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French Friday: The Christian Case for Free Speech
00:56:25
The Trump administration is making concerning claims free speech in light of the Charlie Kirk assassination. David French is here with Skye Jethani to break down where America stands with free speech. Also, why is the First Amendment important for...
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- [00:02]
A
Guess what day it is. It's French Friday. It's French fry day. So grab your fries and say hooray. David French is here to play on French Friday. It's French fry day.
- [00:18]
B
Hi, David. Welcome back.
- [00:20]
A
Hey, Sky. Great to be back.
- [00:22]
B
So what's been going on?
- [00:25]
A
Well, I don't know that we have much of a podcast to do. Should we talk about the NFL season starting? I mean, I would prefer that.
- [00:34]
B
Honestly.
- [00:35]
A
I don't know. The. The Bears are 1 and 2, and I'm not so sure they're going to get much better than that.
- [00:41]
B
Okay, hold on, hold on. I. I'm a pessimist about the Bears, too, but that last game against Dallas, we looked pretty darn good. Not that Dallas has much of a defense, but it gave me some hope.
- [00:52]
A
Yeah, I mean, there. There's. There's a pulse there. I mean, it could be worse. You could be a Tennessee Titans fan.
- [00:59]
B
Are you a Titans fan?
- [01:00]
A
I mean. Yeah, I'm a Titans fan.
- [01:02]
B
You can probably see into Soldier Field from your condo in Chicago now.
- [01:06]
A
Oh, I can almost. Almost. And I. It's fun. And I'm gonna. You know, I. I like to have secondary and tertiary and all of those. So I. I basically root for. I have. In sports, I have a hierarchy so that I can always have a rooting interest. So I have a top of the pyramid NBA, Memphis Grizzlies, NFL Titans. But then I kind of have a rooting order so that whenever I turn on a tv, I've got a rooting interest. So it helps keep it all fun.
- [01:34]
B
It does. It does. Kind of like fantasy football keeps. Keeps you engaged. I think for me, and this is not why people are coming to listen to this show today, but for me, given the chaos of our world, Sunday afternoon football with my family has become an oasis. It really is a Sabbath for me, and I love disconnecting from other things and just doing that. So a couple days to go, but until then, we do need to talk about what's happening in the world. We talk once a month, and it's been a very eventful month. The assassination of Charlie Kirk, all of the aftermath of that. We talked on a recent Holy Post podcast about the memorial service. I'm sure you wrote a piece recently about the contrasting messages there, and maybe we'll get into some of that. But one thing we haven't covered anywhere else, at least in the Holy Post Media Network, is the craziness that's been going on around free speech. It kind of started after Kirk's assassination where people were talking about the importance of free speech. And Charlie Kirk was an advocate of free speech, and he was practicing open dialogue with his adversaries in an open forum when he was killed. And how tragic that is, not just for him, but for Americans who care about those values. But then it all just kind of spun out of control when Donald Trump's administration started saying some pretty challenging things about free speech. And then his FCC chairman went after ABC and Jimmy Kimmel. That's kind of the big thing. But I want to take a step back. I'm sure people are very familiar with a lot of this stuff. You have a strong background in defense of the First Amendment. Can you just share a little bit about your journey to becoming a First Amendment defender and what form that took as an attorney?
- [03:09]
A
Yeah. So it really. The origin story really goes Back to my 1L year of law school. I got into law school. I went to Lipscomb University in Nashville where I teach, and I loved my time there. Loved it. So this is. No shade on. Lipscomb intentionally chose a Christian college, but it was 99 Church of Christ, or 98% or whatever it was. And so it was a. It was kind of a monoculture. I mean, we. We were. We formed College Republicans in 1988, and we canvassed the dorms to see how our people are going to vote. I think the numbers were somewhere like 85% for Bush, you know, maybe only about 5% for Dukakis and 10% for, you know, independent, whatever. Didn't. Didn't care, didn't know, and we just didn't do anything more. We're like. It's like we disbanded the club because we're not going to do better than 85%. Are you kidding me? So I was really looking forward to going to law school where I was going to be exposed to lots of different views. Like, just lots of different views. And then when I got there, I found this atmosphere of just suffocating intolerance, like booing and hissing in class, shouting people down if they said anything conservative. I formed a Pro Life club with two other friends. A Religious Liberty and Pro Life Club. And we get messages, you know, like, I'm not going to call them threatening messages, but it'd be like, go die, you effing fascist. So they're not threatening me. Like, it's. It's more like it's an aspiration, like, I hope a bus hits you or something.
