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So to Speak: The Free Speech Podcast
Ep. 243: Heather Mac Donald on Trump and free speech
00:59:40
Heather Mac Donald discusses the Trump administration’s free speech record amidst its battles with higher ed, mainstream media, law firms, and more. Mac Donald is Thomas W. Smith Fellow at the Manhattan Institute. Her most recent book is “”...
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- [00:00]
Heather McDonald
When I'm writing about something, I'm convinced that I have the truth about whether the police are racist or not. But if I step back, I have to recognize the ubiquity of interpretation.
- [00:11]
Nico Perino
This is why I love you, Heather. Because you don't believe in natural rights, you don't believe in truth, yet you're a conservative. That's why it's fun.
- [00:20]
Heather McDonald
Yeah, that's true. I don't know. I guess I'm really inconsistent. I've got to. Maybe I should rethink this whole thing. Somewhere I read of the freedom of speech.
- [00:29]
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 the law, philosophy, and stories that define your right to free speech. Today we have with us Heather McDonald. Heather is the Thomas W. Smith Fellow at the Manhattan Institute. Her most recent book is When Race Trumps Merit. How the Pursuit of Equity, Sacrifices Excellence, Destroys Beauty and Threatens Lives. And Heather has been on this podcast before, but it has been eight years.
- [01:08]
Heather McDonald
No, that's why I don't remember. I know I've got a bad memory, but that's more than anybody should be expected to remember.
- [01:15]
Nico Perino
I was living in New York City at the time. But the reason I'm having you on this podcast today is because I want to get your take on the Trump administration's free speech record. You're a conservative. You've been part of the conservative movement for quite some time, and you're criticized the left's sensorialness. So I've been curious for your take on the Trump administration, what you've been hearing from your conservative colleagues. Trump, when he came into office some four months ago, said he was bringing free speech back to America. Has he brought free speech back to America? But again, before we turn to that larger Trump administration conversation, let's take a step back, because I think taking a step back might help us in framing this broader conversation. When you were getting shouted down at Claremont McKenna, I think it was April 6, 2017, you were talking about your book the War on Cops, and you faced, or were hoping to face an audience, but ended up facing an empty room. There were 300 protesters, if I'm not mistaken, who rung the auditorium that you were supposed to speak in. They were furious over your defense of policing tactics and your criticism of the Black Lives Matter movement. And the school ultimately had to resort to Live streaming your remarks and your Q and A session, if I'm not mistaken, barely got underway before they deemed the situation too volatile, I guess, or people banging on the windows and you actually had to get hustled out the back kitchen door in an unmarked police van, which ended the event early. Unfortunately for those who are familiar with the situation on college campuses, this has been a somewhat regular occurrence on college campuses since 2014. Speakers getting shouted down, evidence of barricading buildings or violence against speakers. So Heather, let's start there. You speak a lot on college campuses. What has the situation been like for free speech on college campuses since say maybe 2014 in your experience?
- [03:12]
Heather McDonald
Well, I think things have gotten a little bit better. We don't have as quite as many of the censorious shout downs we have had the eruption of, I would argue an equal level of ignorance and mania with regards to the pro Palestinian protests. And it's really something you can read about these student vandals and thugs, but to be on the receiving end of this degree of irrational hysteria is really quite sobering. These are very young people that have no knowledge of the world, that have worked themselves up into a state of ecstasy, believing that they are fighting some source of profound existential evil. And all too often the university leaders have just sat by and allowed them to take over, to shout down speakers without reprimanding them, at the very least to have some humility, have some epistemological humility. You're here to learn. You're here because you're ignorant. And our job is to cram as much knowledge as possible into your empty noggins in a mere four years. Of course, that's a mandate that universities have themselves shredded and ripped up in their refusal to actually have a core curriculum. But. But nevertheless, while there may not be the same degree of hugely theatrical, preening, narcissistic protest, the informal censorship among faculty, among students is, if anything, stronger. It is a career hazard, a handicap, a suicidal gesture to challenge reigning orthodoxies regarding systemic racism, the reason for low black representation in meritocratic institutions, or black over representation in the criminal justice system. If you suggest that there are behavioral components to that test score gaps, you will be silenced. And we've seen that with Amy Wax at University of Pennsylvania in if you disagree with the idea that biological sex is a oppressive convention that can be wished away at will, as Carolyn Hovind did at Harvard, she found her life so miserable that she ended up leaving. If you have challenged in the past the idea that racial preferences are a valid form of university selection for students or for professors, as Dorian Abbott and a climate scientist did at the University of Chicago. And then you're invited to give a speech on climate science at MIT that has nothing to do with your position on diversity equity inclusion. You'll still be canceled. So there's definitely a intellectual monoculture enforced by threat of violence. And we've had also professors who are fired for questioning racial preferences in private conversations. I'm thinking here of two adjunct clinical professors at the Georgetown Law School who in a private conversation lamented to each other the fact that there were so few black law students at the top of their classes and they were fired for having forbidden thoughts. This is absolutely typical.
- [06:59]
Nico Perino
Do you talk to trustees of these colleges, maybe even presidents or administrators at these colleges? Did they recognize what you see as the problem over the past 10 years that in some cases these universities have been captured by an activist class that doesn't have any respect for academic freedom or free speech? This is a long way of asking were they trying to reform themselves?
