Ben Wisner (8:43)

You know, like most shut shutdowns, we spent the day getting emails from government lawyers saying, sorry, we can't file the brief that's due in your case. Can you consent to giving us an indefinite extension? So that's the story of our lives.

Mike Pesca (8:58)

Yeah. And this is how it do you.

Ilya Shapiro (8:59)

Let them get away with that excuse?

Ben Wisner (9:01)

No, we put it on the judge, let the court decide. And most judges consider their work essential and don't want to give more than a 14 day extension.

Mike Pesca (9:11)

And that other voice you heard was the Lord? No, it was Ilya Shapiro, a senior fellow and Director of Constitutional Studies at the Manhattan Institute. Before that, the Vice President of cato. How are you doing? Manhattan Institute, they're not a government affiliate. How's your shutdown going, Ilya?

Ilya Shapiro (9:25)

You know, I wouldn't even know there was a shutdown if I didn't get, you know, news alerts about these sorts of things. My question about shutdowns is, so all of these non essential workers go home, why do they come back, you know.

Mike Pesca (9:38)

Once, once they've been stigmatized and typically.

Ilya Shapiro (9:41)

When this gets all resolved, which inevitably does, they get the back pay. So we as taxpayers don't even benefit from the shutdown at all. It makes no sense to me.

Ben Wisner (9:51)

According to the government, all workers are not essential and all infrastructure is critical. Right?

Mike Pesca (9:57)

Yeah. And all. And all rendition is extraordinary. I'm going to mention the case of Susan Swerk, I believe is how she pronounces her name. She was fired from her job as the Director of Health and Advocacy at Ball State University in Indiana. She went on Facebook in a private group. She called Charlie Kirk's death a tragedy and she said she can and does feel for his wife and children. She says she believes in the resurrection and prays for his soul. So far, so good. But she also critiqued Charlie Kirk said, I can't be friends with you if you're grieving, and said that Charlie Kirk's death is a reflection of the violence, fear and hatred he sowed, and it does not excuse his death. And it's a sad truth. Okay, I have no objection to that. But then again, I am not Ball State University. Who fired her? Guess who took up the case?

Ben Wisner (10:48)

He.

Mike Pesca (10:48)

It's the aclu, counselor. I didn't go to law school, you guys did. But it seems to me that this is defensible on a few grounds. What are those grounds you're going to argue?

Ben Wisner (10:59)

Let me start by not accepting the stolen valor here. This is the ACLU of Indiana, so I am not part of this lawsuit. It's my colleagues in Indiana. I mean, the first thing just to.

Ilya Shapiro (11:09)

Add, who's your daddy?

Ben Wisner (11:11)

The first thing to add to this fact pattern is that Ball State is a public university. If it were a private university, there would be no cause of action unless that state itself had enacted some kind of free speech protections for professors. California has laws like that. To my knowledge, Indiana doesn't. So this is a government employee. And the question is, to what extent do government employees lose their free speech rights when they take on government employment? And the answer is somewhat.

Mike Pesca (11:43)

Very satisfying answer, yes.

Ben Wisner (11:44)

Right.

Ilya Shapiro (11:45)

But in this case, he's a lawyer. Going to have to pay his hourly rate to get a more satisfying answer.

Ben Wisner (11:49)

My hourly rate is zero, except when I'm billing the government when we win lawsuits. The question is, was she speaking on a matter of public concern? And I think everybody would agree that the questions around Charlie Kirk's assassination were being debated. And I think no one would disagree that her speech was on a matter of public concern. And the question is whether was it very likely to materially disrupt her workplace. And that's where there's some gray areas in these cases, in my view. She has a really strong case that her speech, while certainly offensive to some, is not the kind of speech that makes it difficult or impossible for those who administer Ball State University to do so, even though they might offend some members of their community. The Supreme Court has said over and over again we don't protect people, particularly in university communities, from offense. That part of learning to be a full fledged adult member of society is to be exposed to views that might be offensive. And more than that, we kind of don't want this free floating test where whoever the chancellor particular of public university is gets to decide what speech is too offensive to me. This one isn't that close to the Line. Certainly there were comments that were made in the wake of the Charlie Kirk killing that were closer to the line and also functions. I mean, I think if this had been a third grade teacher as opposed to a university professor, courts tend to view those free speech claims a little bit more skeptically.

Mike Pesca (13:25)

Not even a professor. An administrator.

Ben Wisner (13:27)

An administrator, yeah. Anyway, I wonder if Ilya has a different view. To me, this one seems like a pretty easy case.

Mike Pesca (13:32)

I do too. And I also want to Ilya, if I could expand it out to the ethos of free speech. Even if you think that this one, I don't know, I'll let you have your say. Even if you think this one is a slam dunk for the First Amendment and this administrator, what do you think in general of the spate of firings of people who weren't so protected by the law, but you take it away?

Ilya Shapiro (13:55)

Well, look, we, we've been debating cancel culture for some years now, and there are very few people who say that you should never have. Someone should never have negative employment consequences for anything they do outside of the workplace. There can be consequences if you take whatever your worst thing is, you join the Nazi party, you start marching with the kkk, you join the young Communists, I don't know, whatever your worst thing might be. And this is someone who, working for a private company that might be anathema bridge too far. Like all of the big New York law firms, for example, that said that they're not going to hire students that supported Hamas in the wake of its attack on, on Israel. Coming up on two years since that. I don't think there's anything wrong with that. There's a problem when someone gets disproportionately mobbed for views or, or positions or affiliations that, that are within the Overton window of what used to be called polite society, kind of the mainstream of, of society. That's where. And this is all accentuated by social media and the Internet and you know, all of that, that's where cancel culture starts becoming a problem. Now, there are a lot of gray areas, which is why we lawyers get paid a lot of money, whether directly in billable hours or indirectly through salaries or collecting on civil rights judgments or what have you. And that's because, yeah, Ben mentioned one. Public versus private sector. There are also contracts involved, whether collectively bargained ones in either the public or private sector or just, you know, an employment agreement. Jimmy Kimmel, which I'm sure we'll get to, is more of like he has a contract and I'm sure, there's a morals clause there. Most people in the private sector work effectively at will, meaning you can be fired for any reason or no reason at all, except for certain civil rights protections. You can't be fired for being a particular race, that sort of thing. But in terms of the, you know, to get it back to what you're asking, the First Amendment ethos, I don't like it when people have negative consequences for just a view that someone else doesn't like. Not the kkk, not the communists, not Hamas, you know, nothing extreme like that, but just, you know, you're a Yankees fan, I like the Red Sox. No, you're going to be fired. This is somewhere in that gray area in between. And, you know, she's not a professor, so we don't have to talk about tenure. We also don't have to talk about the difference between intramural and extramural outside the classroom kind of speech. And also she was apparently doing this in private and that was screen capped. So there's all these other expectations as well, nuances here. But I'm not an absolutist. And you know, people ask, are you a First Amendment absolutist? Because I do defend a lot of free speech stuff. And I'm like, no, I like where the First Amendment jurisprudence is. And the Supreme Court does not say that all speech is, is absolutely protected. So similarly here, I'd say, you know, there's. There, I have my lines and we can argue about whether, you know, where your lines are. But, but I think there should be lines.