- [04:37]
B
Yeah, I'm familiar with some of those kinds of messages myself.
- [04:39]
A
Yeah, yeah.
- [04:41]
B
Just to specify, you went To Harvard Law School.
- [04:43]
A
Yes.
- [04:44]
B
And I don't want to be, you know, dumping on an Ivy League progressive school. They're certainly under the threats these days, but. So your experience there does fit some of the stereotype of a hostile environment for both a religious and a political conservative.
- [05:00]
A
Yeah, absolutely. And I think that anybody who is fair minded, who looks at the American educational establishment will know that for a very long time in elite education in particular, that conservatives have faced a lot of censorship. They really have. And so at that time, there were two things happening at once. One was you're getting this real sense of intolerance. And the other thing was there weren't that many people just standing up for free speech. Just not very many people at all. And so that ignited in me just a real interest in free speech. This is a kind of a normal free speech attorney origin story is that if somebody has confronted censorship or somebody has confronted intolerance, that causes them to kind of, by natural interest, lean into arguments against censorship and arguments against intolerance. And so by the time I got out of law school, I was very much dedicated to defending the First Amendment. And I started that process pretty quickly with some pro bono cases that I had out of law school. And you know, by late 90s, early 2000s. No, actually the, the. So I graduated from law school in 94. So as a baby attorney in the, in the mid to late 90s, I had taken on some First Amendment cases. And one of the interesting things, sky, when you do First Amendment cases, they almost always get media attention because they, they involve hot button political issues. And so people don't want to censor. They don't care about censoring boring, meaningless speech. They want to censor, like the speech that makes people mad. Right. And so my cases were involving hot button issues. My cases were involved were, you know, often you have, it's not very normal. Your normal federal judge docket doesn't include a whole bunch of First Amendment cases in any given district in the US you don't have a whole bunch of First Amendment cases. So they get the media attention. They're unusual. And so early, like by the mid-90s, I was, I had a commercial litigation practice with a free speech hobby. And then the free speech hobby just got bigger and bigger and bigger. And so did my commercial litigation practice that by the time, say 2004 rolled around about 10 years out of law school, I had a choice to make. I had a choice. And the choice was, was I going to continue to be a commercial litigation attorney with this really interesting and meaningful First Amendment hobby, or was I just going to jump and jump out of my commercial litigation world and into the First Amendment? And I chose to jump and I jumped into the presidency of FIRE at that time, the foundation for Individual Rights and Education. And fire's great, great, great quality then and now was that we just defended free speech in the First Amendment and, and due process and constitutional values. We didn't ask, are you conservative? We didn't ask, are you liberal? We didn't ask were you nice, were you mean.
- [08:02]
B
Right.
- [08:03]
A
We just defended the value.
- [08:04]
B
And I'm imagining you had quite a few cases where you were defending speech that you dis. Personally disagreed with.
- [08:10]
A
Oh, goodness gracious, guy. It's easier for me to point out the speech that all of the cases I defended where I didn't agree with the speech than it is for me to point out cases where I agreed with it. Because one of the things that you find in, in free speech case law is often that here's the way it tends to work in an institution. This is. I saw this pattern a million billion times and it is this. If let's say an institution is overwhelmingly left wing and you have a few conservatives, the conservatives who are super nice and polite and kind of have a real gift for maneuvering through difficult conversations and all of that, they tend. Not always. They tend to be okay. If you're somebody who's like rough around the edges or aggressive or you don't know or want to know how to play the game or whatever, the hammer would come down. Right.
- [09:07]
B
I mean, if you're a belligerent, a hole with your views, even if you agree with them, it gets you in trouble. It's just human nature.
- [09:15]
A
But the thing was, on the other side of the aisle, you would have belligerent a holes coming out of the woodwork. And that was all fine. That was for justice and righteousness.
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B
Right.
- [09:26]
A
You know, and we don't believe in respectability politics. And then our conservative would say something that was even somewhat like that. And it's like you're mean and tolerant, you know.
- [09:37]
B
Yeah. And so it was viewpoint discrimination, clearly.
- [09:39]
A
Absolutely. And so what ends up happening is often, even if you agree with the speaker, I may not agree with the way that they spoke.