- [07:23]
Heather McDonald
No. I testified at the University of North Carolina Chapel Hill recently. There's a very a savvy group of trustees or regents there that are completely unblinkered about the ideological monoculture that was Chapel Hill. And I spoke there about the diversity bureaucracy, its complete lack of need. It's simply. The diversity bureaucracy is simply an epiphenomenon of racial preferences. You bring in students who are not competitively qualified, they don't do well, and the only allowable explanation is systemic ra and you create bureaucrats to tell them that they're there, that their academic difficulties are because they are the victims of racism and it's a codependent relationship. The president, however, who since left the university system was a complete defender, thought that denied that there were double standards in admissions, thought that the diversity bureaucracy was great. And the problem with the trustees is so many of them are self selecting. And then there's the problem of the alumni. I recently spoke at the University of Wisconsin Madison and there was a dinner afterwards for conservative leaning professors. I was invited by a libertarian economics professor, legislators from the state of Wisconsin, and there was a guy there who was an alumnus of Madison, had done very well in engineering, and he was also totally unblinkered about the pro Hamas hysteria on campus, the lack of viewpoint diversity. And it was admirable because so many alumni keep a deliberate veil of ignorance so they can continue giving their money and feel good about it. But, well, this guy knew everything you needed to know, so he was completely informed and yet he was giving the university a new humanities building and a new engineering building. Well, you can imagine how much a new engineering building would cost. And I said, why are you doing this? Don't you understand you are simply fueling the very things that you deplore. All money is fungible. And he said, they gave me a free education. Good for him for his gratitude. But I said, it's not the same. They, it's not that institution. And he just shrugged his shoulders. And I concluded, on the one hand, there's something very admirable about American philanthropy. It's a unique tradition. They don't have it in Europe, and de Tocqueville celebrated it. It's part of our civic institutions. On the other hand, after that exchange, I became a bit more jaundiced. And I thought, if this guy is acting in what is in fact an irrational way, maybe some of these people really are just egomaniacs and they're there to get their names on the buildings.
- [10:29]
Nico Perino
Well, one of the things that we've experienced in our history at FIRE is that when donors do start pulling their money, we see the free speech reforms that were advocated for start to percolate on campus. Yes, if they tell the administration, for example, that we are not going to give you any more money until you get a FIRE green light rating, for example, the development department and administrators become very quick to respond to our inquiries at that point. So you can have donors pull money in one respect, or you could have the federal government pull its federal funding, which is what happened at Harvard and Columbia. So in enters President Trump and the Trump administration sees the problems that you've articulated and says, okay, now we're going to get involved. Now I suspect you, I, many others listening to this podcast say, well, what's wrong with that? A lot of these things we think would be good practices if Harvard were to adopt them voluntarily. Why is it a problem then if the federal government gives these universities, in the case of Harvard, billions of dollars and put some string on those dollars?
- [11:35]
Heather McDonald
Well, first of all, let me put my pro Trump administration hat on a little bit longer and say pro Trump administration, proleptically, in response to what I'm about to say, the Trump defenders will say, but the left has already been doing this. They've already been conditioning the federal grants on threats. You had the 2011 Dear Colleague letter from the Obama administration, something that fire knows inside and out, demanding that schools junk any kind of due process protections for males accused of so called sexual assault or rape or lose federal funding. Very sweeping rule. You had another requirement in 2016, another dear colleague letter claiming that Title IX required that biological males be given access to female sports teams, private spaces traditionally honoring female modesty, locker rooms, bathrooms, et cetera, again, or face federal funding laws. So this cudgel of threatening federal funding on grounds that are highly politicized is something that the left has already been doing. That having been said, my reaction to everything that Trump is doing, and I agree almost across the board with his substantive aims, whether it's with regards to the universities, whether it's regards to immigration, is what would we feel if the Democratic administrations were doing this exact same thing in favor of their values? Everything we're doing sets a precedent. And again, I acknowledge the precedent has already been set. That having been said, it can always get worse. And the ends simply do not justify the means. Now, the, the Trump supporters, I know many of them, these are tough guys. And I've learned to my dismay that I'm more of a girl than I ever thought, because it turns out I don't really have the stomach for the type of all out war that many of Trump's backers and his aides are saying we've got to wage, which is we've got power now. This is an existential war. We have to crush them. And nuances of legal procedure, whatnot, those are less important than seizing the moment. That's their view. And I understand that. I'm still very nervous about the government using power because even though I'm not deeply libertarian, I do think that the hope of a neutral arbiter, of a government that is restrained by rules that are content, free, that are politics free is one of the biggest yearnings of humanity, at least in the West. And if we see our government start to put its hands on the scale too much and demand things that it may not have the right to demand, that makes me very nervous. And I also am not a big fan of academic freedom as currently defined. I don't see why universities should be the one institution that should have no oversight. I completely understand why funders or founders should be able to say, I want a university that privileges this sort of outlook, whether it's right or left. I don't see why you, a Jane Stanford creates a Stanford and then has to be completely hands off. This was the founding moment of academic freedom. There was a young economist at Stanford University, and this was a university created in the name of Leland Stanford, a great railroad baron and magnate of the industrializing West. And Jane created this fantastic university in his Name? I was just up there. I think it's the most beautiful campus.