Mike Pesca (17:00)

I just want to be clear. You think this is a gray area and not a slam dunk for free speech and the employee in terms of.

Ilya Shapiro (17:07)

The moral judgment about it or.

Mike Pesca (17:09)

Oh, okay, yeah, no, I meant, I.

Ilya Shapiro (17:11)

Mean the legal case. Yeah, I think I'm with Ben, but you were asking about the free speech ethos. And you know, I don't mind social stigma or people, you know, people call about call out culture again, as long as it's not like mob behavior on some little store clerk that, you know, express some view that used to be the view of everybody until yesterday, that sort of thing.

Ben Wisner (17:34)

And to be clear, sometimes free speech law and free speech values are in opposition to each other in this context. And let me give you an example. When In January of 2021, the major social media companies deplatformed Trump, they had a First Amendment right to do that. They have their own First Amendment freedom of association to decide what kind of platform they wanted to have. Nonetheless, the ACLU called them out and said we thought they were wrong to do that, that the president's speech was newsworthy in and of itself, that we didn't feel more comfortable having a company answerable to the bottom line making these of decisions at politically convenient times, and that they should err even with offensive political speech on the side of leaving and on the platform, because they had set themselves up as a free speech community. We were criticized in the civil rights community for taking that position. But I think Ilya put it very well. Part of the harm of cancellation is the sort of gleeful mob activity. And so going into Facebook groups and screenshotting. There's been so much screenshotting going on in last few weeks of people combing the Internet, making private statements public for the purpose of rooting these people out of their jobs, some of them government jobs, where they might be able to litigate, most of them private jobs where they're unlikely to have a cause of action. And, you know, that's not to say that the speech is beyond criticism. It's just to say that, you know, some of us have been consistent in arguing against that kind of group activity.

Ilya Shapiro (19:10)

I should add that I have a certain lived experience with this sort of things a lot of your listeners might be aware of. A few years ago, my Georgetown imbroglio, the Troubles, as some of my friends call it, I had a controversial tweet criticizing President Biden's selection criteria for the Supreme Court and was suspended and investigated and all of these things.

Mike Pesca (19:33)

Pretty standard critique. The controversy was. Instead of discussing or referring to Katanji Brown Jackson as less qualified than your preferred candidate for the Supreme Court, you used. Maybe because of the character limit, you use the word lesser candidate. You wish you had that back. But continue. Tell us what.

Ilya Shapiro (19:53)

Yeah, no, it wasn't specifically about her. This was before she was nominated. It was right when Breyer retired. And so I was talking about, you know, he was restricting his pool by race and sexual. And I thought, well, if I were a Democratic president, I would pick someone else. But off the bat, disqualified because, you know. And so we'll be left with, yeah, what I called a lesser black woman. And that that ignited the online. My ideological enemies ran with that and so forth. It was, you know, it was a standard critique of affirmative action phrased poorly, which I admitted right away. And anyway, so that's in addition to my kind of legal practice and commentary on these issues. I was touched by all of this personally, too.

Ben Wisner (20:39)

And I should just say that the aclu, through our then legal director, David Cole supported Ilya in that situation, while criticizing the speech, said that a university like Georgetown that has prided itself on its free speech principles should not even be investigating somebody for speech that the community considered offensive. And then we praised Georgetown when at the conclusion of their investigation, they decided not to take punitive action against him.

Mike Pesca (21:12)

Yeah, but no, not yet. But that's good that you did that. Azalea, I'm sure could fill you in. From what I understand about it, Georgetown did kick it over to an investigatory body. This happened to me, to these things. I think there could be no other finding. But they also didn't full throatedly soto voce in any way I could ascertain, give any sort of noises about supporting free speech or the right of Ilya to say this, or just the general idea of professors or people in the academy being allowed and in fact encouraged to have that opinion. And that gets to the ethos of free speech too.

Ilya Shapiro (21:50)

I think it was, it was a technicality, a jurisdictional loophole, if you will, because I tweeted a few days before I formally joined the faculty and so the policies under which they were investigating me didn't apply. It took four months. And however much, however many hundreds of thousands of dollars they paid Wilmer Hale to advise them on this, for a junior associate to look at the calendar and find out that. That I wasn't covered, it was, yeah, definitely a weaselly decision.

Mike Pesca (22:19)

So I do want to ask, looking back, do you think that that period compares to this period? In that, in that period, it wasn't government interceding. That is an important distinction. But there was perhaps more of it going on for lesser examples of speech that might offend even the average person. And now we're hearing a lot of, well, a couple of things. One, now that the shoe is on the other foot, people of a different ideology don't like it. But what I really want to know is each of your assessment. And Ilya, we can start with you. Are we in the same time, the same kind of atmosphere, the pendulum has just swung and different people's ox are being gored. Or do you think that it's a different kind of free speech, chill and environment that we're experiencing now?

