from academic corruption, moral relativism, a shift from education to activism, an abandonment of the core mission of any university to seek knowledge and provide a space for open inquiry and civil discourse, all of these sorts of things. You know, ironic that the heart of antisemitism in our country is in the most progressive educated places, as it were, and in law schools. The reason why I focus on law schools in the book is because that's of course my professional background and my experience at Georgetown, what have you. But also, while it's sad when departments of English or sociology or what have you go off the rails and unfortunate for the development of human knowledge, there are much more practical consequences with law schools because after all, they churn out the next generation of our institutional leaders, the gatekeepers of our political and legal structures. The, you know, lawyers are disproportionately represented among elites of all kinds and especially political governing elites, as well as C suites in corporate America, as well as obviously prosecutors and so forth. So if they are being taught or acculturated in a way that there is no objective truth, legal institutions are illegitimate and need to be reworked. It's inappropriate to consider certain sides of particular issues. This goes against all professional norms and really threatens, I don't want to, you know, with no exaggeration, threatens the pillars or the rules of the game on which our whole society is based.
- [28:26]
Nico Perino
So you think it's an ideological problem largely?
- [28:29]
Ilya Shapiro
No. And I want to be clear about this. There is a perversion of ideology that is the, the, the, the critical theory coming back with a vengeance. You know, when I was in law school in the early 2000s, critical legal studies, critical theory of various kinds, we thought that was some niche weird philosophy that had from the 80s and early 90s that had been relegated to, you know, sociology departments. But then it came back about 10 years ago, 10 to 15 years ago with a vengeance. So that is a problem in terms of the teaching side and how not just, you know, the Constitution has problems with it, or civil rights laws enforce institutional racism or what have you, but securities law, water regulations, the entire legal edifice is problematic ideologically. Yes, that is a big problem because.
- [29:15]
Nico Perino
I hear people say that it's a big problem about what they choose to teach and what they choose not to teach. For example, right now you have five justices on the Supreme Court who support originalism or a form of it. But you're not getting taught how to be an advocate in the originalist mold within law schools. And to me that, that seems to be ideological because why wouldn't you want your students to understand one of the main.
- [29:40]
Ilya Shapiro
That's right. They don't have to agree with it. It's not preaching originalism, it's being able to understand it so you can be a better advocate for your side. And yeah, you're right, they're failing that basic task of training lawyers. It's a professional school after all. They're failing in that task.
- [29:56]
Nico Perino
So. So that seems ideological to me. And then it seems that the speech suppression that you experience, whether it's at Hastings or at Georgetown, also seems motivated by ideology.
- [30:05]
Ilya Shapiro
That's that those are symptoms. I want to make clear that yes, there is that ideological failing and that this, this radical illiberalism is something different than kind of traditional debates between originalism and living Constitution are different ways of looking at the law. This is not, Nico, the latest iteration of the decades old conservative complaint about hippies taking over the faculty lounge. In fact, those hippies, the Berkeley free speech movement in the 60s would now be by these radicals considered retrograde white supremacists. Right. Because speech, well, that's your rights depend on where you are in the intersectional matrix or, or what have you.
- [30:45]
Nico Perino
Anyway, that's why people like Nadine Strawson came to your defense during the situation at, at Georgetown you have these old school liberals who are almost aghast at some of the couple years ago there.
- [30:55]
Ilya Shapiro
Was some baby boomer history professor, I believe, who had a, you know, a liberal by, you know, card carrying member of the ACLU and all of these sorts of things wrote in the Wall Street Journal how he was afraid of his students. So yeah, so ideology is definitely part of it, but that's only the basic thing. Everybody talks about that. That's a well known story. The bureaucracy I cover a fair bit is astonishing. The idea this started probably when you or I were in school, kind of the growth of non teaching staff and it started as kind of student support things. And Greg Lukianoff has written about safetyism and cognitive behavioral therapy kind of coming in through the dean of students office and that sort of thing. That's a Negative effect, to be sure. And then that exploded, especially in the last 10, 12 years, largely in the DEI space. And so you have these bureaucracies, these non teaching staffs, who are even more to the left than the faculty and not acculturated in norms of academic freedom or free inquiry. And they become the tail that wags the dog with more non teaching staff than faculty. Whether you're talking about, you know, they.
- [32:08]
Nico Perino
All need something to do and they only.
- [32:09]
Ilya Shapiro
And you know, as Mansur Olson, the great political economist, talked about the growth of bureaucracies leading to the decline of nations. So just as in public, in the public sector, with, with bureaucracies there, I call this the, the educrats, the, the educational bureaucrats. They, their incentive is to grow their authority and their budgets to, you know, manufacture wrongs to that they can then investigate things like that. So that bureaucratic side is hugely important. And then the leadership bit. None of this would go forward if deans, provosts, presidents didn't allow it to happen, because university officials, these leaders are good at instilling whatever cultures they want, public service, entrepreneurship, social justice, I mean, whatever they want. And they could maintain a culture of free speech and open inquiry and whatever these basic classical liberal values of due process, equality under the law in the context of law schools. And yet they don't. And that is another side of the institutional failure.
- [33:22]
Nico Perino
You talk about the shout down at Stanford in your book. This is Judge Duncan of the 5th Circuit, is set to give a talk at Stanford Law School. And is one of these bureaucrats, one of these DEI deans who comes to try and quiet down the students, but in the process of doing so, throws gasoline on the fire, criticizes Judge Duncan, essentially asks him, why are you here?
- [33:44]
Ilya Shapiro
With prepared remarks?
- [33:45]
Nico Perino
With prepared remarks, yeah. So she was prepared to come here and more or less take over his speech. I think her remarks were something like eight minutes. It wasn't just coming and reading the riot act to the students. It was coming, editorializing, not just on what Judge Duncan had to say, but the mere invitation to him, the fact that students wanted to hear from him. He's a 5th Circuit judge, he's a powerful judge.