- [09:49]
B
Right.
- [09:49]
A
But I'm still absolutely defending them. And because, you know, the First Amendment is not a rule that says all viewpoints are welcome when perfectly expressed.
- [09:58]
B
Right, exactly.
- [09:59]
A
That is not the First Amendment. And so that's what ends up happening. And that's why censorship in America is often very tempting to people, because most of the people that get censored, there's a beef, right? Like, there's. There's a reason you're mad on one end. Like, Nazis march marching through Skokie. Well, they're Nazis. They're horrible. Right?
- [10:23]
B
And I really don't know.
- [10:24]
A
Horrible.
- [10:25]
B
Skokie is a suburb of Chicago that has a large Jewish population. So when the Nazi Party of America decides they want to hold a rally or a march through Skokie, it's intended to deliberately provoke a response by the citizens of that town. And the ACLU famously defended the Nazi party and its right to march in Skokie. And that's free speech. And it's. Yeah, so that's a famous case. And you and I were in Skokie a couple of months ago to go see the new Superman movie, and I was proud that I got to bring you to the famous Skokie, Illinois.
- [10:57]
A
I know, I know. And, you know, so this is what ends up happening. You. You substitute the right for the viewpoint, and you say, oh, if you're supporting the right of Nazis to march through Skokie, you're supporting Nazis. No, no, I'm supporting free speech.
- [11:10]
B
Right.
- [11:11]
A
And. And so you. And that's at one extreme level, but it all the way filters down to say Jimmy Kimmel. Like, Jimmy Kimmel, you didn't. Your words around whether maga. Your sentence about maga and MAGA trying to say that it wasn't responsible for the killer were wrong, and therefore you should be punished. And so when people defend his right to speak freely, the way that they're attacked is, oh, you're supporting his wrongness? No, no, I'm not supporting that.
- [11:43]
B
Okay, so let's back up a second, though, and just talk about the Trump administration's approach to free speech in general.
- [11:49]
A
10.
- [11:50]
B
I mean, I don't think anybody would call Donald Trump a supporter of free speech or, frankly, even coherent speech most of the time. But his administration has said, even before the Jimmy Kimmel thing, Pam Bondi, his attorney general, said that she was gonna prosecute people for hate speech. And you wrote a piece where you correctly. And I mean, you're the attorney, not me, but pointed out that hate speech is still protected speech. Even if it's despicable speech, it's still protected. And the federal government or the Justice Department cannot prosecute Americans for saying hateful things. So she walked back some of those statements. But there's been a lot of this provocation coming from the Trump administration of shutting down Speech that they don't like. Walk through some of what you think are the notable movements in the Trump administration that eventually led to what happened to Jimmy Kimmel. Can you trace any efforts by Trump and his allies or his administration to actually try to shut down or intimidate or limit speech before the Jimmy Kimmel fiasco?
- [13:03]
A
Oh, yeah. With ease. This is right as the Jimmy Kimmel fiasco was unfolding, I texted a good friend of mine, sky. There's a. You might say there's a. This would be the wrong word because it's obviously both men and women involved, but you might say there's a small fraternity of people who have been consistent free speech litigators for decades. Right. That it's not a big group. And in fact, the word fraternity might be a bit generous because fraternities imply dozens of people. Maybe it's not even dozens of lawyers. But, yeah, there is a very small group of lawyers who've been very, very consistent over the years and have been sort of forecasting a lot of what's happening right now. And I texted one of those guys and I said, my theory is this is worse than McCarthy, better than Wilson, and. But we're heading towards Woodrow Wilson. Okay, those are.
- [13:59]
B
Those are not. That's not a good place to be.
- [14:02]
A
It's terrible. Yeah. Okay.
- [14:04]
B
For those who know.
- [14:05]
A
Terrible. Yeah, yeah. So McCarthy is one of the architects of the Red Scare. Really? What? You're talking about the two red scares. The. Wilson was not just red, but also, you know, World War I oriented. So you're talking about World War I and then the Palmer Raids and all of this stuff, and then McCarthy. These are scares related to national security issues, mainly. And. And Wilson imprisoned hundreds of political dissidents. Hundreds. And so I said, worse than McCarthy because it's much more widespread than targeting communist sympathizers. And not as bad as Wilson, because dissidents aren't being jailed. And he said, no, no, David, you're getting it wrong. It's worse than both. Wow. And I said, why? And he had a very good point. He said when both McCarthy and Wilson were operating, especially Wilson, free speech jurisprudence in this country was embryonic. Oh, that's right. Wilson.