Ilya Shapiro (23:11)

Well, the culture has shifted. There's been a vibe shift of various kinds that people talk about, not just in terms of, you know, last November's election, but the culture has moved. We're not all in this pandemic or immediate post pandemic frenzy about lots of things. And remember the government, then we're talking the early 2000s was, you know, colluding with tech companies to censor in all sorts of ways about different sorts of politically incorrect issues and what have you. So that was a big problem Now. Yeah, the demands for firing people who are saying, you know, what is offending people? That is a little bit on the other foot. But it's. There's a. There. There's a mix again, the public and the private. And, you know, you get a celebrity in there that's kind of like, you know, right around the time where I was being investigated, Whoopi Goldberg was suspended, if you want to draw a parallel. Now, I tweeted out that we, you know, Whoopi and I should go on Joe Rogan to hash all this stuff out. But, alas, that didn't happen. But I think there's. There's a more openness. Elon Musk's purchase of Twitter and renaming it X, for some reason, I think that transformed the discourse a lot. So it's a little bit different, and I think the culture is more open, but perhaps were just as much or even more polarized and kind of in. In separate echo chambers.

Mike Pesca (24:38)

But, Ben, the fear is coming now from the government, and that seems very, very different than when it was coming from the private sector or just people who were engaged in social cancellations, I would say.

Ben Wisner (24:51)

So. Look, there are obviously similarities, and it's easy to point to people who have flipped sides based on who's doing the canceling and who's being canceled. I've said to you before, most people think two things about free speech and they're wrong about both. They think they know what it is, and they think they support it. They don't know what it is. And the only way that you can show that you support it is when you stand up for the speech of someone who opposes you or offends you. Until then, I do not take your word for it that you are a free speech supporter. You need to prove it to me. But, yes, I do think that what we've seen since January doesn't have precedent in recent American history where you really have the full force of the government coming down on speech that opposes the administration, whether it's in the form of, you know, arresting non citizens and trying to deport them for nonviolent political speech that is in no way criminal, whether it's cutting funds to universities that are out of line, whether it's putting pressure on media companies, which we can talk about, or even the president bringing individual suits against media companies. And using the government's leverage to force settlements, whether it's executive orders aimed at law firms because they have the temerity to employ people who are the president's critics and trying to bring their work in line. These aren't things that I have worked on in my career. I've been at the ACLU for 24 years and they actually more resemble things from earlier eras and I would argue are categorically distinct from the unhealthy speech culture that we were talking about in 2020.

Mike Pesca (26:28)

Do you give any credence to the idea that this was all breathed into the world or this was the consequence of the excesses of one side pendulum idea that, I mean, this is self serving. But I have heard many conservatives argue, actually I wouldn't even necessarily call them true conservatives, but I heard many people aligned with Trump saying, this is what you get. This is but a natural reaction. Do you, I mean, this is more sociologist than lawyer. But what do you think about that?

Ben Wisner (26:57)

I'm not even sure kind of what to do with that. But let's say it's true. Let's say that the ideological commissars in the current administration who are the ones who are doing the heavy work, aimed at law firms and aimed at universities and so and so were themselves burned by progressive orthodoxies that were enforced on them in particular ways. Okay, it's got to stop somewhere. I think the courts are going to be the ones that stop it here. Trump has a very bad record so far in First Amendment challenges against his policies. His record is stronger in some other areas. Of course, the problem with these kinds of policies. And let's talk about the law firms, for example, because I don't think you'll be able to find a guest who will come on and say that the executive orders targeting specific law firms are constitutional, but it doesn't matter. All four of the law firms that challenge those executive orders won them before ideologically diverse judges. But the rest of the law firms who are the real targets of this have been afraid to stick their heads up.

Mike Pesca (27:58)

So they're not that paid him, that could have won their cases, but they chose not to for different reasons.

Ben Wisner (28:05)

This is the thing which is they're making the decision that it is more prudent to keep their heads down, to wait for this to pass, not to be the ones who are in the spotlight or hold before Congress or who are the target of a presidential tweet or truth or whatever those are called. And so even though many of these policies I think have been deemed comprehensively, manifestly illegal. Illegal. They're still having an effect on our society, a profound one.

Mike Pesca (28:36)

Ilya, what do you think the best way is then to frame a principled objection to what's going on? Do you think it's too emphasis coming from it as you do and someone who worked with FIRE and someone who I think has not been hypocritical on this issue. Is it important to emphasize that, see, see this, the left, this is what you get. Or is it more important to stand by your principles and say, no, this cannot stand irrespective of what went on in the past with an Ilya Shapiro type.

Ilya Shapiro (29:06)

I'm glad you mentioned FIRE because I think it's one of my favorite organizations. I think it does what the ACLU used to do. With respect, I think there's been some drift there in terms of which civil liberties and how to interpret and whom to protect.

Ben Wisner (29:19)

I mean we can talk about whether it was fire or the ACLU who was representing the NRA and the Supreme Court a year and a half ago. So I can come up with, with plenty of current to your, plenty of.

Ilya Shapiro (29:29)

Exceptions that prove the rule. But that was so egregious that that was a 9 nothing Supreme Court opinion.

Ben Wisner (29:34)

But anyway, it was 30 against the LRA in the 2nd Circuit before we came on.

Ilya Shapiro (29:39)

So let's first of all, Mike, let's disaggregate what Ben was saying.

Mike Pesca (29:42)

Let me just pause and say, so Ben, you're saying the ACLU 100% flipped the law from 3 nothing to 9 zero in your favor?

Ben Wisner (29:50)

I'm saying it was an important signal of the importance of the issue for the national legal director of the ACLU to stand up before the supreme representing the nra. And it wouldn't surprise me if it had an impact on the outcome.

Mike Pesca (30:04)

Yeah. By the way, was this the NRA case about jawboning in New York? Yes, we're gonna get to that. I love this case, but go ahead. I interrupted you, Ilya.

