The Gist: "Not Even Mad: Ben Wizner & Ilya Shapiro"
Podcast by Peach Fish Productions
Date: October 2, 2025
Host: Mike Pesca
Guests: Ben Wizner (ACLU), Ilya Shapiro (Manhattan Institute)
Overview
In this episode of "Not Even Mad," host Mike Pesca brings together two legal heavyweights—Ben Wizner, director of the ACLU Speech, Privacy, and Technology Project, and Ilya Shapiro, senior fellow at the Manhattan Institute—for a candid and provocative conversation on the current state and culture of free speech in the United States. The discussion centers on recent high-profile examples of firings and "cancel culture," the changing ethos of the First Amendment, government involvement in speech suppression, and the complexities of legal doctrines such as jawboning and the Supreme Court’s shadow docket. As always, the episode closes with each participant airing their "goat grinders"—pet peeves and personal annoyances.
Main Discussion Points & Insights
Government Shutdowns and Legal Work (08:43–09:51)
- Ben Wizner describes the practical effects of the government shutdown: "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?" (08:43)
- Ilya Shapiro wryly notes, "My question about shutdowns is, so all of these non-essential workers go home, why do they come back?" (09:25)
The Firing of Susan Swerk and Free Speech in Employment (09:57–13:34)
- Discussion of Susan Swerk, fired from Ball State University for Facebook comments on Charlie Kirk's death. The panel examines public vs. private employment and the legal boundaries of speech:
- Wizner: "Ball State is a public university... 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." (11:11)
- Both agree legal protection is stronger for public employees, but nuance exists relating to disruption and job function.
Cancel Culture, The “Ethos” of Free Speech, and Where to Draw the Line (13:34–17:34)
- Ilya Shapiro: "There are very few people who say that someone should never have negative employment consequences for anything they do outside of the workplace." (13:55)
- Both highlight the problem with disproportionate mobbing and screenshotting of speech outside the workplace.
- Wizner: "Sometimes free speech law and free speech values are in opposition... The major social media companies deplatformed Trump. They had a First Amendment right to do that. Nonetheless, the ACLU called them out." (17:34)
- Both caution that illiberal mob conduct, even when legally permissible, can violate free speech values.
Ilya Shapiro’s Georgetown Incident & Personal Perspectives (19:10–21:50)
- Shapiro recounts his own suspension for a controversial tweet about Supreme Court appointments.
- Wizner: "The ACLU, through our then-legal director David Cole supported Ilya in that situation, while criticizing the speech." (20:39)
- Both criticize universities for investigating rather than defending speech.
Shift in Free Speech Climate: Government vs. Private Sector (23:11–26:28)
- Shapiro notes a "vibe shift" in culture, increased polarization, and a more open discourse post-pandemic, partially due to changes in social media policies.
- Wizner: "I do think that what we've seen since January doesn't have precedent... the full force of government coming down on speech that opposes the administration." (24:51)
- Examples: Deportations based on speech, pressuring universities, targeting law firms.
Does Government Retaliation Justify Itself? (26:28–29:39)
- Pesca probes whether current government suppression is a backlash to previous cancel culture: "Is this but a natural reaction?"
- Wizner: "It has to stop somewhere... I think the courts are going to be the ones that stop it here."
- Discussion of law firms’ reluctance to fight policies, even when winnable, due to fear of government retaliation and public spectacle.
FIRE vs. ACLU and Defining Principle (29:06–32:57)
- Shapiro: "I think [FIRE] does what the ACLU used to do. With respect, I think there's been some drift there." (29:06)
- Wizner: Defends ACLU’s involvement in high-profile, cross-partisan cases, e.g. representing the NRA at the Supreme Court.
- Discussion on whether it’s better to blame ideological excess or to stand on consistent principle.
Free Speech and Immigration Law (32:57–34:39)
- On whether expressing unpopular views should impact visas:
- Shapiro: "Foreigners do have the same speech rights... but ideological screens for visas do not go away just because you’re in the country." (30:58)
- Wizner: Raises concerns about arbitrary, discretionary revocations not rooted in expressed standards or law.