- [16:04]
Nico Perino
Oh, it is. It's gorgeous. Far too many scooters though. I almost got killed when I was on campus.
- [16:09]
Heather McDonald
That's true. Well, that's lazy students. They should be back on their bikes. But the live oak forest is unbelievable. Anyway, so there was a young economist there named Edward Ross who was a populist who's for the silver standard. He was against Robert Barron's and Jane Stanford was saying, well, it's sort of against capitalism, but she could live with it. Then in 1900, he gave an anti Asian speech. He called for the expulsion of Japanese workers, which was the populist position then. And Stanford said, not he's a racist, I want him out, but he's engaging in political speech. And so he quit. Some other people quit and that led to the foundation of the American association of University Professors. Professors. But I think I would vote with Jane Stanford at that point. But that being said, now that we've got this concept of academic freedom, it exists. I think it's too strong. I think it should be obeyed. And again, to give the next best Biden, Harris, Ocasio, Cortez administration A further precedent for saying, I will crush you if you do not make the next iteration of critical race theory the dominant philosophy here, I think is a big mistake.
- [17:36]
Nico Perino
One of the reasons we support academic freedom at fire, and there might be, as you say, a disagreement on this, is that we see it as essential to the mission of the college or university to the extent that mission is the preservation, dissemination and creation of knowledge. When you have someone coming up over top and saying, no, this is the party line and you must walk it, then that compromises the truth seeking mission of the university. I'll just add you mentioned the process here a number of times that the Trump administration has gone through statutorily in order to revoke federal funding under Title 6, which prohibits discrimination on the basis of race, color and national origin, they have to advise the applicant of their failure to comply with the law. In this case, they have to advise Harvard of its failure to comply with the law and then they need to seek resolution through voluntary means. Only after that would they pursue an investigation, findings on the records, and then present an opportunity for a hearing. A larger issue I have with all of this is not just the compromise of this principle of academic freedom, which the supreme court in the 1950s, I believe articulated as a institution's ability to hire who it wants, admit who it wants, teach what it wants, and decide how it wants to teach, what it wants to teach. But Trump, when he's tweeting about all this stuff or truthing about all this stuff, is mixing not only the Title six complaints related to antisemitism, he's also mixing them with complaints about who the university hires. He's criticizing Harvard for hiring almost all woke radical left idiots and bird brains leftist dopes. He says the university teaches hate and stupidity. Now, none of this is part of the Title 6 process, but it seems to be a big motivating factor.
- [19:21]
Heather McDonald
I agree completely, Nico.
- [19:22]
Nico Perino
And now they're going after. I should. I didn't even mention that he's going after their tax exempt status too, which opens up a whole bunch of can of worms. Conservatives themselves have been worried about the weaponization of the IRS's investigatory and auditing processes going all the way back to Lois Lerner under the Obama administration. And as we learn, what's good for the goose is good for the gander. So it sets that precedent that you're so worried about what's gonna happen under an AOC administration, for example.
- [19:50]
Heather McDonald
Again, I can't stress enough. I agree completely with the substantive analysis. I think what's particularly sickening at this moment is to hear the president of Harvard or Columbia or Princeton going around saying that we're the beacon of academic freedom and free inquiry and Trump is destroying our freedom of speech here. That is just appalling because they are. But the irony of this moment is that the Trump administration has managed to turn the bloated, overfed, self righteous, self preening Harvard into a virtuous David combating the evil Goliath of the Trump administration. Harvard does not deserve the public sympathy.
- [20:35]
Nico Perino
The problem is the American system is premised on this idea of checks and balances and Congress is the lawmaking institution. It put in place title 6. It allocated these funds for distribution to colleges and universities and it tied strings to these funds that the executive branch, if it wants to take them away, is still bound by. To the extent you actually Congress wants to enforce its rights and it's really hard to do that in the courts. We've seen with the TikTok situation. For example, it passed a law saying the President could certify that a deal is in the work and get 90 days before TikTok actually gets banned. And Trump has now put in two 75 day pauses that are not allowed by statute. And I disagree with the TikTok ban in principle. But even still, there is a law that says something and the executive branch isn't abiding it. But I want to turn now because I don't want to spend all of our time on Harvard to the deportations or the attempted deportations that you had referenced before. And I want to read a statement from Marco Rubio in his conversation with Mike Benz, who's a conservative commentator, works in particular on online censorship issues.
- [21:46]
Heather McDonald
Our number one priority is Americans. So we don't want to see an American who happens to be living in London or happens to be living in Europe post something online about American politics or any politics, and all of a sudden they're facing ramifications.
- [21:59]
Nico Perino
This is exactly, to my mind, what the Trump administration and Secretary Rubio are doing here in the United States. They're going after people who post on politics. It might be things that you find bigoted or offensive or hateful, and you might not want these people in your country. But what moral leg do we have to stand on in condemning the Europeans? For example, you have. You have J.D. vance going over to Europe and Munich Security Conference criticizing their censorship, or Marco Rubio here criticizing the censorship of Americans living abroad when we do the same thing at home. So how do you look at that? It seems like you don't believe that the immigrants necessarily have First Amendment rights.
- [22:34]
Heather McDonald
No, I don't. As I say, I really do think that rights are artificial. They're granted by governments, and people don't walk around the world having the same panoply of rights that the founders created out of a very long process of Anglo jurisprudence.