Ilya Shapiro (30:12)

Sure. We need to disaggregate what Ben was saying because I think that this broad charge that, you know, we have a growing fascism and there's all this kind of censorship from the government is over yoked. There are very different issues in different areas of the law and different approaches to different kinds of institutions. I'm not going to defend the approach to the law firms, which seems pure retribution for the types of clients they have and that sort of thing, but putting that to the side. Universities themselves have been so illiberal. That was the focus of my last book, Lawless, which you can see over my shoulder if you're watching this podcast that are violating students civil rights that are allowing this and fomenting mobs to implement cancel culture, to denigrate free speech, values and academic freedom. And for too long there's been no oversight, even though without any new legislation, there are already strings tied to federal funds that could have been pulled to get the sort of demands and remedies that this administration, not always with the optimal tactics like sending demand letters and things like this, rather than concluding an investigation before you start doing the things, is getting the anti Semitism is an outcrop of all of this. I mean, lots of different problems with educational institutions that needed reform and that needed government oversight. The pulling of visas is and I disagree with my friends at fire over this. It's a pure immigration issue to me because foreigners, and I used to be a foreigner. I've immigrated twice in my life. I naturalized in the U.S. what 12 years ago. Now, foreigners do have the same speech rights. You can't be punished, criminalized, prosecuted for your speech. But there are certain standards, ideological standards, screenshots for getting a visa. And those screens do not go away just because you're in the country. So you can't be prosecuted. But if all of a sudden it turns out that you are a secret supporter of Hamas or the Nazis or the commies or whatever, then I think it's absolutely correct to pull those visas. And the question is, are the right procedures being followed? Are you indeed? You know, you know, we can talk about the details, but I don't see a problem with enforcing those ideological screens without having a First Amendment issue. And we could go on. I mean, you go bit by bit in terms of all these different kinds of critiques. Some are valid, some are a blunderbuss approach or a bazooka approach where a scalpel is more necessary from the government. But some of these, I think are overblown kind of resistance type critiques.

Mike Pesca (32:57)

Can I just ask, when you say that visas are purely a question of foreign policy or what was the phrase you used?

Ilya Shapiro (33:04)

I don't want to misunderstand immigration law.

Mike Pesca (33:07)

Yeah, immigration law. Does that mean if the government and I'm not going to talk about Khalil Muhammad, the Columbia student, I'm going to.

Ben Wisner (33:13)

Talk about, by the way, he has a green card, so that's not a visa issue. But go ahead.

Mike Pesca (33:16)

I'm going to talk.

Ilya Shapiro (33:17)

Just means he gets more process. The underlying standards are the same, but.

Mike Pesca (33:21)

I'm not Going to talk about him. I'm going to talk about Ramisa Oz Turk, who wrote an op ed for the Tufts paper that was co signed with other people that just expressed the sense of the student senate that Israel did something wrong, something like this. Would you say that because it is an immigration issue, there can be no discretion, There should be no consideration of the actual sentiment expressed that gets a visa revoked? Ilya.

Ilya Shapiro (33:48)

So the problem with her case is that it wasn't relying on the explicit ideological screens in the ina, the Immigration Nationality act about material support for terrorism or supporting the violent overthrow of the government, all of these sorts of things. It was instead based on authority given to the Secretary of State. And that kind of discretionary, sometimes arbitrary authority does give me pause because then, you know, it all depends on the views of one person and whether he or she is offended at any given time. I would much rather the government make the case that you violated this thing. You are expressing views that are inimical to our body politic as legislated by Congress in the ina. The, you know, Marco Rubio says is a weaker read on which to frame a visa revocation.

Mike Pesca (34:39)

Yeah. So as promised. Can I ask you then about jawboning? I'm very fascinated with jawboning. Is this a wrong? And to define it, it's when the government talks to a body that it regulates or I guess potentially a citizen saying comply or pre comply or else we'll bring the force of the government down upon you.

Ben Wisner (34:59)

So on the one hand, it usually involves an intermediary. So in the case of Jimmy Kimmel, the government's not censoring Jimmy Kimmel. It is arguably putting pressure on Disney, abc. In the case of the nra, the government isn't censoring the nra. It's saying to its banks and insurance companies, nice company you have there. Isn't it a shame that you do business with the nra? That's what makes it jobable. Or in the case of social media, saying, we have regulatory authority over you. If this is what they said, we would really appreciate it if you took down that Covid misinformation.

Mike Pesca (35:31)

So those are all First Amendment cases. And I think the idea of jawboning actually goes back to the 19th century, but it existed and was popularized by John Maynard Keynes writing about or John Kenneth Galbraith writing about it during the Johnson administration. But should we look at jawboning when there is a First Amendment consideration as a wrong? Because I used to think of it as the way the government could extend its power Softly. But maybe I'm thinking about it wrong.

Ilya Shapiro (36:01)

The legal standards are unclear, and I think probably need to be updated for the digital age. Because the quintessential case, I think, is from the 50s called Bantam Books, about a cop going into a bookstore and saying, I don't like these books. And, you know, that sort of thing, you know, nice story you got there. Wouldn't want you to run into legal problems in the digital age. It works a little more subtly, and it's not clear what the standard is going to be if and when the court eventually decides that. But there has to be at least some sort of cooperation. Collusion, not coercion, is bad enough, but I think collusion should be proven as well, not just, oh, the government wants something done. The executives at Facebook are just ideologically aligned. It's not that they have to be told what to do. They're more than happy to do it because they just think the same way. Naturally, that's not necessarily a government violation. And so the factual discovery in the litigation would have to discern if there's government direction or the private party is acting as an agent, which does then become problematic.

Ben Wisner (37:01)

My view is that there's no problem with government officials stating their opinion or saying, we wish this speech were not on this platform or we don't like this comedian. The problem becomes there's two problems. I mean, one is when it's accompanied by a threat, and the other is when it's happening secretly. I mean, so much of this could be resolved if Congress would just legislate that these conversations have to be transparent, so that if the administration goes to a social media company and says, we want you to take this speech down, we all see that in plain sight. I don't mind Biden or Trump at the podium saying, I hate that speech. We're all seeing it, and we can judge them. There is political accountability for the speech. What is more nefarious is when they have private conversations with them that are not visible to the public, where there is direct or implied regulatory threat and where it's very hard to measure what's coercion and what's collusion. And so we got a resounding victory in the NRA v. Fluo case, where the court sort of very clearly said, if the NRA's allegations are true, that officials in the Cuomo administration really did put pressure on banks and insurance companies not to work with NRA because of their political speech. That's a First Amendment violation. I agree with Ilya that the social media Context is a lot murkier. And you can read the record. The Supreme Court also considered but didn't decide a case about social media jawboning.

