John Law (4:44)

All right, Greg, thanks so much for joining the podcast.

Will K. Back (4:47)

Yeah, thanks for having me.

John Law (4:49)

So I think to start for our listeners and our audience who aren't familiar with the work that you do and the work that could you just give a high level overview of the kinds of issues you focus on and kind of the guiding principles of the organization.

Will K. Back (5:01)

Sure Fire just celebrated its 25th anniversary. I've been here for about 23 of them. I am a First Amendment specialized constitutional lawyer and we're about 120, 130 person team now that focuses on defending freedom of speech for the whole country. We used to focus just on higher ed, but then several years ago, we expanded to defend speech both on and off campus. But unfortunately, campuses keep trying to drag us back in by having either ridiculous cases originating from campus or ridiculous cases originating from the current Trump administration. So we're busy.

John Law (5:44)

Yeah, I can only imagine. And I have a question. I think you raised that point of maybe some of the speech issues that have been happening on college campuses before the Trump administration. Maybe some of the different issues we're seeing come up now that I wanted to get to in a little bit. But just for you personally, I know this is obviously something. Free speech issues are something that you've worked on for your entire career. I'm curious what drew you to this issue, to really make this the focus of your work, and what maybe some of the principles you personally hold are around this issue of free speech? Because I know that many people have different conceptions of exactly what that means.

Will K. Back (6:17)

Oh, sure. I mean, I worry about Americans sometimes because how consistently I find the people. People who are the most adamant about freedom of speech are people like me who has. My grandfather fought in the Bolshevik Revolution. My dad was a refugee to the United States. I grew up in a neighborhood with a lot of kids who were fleeing either communism in China or authoritarianism in South America or communism in Korea. They had a lot of experience with totalitarian regimes. None of us took free speech for granted. And so it was a really important cause for all of us. I also grew up in the 80s and 90s when free speech law and free speech culture were kind of like on ascent. So I went to law school specifically to study the First Amendment. I took every class that Stanford offered on freedom of speech. When I ran out, I did six credits on censorship. During the Tudor Dynasty, I interned at the ACLU of Northern California. I mean, this isn't just my career passion. This is my life's passion. And I think it is a. I think we got spoiled to a degree because free speech was so well protected in the United States that we kind of forgot what it looks like when you start to lose it.

John Law (7:35)

When I was preparing for the interview, I listened to another interview you had done, I think, last year, where you talked about some of the differences in conception of free speech between the United States and Europe. And you talked about this bedrock principle that we have in the United States around speech. And I'd love to just hear you kind of explain your thought There's. And outline how we have a little bit of a different conception of free speech that maybe is, I think, in your words, more right than they have it in Europe.

Will K. Back (8:00)

Yeah, well, there's this thing that constitutional lawyers do is when we go to Europe, we have a tendency to bash our own Constitution and be kind of like, oh, you guys. Particularly on free speech issues, it's like, oh, you guys are right and we're wrong. And primitive and backwards. You have these enlightened hate speech laws and I'm the impolite lawyer who goes over there and says, no, actually you guys are getting this terribly wrong. You're arresting people in Germany for calling a politician a penis. I mean, it's like, this is insane. And if you haven't watched it, there was a 60 Minutes episode or segment on morning raids of people for speech crimes in Germany. And the kind of stuff that they're saying can actually get you in trouble, included an actual example of someone simply calling a politician a penis. And some of the stuff that's going on in, in the uk, my mother's country is also just nuts. I think there was 12,000 arrests last year for offensive comments on the interwebs. That's three times as many. I always point out, by comparison to mass censorship incidents in the United States, that's three times as many people who were arrested on the first Red Scare, which was 1919 and 1920. And that's a two year period. So it's bad. And I think it partially comes from a major distinction between the United States and kind of everybody else is. In First Amendment law, we have something that the Supreme Court dubbed the bedrock principle, which is you can't ban something simply because it's offensive. And I think that this is right because particularly if you're in a. A diverse society, not to mention economically stratified, lots of different cultures, lots of different ages, lots of different regions with different ideas of what it is and isn't okay to say, it makes sense to say I can't actually impose one group's view of what's offensive and say, none of you are allowed to say this because always that is the view of whoever has the most influence in that society. So the postmodernists actually understand this to a degree. They kind of approve of it if it's the right people calling the shots. And in Europe right now, since they have this idea of. I think one of the things that Europe has in a way that is kind of almost lying to itself, is you can have an idea of what a modal German or a modal British person should think in a way that America's never really had. We were Boston and Richmond and Maine and Georgia. We never actually thought of ourselves as being all that similar to each other. And we're even less so now. And so I think that the bedrock principle is the right principle for a multicultural society. But I think that if you don't have it, you end up in a situation where you're constantly saying, and I've been at these conferences, was this cartoon offensive enough to get you arrested for Islamophobia or antisemitism? And then saying yes. And then you look at another cartoon that Americans I have no idea why this is supposedly less or more offensive, but you're still arresting people for cartoons.