- [22:52]
Nico Perino
But you'd. So it sounds like you disagree, then, with the premise of the Declaration of Independence, that certain our rights are inalienable and that governments are constituted among men to secure those rights. It sounds like you believe in the rights not just where they come, but not where they come from necessarily.
- [23:08]
Heather McDonald
If they were inalienable and God given, it sure took millennia, millennia, millennia to develop them. We should have realized they were there from the start. And there's many other civilizations that don't have the notion of rights. It's a very specific concept that requires sophisticated thinking about the individual, about limited government that arose in a very particular time and place in world history. So, again, I'm torn between the. But nevertheless, if we have laws now that are governing how we can treat immigrants, I think they have to be obeyed scrupulously. Now, again, when we saw these campus protests after October 7th that were heavily populated by foreign students out there braying for, you know, death to Israel and celebrating Intifada and celebrating the martyrs to the revolution, one is nauseated I mean, who are these people? Why are we bringing them in? And I, frankly, now, I was unaware of Rubio defending the rights of Americans abroad for free speech. And I don't know what situation that's referring to. I certainly agree with him in criticizing the way Germany is treating one of its own internal political parties, the alternative for Deutschland, and the general animosity of the European elites towards dissent. But I don't know about the Americans abroad. I would say this. If I were studying in Germany, I would, I think, I would think twice before engaging in mass protests against German policy. I'm a guest there, and I should be grateful for the opportunity to study there, not feel like I can turn around and bite the hand that's feeding me.
- [25:16]
Nico Perino
Does that go for green, the equivalent of the United States green card, for example? Do you think that a guest with a green card, a lawful permanent resident, is different in that respect from a student visa holder?
- [25:27]
Heather McDonald
I don't know. You know, I'm not an expert on immigration law. It's obviously being a green card holder is one step along, but normatively, I.
- [25:36]
Nico Perino
Mean, even, Even if the law says one thing, what do you think should happen?
- [25:40]
Heather McDonald
Yeah, no, I'm, I'm doing completely based on gut instinct. You're still not a US Citizen, so. And what the difference is between being a US Citizen and being a green card holder? What degree of loyalty is required to become a US Citizen that you have not expressed and have not decided that you want to adopt American identity? So my instinct would be, but again, I am not educated on these distinctions. My instinct would be, unless you're a US Citizen, I would be reluctant to confer on you the full panoply of. Of rights. Now, that being said, you know, the detention, the arrests of these two students, the woman, Oz Turk, who was just.
- [26:29]
Nico Perino
Released on Friday, by the way, because the administration didn't present any evidence that suggested she was a national security threat beyond what's in the public domain about that op ed. And that's fire's approach to this is like, if these students, these green card holders, these visa holders, are alleged to have engaged in criminal activity, they can be deported after receiving the due process that they're owed. And we send a letter after Mahmoud Khalil was detained, just asking the administration for its factual and legal basis for deporting him. And what they came up with was a flyer that Caroline Levitt said was propaganda. Well, propaganda is speech. An op ed is speech. Now, you might not believe that they have the right to speak freely in The United States. I would argue that if you're the land of the free and the home of the brave, I think we should be secure enough to allow people to speak freely in this country. But folks might have different opinions on that. But I do worry about a situation where you can have an AOC come into office and say because former IDF soldiers that are living in this country who support the IDF and support the war in Gaza might be adverse to American foreign policy, we can deport them or we can deport Douglas Murray or we can deport Jordan Peterson or we can, you know, if you look in historically, we can deport Christopher Hitchens, who wrote a book about the Clintons called no One Left to Lie To While He Was Here on a Greek Card. So I do worry about the boot being on the other foot.
- [27:46]
Heather McDonald
Yeah, well, nice table turning. And no, that's not sarcastic, I guess. So how I would respond to that, like, am I going to be hypocritical and say in this one instance I'm going to adopt one side and not worry about the table turning? I guess again, I'm going to evade your application of neutral principles and say just generally I do support a almost complete power over border control and the decision to allow. I don't believe anybody has a right to enter this country and we can be as arbitrary at the border as we want. I don't think we need to give reasons for excluding people at the border. Now things do obviously get more complicated of once somebody is in what process is needed. And in this case I would say that it looks like regardless of the speech issues that the behavior of the DHS officials secreting away austurk, it does look very, very bad and an abuse of power to try and forum shop. Of course again the left forum shops all the time. But to hustle her down to Louisiana in the hope of a more sympathetic court down there and you know, it looks a little stasi like that may be overstatement, but it is worrisome. So. But my understanding is that it's still not fully decided. No, it's not the extent to which the government can exclude somebody on the basis of speech. And I would also say this is another very hot button topic that we haven't really addressed per se, but the whole issue of what counts as antisemitism on university campuses here she wrote an op ed calling for the Chuffs administration to acknowledge what she called the genocide going on in the Palestinian territories in Gaza. And the Trump administration says, well that's against our foreign policy interests. And it also makes Jewish students on campus feel unsafe. The whole issue of what counts as antisemitism, what counts as a threat to Israel, is something that again, I'm a little separate from on the received wisdom among conservative circles and the Trump administration, but, but again, this looks heavy handed to the extreme. And the government keeps claiming that she's got support for Hamas. I don't know if that's some secret evidence or if it's based just on the Abed. And to say that that op ed means support for Hamas, you can get there, you can make the reasoning, but it takes some steps. And I would also say just to revert briefly back to the Harvard letter that the Trump administration said wanting to revoke funding, that another problem is void for vagueness. And the question is who determines the meaning of these phrases? And no legal language, as you know, is self interpreting. And so you want to be very precise and very clear. But of course in the academic context, the extent that the government really spells out what it means by viewpoint diversity, I don't know what the hell that means.