Mike Pesca (38:30)

That was murky.

Ben Wisner (38:32)

Yeah. So how do we read the fact that when the FBI approached a social media company with a request, half the time they complied with that request and half the time they didn't? I mean, you could say that's evidence that they were coerced half the time, or you could say that's evidence that they exercised independent judgment 100% of the time and agreed half the time. It's a very, very difficult one. I think the best resolution to it is probably not judicial, but it's probably legislative to say that the FBI should not be going to these companies in secret, you know, subject to whatever national security exceptions are needed, but should be making those requests publicly with accountability.

Mike Pesca (39:07)

What's interesting to me is I never really considered the Trump tweets against Rosie o', Donnell, which were publicly blasting her, that the saving grace was he was publicly blasting her instead of just doing it in private. Now, I know he started to do that as a candidate, not a president, but he continued it.

Ben Wisner (39:23)

But this was one of the reasons why we thought it was wrong to kick him off of social media. Is it better if the president is only communicating with the public through his PR flacks, or do we actually see a fuller version of him if he communicates by himself through Twitter? By the way, Trump's tweets formed critical parts of lawsuits that we filed against the Trump administration. I think there was really a benefit when he explained the motivation for his policies, even if it offended people. And I've never been a believer that the way that you save democracy is through information hygiene.

Mike Pesca (39:56)

So, last First Amendment or free speech Question. I'll read the headline. This from the Free Beacon NYU Axes Federalist Society event scheduled for October 7th. Citing security concerns, would it be possible to host Mr. Shapiro at another date? We have the Mr. The Self. Same Mr. Shapiro here. What's the issue here, Ilya, you were disinvited because they couldn't protect you.

Ilya Shapiro (40:19)

Yeah. Oops. I did it again. I was. I was scheduled to do a book talk on Lawless, the miseducation of America's elites. I think it's at 40% off on Amazon. You can get a good deal.

Mike Pesca (40:29)

You know, before you clarified, I thought you were had written a biography of Xena, the Warrior Princess. Now I know it's different.

Ilya Shapiro (40:34)

Lawless. Yeah. That'll have to be the sequel or the movie adaptation. And we scheduled it for October 7th. Not. Not symbolically. That just happened to be the date that our schedules worked. I do happen to be Jewish. I do happen to be a Zionist. And somewhere along the way, the administration started being hinky to the student organizers of the Federal Society chapter, saying, oh, you know, we're, you know, there's going to be protests. We can't. There's security concerns. Then the story kept changing. Oh, we're not allowing out any external speakers that week, which is a lie. They have their own conference. They. The Federal Society itself was approved for a different outside speaker the very next day. Okay, so all of this may be.

Mike Pesca (41:22)

A point in their favor in all of this. That's not Federalist Society oppression.

Ilya Shapiro (41:29)

I think it shows that the first reason given was the real reason that it was a heckler's or an assassin's veto of the protesters. Not that I was specifically. You know, they thought, oh, you're a. I've spoken NYU before, including during the Georgetown troubles. You know, they know how to handle these things. But apparently on October 7th, it's too much. And so they. They decided not to do it. And. And, yeah, we're hosting an alternate event not far from NYU's campus. Two federal judges, Roy Altman and Lisa Branch, are flying in. Nadine Strossen, former head of the aclu, joining me. And we're gonna discuss campus speech issues, antisemitism, and some of this other stuff that we've been talking about as well. No doubt.

Mike Pesca (42:11)

So, Ben, NYU private unit, private university, and largest private university in America.

Ben Wisner (42:17)

But, yeah, and my alma mater, this law school. Look, Ilya's critique is not a legal critique. It's a critique of whether they're adhering to their stated free speech principles. And he's right. This is a classic Heckler's veto. This excuse could be used to cancel any event. If you say there's going to be protesters, we can't control the protesters. It's not because of the content of your speech. It's just because of the disruption and we can't handle it. Then what do I do? If I'm a protester, I make sure that anytime someone who is invited, whose views that I oppose, I announce that I'm going to have a disruptive protest, then we don't have those events on campus. So this is a really dangerous, slippery slope when schools do this. Now, we also have to understand the context. As I said before, every one of these schools is trying to keep their heads down. The dean of NYU Law School the president of NYU don't want to be the next ones hauled before a congressional committee to answer for their conduct in, you know, one of these episodes. And so they're hoping, you know, maybe if we don't do it on October 7, it won't be noticed. But, you know, guess what?

Ilya Shapiro (43:28)

They're getting noticed now.

Ben Wisner (43:29)

This is the thing. This is a lose, lose for them. It's absolutely the wrong decision.

Ilya Shapiro (43:36)

Or they could just enforce their own rules and if the protesters are being disruptive, have them kicked out and arrested and expelled.

Mike Pesca (43:42)

But have you been to NYU recently? The rules are clear down so many of their public spaces for this reason, this legitimate reason. They just don't want to deal with the protests and the hassle and maybe putting themselves in the crosshairs of the Trump administration, or maybe just putting themselves in the crosshairs of protesters who will use whatever footage of them getting dragged off by cops. They've literally shut down many, many squares. And so now there is less protest. That's. I would say that that's not a salutary development, but it does seem to underline that it's a legitimate concern where they're not just cherry picking Ilya, they're doing it with big, you know, big, huge plazas all over lower Manhattan.

Ilya Shapiro (44:29)

We've seen a real time experiment being run since October 7, 2023, of different kinds of leadership at different institutions and at places like the University of Florida, when Ben Sasse was briefly president at the Vanderbilt, where they simply enforce the rules, you know, kick out the students that occupy the buildings and so forth, you know, the problem doesn't happen, doesn't recur. Places like Columbia, where they give in to the students, you have, you know, the mess that existed for greater part of a year. It's just about leadership.