- [15:07]
B
The Supreme Court hadn't yet applied it to all the states.
- [15:10]
A
Yeah, yeah. And there was just. Even before Wilson, where, you know, he was the federal government, so the First Amendment applied. It wasn't until the mid. Early and mid-20s that we really began to see First Amendment jurisprudence starting to develop. And so Wilson didn't have the law. A huge body of precedent that he was defying in many ways. He was in a blue ocean territory where he was saying, oh, I think when we're locked in a world war, we can limit speech. Right. And so the answer to that is, no, you cannot. But this was pre First Amendment case law. And McCarthy, the First Amendment case law was really only a lot of it was actually spurred by him. So here we are in the year 2025 with fully developed, robust, uncontroversially on point Supreme Court authority, and Trump is just blowing through it. And he's. It started with law firm executive orders against law firms for hiring people he didn't like, among other things. It started. Or taking cases in clients he didn't like. It continues on to the attack on colleges and universities where he ignores legal processes and procedures in an attempt to essentially commandeer control even of private universities we're talking about. I mean, and both of those, both of those by themselves are extremely, extremely dangerous. It's continued into direct attacks on broadcast media, filing frivolous defamation lawsuits that are designed to intimidate, which are settled then.
- [16:49]
B
With payouts by these corporations to make it go away. And Trump then spins that into, look how much they're paying me. Because they're wrong.
- [16:56]
A
Yeah, yeah. You know, dangling approval of mergers and acquisitions and things like that. On approved speech, I mean, you could just go item after item, which means that when J.D. vance went to and spoke about European censorship, it was one of the most examples. It was raging hypocrisy, Scott. It was raging hypocrisy. And so you're looking at this very comprehensive attack on free speech. Now, why does the Republican Party not have strong antibodies against it? And you might say, why am I saying that after? Look, when Pam Bondi said there's, you know, going to be hate speech prosecutions, people like Ted Cruz went after. And good on him. Good on him. There are a lot of conservatives online who went after Pam Bondi. Then Trump goes up and triples down on it all, and it's mainly crickets, except for, like my friends at National Review have been consistent and all of that. And so what's going on? Well, it just demonstrates once again that ideological conservatives are an appendage on the Trump movement. They are not the Trump movement. And that. What was that? The foundation for this has been laid for a long time that free speech is actually part of the small l liberal democracy that is causing problems in America, and that free speech is a problem that is part of the larger MAGA universe. The illiberal part.
- [18:16]
B
So you're taking one of the things I found hopeful about the last week and dashing my hope. So after the Kimmel suspension by ABC and all the reporting that was done about Brendan Carr from the FCC and the veiled, not so veiled threat that he was making and the whole mobster kind of attitude, a lot of people came out to support Jimmy Kimmel to denounce what the Trump administration was doing, including, like you say, Senator Ted Cruz, conservative from Texas, Joe Rogan recently came out, who was a supporter of Donald Trump during this last election and said this was wrong. And lots and lots of people have come out, all the typical Hollywood progressives you would expect came out to defend Jimmy Kimmel. But there were quite a few conservative voices that came out against the Trump administration, said this was wrong and Kimmel's back on the air. Okay. I looked at that and thought, oh, have we actually found something where maga, right, supporters of Donald Trump will go, okay, enough. Like, this is too much. We're not okay with you suppressing free speech of comedians and late night talk show hosts. But what you seem to be saying is they're not really pushing back against Trump. They're just pushing back against some of his underlings. They're pushing back against the FCC or Pam Bondi or Brandon Carr, whatever. But when it comes to actually direct frontal assault on Donald Trump's rhetoric and posture, there's still a reluctance. We don't see people doing that.