- [31:33]
Nico Perino
Yeah, there's so much vagueness in what it means to be adverse to American foreign policy and also what it means to be anti Semitic. Historically, FIRE has argued for what we call the Davis Standard, or it's not what we call it was a Supreme court case in 1999 where it tries to ensure that when these federally funded educational institutions or programs are going after speech, that it's not actually speech they're going after. That's conduct that's so severe, pervasive and objectively offensive that it effectively denies the student a right to an education. Now in some of the requirements that the Trump administration is trying to make of these colleges and universities, they're trying to get more specific about what anti Semitism is by forcing them to adopt what's called the International Holocaust Remembrance Alliance Association. And you know, it's less vague, but it's more speech chilling. So for example, this IHRA definition says that it could be anti Semitic to deny the Jewish people the right to self determination by claiming that the existence of the state of Israel is a racist endeavor or applying double standards by requiring of it a behavior not expected or demanded of any other democratic institution, or holding Jews accountable for the actions of Israel, which is, it's kind of confusing when you look at some of these examples because criticism of Israel is itself seen to be anti Semitic. So it's the definition that itself is mixing Jewishness with the state of Israel. Regardless of whether you think that's appropriate or not. So there is some sensorialness on all sides here. And I think we would be well served to buy to sticking to consistent definitions of prohibited conduct in the case of the educational context. It's that severe, pervasive and objectively offensive standard.
- [33:19]
Heather McDonald
Absolutely. And this, you know, again, it gets very complicated by the foreign element. But I would say with generally taking it out of any kind of international context, you and I both totally agree that suppressing ideas that you find unacceptable is not going to make those ideas go away. You might believe that there should be no criticism of Israel allowed in the culture and that makes things better for American Jews and for Israelis living in Israel. But by suppressing them, you're only going to strengthen them, you're giving them more cachet. And the best way is to get them out in the open, sunshine. Debate them openly. And if you resort instead to censorship, it does indicate a sense of powerlessness. You don't have confidence in your own views. And just to get back to the JS million epistemological humility, it's, you know, he stressed constantly, you cannot be confident in your own beliefs unless they have been tested in the marketplace of ideas. And that's a very hard standard to live by because we are solipsists and we think the world revolves around the way we see things. And it's hard to get outside of your own point of view. But you need to test your ideas constantly. And the idea that you're going to accomplish anything by ruling certain ideas off limits, which is what goes on. Again, the problem is the universities are doing this already. And so for them to turn around and play self righteous truth seekers against Trump is completely disgusting and laughable. So it's a hard thing to ask Trump to take the high road when he's fighting against an ideology that is itself truly totalitarian. But that's what needs to be done.
- [35:28]
Nico Perino
With the time remaining, there are a couple of subjects I want to get to that take us off campus. The law firm executive orders. There have been, however, many law firm executive orders denying certain targeted law firms the right to have security clearances to access certain federal buildings. Whether that includes federal courts, I don't know. It seemed to be implied by the order preventing them from getting government contracts or preventing government contractors who are not them themselves from working with these law firms. And it seems like President Trump is going after his political enemies firms that hybrid Robert Mueller for example, or some someone who worked on his team or who might represent causes that he didn't like or given money to causes that he didn't like. A couple of firms didn't settle with the Trump administration. Firms like Perkins Coie, for example, filed lawsuits. And to extent a judge has heard any of these cases on a TRO basis, the judges have sided with the law firms. And joining these executive orders. Now, I was participating in a panel about the Trump administration and its free speech record last week at the Comedy Cellar in New York City. And I was with one of your colleagues, Charles Lehman from City Journal, and he said he didn't want to defend these executive orders. He thought they were wrong. Is that your sense, too? And is it the sense of the conservative movement more broadly that these executive orders are wrong?
- [36:50]
Heather McDonald
Well, again, let me say the Trump analysis of Big Law is absolutely correct. It is completely biased in its pro bono practice towards left wing causes. We saw the case of Paul Clement having to leave his firm because he wanted to defend, have a client, the NRA and I think one other pariah cause.
- [37:12]
Nico Perino
And I believe he's representing one of these firms now in their lawsuit.