Ben Wisner (45:04)

When something like this happened at Stanford Law School, when students disrupted an event featuring a conservative federal judge, certainly within a law school Overton window, as Ilya would put it. The then dean of the law school, Jenny Martinez, wrote what I thought was a really extraordinary letter, essentially saying how these communities have to function. And you can protest an event, but if you disrupt the event so that others can't hear it, you're not only violating the norms of the community, you're violating the speech rights of the speaker and the listening rights of the listeners. And so I don't disagree with Ilya that, you know, listen, I don't know about expulsions, but certainly schools shouldn't tolerate the kind of protest of speech events that operate as a veto and result in students not being able to hear speakers who they invited.

Mike Pesca (45:59)

What do you think of the administrator in the moment at Stanford coming in and asking or opposing the rhetorical question? Yes, this person could speak, but we have to ask, is the juice worth the squeeze? Yes.

Ben Wisner (46:11)

She was fired.

Mike Pesca (46:12)

She had.

Ilya Shapiro (46:13)

She had that. That was. I wrote about that episode in my book, of course. Lawless. 40% off on Amazon.

Mike Pesca (46:21)

Stop it. Stop it.

Ilya Shapiro (46:26)

So Jenny Martinez, the then dean who's since been promoted to provost, I agree that her memo is the best recent exposition of free speech values from a university official, but she said she basically threw that DEI dean under the bus, saying that that was DEI done wrong. DEI done right is committing with and enhances our freedom of speech. And I don't buy that. I think. And this is getting farther afield from what we've been discussing, but it. With respect to diversity, equity, inclusion. I love those words. I love what they mean, what they actually bring to the table. But as practiced by what I've called the diversity industrial complex, they undermine classical liberal values of free speech, due process, equality under the law. They're simply untenable in any kind of higher education context. But that's separate from the free speech stuff. Yeah. If Martinez's explanation of.

Jeff Bridges (47:20)

Of.

Ilya Shapiro (47:21)

Of speech, of both the ethos and the rules were adopted and enforced across the board, you know, we'd. We. We'd be a lot better off.

Mike Pesca (47:29)

All right, let's take a break for a couple minutes. Let's look perhaps ahead at the supreme court's docket, but also let's look back at what's called the emergency or shadow docket. I'm here with Ben Wisner and Ilya Shapiro. We'll be back in a minute.

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Mike Pesca (48:55)

Back with Not Even Mad, joined by the ACLU's Ben Wisner and Ilya Shapiro, who has mentioned he's written a book called Lawless. He has many other credentials as well. I have been noticing and others have been noticing that lower courts gave a variety of rulings, I think based on their interpretation of the law federal courts about many different initiatives of the Trump administration. Early on, the administration didn't have such a great winning record. But the cases that have gotten to the Supreme Court and you guys, because you are excellent legal experts, can explain this procedure of those cases. Donald Trump is on a massive winning streak. Now some legal analysts will say that's all you need to know. The Supreme Court's in his pocket. I don't think that's the right analysis. I look at the majority of these cases. I think this is right. There are personnel matters. They fit in with the Supreme Court's unitary executive theory. But I do wonder, I don't want to be too sanguine and I do wonder about the this massive winning streak and not so much if I should worry, but is there good reason to say that the Supreme Court isn't playing it straight with this shadow docket where you don't have to explain all your reasoning? Ben, I'll have you lead us off. What's your analysis of first thing I.

Ben Wisner (50:13)

Want to say is that you're right. They don't have an unbroken winning streak. The Trump administration, the ACLU has had cases in the so called shadow emergency docket where we prevailed in the Supreme Court 9 to 0 and 7 to 2. For example, the Trump administration's invocation of the 1798 Alien Enemies act to justify the removal without process of alleged Venezuelan gang members. The Supreme Court has hit pause on that a couple of times to give lower courts in itself the opportunity to decide whether that statute was properly invoked and what process people are entitled to to prove that they're not members of that gang, even if the statute was properly invoked. So I think you're right. There's a, there's a species of case where the court is giving the Trump administration carte blanche, having to do with federal employment, some of these funding decisions, I don't agree with those decisions. I think the best critique of the Supreme Court's conduct in these cases is that they provide so little explanation for their lifting or granting of injunctions that lower courts in those cases and others aren't even given enough guidance for how they're supposed to deal with similar issues that are coming up. And we're seeing this, you know, sort of again and again where the government is saying, look, this was resolved by the Supreme Court and judges saying, I don't know what the Supreme Court decided or why, because they haven't told us. They didn't hear this on a full record. My personal view is, you know, whether the court hears these cases with full briefing and full argument or not, they're probably going to reach similar outcomes to the ones that they reach on the shadow docket. I think the justices know these issues. They know who they are and they know where they stand. And so I would say again, the real problem is, you know, they are jumping into very, very complex issues involving separation of powers and issuing orders rulings without explanation or guidance.

Mike Pesca (52:16)

But you're also saying if they did give further explanation, we wouldn't get different rulings.

Ben Wisner (52:21)

You don't think that's my view. Maybe that wouldn't be true in all the cases. But. But I don't know if Ilya has a different one.

Ilya Shapiro (52:28)

See, we're in a period of flux where we have an increase of cases on this. There's even a debate, a period of flux, about what we call this other docket. Shadow is pejorative. They're not doing things in the shadows. But is it shadow in terms of parallel, like the opposition parliamentarians are the shadow cabinet emergency. Except these things aren't always decided on an emergency basis, like what it used to be with the, like death penalty appeals, which had to be like getting executed at midnight or something. So people are talking, talking about interim relief, which is correct, but doesn't really roll off the tongue for commentary. So whatever this thing is, and what they seem to be doing more and more of is for the, the significant cases that aren't slam dunks is simply scheduling briefing and argument for them. Just today they did that with the purported removal of Lisa Cook, a member of the Federal Reserve. And that's probably the right thing to do. It's hard to say, well, this is just interim relief applications for stay, but you need full blown, you know, decisions without any briefing or argument. Although it's not satisfying to have no explanation whatsoever maybe a middle ground was like that one case, I think it was Wilcox about the removal of certain other agency heads where they had like, like three paragraphs of kind of a sketch of where they might be going. And they sort of telegraphed what I think they're doing on the merits this term where they're taking up this case called Humphreys executor about whether the President can remove these heads of so called agency independent agencies without any cause, without malfeasance, which is what's being alleged against Lisa Cook, by the way. Different case. So you know, they're sort of moving from they realize I think the justices recognize this issue. They're not oblivious. I think the happy medium would be, yeah, get the decision out, just get a few paragraphs because that's all you need at this interim stage. And if it really is briefed enough and there's enough of a record and you want to decide it now, then set it for full briefing.