- [34:08]
Ilya Shapiro
And he was about to talk about how lower courts adjudicate cases in areas of uncertainty over Covid or what have you when the Supreme Court hasn't ruled something. You would think people come to become students at Stanford Law to, to learn.
- [34:23]
Nico Perino
What did you make of the decision by some judges in the wake of that? And I think also the shout down at Yale to Decide, hey, there are just certain law schools we're not going.
- [34:31]
Ilya Shapiro
To take clerks from, which was then expanded to Columbia after their failed response to the, the anti Semitic encampments and disruptions and all that. Yeah, I support that. Jim Ho, the 5th Circuit judge, is a friend of mine. He came to my defense as well at Georgetown, gave a talk, kind of dramatically ripped up his prepared remarks and, and defended me. I was on a plane when this was going on. I landed and had all these texts and emails from reporters asking for comment. I just said, jim Ho's a mensch. But, but look, and Lisa branch from the 11th Circuit, I think they're the only ones who are, who publicly put their name on the boycott, joined by a dozen district judges.
- [35:07]
Nico Perino
Is that still going on, do you know?
- [35:08]
Ilya Shapiro
As far as I know. And, and I talked to Jim recently. He said that Yale alums have come up to him and said, keep it going. Just because Heather Gerken has hired Keith Whittington and then a junior professor, Garrett west, who had clerked for Alito and done certain other things, that's not enough. That means that she's paying attention, but we need to keep going. You know, I support that because, first of all, it's prospective. That is, when he announced the boycott, the students that were already at Yale, they weren't affected by it. And, you know, how else are you gonna get their attention? It's kind of like in the civil rights era. If a dean, you know, announced policies that were still discriminatory against blacks, could someone, you know, would it have been improper for a judge to say, well, okay, I'm not going to hire from that school? Yeah, that would have harmed some kids who might disagree with the dean's policy. Well, then don't go to that school. And that's ultimately the impact I think that it's having.
- [36:07]
Nico Perino
Do you tell students to go to law school today if they ask you?
- [36:10]
Ilya Shapiro
No, and not because, I mean, my tune on that hasn't really changed with my so called lived experience or this book or what have you. I think for too long. Young people, very talented young people in this country have gone to law school as a default. They don't know what they want to do with their lives. They've taken the LSAT just in case, just to see how they do, and they do well. And they're like, oh, well, maybe I should then be a lawyer.
- [36:35]
Nico Perino
Is that different than you, Your, your situation? You were interested in the world of ideas.
- [36:39]
Ilya Shapiro
I knew, I knew I was interested in studying the law, intellectually I didn't know what I wanted to do with that. I still don't. I still joke that I don't know what I want to be when I grow up. You know, I. I partly had issues of, you know, my immigration status. So I couldn't have become a journalist because that's kind of more unstable. Couldn't have gotten a. A work visa or a NAFTA visa or things like, you know, so I had personal little things there with that. But, you know, I knew I wanted to study the law and have some sort of career that hopefully would encompass the academic, legal, political and academic and, and media worlds. I didn't realize that would be like at a job at think tanks, where you kind of do all of those things at the same time. I thought it would mean, you know, teaching a little bit, then going into the government, then going into whatever, going to. Being at a firm or whatever.
- [37:27]
Nico Perino
But when you're advising students about whether to go to law school, it's just.
- [37:31]
Ilya Shapiro
I liken it to converting to Judaism. So you come up and you ask the rabbi, and he says, no, no, no. And if you're persistent enough, well, maybe there is some reason there. Let's talk about this because, you know, so many people, like I said, they just go there because, oh, it's prestigious. Lawyers, both make a lot of money, and it's kind of a good reputation, all this. Maybe this is what I should do. I don't know what I want. I don't want to be, you know, I majored in history. I don't want to be a history professor. I don't know what else I would do. Right. And I said, no, you have to have a good reason. Like, answer the question, what kind of lawyer do you want to be? What kind of law do you want to practice? Now there are more opportunities these days than when I was coming out of Law School 20 years ago to be a constitutional lawyer, to do public interest stuff, things like that. But still, it is not the right move for most people. Once we get past that stage about, you know, should you go to law school, then we can talk about, you know, which law schools, how do you approach it, how do you prepare all that certain thing. But, you know, I've had the opportunity, the privilege, the pleasure to interact with a lot of bright young people. Gosh, young people. I think I still think of myself as young. So I. I don't know how, you know, I go to college campus. Like, why are these. Why are these middle schoolers in college all the time? Yeah. It's not the right answer for most people, but if you're focused and you have a good head on your shoulders and you have a, again, goal setting so important, don't know how you're going to get there, but set the right goal and it might work out.
- [38:58]
Nico Perino
You write in your book that some of the challenges that are seen in law schools have graduated, so to speak, into the real world. You write the Overton window shift we've seen in law schools has graduated into the real world. You write that law firm partners cower in fear of their associates who question their firms as representation of certain types of clients and demand that statements be made. You suggest or state outright that the American Bar association has become captured, ideological, is trying to shape the way that.
- [39:28]
Ilya Shapiro
Law schools teach it ratified Biden's deeming the Equal Rights Amendment to be part of the Constitution. I mean, come on. As did Georgetown, by the way. Those are the two major institutions I saw on Twitter at least that said good things about this. You know, just willing a constitutional amendment into effect.
- [39:48]
Nico Perino
Have you heard from people, or do you hear often from people outside of legal academia about the challenges that they've seen at the law firms that they practice at?
- [39:57]
Ilya Shapiro
Yes.
- [39:57]
Nico Perino
Whether in their professional institutions, what are they saying?