- [37:15]
Heather McDonald
Exactly right. But they are absolute ideological monocultures and they are certainly, from the bar on down, completely devoted to racial preferences. Now, you could say that's sort of their right, but it's looking like that's going to be viewed as quite illegal. So the Trump analysis is right. But his methods I find perhaps the most troubling of all. I just cannot begin to think of what the legitimate reason is for this clear retaliation against one's political enemies. Now, you know, the knee jerk response is to invoke John Adams defending the British in the Boston Massacre and the universe. The law firms rather want to slot themselves into that role. Well, it's not exactly a clear precedent because it's not as if these law firms in their political activity are defending the underdogs. They're not. They're, they're engaged in the most elite, championed forms of activity. So they're hardly putting their reputations at risk by litigating for free against the New York Police Department or against reasonable welfare reform or reasonable border controls. So they're hardly, you know, virtuous defenders of the underdog. Nevertheless, Trump is right. But these bans on a lawyer's ability to choose his client and give that client full legal representation is essential to the rule of law. Conservatives have been appalled by the effort to disbar John Eastman for advancing what is, at the very least, I guess, a creative interpretation of the Constitution with regards to the Vice President's ability to not certify a slate of electors. And again, this is a field that I'm not at all an expert in, but I would say a lawyer has the right to be wrong, even if there's some universal consensus that Eastman was wrong. And I don't think that consensus is ever really reached in the law because people have many, many out there interpretations, some of which end up being precedent setting and become the received wisdom after a while.
- [40:01]
Nico Perino
And those precedents themselves often get overturned, even at the Supreme Court.
- [40:06]
Heather McDonald
I mean, again, this is the whole idea of the marketplace of ideas. The legal courtroom is marketplace of ideas par excellence. This is why the Obama due process evisceration on campus. Saying that male students accused of campus rape don't get to cross examine their accuser is just appalling. So lawyers get to do what lawyers do, which is to take their causes. And if they were. Yes, I mean, I guess this Perkins Coyote and Mark Elias I think was there and then he went on to form his own law firm. You know, they may have been complete Democratic operatives and using all their power to try and discredit Trump as much as they can. That's their right. And for the government to come in and say, we are punishing the entirety of the firm. And yes, the ban on entering government property, when I realized that that included courthouses, I thought, are you kidding me? Now? It's never been clarified, but if that says that no lawyer from that firm can ever enter a federal courthouse, that's basically ending their entire practice to the extent it's at all federal. So this is a very, very big abuse of power as far as I'm concerned. You know, if the issue is, are you employing racial preferences in your hiring of first year associates, in your promotion to partners, the answer is yes, they all are. They are screwing white and Asian male lawyers unquestionably. And the government may have power to do that, but to take them to court for those specific practices. But these borders and bans are far too sweeping and are simply getting at the heart of the adversarial process as far as I'm concerned.
- [42:08]
Nico Perino
What do you think about Trump's targeting of the media? He's done this in a couple of different respects. For example, he banned the Associated Press from White House pool events because it wouldn't adopt, within its very popular editorial standards, Gulf of America. It's said, because the Gulf is not a part of the United States, it's an international body of water, that it can't just adopt the United States definition or name for that gulf, whereas it did recognize the change of the name from Denali to Mount McKinley, for example. And the Associated Press sued the Trump administration. And a Trump appointed judge in fact said that if the government opens its doors to some journalists, be it the Oval Office, the East Room or elsewhere, it cannot then shut those doors to other journalists because of their viewpoints. Trump has also sued a number of media outlets, some of which those outlets have settled since he came into office. Meta he settled with for $25 million. That lawsuit dealt with his DE platforming after the January 6th events X he sued for the same reason. He settled with them for $10 million. After he came into office. He settled with ABC over its coverage of his civil trial there in New York dealing with sexual abuse. George Stephanopoulos called it rape. It wasn't rape under the New York City statute. And now he's threatening Comcast and MSNBC 60 Minutes. He's suing for $20 billion in Texas under the Deceptive Trade Practices Consumer Protection act, arguing that their editing of the Kamala Harris interview prior to the election was a deceptive trade practice. The New York Times, in reporting on that lawsuit, said that, quote, legal experts have called the suit baseless and an easy victory for cbs. And Trump tweeted out that he thought this might be tortious interference and that they're investigating that claim by the New York Times. And then he also asked his FCC, or said to his FCC commissioner, Brendan Carr, who he praised in the tweet, that he hopes the FCC will, quote, impose the maximum fines and punishment on Paramount, the parent company of 6, 3 minutes for their unlawful and illegal behavior. Brendan Carr was recently pictured at government meetings wearing a gold lapel pin with Trump's face on it. And of course, CBS Paramount is seeking a merger with Skydance that the FCC needs to approve. So there's a lot going on with Trump in the media. He's always been a critic of the media, and I imagine that there are many listeners who agree with that, many of those criticisms of the media. But what is your general sense of everything going on with the lawsuits, with his treatment of the Associated Press? Do you see this as an overreach in the way that you've seen some of these other actions as an overreach as well?
- [44:53]
Heather McDonald
I'm, I'm more agnostic on this, and I admit I haven't been following it as closely. We're obviously at the core of the First Amendment here with press freedom, and I'm not expert on the intersection between what is in fact actionable libel or definition you obviously have public figures that don't have a whole lot of claim in private tort, as I understand, to object to false characterizations. So the George Stephanopoulos, if he falsely said that Trump had been convicted of rape, I think that's one.
- [45:36]
Nico Perino
Actually a stronger case.
- [45:38]
Heather McDonald
That's a stronger case.
- [45:38]
Nico Perino
Now, First Amendment advocates might disagree with me on this, but there is some evidence that George Stephanopoulos, producer, prior to the airing, said, be careful, he was found liable for sexual abuse, not rape. And yet George Stephanopoulos goes on the air and says rape. So that's a closer case in a way that I don't necessarily see the Kamala Harris or the X or the Meta lawsuits as being a closer case.