- [19:38]
A
Oh yeah, and this is actually a pattern in the second term. And we've seen it in Epstein. We've seen it with the Iran strike. We've now seen it with Kimmel is, you'll see the Republican tent sort of go at each other. They went after Bondi over the Epstein files. Went after Bondi with both barrels. You saw a huge sort of fratricidal fight over the decision to bomb Iran with Tucker Carlson on one side and a bunch of conservatives on the other. You saw this in Brendan Carr's comments about Jimmy Kimmel, people like Ted Cruz who still try to claim that mantle of ideological traditional conservatism, and lots of writers and, and, and pundits on the right who have been writing and about free speech for a long time. They kind of knew that if we don't go here, if we don't go after Brendan Carr, I mean, it's complete, it's in complete and obvious violation of everything that we said that, you know, and so. But then similarly with Epstein, with Iran, with, with Kimmel, when Trump makes his proclamation that either people fall silent again, with the exception of, like, my friends at National Review and some others either fall silent or they just completely. They get onside, they get on team.
- [20:59]
B
I can't tell if it's because they genuinely fear Donald Trump or do they so not respect him that it's almost like he's the crazy uncle at the Thanksgiving table. Don't even engage. He's just gonna spout off and say his crazy stuff. Let's deal with the more competent people within his administration who we can actually hold accountable. I mean, you listed some of it, right? His crazy rhetoric about free speech, his bombing of Iran now his strikes against these Venezuelan drug smugglers that seem to be without due process. His detaining of immigrants without due process.
- [21:35]
A
Without due process.
- [21:37]
B
His refusal to obey the law passed by Congress to sell TikTok. I mean, we go on down the list of the things that.
- [21:44]
A
We could talk about that for an hour. That one thing. Yeah, yeah.
- [21:48]
B
So there's just this huge spread of things that Trump has done that are completely unconstitutional and violate not just norms, but legal precedent in this country in which Ted Cruz and other conservatives don't say anything about the President himself, but they will go after his underlings and what they're doing. Is it because they don't think that Trump is even intelligent enough or will receive any of this criticism, or do they fear him and the retribution that if I go directly at Trump, he's so thin skinned, as Jimmy Kimmel found out, that I'll be decimated and my political career will be overboard.
- [22:27]
A
It's both at the same time because I feel like people would be more willing to endure risk if they felt like it had any prospect of achieving anything. And so one of the things that you've seen for 10 years, sky, we have seen the same pattern for 10 years is if you aggressively counter Trump, your. Your career as a Republican is over. Okay. And so if you're looking at a person who's. And your view is unpersuadable, is, does not listen, has no commitment to any kind of underlying free speech principles. So in other words, when you're talking about. Well, if we. Let's just say you take a pragmatic approach. Well, if we give ourselves this power, then the Democrats will wield it when we're not in control. He doesn't care.
- [23:15]
B
I know that's not part of it is. I mean, it's a little bit like Parenting 101, but why would you expect a toddler to behave any differently if there's never any consequence for his behavior.
- [23:27]
A
Yeah.
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B
Trump knows there's going to be no consequence. What can they possibly do to him? And so he doesn't care what they say, so why bother?
- [23:36]
A
Every attack on Trump by a dissenting Republican for 10 years has been the charge of the Light Brigade from the Crimean War. It has been cannons to the right of them, cannons to the left of them, casualty. It's. It's carnage. It's carnage. And so this. Now, to me, that's no reason to stop saying the truth. Right, Right. Well, if they're not going to let you be in the tent, if the condition of being in the tent is you don't, you can't tell the truth, you can't uphold your principles, you can't defend the Constitution, that tent is not for you. Right. But what a lot of people have said, and I get this, this is a very human thing. Wait, this is my tent. These are my people. This is my community. This is my party. This is all of this. And is it really, is it really the case that if I utter these words, I could lose my community, my party, my tribe, my everything? It really makes people think twice. And that's why, going back to Jeff Flake, in term number one, Bob Corker, the carnage inflicted on everybody who voted to impeach Trump, all of that, all of these examples that have been made have told people, I don't take on Donald Trump. Now, you and I both know that's the wrong answer. Right? That's the wrong answer. You don't consent and acquiesce. But I understand why people do, even if I strongly disagree.
- [25:06]
B
Right. It's an explanation, not a justification. Okay, I want to pivot a little bit. Going back to the free speech stuff, we could spend another hour talking about the political implications of free speech, the constitutional foundations of free speech, on and on. But I think one area that I've not heard talked about nearly as much is a Christian defense of free speech. Or if we were to have a conversation about this value of free speech within a church context, what. What would we draw from in our faith to argue for upholding the value of free speech? Because I hear the importance of it as an American and in a pluralistic society, the respecting the differences, all the things. But I don't think I've ever heard an explicitly Christian argument where, as a follower of Jesus, why should I be so appalled at these infringements on free speech in my country, especially when it's speech that I find repulsive, anti Christian, unloving, Uncaring, unempathetic. Like, if it's speech that I would rather not have spoken, why should I still defend it, even as a Christian?