- [40:01]
Ilya Shapiro
That they have to bite their tongue, that they're not allowed to take on certain clients, whether pro bono or even paying, sometimes oil companies, for example, Politically Incorrect that, you know, even as their counterparts on the left can take lots of kind of controversial positions they're not allowed to in various ways. I mentioned the story of a friend in my book who was at a big firm and after Dobbs, the overturning of Roe v. Wade, she declined to take on, you know, abortion rights litigation and, you know, citing, I'm too busy, what have you, not making a political stink over it. And finally the managing partner called her in and said, oh, I bet you're pro life. What a waste of a female equity partner.
- [40:51]
Nico Perino
Wow.
- [40:52]
Ilya Shapiro
So she got a nice settlement out of that and started her own firm. But, you know, that is not atypical. And you know, it's not just the stories that make national news are evocative of a much bigger problem. So Paul Clement, possibly the best lawyer in the country, best Supreme Court advocate, had to leave his firm because they wanted him to fire his client because he'd won a Second Amendment case at the Supreme Court, even though when he went to Kirkland, he and his colleague Aaron Murphy negotiated that they could keep their clients in this precise scenario would not happen because it had already happened to them at their previous big law firm.
- [41:31]
Nico Perino
So is this still going on amidst.
- [41:34]
Ilya Shapiro
The vibe again where we have a vibe shift? We're in the eye of the storm in corporate America. Apparently there are some changes and we saw some developments where like Netflix was not going to be bullied into taking down Dave Chappelle. Yes, things like that. State Farm there in corporate America. There were, there have been examples of, of the pendulum swinging back at law firms. I think it's going to take longer because they're more left wing on average than your, than your average corporate CEO who is kind of doing things based on what they think their financial advantage is at any given time.
- [42:07]
Nico Perino
Well, let's steel man it a little bit. What's the problem with law firms doing this? What's the problem for the legal profession with law firms that are particularly ideological in this way?
- [42:18]
Ilya Shapiro
It's, it's the same as law firms in the 50s and 60s who said we'd love to hire more black lawyers but our clients won't stand for it. It's just morally wrong and it does a detriment to our society that, you know, politically incorrect clients can't get representation. Whether you're talking about some individual who's been improperly railroaded by a politicized prosecution or oil companies or gun manufacturers. I mean, this undermines the basic corporate governance of our capitalist economy.
- [42:54]
Nico Perino
Yeah. There also seems to be a lack of understanding or at least appreciation for what has historically been seen as lawyers roles. You talk about it in the criminal defense case. You had Ronald Sullivan, who was a dean at Harvard, who was driven out of one of the houses that he was overseeing because he represented Harvey Weinstein. The association of the client with the advocate is tighter now than it seems to have been historically where it was understood that even if a client is abhorrent or you find them offensive, or you find what they're alleged to have done detrimental to society, you still, particularly in the criminal defense space, want the government to prove its case. You don't want someone to be able to just get railroaded or even, even in the, in the civil space, to the extent people have a viable claim, they should be able to utilize the legal system to pursue it.
- [43:47]
Ilya Shapiro
And recall 20 years earlier when big law was jumping over itself to defend Guantanamo prisoners not because they agreed with them or necessarily thought they were innocent, but because they thought that that's what our legal system demands.
- [44:00]
Nico Perino
Well, what is the problem right now with the American Bar Association? I don't know that folks have a full appreciation of what the association does as it pertains to the legal educational environment, but also just the legal profession in general.
- [44:17]
Ilya Shapiro
So the most important thing to know about the ABA for purposes of this dynamic we've been discussing, that I wrote the book about, is that they are the sole accreditor of law schools. They have a Department of Education granted monopoly over the accreditation of law schools, which is not the case in undergrad for in undergraduate institutions. Which means you can't have a University of Austin law school rise up because they would not get ABA accreditation, presumably because of DEI standards and other things that the ABA puts into effect. At this point, the ABA is just another left wing interest group. It is not your, not even father's, not your grandfather's aba, where Lewis Powell parlayed his presidency of the organization into a Supreme Court Justiceship. I mean, something like that wouldn't happen now. The, the president of AB of the aba, nobody knows who that is. Leaders of the legal profession don't know who that is. It's not an important person. It's arguably less important than the leader of, you know, the NAACP or Planned Parenthood or one of these other kind of name brand activist organizations. And nevertheless, it purports to speak for the legal profession. And it would be one thing if it spoke for it in the context of lawyer regulation. Should state bars be so powerful? Or what kind of ethics guidelines need to be updated for the AI space or something like that?
- [45:47]
Nico Perino
So they don't have a formal relationship with the state bars that license attorneys.
- [45:53]
Ilya Shapiro
Sometimes they do. It depends on the state.
- [45:55]
Nico Perino
Okay.
- [45:55]
Ilya Shapiro
And. And most states require you to graduate from an ABA accredited law school to get a law license. There are some exceptions to that. California notably has non ABA accredited law schools, so you can practice within California, but they are a gatekeeper to the state bar in that effect, even if they're not directly empowered. Although in many places the state bar regulatory authorities just kind of adopt the ABA model rules for whatever it is. But anyway, as I was saying, they don't just take positions on legal ethics or what have you, but on the controversies of the day, whether it be abortion or the Second Amendment or affirmative action or anything else, filing briefs, taking institutional positions. And that and all these other developments is why it's declined in its.
- [46:48]
Nico Perino
So you see that as a departure from their core mission. We often talk about colleges and universities taking positions on the issues of the day and they're increasingly not doing so, adopting postures of institutional neutrality. Is that not something?
- [47:01]
Ilya Shapiro
Calvin Report from Chicago. Right. I Think, which is I think a good practice that they're relearning so that they're not forced to take positions and argue over that. They can just say, you know, individual faculty or students can say whatever they want, but as an institution that's not our role except when it affects the university directly. And so similarly here the ABA is supposed to be the lawyers industry group. So if there's something coming down the pike, whether in a state or from Congress that direct that that affects the legal profession, they should be able to opine about that. But you know, general run of the mill political controversies where their membership is understandably split, even if not 5050. I mean that's not their role. And so now, I mean, I don't know what the latest stats are, but it's something like 10 to 15% of lawyers are members of the ABA. And it used to be, you know, much more than half. It used to be a comfortable majority.