Mike Pesca (54:35)

And I've also heard first of all you should know about me that I will inject Humphrey's executor into any conversation, even where it doesn't belong. So thank you for opening like I'll talk about the Yankees Bullets bullpen woes and Humphrey's executor is going to come up. But I have talked to some legal experts who say the problem here is that that ruling is just improper and if it doesn't come to the Supreme Court for a full hearing and case you just have the continuance of this improper ruling. And I think the specific expert I was talking to said same thing with unitary executive theory. This is if you have an improper ruling, a shadow docket that just, let's.

Ilya Shapiro (55:18)

Just be clear because you've used that term a couple of times. Unitary executive theory often gets certainly under Bush and again now under Trump, gets misinterpreted as saying the President is really powerful and is a king essentially. But unitary executive theory, kind of the nerdy theory as, as such, isn't about the scope of presidential power but its relationship to the branch itself vis a vis Congress. So if it's, if something is within the executive branch, the President is the elected and sole head of that branch and gets to do what, what he wants. That's the stylized version.

Mike Pesca (55:52)

I appreciate the correction, but this has come up. But my question is, is there something I understand that they can't rule on everything. And I also take into account what you just said, Ben, that we're probably these interim rulings will become these permanent rulings but what of the idea that they could expand, reify the law without an improperly decided law, without at least the full explanation, the full hearing going through. I wouldn't even say going through the motions, going through the proper procedure of why we have the Supreme Court rule on things. Should we be worried about that?

Ben Wisner (56:24)

I mean, I guess that, you know, look, the critique is the. The Court is not a general court of appeals. It. It chooses to hear, what, 65, 70 cases a year. There are some countries, Supreme Courts that hear three or four thousand appeals a year, or you can even file something directly in the Supreme Court. If you look at a system like Israel, we're very, very different than that. And the question is, should this Supreme Court be extending its tentacles down to sort of manage much more tightly the decisions of lower courts? So one element of that is that you saw in a case earlier this year, the Court said, we're going to limit the ability of any individual judge to issue a universal injunction over the whole country.

Mike Pesca (57:13)

This was something the Biden administration had talked about as well.

Ben Wisner (57:16)

Sure. It doesn't necessarily favor one side or the other, this thing. I mean, you had conservative groups and states identifying one district in Texas where they knew they were going to get a particular judge and getting universal injunctions there. So that's one aspect. And really, this is of a piece. It's really the Supreme Court, and Justice Kavanaugh explained this in one of the cases, wanting to be the one that makes big decisions even if it can't hear all of these cases. And I think you see a lot of discomfort, and I think Justice Kagan has articulated this well in some of her dissents on the docket, that these are extremely consequential questions. Some of these involve whether the Court is going to overturn a 100-year-old precedent. They involve weighty questions about the scope of the executive's authority versus Congress's authority. And the Court should take those questions very seriously, and it shouldn't decide them off the cuff. It shouldn't decide them in any kind of preliminary injunctive framework. It should wait and accord the question proper dignity, hear from all the parties, hear from all the amici who have something to say, read all the scholar amicus briefs, and then explain its decision to the public. Because ultimately, the Court's democratic accountability turns on whether the public accepts them as the arbiter. The last word. There's no rule that the Supreme Court gets the last word. This is just our tradition that the Supreme Court gets the last word. And if the Court wants that authority. It needs to earn it through using that authority judiciously and explaining its actions more fulsomely. That is, I think, a persuasive critique. I'm just saying I don't. I don't share the view of some that if only they heard all the arguments, they would probably decide these questions differently.

Mike Pesca (59:05)

Yeah, that's a good point. And we should also note that in that case, it was kava, I think, which is also the brand of bag that Tom Holman was bribed with. Allegedly. Yeah. Oh, it was casa.

Ilya Shapiro (59:16)

Casa, okay, sorry.

Mike Pesca (59:17)

So it was casa. I guess the. What actually happened with birthrights in citizenship is that they found another way to pursue that case in. I think, of course, we.

Ben Wisner (59:29)

We filed a class action.

Ilya Shapiro (59:31)

Couple of.

Ben Wisner (59:31)

We filed a class action lawsuit the same day.

Mike Pesca (59:33)

Yeah, that decision.

Ben Wisner (59:34)

There's plenty of other ways.

Mike Pesca (59:36)

A layman who want to know what to. I guess this cuts through it. And maybe I'll speak for the layman out there and the lay women. I want to know what to be very concerned about and what to be lesser concerned about. And I can understand eventual rulings that could or might happen and how that might affect my life. I guess I don't exactly know how to process the perniciousness of the shadow emergency relief docket. I don't really understand if that alone and a winning streak and the idea that the Supreme Court will not be the bulwark against Trump that we thought. But I don't know how worried or how much credence to give it. And, Ben, part of your explanation is like, don't give it credence based on the difference between a shadow docket and a regular docket. But what about the whole bigger question I'm putting out there?

Ben Wisner (60:32)

They're going to affirm Trump's policies in some cases, and they're going to reject them in others. They're not going to let the president rewrite the 14th amendment by executive order. The administration is going to lose the birthright citizenship case. They may get no votes. They might get one or two. I think the question of whether the president can invoke the Alien Enemies act over a gang that most of us had never heard of until he mentioned them in the executive order is a pretty close question for the supreme court. A conservative 5th Circuit panel ruled against the president on that question. But even if they say the president can invoke the Alien Enemies act against this gang, they are going to say that there is judicial review for individuals, that they can bring habeas corpus actions to say, hey, I'm not a member of that gang. And the government will still have to prove that. So it won't be this engine of mass deportation that I think the administration wanted. And then I think some cases the administration has, sorry. The Supreme Court has strongly signaled that it's going to side with the Trump administration's claims of broader executive authority, particularly over the executive branch.