- [46:04]
Heather McDonald
Yeah, and. And again, let's be honest. These media companies are biased. And so as Fox is too. I mean, we all have our. Our political agendas. And I'm. I don't believe in truth. I, you know, I'm a rel. I'm enough of a product of my education and deconstruction and post structuralism that I, Even though I live as if there is truth, and when I'm writing about something, I'm convinced that I have the truth about whether the police are racist or not. But if I step back, I have to recognize the ubiquity of interpretation.
- [46:40]
Nico Perino
This is why I love you, Heather. Because you don't believe in natural rights, you don't believe in truth, yet you're a conservative. That's why it's fun.
- [46:49]
Heather McDonald
Yeah, that's true. I don't know. I guess I'm really inconsistent. I've got to. Maybe I should rethink this whole thing. But the Harris editing, you know, it could well be that the media outlet part of it, subconsciously, was definitely on the side of Harris and trying to tip the election and editing it to make her sound like she was actually coherent for once. But should that be illegal? The press in its past, you know, at the time of the founding, was ruthlessly political. There were party organs, and the standards of accuracy were much lower than they were now. And of course, there was much less freedom of speech. There was censorship right and left at the state levels. I don't know which way that cuts for this, but in any case, I would say that I'm gonna be honest. We all edit things. You know, when I'm quoting somebody from the other side, I try to be fair. But there are. There are definitely things that you want to foreground and put in the background, and I plead guilty to that.
- [47:59]
Nico Perino
Well, 60 Minutes probably sat with her for, who knows, 30 minutes an hour. And it has 13 minute segments with B roll cut in. I mean, Fox News does this with Donald Trump. I'm assuming too, this is. People who don't work in the news media don't quite understand the amount of editing that goes into a tight four minute segment or in the case of 16, 60 minutes, 13 minute segment. I didn't think it was that different. One was a little bit more rambly, but not a $20 billion lawsuit worth of ramble. I don't know.
- [48:27]
Heather McDonald
So you're saying it was just the time constraints as opposed to any kind of political agenda?
- [48:33]
Nico Perino
Well, you never know. But I didn't think it being so much better what they ended up airing versus the raw footage. And it was Bill Whitaker asking one question and they used the first sentence in either the promo or the segment, and then they used the second segments in the opposite order. So it was the answer to the same question and it more or less said the same thing in both answers. She just kind of repeats herself.
- [48:59]
Heather McDonald
But is your position then that if they were deliberately editing it to make her look better, that that would be problematic or no?
- [49:05]
Nico Perino
No, no, no. I would say even if they were deliberately editing it to make it make her look better, that it would still be First Amendment protected activity in the same way that putting out an advertisement that deliberately makes a candidate look better or anything else is protected activity. And Trump isn't even. Maybe you have an argument for election interference if there's some statute that says doing that is, is wrongful. But that's not even what Trump's suing under. He's, he's suing under a Deceptive Trade Practices Act. And so in that case, like misleading editing, I guess would be a deceptive trade practice. I thought we were getting out of the business of misinformation. I thought we were getting out of the business of policing. Wrong. Think. But here it's very much like, okay, this is misinformation. We're just calling it deceptive trade practices now.
- [49:51]
Heather McDonald
Right? And as far as excluding the AP from press conferences, it's always zero sum. You know, so if he's deliberately adding people from the conservative non mainstream media, like reporters for Newsmax, unless he's got an endlessly expanding press room, it's zero sum. Just the way that racial preferences are zero sum. You know, we always hear from the advocates that, oh, it only helps blacks, it doesn't hurt anybody else. Oh, that's B.S. you know, every, every person you're taking in with lower academic skills, you're keeping out somebody who did qualify on a base on a colorblind, meritocratic basis. So here, you know, if he's bringing in Newsmax, maybe some, it's a game of musical chairs. Somebody's gotta go.
- [50:40]
Nico Perino
So it's just the brazenness with which he said he's getting rid of the Associated Press. It's very clearly discriminating based on viewpoint. He's tweeting about it, Caroline Levitt saying it from the podium. He probably could have gotten away with this were he not so brazen in the viewpoint discrimination. And actually, you could maybe make that argument for so much else here that he's done, whether it's Harvard or the law firms. But he's just signaling the exact reason that he's doing it. And it's raising First Amendment questions. I want to end this by asking you as a whole the Trump administration's approach to free speech. He said he's bringing back free speech in America. I've talked to some conservatives who are kind of hush hush behind the scenes saying, yeah, he's going too far on Harvard, he's going too far with the law firms, he's going too far far with his lawsuits against media or his exclusion Associated Press. But they don't want to speak out publicly about it. And the reason is they don't want to lose access because they work on multiple issues, not just free speech. And Trump has shown himself to go after his political enemies and say he's a knife fighter, as you were kind of alluding to earlier. What is it you're hearing within the conservative community? Is there a concern with some of his approaches to free speech? Are people happy with what they're seeing?