- [47:54]
Nico Perino
Do you think we've reached peak cancel culture?
- [47:58]
Ilya Shapiro
I thought you were going to say peak woke because I think that the answer is actually different and they're two different questions.
- [48:02]
Nico Perino
We'll answer them both because I'm interested in the other as well.
- [48:05]
Ilya Shapiro
So I do think somebody asked me this recently. Was my experience with Georgetown and or Hastings, the, you know, the, the peak of, of, of wokeness. And the answer to that is no. But I think have been, that had.
- [48:19]
Nico Perino
To have been the summer of 2020. I think it was peak wokeness.
- [48:24]
Ilya Shapiro
Well that was when it flared up. I think it continued growing after that with companies react, you know, institutions reactions.
- [48:31]
Nico Perino
And institutions the next year or so.
- [48:35]
Ilya Shapiro
But cancel culture I think has gone down and it could be that my period of early 2022 was indeed peak cancel culture because we, we've definitely seen a vibe shift there. We're no longer seeing executives being fired for this and that.
- [48:50]
Nico Perino
I think it's underappreciated how much Elon Musk's purchase of X contributes to that. Whatever you think of Elon Musk and the politics, Twitter now X was the driving force behind many of these cancel campaigns, including yours, including the very first.
- [49:05]
Ilya Shapiro
Notable one, the woman who got, who went on the plane to South Africa.
- [49:10]
Nico Perino
And when you said that you tweeted and then fell asleep, the first thing that came to mind mind was Justine Sacco tweeting, then getting on an airplane without Wi fi for however many hours.
- [49:18]
Ilya Shapiro
Right. And was fired by the, by the time she landed. Yeah, yeah. So yeah. So X Twitter plays a, a big role in that. So I think, you know, Elon Musk's purchase can't be overstated in importance in terms of peak woke. The jury is still out. I think in society writ large. Certainly the pendulum has been pushing back, but. And as we're recording this, we have a slew of executive orders from day three of President Trump rooting out dei, reversing all the stuff that, that Biden had done in terms of the political commissars everywhere, suspending anyone who's at any federal agency with a view of eventually letting them go. Like a whole scale assault on institutional dei, which is part, maybe even most of the story of woke. But it's not everything and you know, that's just the federal government in our culture writ large. I think there's continuing work that needs to be done, continuing pressures kept in an academia, I don't know, you know, society writ large. I'm with Brett Kavanaugh. I live on the sunrise side of the mountain in academia. Maybe we're past the point of no return. I don't know. We're in the eye of the storm. There's a battle, the battle has been joined, but there's massive resistance and I choose that term advisedly both to the Supreme Court's decision ending racial preferences, SFFA versus Harvard, about which there was a separate executive order just, just this morning, reversing not just President Biden or Obama's executive orders, but Lyndon Johnson's that instituted affirmative action in the first place. Obviously going to be a lot of lawsuits at the end of the day.
- [51:01]
Nico Perino
You think there's going to be a lawsuit at the backup of the Supreme Court and dealing with corporate America at some point we will see.
- [51:09]
Ilya Shapiro
Well, you know, SFFA hasn't been legally mandated to be extended to corporate America. You know, the interpretation of.
- [51:16]
Nico Perino
Well, that's why I'm asking you think they'll take the, the principle applied there and extend it to corporate America where you have, you know, racial preferences.
- [51:22]
Ilya Shapiro
There's a circuit split. There might not be end up being a circuit split. It could be that if these things are litigated and all the lower courts, even the first Circuit based in Boston that has no Republican appointed judges, even if they agree that yes, not SFA doesn't directly apply, but the logic is inexorable that you can't treat people differently based on.
- [51:40]
Nico Perino
You also have to have a corporation that's willing to take it all the way up to the Supreme Court, which I'm kind of doubtful of.
- [51:45]
Ilya Shapiro
Right.
- [51:45]
Nico Perino
At least in the short term.
- [51:46]
Ilya Shapiro
Right, right. So you know, there are interest groups as I detail. There's even a, you know, the association of Higher Education Diversity Officers, which has thousands of members. This is a huge industry.
- [51:59]
Nico Perino
Oh, I debated Di at one of their events.
- [52:02]
Ilya Shapiro
I mean, they are not going to go gentle in the good night as their entire industry is completely threatened by this. So there will be lawsuits, there will be, you know, arguments, and, and the media is not going to be, you know, just, you know, lying down for this. So we are in, you know, this time around, the Trump administration is lawyered up a lot better both in terms of how these executive orders are structured and who's in place at the Justice Department to defend them. And general counsels at, in corporate America, I think this morning, are all huddling up about what they're doing.
- [52:34]
Nico Perino
I saw that on the front page of the Wall Street Journal. Yeah. Or at least the front web page of the Wall Street Journal that they're huddling up. I will say, at least on the academia side, over the past two years or so, FIRE has received more requests, often private requests, and they ask that these requests be. Remain private to come into colleges and universities and, and advise them on how they can navigate this current moment and bolster their, their speech protections. Because I do think there is a recognition, based on some of the conversations I've been in, that the pendulum swung too far that they were admitt, admitting the wrong sort of students into the college who didn't quite understand what the mission and purpose of the college was, as well as the recognition that they're not teaching these students.