Isaac Saul (11:32)

We'll be right back after this quick commercial break.

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John Law (12:45)

So I think we're seeing that issue come up in the US as well, along partisan lines and something that actually jumped out to me about FIRE as an organization. I was reading Tim Urban's new book last year and he called Fired the Modern ACLU with the implication that the ACLU has kind of given itself away to partisan considerations. Yep, there it is. Which is which is a great book. You know, I can can recommend that maybe both of both of us can. But, but this idea that that the ACLU and maybe some other organizations that have traditionally been these defenders of civil liberties, civil liberties in the United States are now moving towards just partisan considerations in the cases that they take up and the issues that they champion. And that fires maybe filled that vacuum and that space that they I would love to just hear how you think about the work. What do you think about that characterization? And do you agree that we're seeing partisan considerations kind of take over some of these organizations that in the past would have defended cases on principle and not which political group it serves?

Will K. Back (13:47)

I mean, I'm a fan of the ACLU. I worked there back in 99. The former president of the ACLU is actually a fire fellow now, Nadine Strossen. And I'm writing a book on free speech that we just handed in that's coming out this summer with her. Ira Glasser, the former executive director, director of the ACLU is on our advisory council, for example. And we've worked with them a lot. But I have been a little bit. I was kind of surprised to see Anthony Romero refer talk about the ACLU as being a progressive organization because I always, when I so admired the ACLU back in the 80s because they were willing to defend the Nazis at Skokie and these were progressive Jewish lawyers defending Nazis. I was like, that's incredibly principled. That was a remarkable thing, particularly for a, a kid from my family background to see that kind of principle in action. It was really inspiring. And I think FIRE is trying to do. I wrote a series on this trying to avoid what's called the curse of O'Sullivan, that essentially there was this guy O'Sullivan who said that essentially any nonprofit, any cause based organization that is not explicitly conservative eventually drifts left is his theory. And I'm trying to make FIRE the group that doesn't do that, that actually does have, that is not explicitly conservative or even libertarian, that doesn't drift left. And we do that through a hard and challenging approach. Particularly in these times we try to prioritize having staff that is actually politically diverse. When I interned at the ACLU back in 99 wasn't. We have only one practice area, which is freedom of speech, whereas The ACLU has 17 or 19. I forget which one it is. And the problem with having too many practice areas is, and I remember this back in 99, is that, say, from a free speech perspective, whether or not someone protesting abortion clinics has free speech rights is not a hard question. Of course they do. Even if I'm pro choice, which I am, of course you have the right to oppose it. But within an organization that also had a really powerful pro reproductive rights arm, it led them in detention with different departments of the ACLU to take some of these, I think common sense free speech stances. So definitely having politically diverse organization having only one cause. And you also never, you never throw your client under the bus. You never actually say, my client's a bad person for their speech. And not because they aren't necessarily, but because it muddies the idea that you're not defending the person, you're defending the principle. And also it's very hard to at least or for that matter be perceived as genuinely nonpartisan and say, for example, when the ACLU defended the nra, and very rightfully so, and got a great victory out of the Supreme Court when they defend the NRA after there was a very clear attempt to get them more or less banished from the State of New York by going after their insurers and all this kind of stuff. And the aclu, sorry, the Supreme Court had a unanimous case saying this is obviously a First Amendment violation. But the ACLU also said we're defending the NRA and here's why we oppose the nra. And it's like, but that's the problem though. You wouldn't have done that for any other group. So you're kind of showing your hand. So I think there are ways that you can try to keep your organization as nonpartisan as possible. But here's something I tweeted about actually today. I don't know when this is going to come out, but I tweeted there were people over the weekend talking about how principled we are, have been in the face of all these different kinds of threats and but there's another reason why organizations aren't you can raise a lot more money if you tack hard right or hard left. You then have a built in constituency and they will give you gobs of money to tell them that they're right. It's a much, much harder sell to be like, listen, you may have agreed with us when we were saying that the campus shout downs that were out of control over the past two years are really bad. But now you might be really mad at us because we're also defending all the pro Palestin people that they're trying to deport. But that's also what it means to be principled. From a principled standpoint, I don't feel like these cases are particularly hard. It is hard to build a coalition around anybody but just the genuinely principled people when you're willing to piss off partisans of both sides.