Ilya Shapiro (61:39)

Yeah, I agree with all of that. And the upshot is it's not pernicious. And you shouldn't be worried. That is, you might disagree. I mean, you might be worried in the sense that you disagree with the, you know, where the law leads or the constitutional interpretation of the majority or any particular justice, but it doesn't have to deal with the legitimacy of the court as such. And you know, the, the, you know, the layman is not concerned about shadow versus merits or whatever, but the court is. And they know that if they're making some quick decision without even a paragraph of reasoning that that has no precedential value. That's just to decide the application for stay yay or nay and that's it. Maybe they'll end up taking up that decision, that, that issue as they are with Humphreys executor, maybe they won't. And on birthright citizenship, I think I agree with Ben's bottom line. Except there's going to be this middle course where, you know, Kavanaugh and Roberts are going to get together and say we don't need to decide what the 14th Amendment really says. But the President can't change our established practice unilaterally. It needs to be a new act of Congress.

Mike Pesca (62:54)

Ben, would you like the last word or shall I take. Take it.

Ben Wisner (62:57)

All yours.

Mike Pesca (62:58)

Okay. I learned that the plural of amicus is amaki. So I want to thank you. And I wonder, I use amici.

Ilya Shapiro (63:04)

I use the late rather than the classical Latin.

Mike Pesca (63:08)

Well, I was wondering if former Baltimore colt running back Alan the Horse Amici and Cocoon actor Don Amechee were in the same room, would they be amichai? Would they be amicis? It's a, it's an open question, as is this. What are your gentlemen, goat grinders? Goat grinders are the things that grind our gears or get our goats just little annoyances. Or it could be big. Ben, would you like to lead us off with that thing that's been grinding your gears and getting your goat lately?

Ben Wisner (63:36)

I think that the over reliance on the three point shot in the NBA since the analytics people took over all the front offices and I think everyone understands that the three point shot has to be abolished in order to return. Well, I mean, as my friend Daryl Morey, who's the general manager of the Philadelphia 76ers, says, Do a thought experiment. What if it were worth 10 points? Would we agree that that's out of balance? Three is also too much. Just the advantage that you get from 3 over 2 has really messed up the game. I really miss those Celtics Lakers series of the 80s.

Mike Pesca (64:15)

All right, all right. A man who wants to take food out of the children of Steph Curry's mouths. I'm not friends. I'm not friends with Daryl Morey, but we once conversed about a shared love of musical theater. Ilya, what do you have for us as your goat grinder?

Ilya Shapiro (64:31)

I wonder whether Ben similarly.

Mike Pesca (64:32)

I like that.

Ilya Shapiro (64:33)

I wonder whether Ben similarly dislikes the over reliance on the stat heads with their. In baseball with the launch angle and spin rate of pitches and all of that sort of thing.

Ben Wisner (64:46)

Tedious.

Ilya Shapiro (64:46)

I haven't. Yeah, I haven't gotten it that far. But what I'm gonna say is slightly more serious. What grinds my goat is Lyme disease that I've been battling the last six weeks. I don't recommend. Ticks me off. And I actually. Because I have to continue being exceptional. I got a complication. Heart inflammation. Cardiovascular they call it. That affects only 1% of Limey's. And that was a whole other bottle of wax. So anyway, watch out, you know, keep. Keep your pant legs in your socks or I don't know what you're supposed to do to avoid this thing. Apparently it's a record year. I live in Virginia. It's a record year for Lyme in Virginia and it keeps spreading. But. And my doctor, I was just talking to him this morning, he calls it the great masquerader. Like people have been misdiagnosed with cancer with all sorts of things when all they have is Lyme disease. He says the other great masquerader is syphilis, but I definitely don't have that.

Mike Pesca (65:40)

Are you saying that Al Capone was felt.

Ben Wisner (65:42)

Sorry to hear that.

Ilya Shapiro (65:43)

Alias.

Mike Pesca (65:43)

Is this what we are to believe? My goat grindr concerns one TV show. It's called Mid Century Modern. I think it was on abc. It stars Nathan Lane and Matt Bromer. Bomer. And it was a bad TV show. And here's the goat grinder. I figured this out about a minute and a half in. I will play you the joke that told me all I needed to know about Mid Century Modern. Jerry, late to our best friend's funeral. We had an emergency landing in Tucson, a service dog killed an emotional support chicken. Lot of anger, lot of feathers. There is not one element of that joke that isn't predictable, that isn't cliche. I knew the feather line was gonna come and. And also it's overstuffed and I hate an overstuffed joke. Murphy Brown used to always have these jokes and Murphy Brown was a pretty good show, but every show she would say something like, Cokie Roberts and I were jet skiing together and we had to save Caspar Weinberger, who capsized in his catamaran. Just these long, never ending references to people who were supposed to be delighted with. And I would say this would grind my goat or get get. Yes, grind my goat or grind my gears or get my goat for longer. Except mid century Modern was just like Ilya, just like me. Blessedly not. Ben was actually literally canceled. Guys, we pickleballed for two full hours, but two. And that's twice as much as last time, which was one. I never thought I'd like swinging a.

Ben Wisner (67:17)

Paddle, but I taken to it like.

Mike Pesca (67:19)

A step dad in the military. Ben Wisner of the aclu. Ilya Shapiro of the Manhattan Institute. I want to thank you gentlemen very much.

Ilya Shapiro (67:28)

Thank you.

Ben Wisner (67:29)

Pleasure, Mike.

Mike Pesca (67:29)

And I want you to say we are not saying we're right. We're not saying you're right. But we are saying we're not even mad. And that's it for today's show. Cory Wara is the producer of the Gist. Ashley Kahn is our production coordinator. Jeff Craig runs our socials. Kathleen Sykes writes the Gist list with me. And Michelle Pesca is the COO of Peach Fish Productions in Peru. G Peru. Do Peru. Thanks for listening.

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