- [53:15]
Ilya Shapiro
That's another point. We've been talking about different kinds of deans. Deans of admissions are also a problem in terms of putting the thumb on the scales for activists rather than scholars for law schools. If you write in your personal statement that you want to change the world, that's going to go out a lot better at a place like Yale or Stanford than saying that you want to prosecute child molesters or you want to make our markets more efficient for the American consumer. Yeah, so that's good that Fire is being queried as a consultant for these sorts of things. But, you know, there are an awful lot of colleges and universities in this country, and a lot of their leadership thinks that they can just fly under the radar. You know, we're not Yale, we're not Stanford. We're not going to make national news when something happens. Ohio Northern University is still locked in litigation with Scott Gerber, for example, law professor there. Ohio Northern is the law school. It's not the smallest law school in the country, I don't think but it's the law school in the smallest town, located in the smallest town, Ada, Ohio. And they, they frog marched him out of his class for. They wouldn't tell him for a while, for like a year what the charges even were. It was this, this Kafka nightmare. I put him in touch with the Wall Street Journal so at least he could get his story out and he can get representation from I think America First Legal is representing him but they won't settle. They've offered him like nothing and they try. They've mediated in bad faith. This thing goes to trial in April. I mean just ridiculous. If you read the docket. This is an Ohio state court, Gerber vs. Ohio Northern. Just again, smaller schools that are not the Ivies that are not going to get attention think that they can let this controversy blow over and it's going to take a full nationwide campus by campus approach.
- [55:02]
Nico Perino
I don't want to pass up the opportunity to have a prominent Supreme Court watcher on the show and ask about the First Amendment Supreme Court arguments from this past month, starting with TikTok. What are you making of that whole mess right now?
- [55:15]
Ilya Shapiro
I, I am disconcerted that I find myself on the other side from fire on both of these cases that we're going to be talking about the TikTok case and Free Speech Coalition versus Paxton. But I figured out a way to square the circle. It's because these cases are not actually about the First Amendment and speech. Here's why. Harder case to make for Free Speech Coalition. But that's a separate sort of thing for TikTok. And the court unanimously agreed with me, which doesn't necessarily mean that it's right. But it gives me some comfort that Thomas, Roberts and Jackson all were singing from the same hymnal that this is about ownership. And if you look at the legislation about TikTok, it didn't say TikTok has to change its algorithm because it's rotting teenagers brains or is harmful to American political discourse. That's a separate kind of argument that some states have tried to make, what have you. This is simply about ownership. And we've had a tradition, whether through the FCC and communications networks or through CFIUS and the ownership of ports and other sensitive infrastructure, that foreign control of these things has been regulated as a national security concern. Now we can argue about whether that balance has been written into the law improperly or, or in this case whether there really wasn't a national security concern that Congress was acting out of a sham interest or what have you. But bipartisan legislation passed in April of last year said that TikTok has to ByteDance, the Chinese controlled parent company has to divest itself, sell TikTok or not be able to operate in the US so it's not a TikTok ban because TikTok is bad, it's a divest or stop operating because of the concern of data mining by the Chinese communists and algorithmic control. And so I agree with that. I'm actually doing a debate tomorrow at Cleveland State or a panel about this TikTok issue and I fully agree with my friend Mike Gallagher, the now former congressman who designed the legislation. Again drew broad support. I just don't think it's a free speech case.
- [57:23]
Nico Perino
The court says it, it's, it was an as applied challenge. But if you look at the just the law itself, do you not see any content based regulation in it?
- [57:36]
Ilya Shapiro
I mean there's a definition of, of, of what a social media platform is. I suppose there's some contact there.
- [57:44]
Nico Perino
But particularly the applications that are exempted whose primary purpose is to allow users to post product reviews, business reviews and travel information and reviews, those are exempted. To be able to determine what's covered, you need to look at the content. Right.
- [58:03]
Ilya Shapiro
I mean I've heard this argument made a different way that there are other platforms that similarly allow hostile powers, Chinese or otherwise, to get at our information. So, you know, the TikTok is being singled out or something. I mean at a broad enough level, at a high enough level of generality, I suppose you could make a content argument. But I don't, I don't think it's really valid in the sense that, you know, this is, we've identified this particular platform as transferring data to a hostile power, period. We're not going to allow that. The solution isn't, even if people do.
- [58:36]
Nico Perino
It voluntarily, like the disclosure requirements doesn't do it for you.
- [58:40]
Ilya Shapiro
Right, right. You know, we have national security regulations of various kinds and again we can debate whether those are proper or not. But this was, I think an appropriate, you know, akin to blocking the Soviet Politburo from buying one of the three networks at the height of the Cold War.
- [59:02]
Nico Perino
Sure, sure. I think where FIRE has disagreements with a lot of other First Amendment advocates, stalwart First Amendment advocates, is probably around what level of scrutiny needs to be applied to it. So for example, but you know that.
- [59:15]
Ilya Shapiro
Those scrutiny levels are artificial anyway. They're, you know, Judge may, I know.
- [59:18]
Nico Perino
We'Ll get into that as well. During the Free speech Coalition v. Paxton 1 But if you're, if I'm looking at it from a broad level, I want to know what the implication of this decision is as the, as the court and its pure curium decision points out for, for mixed justifications for laws that are passed that have a content based motivation and a content neutral motivation. Here the content neutral motivation is, is data privacy. The content based one is what platforms are covered, what ones aren't necessarily requires looking there. And, and I, I can just see a lot of mischief coming from that because when we do litigation on campus and off campus, you often see mixed motives in, in some of the cases that we're looking at. And if, if courts and judges and I know they say in this decision that their opinion is narrow, but we know how courts actually will apply things and how advocates will try and expand the otherwise narrow opinion to be mean much more, I can see a lot of mischief being played when free speech issues get litigated surrounding this mixed justification motive.
- [60:19]
Ilya Shapiro
That'll have to be taken up as applied in the next case. And I think Gorsuch's concurrence is obviously only speaks for him but he comes at things a little more and he's probably the most speech protective justice I.