- [51:53]
Heather McDonald
Well, I think there's generally always the view that the left is going to make these arguments. So why should we? And the left has been doing the bad things for so long. Why should we go after one of our own? You know, this is our only hope. And I'm not speaking here only for, like the intelligentsia, but also when I get rebuked by readers or whatever for criticizing Trump, the feeling is, why are you wasting your time going after him? You should be going after the left. But of course, we've been going after the left for a long time. And I do think that we need neutral principles and should be above the fray and setting an example. So I've asked people about, for their substantive opinion about various issues like the law firms. And from very thoughtful and precisely thinking people, it's usually an afterthought. Well, yes, I agree that there's a problem here, but I think people feel like, again, it's the urgency sense, that this is our one opportunity. We've got to go forward full speed ahead and not put the brakes on. So it's, you know, I understand that perspective, and I guess I can respect it. It's really a question of how worried are you about the retribution on the other side and setting the precedent. Do you think it'll matter again? The people that are going to defend Trump will say he could be as exquisitely respectful of the most arcane nuances of the code, of federal regulations and of precedent, and it's not going to matter because they're still going to crush us. So why don't we just do what we can now and change the culture? I get that, but I still think, again, that the greatest achievement of civilization, and it's a Western achievement, is the idea of neutral principles and due process and the hope for a government that follows the law and does not exceed its power when it's got it in the hope that the other side will obey the same norms of constitutional governance.
- [54:33]
Nico Perino
Yeah. Otherwise, all you have is raw political power, so.
- [54:36]
Heather McDonald
Exactly. That's terrifying. It's absolutely terrifying.
- [54:39]
Nico Perino
And that's what makes the United States historically different, is that, you know, we stand on these principles. We're the first nation in the world that was premised on an idea, as opposed to some sort of heredity or arbitrary geographic boundary. And checks and balances are one of those ideas. Free speech is one of those ideas. Due process is one of those ideas. These principles, these free speech principles that we've been advocated for for so long, when they were under attack by the political left on campus, we believed in them as principles. And one of the best ways to defend principles, as we learned from the American experiment, is through process. Now, we might get accused of being boring proceduralists, or as Sarah Isger, the host of the popular advisory opinions podcast, likes to say, she's a process girl living in an outcomes world. I think we can get to some good outcomes through the proper process. Otherwise, if you can't, then, as we said, all you have is raw political power. And that's a very dangerous state of being.
- [55:36]
Heather McDonald
But let me just. And I know we're closing off here, Nico, but let me just add one caveat. What if the goals that I share with the Trump administration, I'm not going to speak for you, are not achievable through following the process? And it's not necessarily because the process is. Is skewed to achieve one result. But what if it turns out that if we obey every last little dotting the I and crossing the T, that they wait us out and you can't get there? And, you know, the argument in the immigration area is we have 20 million illegals to deport if we give every darn one of them a full due process hearing, which is not maybe what's required by the law. I guess it's semi expedited, but still you get to go to the appellate court. So it's a while, you know, what if you can't get there? And so maybe if we do follow the law, the universities are just going to wait us out. You and I are assuming, Nico, that you can obey the procedures and reach your substantive ends. That's the sort of Pollyannish view, and we'll hope that's the case. But if it's not, then, I don't know, I don't have a solution, in other words.
- [56:55]
Nico Perino
Well, yeah, part of it might just be a problem with the Constitution, because right now we're in a situation where in order to just get to these outcomes, you totally ignore Congress. You just issue executive orders.
- [57:07]
Heather McDonald
Right?
- [57:07]
Nico Perino
Just ignore the courts. And to the extent Congress is in Trump's pocket, so to speak, they're not going to enforce their TikTok law, they're not going to enforce the rules governing Title 6. And so he just gets to do whatever he wants. And I don't know, I believe that the separation of powers, the delineation between judiciary, the legislative branch and the executive branch was one of the best ways to limit the raw abuses of political power. But maybe we're at a place right now where you can't, or people don't have the willingness to appeal to political majorities in order to build a coalition to seek to accomplish what you want to accomplish. But that's the premise of the Constitution. And if that's gone out the window and we no longer do that in the era where C SPAN is turning every congressional hearing into a. Into theater, then I don't know what we're left with, other than Trump's in office. Trump gets to do what he wants, I guess.
- [58:00]
Heather McDonald
Yeah. Have you heard this term, Red Caesar?
- [58:03]
Nico Perino
No, I have not.
- [58:04]
Heather McDonald
Well, I heard it and then I didn't know what it meant. And then all of a sudden it dawned on me what it meant, which is a term, I think. I think maybe Curtis Yarvin has used it, maybe Mike Anton, I don't know. But the idea is red meaning Republican maga, a Caesar that we need somebody who's a strong man in favor of republican values. And so it's the time now for a strong executive authoritarian power. And so that is the argument.
- [58:37]
Nico Perino
But then so much hinges on who's in power and then what's exactly that's then you get the Caligula and then like what's the difference between having a hereditary monarchy in that sense, you know.
- [58:46]
Heather McDonald
I guess absolutely, that's what I said. I asked myself every time everything, what would we feel if it was the other side doing this? And we have to ask that question.
- [58:55]
Nico Perino
We might soon well see Heather McDonald, thanks for coming on the show. Heather McDonald's is the Thomas W. Smith Fellow at the Manhattan Institute. I am 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 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. Feedback can be sent to sodaspec@the fire.org Again, that's so to speak. At the fire.org we take reviews. If you like the show, please leave us a review on Apple Podcasts or Spotify. They help us attract new listeners to the show. And until next time, thanks again for listening.