- [26:25]
A
Yeah, well, I think that it's tough to separate out free speech from sort of what you might sort of think about as liberal democracy more broadly. And I wrote a piece of a few years ago where I did my best to try to break this down because I'm not a believer. I'm not going to ever tell anybody. There is one system of government that is the divine, divinely ordained system of government. So I do not think that every nation has to have a constitution like the United States or its apostate, for example. It's just not in line there. There are other forms of government that can do justice. However, this is what. This is one reason why I think classical liberalism is extremely consistent with Christian teaching and in particular in the context of the United States of America, imperative to our country, because I don't think you can separate governance from culture. Governance is not a thing that just exists in the ether and just plants everywhere equally. So here it is. I look at classical liberalism as resting in two fundamental truths about humanity, biblical truths about humanity. One is that all human beings are created in the image of God and worthy of being treated with dignity and respect and must be treated justly. I think that's an absolutely clear biblical principle. We are all precious. All of our lives are precious beyond measure. So precious that the Son of God died for us. That's precious. Right? So that's number one. Here's number two. All of us are sinful and imperfect people. All of us. We all make mistakes. We all lack knowledge. None of us is omniscient. None of us is omnipotent. We're neither one of those things. So how do you harmonize those two realities? How do you create a world or a system of government that says, I believe all human beings are precious, and I also believe that all human beings are flawed? And I think that our Constitution imperfectly accommodates those two realities in a way that is, you know, I wouldn't trade it for any other system. And how does it do it? How it does. Is it, in part, the way in which our Constitution protects the dignity of the individual is through the Bill of Rights and the Civil War Amendments. It places us all on an equal plane and outlines some specific sort of fundamental human rights, human rights that respect our. Our dignity as people created in the image of God. So free speech, free exercise of religion, due process, protection against cruel and unusual punishment. All of these things acknowledge our dignity. But what is it that acknowledges our fallenness? Well, here's an obvious answer, and that is separation of powers. You know, no consolidation of power. Nobody can have absolute authority as much as they want it or try to get it because they're fallen. A king is not a higher class of human beings. And so we create all of these checks and balances. But then here's another way we acknowledge our fallenness. Free speech. Free speech acknowledges our fallenness because what it does, this is Frederick Douglass, 1860. Free speech is the great moral renovator of society and government. It is the dread of tyrants, thrones and principalities tremble before its exercise. Right. And so what free speech does is it acknowledges our imperfection and provides a mechanism for redress of that imperfection.
- [30:16]
B
Okay, let me. Let me pause here for a second. I obviously love everything you're saying, and I'm in agreement with it. Let me play devil's advocate.
- [30:22]
A
Okay.
- [30:22]
B
There's that old statement that I forget the exact quote. Something like a lie gets around the world before the truth even gets its pants on.
- [30:29]
A
Yeah.
- [30:30]
B
So the counter argument would be, all right, free speech gives the opportunity for the truth to be expressed and arguments to be made to bring correction and tear down lies and tyrants and all that. The other side would say, yeah, but free speech also allows falsehoods and lies and harmful things to spread. I mean, one of the reasons we have a pornography pandemic in this country among young people is because there's free speech and we allow that kind of content to exist. So there's, I think, well meaning Christians on the other side of this who would say, no, no, no, no, we don't want free speech. We want speech that's wholesome and uplifting and true and good. And if it's not those things, we ought to suppress it. We ought to limit it. We ought to even in some cases, prosecute it. So why should we not do those things and allow contemptuous, harmful speech to fill our country?
- [31:26]
A
Well, first, let's. Let's talk about a couple of things. Free speech does not mean any communication. Okay, so when you're talking about the First Amendment refers to prohibiting Congress from passing any laws that abridged the freedom of speech so that what they're talking about was not a freestanding ability to say whatever you want whenever you want at any time.
- [31:50]
B
Right. The whole fire. It was fire in a crowded theater thing.
- [31:53]
A
Falsely claiming fire.
- [31:54]
B
Falsely. That's an important part.
- [31:56]
A
Yeah, that's the whole key word. Right.