- [60:32]
Nico Perino
Think we would have been a lot more happy with. That's not saying we would have been totally happy but if his opinion were the per curium opinion or his occurrence was the per curian opinion, we would have been a lot happier. But I do, I do wonder how this just plays out. Right Because Tik Tok theoretically is available on the free and open Internet outside of the United States. So people I guess can use VPNs to still access it. It's just the ISPS and the app stores.
- [61:01]
Ilya Shapiro
Let's say there was an app that's you know, freely identifies as we are America's enemy. We want all of America's data. Please sign up. And people do I think the United States could block that out of national security concerns. I think that's what this is.
- [61:19]
Nico Perino
When you look at the Lamont case from what, 1965 that involved a Chinese publication. I believe it was the pecking review and the court held that users have the right to access this information. That was a case that involved people having to tell the post office proactively that they wanted to receive it. So there was an added burden placed on the speeches. Is the difference here that the, the data that's transferred, you're not just sending the Chinese Communist Party, which is, which Owns the pecking, review your address and name and that you're interested in these ideas. It's the algorithmic based data mining that matters.
- [61:53]
Ilya Shapiro
It also matters that, well, all the justices also agreed that ByteDance doesn't have any First Amendment rights. You know, foreigners don't. So then you're talking about the, the individual users.
- [62:06]
Nico Perino
Which really wasn't grappled with much in this case, I think because of who the petitioners are. They were content creators and then they were TikTok itself. But I, I think a user case would have been interesting. Someone say I have a freedom to access this information which is an underdeveloped area of law in the First Amendment space.
- [62:23]
Ilya Shapiro
And the answer to that would have been, well, okay, but we're just blocking them from getting your information.
- [62:30]
Nico Perino
Free Speech.
- [62:31]
Ilya Shapiro
Yeah.
- [62:32]
Nico Perino
What was the last thought?
- [62:34]
Ilya Shapiro
No, no, let's move to Free Speech Coalition. I'm actually debating former fire staffer Darpan Ashath next week on this case at Penn Law. We'll see if anything happens at Penn Law. That's another place that has had some issues the last few years.
- [62:53]
Nico Perino
Imi Wax, for example. So free speech coalition, VPACs, and this is a case coming out of Texas, they're requiring age verification on websites that have, I think something like 30% or more adult content. It's not just age verification. They also are requiring a health warning label on this content as well. And the question that's up to the Supreme Court is what standard of review should be applied to this law. The fifth Circuit applied a rational basis standard. Usually when you're talking about contest based regulation, you're not talking about rational basis standards. So I think that's why the Supreme.
- [63:26]
Ilya Shapiro
Court really wanted to look at. The Supreme Court will say, you know, you need to apply strict scrutiny. 5th Circuit redo it, 5th Circuit redoes it and comes up with the same exact result. So I'm less interested in the standard question. Not going to fight the hypothetical. I just don't care that much because these standards, the scrutiny land, as Randy Barnett called his famous article from almost 20 years ago at this point, is all artifice.
- [63:52]
Nico Perino
That's what kind of, that's kind of what Gorsuch says in the TikTok concurrence.
- [63:55]
Ilya Shapiro
Yes, yes. The point is, does the government have a good enough reason for infringing on a right? And everybody agrees that the government can restrict minors access to pornography without getting into a definitional debate over obscenity or adults rights. But minors access to porn, again, that was reiterated during the argument that Was the Ginsburg case? Yes. The lawyer for the porn sites agreed with that proposition. So the only question then it seems to me is does this technology for age verification burden adult rights? You know, is the technology, has the technology advanced far enough that your executing what the state can do, block minors without burdening adults? And it seems like at least that's what my brief for the Manhattan Institute and a bunch of scholars, interdisciplinary scholars, is that again, I'm just a simple constitutional lawyer. But the materials I was given and what I ended up writing and submitting was that the technology now all it, unlike in TikTok, you're not hoovering up, you know, everything from, you know, your, your biomedical data to your financial stuff to your retinal scan and whatever, all it's doing is verifying your age. And it's less burdensome even than inputting a credit card that's then stored. And if there's a leak, then someone can see that your credit card was used to access a porn site. That was technology from 10 or 15 years ago. Now it's less burdensome and to me it checks out. To me it is not. It's doing what government can do without imposing a burden on adults.
- [65:39]
Nico Perino
Yeah. I've always had the question about how you would actually enforce the law and ensure compliance. Right. Is it just that they have this technology in place? Let's, let's say they allow a minor to access the material. Are they not going to be held liable for that so long as they go through this process? And how would you even determine if it was a minor versus someone else accessing the material if you can't keep a log of who is logging in? Right. There has to be some sort of log to determine whether compliance is happening.
- [66:06]
Ilya Shapiro
But maybe, I mean, ultimately that's up to the Texas attorney general, I guess how they want to enforce it, you know, we're evaluating, the court is evaluating the law as written and how it, how it can be applied. And if the, it's, to me, it's a question of technology. If the technology is there such that really adult rights aren't burdened, you're just, you know, very quickly, you know, no 24 hour waiting period or where you're just very quickly verifying your age and then that information, you know, isn't stored or connected to your identity or what, you know, what, whatever, whatever else would be a burden then it should be able to go.
- [66:37]
Nico Perino
What do you think about the question before the court though, whether rational basis or some higher level of scrutiny should apply because if rational basis can apply, and we know what rational basis means in practice, it means the government wins. It means the government wins. Or they could theoretically just ban pornography because that would be a rationale way to. To prevent minors from accessing, which is.
- [66:54]
Ilya Shapiro
Which the court is never going to. Never going to say that. And they're not going to want to go back into the. The obscenity wars of, you know, I know when I see it. And, you know.
- [67:03]
Nico Perino
Yeah.
- [67:06]
Ilya Shapiro
I mean, probably strict scrutiny is right. Or heightened scrutiny of some sort.
