So to Speak: The Free Speech Podcast – Episode 244 Summary

Release Date: June 5, 2025
Host: Nico Perino
Guest: Bob Korn, Revere FIRE’s Chief Counsel; Lee Levine, Former Senior Counsel at Ballard Spar

1. Supreme Court Ruling on Laurel Libby: Censoring Lawmakers

In the opening segment, Nico Perino and his guests discuss the recent Supreme Court decision regarding Republican lawmaker Laurel Libby. Libby was barred from speaking and voting in the House of Representatives due to her comments about a transgender student athlete, specifically posting photos that juxtaposed the same student competing in both girls' and boys' events.

Key Points:

• Legislative Authority: The Supreme Court affirmed that the House has significant authority to regulate the conduct of its members but emphasized that this authority isn't unlimited.
• First Amendment Protections: Both Korn and Levine underscored that the First Amendment protects lawmakers' speech both inside and outside the chamber, unless it directly infringes upon the rights of others or causes substantial disruption.
• Shadow Docket Concerns: The decision was expedited through the Supreme Court's "shadow docket," bypassing the usual comprehensive briefing and deliberation processes. Levine remarked, “...the Supreme Court is making so much law in the context of this shadow docket,” highlighting concerns about the quality and thoroughness of such decisions (05:16).

Notable Quote:

Lee Levine (05:30): "The leadership of the Supreme Court is making a trend of rapid decisions without full deliberation, which can undermine the consistency and reliability of First Amendment protections."

2. NPR and PBS Sued Over Executive Order Cutting Funding

The podcast delves into the Trump administration's executive order directing the Corporation for Public Broadcasting (CPB) to cease federal funding for NPR and PBS. NPR and three Colorado Public Radio stations filed a lawsuit alleging this move as viewpoint discrimination and a violation of the First Amendment.

Key Points:

• Legislative Protections: Korn emphasized that the Public Broadcasting Act of 1967 prohibits federal officials from interfering with the editorial decisions of public broadcasters (16:53).
• First Amendment Violations: Levine pointed out that using federal funds to manipulate or punish private entities for their speech is unconstitutional.
• Government Spending Power: While the government has broad authority in allocating funds, once exercised, it cannot be used to control private speech, reinforcing the unlawful nature of the executive order (16:09).

Notable Quote:

Bob Korn (16:23): "Once the government exercises its spending power, it can't use that power to manipulate private speech, which is exactly what's happening here."

3. Middle School Student’s T-Shirt and First Amendment Rights

A lawsuit filed by a Middleborough, Massachusetts middle school student, identified as LM, who wore T-shirts stating "There are only two genders" and later "There are only censored genders," was discussed. The Supreme Court declined to hear the case, leaving questions about student speech rights unresolved.

Key Points:

• Tinker v. Des Moines Legacy: Korn referenced the landmark 1969 case that established students do not lose their First Amendment rights at school, provided their speech doesn't cause substantial disruption or invade others' rights (32:30).
• Substantial Disruption vs. Invading Rights: The lower courts had conflicting interpretations, with some viewing LM's T-shirts as invading others' rights due to emotional distress caused, while others deemed it a substantial disruption (38:28).
• Missed Opportunity for Clarification: Both guests lamented the Supreme Court's refusal to take up the case, which could have provided much-needed clarity on the boundaries of student speech (47:39).

Notable Quote:

Bob Korn (38:28): "This creates a heckler's veto problem where the reaction to speech can justify its censorship, undermining the very essence of free expression."

4. James Comey’s Social Media Controversy and Protected Speech

The episode examined former FBI Director James Comey's social media post featuring seashells arranged as "8647," interpreted by some as a coded message referring to Trump as the 47th president. The Secret Service's subsequent investigation raised questions about the boundaries of protected speech.

Key Points:

• True Threats vs. Political Hyperbole: Korn argued that Comey's post didn't meet the Supreme Court's stringent criteria for a "true threat" as established in Watts v. United States (50:35), emphasizing the difference between hyperbolic political statements and actionable threats.
• Chilling Effect: Levine expressed concern over the potential intimidation of political opponents through such investigations, highlighting the broader implications for free speech and political expression (53:46).

Notable Quote:

Lee Levine (52:32): "This is part of a coordinated attack... we just don’t tolerate this in a democracy that values freedom of expression."

5. Harvard vs. Trump Administration: Retaliation and Free Speech

The conversation shifted to Harvard's legal battle against the Trump administration, which froze $2.2 billion in federal research grants and initiated multiple investigations targeting the university's autonomy and free speech protections.

Key Points:

• Executive Overreach: Levine criticized the administration’s actions as a retaliatory assault on academic freedom and institutional autonomy, asserting that the demands placed on Harvard exceeded statutory authority (59:34).
• Patterns of Retaliation: Both guests discussed the broader pattern of governmental intimidation against institutions that stand up for their constitutional rights, drawing parallels to past attempts to undermine free expression in academia (60:46).
• Judicial Remedies: Korn and Levine highlighted the importance of swift judicial intervention in such cases to prevent further governmental overreach and protect institutional freedoms (63:22).

Notable Quote:

Lee Levine (61:00): "This is part of a coordinated attack on the pillars of civil society—the courts, the universities, the press."

Conclusion

Episode 244 of So to Speak: The Free Speech Podcast provides a comprehensive exploration of recent challenges to free speech and institutional autonomy within the United States. From legislative censorship of lawmakers and governmental retaliation against public institutions like NPR, PBS, and Harvard, to the evolving landscape of student speech and political hyperbole, the discussion underscores the persistent tensions between authority and constitutional protections. The guests emphasize the critical role of the judiciary in safeguarding free expression and the dangers of expedited decision-making processes like the Supreme Court's shadow docket.

Notable Closing Quote:

Bob Korn (65:32): "When you have so many cases decided on a rushed basis, it's hard to come out with a better product in the end."

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