Isaac Saul (18:48)

We'll be right back after this quick commercial break.

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John Law (19:27)

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Will K. Back (19:49)

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John Law (19:49)

Turns out you can love a work management platform. Monday.com the first work platform you'll love to use. So, as a quick aside, I guess to the last point you raised, how does an organization like FIRE make it work on the, on the business side when you don't have that ability to tap into the partisan considerations on either side?

Will K. Back (20:16)

We cross our fingers and try real hard. A big part of my job is fundraising. We try to get people to think long term that as much as you might be mad at us right now, you're going to want your country to have a genuinely principled free speech defender that you can always trust to actually just doing what they might. You might always agree with them, but you know that they're doing just what they think is right, not what they think is politically convenient. But that sometimes could be a hard sell. And you have to be willing to lose donors and we'll see how we come out this year. But I learned very early on that you have to be willing to walk away from donors who want you to be partisan. What's interesting, though, is sometimes they actually come back on your terms. Sometimes they're like, I was really mad at you about that one case because I hated that dude. But I've seen what you've done since and we can agree to disagree on that one, but I'll support you again. So we'll see. But it's a very, very partisan moment and it's hard to be nonpartisan in a hyper partisan time.

John Law (21:28)

Yeah. And maybe as an example of that, just to talk about some work you're doing right now is Mahmoud Khalil's case, which I know FIRE has taken up and is doing work on. What is your role in that case and what are you hoping to achieve there? And how has that been going so far?

Will K. Back (21:44)

The biggest concerning thing is actually even bigger than Mahmoud Khalil. It is that the Secretary of State, Marco Rubio, is arguing, and this is what this regulation actually says, that he has the authority to kick someone out even if they're here on a green card, which is supposed to be pretty much like almost the same thing as being a citizen, literally one step away if in his sole discretion, someone is found to be adverse to foreign policy. Now, I think this was probably put in place for a situation where, let's say, a Nazi Eichmann pops up in the US and is on a green card. That's like, oh, I could just send them back in order to avoid an international incident. I don't think it was ever intended to just go after student protesters, but we think this is way too much discretion for the Secretary of State to have. And by the way, there's a really interesting note here. The one time this provision has been challenged, it was found to be too broad and too vague, and it gave the Secretary of State too much power. So it was found facially unconstitutional by Trump's sister, who was a judge. She passed away a couple of years ago. So the only time it's been challenged, it's been overturned. But unfortunately, that case was overturned for reasons completely unrelated to that finding. So what we're trying to find is a plaintiff potentially to help us challenge that provision because we think we could get it defeated again. When it comes to the Kahlil case, we've definitely been trying to explain it to the public in a lot of cases because people come in, you know, the argument is essentially, oh, you're a guest in this country.

Marc Maron (23:46)

Hey, everybody, this is John, executive producer for Tangle. I hope you enjoyed this preview of our Sunday podcast with Ari and Isaac. If you are not currently a newsletter subscriber or a premium podcast subscriber and you are enjoying this content and would like to finish it, you can go to readtangle.com and sign up for a newsletter subscription. Or you can sign up for a podcast subscription or a bundled subscription, which gets you both the podcast and the newsletter and unlocks the rest of this episode as well as ad free daily podcasts, more Friday editions, Sunday editions, bonus content, interviews, and so much more. Most importantly, we just want to say thank you so much for your support. We're working hard to bring you much more content and more offerings, so stay tuned. Isaac and Ari will be here for the Sunday podcast and I will join you for the daily podcast on Monday. For the rest of the crew, this is John Law signing off. Have a fantastic weekend, y'all. Peace.

Isaac Saul (24:46)

Our executive editor and founder is me, Isaac Saul, and our executive producer is John Law. Today's episode was ended at Engineered by John Law. Our editorial staff is led by Managing editor Ari Weitzman, with Senior editor Will K. Back and Associate editors Hunter Casperson, Audrey Moorhead Bailey Saw Lindsay Knuth and Kendall White. Music for the podcast was produced by Diet 75 and John Law. And to learn more about Tangle and to sign up for a membership, please visit our website@readtangle.com.

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