- [67:10]
Nico Perino
So you think they would overturn the Fifth Circuit and say you have to apply a higher level.
- [67:13]
Ilya Shapiro
They could reverse and render. They could. They could. No, I guess they wouldn't, because they would know. They wouldn't answer the question in the first part or unlikely to. Yeah, I think probably the most likely thing is, as I said, there'd be a lot of language about how the, you know, the rule that the standard is strict scrutiny, but a lot of language about how this probably survives.
- [67:35]
Nico Perino
Yeah, I could see. I could see how this could survive under strict scrutiny, but I don't see how the labeling requirement can survive under strict scrutiny, which is another part of this law. Particularly held speech.
- [67:46]
Ilya Shapiro
Yeah.
- [67:47]
Nico Perino
Yeah. Particularly because the warnings say that there are psychological damages and danger that come from viewing porn and that the Texas Health and Human Services Commission hasn't actually announced findings that would give credibility to what they're compelling these sites to say. So that, you know, to the extent when you're applying.
- [68:05]
Ilya Shapiro
So it's not as justified as labels on cigarettes or something like that.
- [68:09]
Nico Perino
I don't know. It might not be. You'd have to kind of look at the record in that case. And I think it does matter what the health establishment finds when determining whether that could be.
- [68:19]
Ilya Shapiro
But it's a completely different question because the labels presumably are targeting adults at that point.
- [68:23]
Nico Perino
Yeah, it has kind of brought up anonymous speech, which you recently wrote. Anonymous speech. Insofar as people want to be able to access this content anonymously. You recently wrote about masking as well, and this was for the free press. And we know that in the wake of COVID everyone started wearing masks. Covid has waned. People are still wearing masks, and they're doing so in the commission of crimes to clearly kind of COVID up their misdeeds. You write in your piece that prosecutors and law enforcement in the city of Philadelphia, for example, are having a hard time prosecuting thieves or arresting thieves. What do you make of the whole. You tip your hat to the free speech concerns? I know the jurisprudence on it isn't from my perspective all that great. It has a legacy that relates to the Ku Klux Klans and the mask that they wore. But I have a hard time saying, okay, people can't be anonymous in public at protests and then transposing that principle to the Internet, for example, where, where I think you need to override.
- [69:31]
Ilya Shapiro
I don't know if it's the same concern because I'm not making an argument about using pseudonyms when you write or something like that. This is purely in public masking to conceal your identity so you can't be identified and prosecuted, whether for shoplifting or whether for intimidating and harassing or being engaged in a protest that blocks the street or any of these sorts of things that are illegal.
- [69:56]
Nico Perino
But, but you can wear a mask in public for. Because you don't want to be associated with a disfavored cause or to commit a crime in the same way you can online. Like you can use signal just because you don't want to be associated with a disfavored group that you're talking with or to engage in speech, integral or criminal conduct. And we had this debate in the 90s a little bit over encryption as well. And bitcoin comes into the play as well. You have all this anonymous stuff happening on the Internet, some of which is benign and protected, others which is not. And so I don't see how you clearly delineate that either in the real world or not. I can see making the case for wearing a mask being an aggravated aggravating factor, for example, but that also presumes that you can catch the criminal in the first place.
- [70:46]
Ilya Shapiro
Right? Right. So someone who's a bank robber, I think is going to be less concerned about a sentencing enhancement for wearing a mask while you're robbing that bank. So I don't think that quite does the trick. And you know, New York had the longest, had the oldest anti masking law in the country until it repealed it during COVID and has never put it back. And that's created a huge problem for identifying the people who I who took over Hamilton hall at Columbia, for example, that Alvin Bragg, I'm sure partly let them go for political sympathies, but also because it was very hard to establish people's identities and who did what.
- [71:23]
Nico Perino
The protesters at Columbia who disrupted that class that you had referenced earlier were also wearing masks. No, I get the problem for sure, I get the problem. I just want to be able to address the problem in a way that doesn't create bigger problems. For free expression. And in your piece, you. You talk about that as well.
- [71:39]
Ilya Shapiro
Someone who wears a mask is generally up to no good. I mean, you might have a legitimate reason because it's what feels like one degree.
- [71:45]
Nico Perino
Unless they're celebrating Halloween.
- [71:47]
Ilya Shapiro
Well, Louisiana's anti masking law makes an exception for Marty Gro. So I don't know. I don't know if there's a spike of shoplifting during Marty Gras because of that, but.
- [71:55]
Nico Perino
Yeah. Well, I guess while we're here too, and we're talking about all the ways in which you disagree with FIRE in certain respects, and I should note that there are many, many places we do agree. And your book makes clear that was my favorite organization.
- [72:06]
Ilya Shapiro
And I told you and Greg and the others that were just truly helpful. You're in my acknowledgments, as I'm sure you realize, not just the index for the Washington Reed, but in the acknowledgments that I hope to be one of your big fundraisers. And I've never said no to any requests that y'all have made of me.
- [72:23]
Nico Perino
But you spoke at Argala.
- [72:25]
Ilya Shapiro
That was a great experience.
- [72:27]
Nico Perino
Right after Killer Mike or before Killer Mike introduced.
- [72:31]
Ilya Shapiro
Yes, introduced by Nadine Strossen as the opener for Killer Mike. I mean, which other organization by fire would that happen with?
- [72:38]
Nico Perino
But the one other place where we disagree is also the IHRA definition. International Holocaust Remembrance Associate Alliance, I believe is the. The full.
- [72:46]
Ilya Shapiro
Which Harvard just agreed to as part of their settlement of the various lawsuits against it.
- [72:51]
Nico Perino
Yes. And they also expanded it because they included anti Zionism as a form of anti Semitism.
- [72:56]
Ilya Shapiro
I think it clearly is, which I go into that a little bit in the book. That's a. Let's not go down that.