“Jawboning”, Government Pressure on Private Actors (34:39–39:07)
- Pesca: "Should we look at jawboning when there is a First Amendment consideration as a wrong?" (34:39)
- Wizner: "The problem becomes ...when it's accompanied by a threat, and... when it's happening secretly." (37:01)
- Calls for more transparency; the real threat is covert, unaccountable government pressure.
- Shapiro: Urges legal standards fit for the digital age; mere ideological alignment between government and companies is not itself collusion.
The "Heckler's Veto" and Campus Speech (39:56–47:20)
- Shapiro describes being disinvited from a Federalist Society event at NYU due to "security concerns," interpreted as a de facto heckler’s veto.
- Wizner: "This is a classic Heckler's veto. This excuse could be used to cancel any event." (42:17)
- Both lament inadequate university leadership and defend the Stanford Law School dean’s letter affirming both protest and speech rights.
- Shapiro: "We've seen a real time experiment... At places like the University of Florida...they simply enforce the rules, the problem doesn't happen." (44:29)
Supreme Court’s Shadow Docket and Executive Authority (48:55–59:16)
- Discussion of Trump administration’s string of victories on the Supreme Court's so-called "shadow docket."
- Wizner: "They provide so little explanation for their lifting or granting of injunctions that lower courts...aren’t even given enough guidance." (50:13)
- Shapiro: "We're in a period of flux... whatever this thing is, the justices recognize this..." (52:28)
- Both acknowledge procedural shortcomings are frustrating, but agree the outcomes largely reflect justices’ established jurisprudence, not hidden partisanship.
Layperson Anxiety: How Worrying Should This Be? (59:29–62:54)
- Pesca: "I want to know what to be very concerned about and what to be lesser concerned about."
- Wizner: Some policies will be upheld, others rejected; the Court is unlikely to let extreme policies stand, and its legitimacy rests on reasoned explanations.
- Shapiro: "It's not pernicious and you shouldn't be worried...the court is concerned about shadow versus merits."
Notable Quotes & Memorable Moments
-
On Free Speech Values:
"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."
— Ben Wizner (24:51) -
On Government Overreach:
"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."
— Ben Wizner (25:38) -
About Jawboning:
"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."
— Ben Wizner (37:01) -
On University Speech:
"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...so they cancel the speaker."
— Ben Wizner (42:17) -
Personal Goat Grinder—NBA Three-Point Shot: "I think everyone understands that the three point shot has to be abolished in order to return ... 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."
— Ben Wizner (63:36) -
Personal Goat Grinder—Lyme Disease:
"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."
— Ilya Shapiro (64:31)
Key Timestamps
- Gov’t Shutdown & Introductions: 08:43–09:51
- Susan Swerk Ball State Firing: 09:57–13:34
- Cancel Culture & Social Media: 13:55–17:34
- Ilya Shapiro’s Georgetown Suspension: 19:10–21:50
- Shift in Free Speech Climate: 23:11–26:28
- Law Firm Reticence & “FIRE” vs. “ACLU”: 26:28–32:57
- Speech & Immigration Law: 32:57–34:39
- Government Jawboning: 34:39–39:07
- Campus Heckler's Veto (NYU): 39:56–47:20
- Supreme Court's Shadow Docket: 48:55–59:16
- Layperson Worries & Court Legitimacy: 59:29–62:54
- Goat Grinders (Pet Peeves): 63:36–67:17
Tone and Style
The conversation is reasoned, provocative, and laced with dry humor and personal candor. The guests respectfully disagree and challenge each other and themselves, keeping with the Not Even Mad ethos of refutation without rancor.
Conclusion
This episode offers a nuanced, expert breakdown of culture, law, and politics at the intersection of free speech today. Listeners gain not only legal clarity but also a deeper understanding of the philosophical, ethical, and cultural pressures shaping how Americans argue about and exercise free expression—across campuses, workplaces, and the halls of government.