- [73:01]
Nico Perino
No, we don't need to go out down the IHRA definition, but I do worry that every other group is going to ask for their examples of anti racism, anti sexism to be included and to have a formalized definition. I know you have broader concerns about courts trying to define what is or isn't anti Semitism or racism, but I have a definitely have a concern by the CRT people embedding in some sort of definition that gets adopted by a college or the federal government that enshrines systemic racism principles surrounding anti black racism, for example, which is a protected category.
- [73:39]
Ilya Shapiro
So I agree with FIRE that the Davis holding should be the gold standard in terms of what is harassment, what public institutions can regulate, how private institutions policies should operate, that, you know, harassing someone based on various protected categories and things like that. And I've had this disagreement with FIRE in the context of the Anti Semitism Awareness act, which I imagine is going to be reintroduced in this new Congress. It might have already been passed one of the houses, I'm not sure, but which adds some flesh onto what antisemitism is because it's never been defined. And the I also agree with FIRE that some of the examples in the IHRA thing are, can be problematic in, in a vacuum. But the Anti Semitism Awareness act, as I wrote in a letter to the editor at the Free Press responding to my colleague Chris Rufo with him, I fully agree about DEI and CRT and all those and Janine Yunus at the, at the National Civil Liberties alliance, who I've also supported with briefs and other kinds of cases. The act itself says that it does not create infringe on the First Amendment at all, does not change the scope of Title VI or anti discrimination law. It simply is a definitional thing.
- [75:04]
Nico Perino
But we know how those savings clauses work in practice, right?
- [75:08]
Ilya Shapiro
I mean, I mean there's, whenever you change a law, I suppose it's room for litigation. You know, lawyers always win. But I, I think it's a necessary component of, you know, these groups that say, oh, well, we're not really, you know, going after you because of your background or religion. We're going after you because we don't like your ideas or we don't like Israel, you know, query why are you protesting a Jewish student organization if you don't like what Benjamin Netanyahu is doing? But I think it's, I think it's necessary and I, I've been satisfied of First Amendment concerns.
- [75:44]
Nico Perino
The problem with Harvard is they adopt it.
- [75:47]
Ilya Shapiro
But I'm sure there's a, there are.
- [75:49]
Nico Perino
Many, they don't have the standard for.
- [75:50]
Ilya Shapiro
Their anti not opining on the Harvard settlement. In fact, Chabos Kestelbaum, who's the, the kind of the figurehead of the, you know, made a big splash and attack, you know, former Democrat who was all in with Trump because of this issue and the Harris campaign, not listening to students being affected by the encampments and all of these sorts of things, he did not go along with the settlement. So he has gotten separate attorneys to continue his case against Harvard. So I haven't read the settlement. I'm not going to opine about whether it's good or what, but it's, I'm sure there are problems and I'm sure Harvard is going to try to weasel out in all Sorts of ways.
- [76:22]
Nico Perino
Yeah. Well, one of the problems is that they don't have the DAVER standard for non discrimination and bullying. They use the the or instead of the and formulation of severe, pervasive and objectively offensive. So yeah, we'll see how, we'll see how it all plays out. I'm sure as you know, the Anti Semitism Awareness act will get reintroduced and we'll, we'll see what it goes. But Ilya, this has been fun. Congratulations on the book. I know these are labors of love. Although would you describe this one as a labor of love? It seemed like it was almost kind of painful to write and revisit.
- [76:54]
Ilya Shapiro
More like a forced march. Yeah, I mean the part about myself was just cathartic and I had to get that.
- [76:59]
Nico Perino
You found out you were having twins when all this was going on?
- [77:01]
Ilya Shapiro
Our little cancellation babies. Absolutely. It was, it was amazing. God's compromise. My wife Kristen wanted three, I wanted five. We ended up with four. And they're great. They're two now and they're thriving. And part of this germinated on my substack Shapiro's gavel, which, you know, talks about my personal stuff and other legal stuff and basically things that I don't publish, you know, on the op ed pages of Wall Street Journal or City Journal or what have you. But then once it got into the other things like you know, researching these bureaucracies, thankfully I had research assistants and things like that or the aba. It was infuriating. It was annoying. I mean, I had to get through it because it's an important point to be made, I thought. I think it's an important book. I hope I wrote it up well. I, you know, slaved over the writing. I like Scalia, I enjoy having written. So I do have a good feeling about it now. But the labor itself was not always one of love.
- [77:57]
Nico Perino
It was kind of impressive though. Tell me what you were telling me before we got on that you would get sit down at the computer every day for a period of time and write, whether it was 3,000 words or.
- [78:04]
Ilya Shapiro
300 words, how I did it, my last book or this one, there's like a core three month period because it's not sustainable. I think longer than that. Where. Yeah, every morning, like 5am to 8am roughly plus minus, I would sit down. You know, number one rule of writing a book is apply butt to chair. And yeah, I would try to limit distractions. I would just have my coffee and whether that produced 3,000 words of gold or 300. 300 words of crap. That's what it was. And after three months, about 90% was done.
- [78:36]
Nico Perino
You had a book. All right, Ilya. Well, the book is Lawless the Miseducation of America's Elites. It's out now and I encourage everyone to check it out. Thanks for coming on the show.
- [78:44]
Ilya Shapiro
Thank you, Nico.
- [78:45]
Nico Perino
I'm Nico Perino and this podcast is recorded and edited by a rotating roster of my FIRE colleagues, including Sam Lee, Aaron Reese, and Chris Maltby. This podcast is co produced by 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. You can follow us on X by searching for the handle Free Speech Talk. We're also on Facebook. Feedback can be sent to sotospeakthefire.org again, so to speak speakatthefire.org and if you enjoyed this episode, please leave us a review on Apple Podcasts or Spotify. Reviews help us attract new listeners to the show and until next time, thanks again for listening.