- [31:58]
B
There, if it's true, it's actually a very helpful statement. Thank you.
- [32:01]
A
It's very helpful. Cry fire if you see a fire. But so there are several limitations on free speech. One of the limitations traditionally has been libel and slander, because an overall theme in American liberty is my rights end where yours begin. And so if somebody says harmful lies about me that damage me in concrete ways, I have a remedy for that. Other ones are things like true threats. If somebody says your money or your life, well, that isn't. They're saying words, but the words are an element of an underlying crime which is designed to strip you of your money, your property, and maybe even your life. Right. And so there are categories of speech. Here's one. Obscenity. Obscenity has never been protected speech. Child pornography, never been protected speech. But what is the First Amendment about, primarily the First Amendment? And virtually any scholar will tell you this, it's primarily about protecting viewpoints. It's primarily protecting about cultural and religious viewpoints. And so in that circumstance, I'm with, if somebody says pornography is horrible, yes, it is, okay? And that's why we have obscenity laws. However, the problem that you have is that it isn't so much a failure of the First Amendment as it's a failure of the culture. Because the reality is that when. That this sounds awful, but obscenity laws are tied to what are called community standards. Right? They're. They're often tied to. And, and then here's what's terrible. Like, let's suppose you're defending somebody in a comm. In a, In a pornography case. One of the things that ends up happening is if you have to show that this is so far outside, there's no redeeming artistic literary merit at all. It's outside of community standards. And then you go to the Google search data and you're like, oh, this is actually the community standard. Right. It's is horrible. But it is very important that we not create a caricature what free speech is at its core. At its core, it is about the protection of viewpoints. It is about. That's what it is at the heart of it. And then we get a big radius around that that says we're going to err on the side of permissiveness to prevent. To protect the heart of it. Okay? Right.
- [34:32]
B
So, I mean, there's many parts of the world that still have blasphemy laws. For example, if we were to do something like that here in this country, I could imagine there are some Christians who'd be like, yeah, it's a good idea. It's a good idea.
- [34:44]
A
I've talked to them.
- [34:45]
B
So for those unfamiliar blasphemy. Blasphemy law might be something like.
- [34:51]
A
You.
- [34:51]
B
Know, openly teaching atheism or openly teaching Islam or openly teaching anything that's contrary to what you believe to be true about Christian faith is banned in this country because it leads people to astray, to harmful untruths, and therefore they're off limits. There are Christians who can be. Yeah, we shouldn't, we shouldn't have something like that. Let only Christianity be the religion that can be openly taught and preached in American societies. Why is that bad?
- [35:23]
A
Okay, there's a lot of reasons. Practical and deal and theological. So let's just start with the practical. Been there, tried that. Everyone drowned in blood. I mean, that, that, that's, that's just the shortest way of saying it there. Tried that.
- [35:39]
B
The religious wars of Europe.
- [35:40]
A
Yeah, yeah. And not just Europe, my gosh, yeah. I mean, religious wars, period.
- [35:48]
B
This is the tower because.
- [35:50]
A
Yeah, I mean, Sunni, Shia, Catholic, Protestant. I mean, we're seeing, you know, religious conflicts in Southeast Asia and the Middle east. And you know, I, So. And when you read a lot of the founders, they're so keenly aware of that history that you just can't trust the sword, the person who bears the sword to the enforcement of religious orthodoxy like that, that, that ends in blood. And I'm reminded of that Arrested Development meme where it's Tobias Funke and oh gosh, what was his wife.
- [36:29]
B
I never watched the show, honestly.
- [36:31]
A
Oh, you never saw it. But anyway, it goes like this. Has anyone tried that before? Yes. Did it work for them? No, but it will work for us.
- [36:41]
B
Yeah, yeah, yeah.
- [36:42]
A
And so a lot of it is just. And the founders who were as removed from the tail end of the wars of religion, it was so close to them. It was as close to them as say World War I was to us. And so they had a pretty fresh recollection of what it was. And then the second thing is they had a very recent recollection because we tell a very sanitized history of religious liberty in this country. It is not the case that all of these people came to our shores seeking religious liberty and then established a religious liberty utopia. No.
- [37:18]
B
Right. One of the more interesting things I studied years ago was the role Catholicism played in the American Revolution and. Or I should say anti Catholicism played in the American Revolution. So it's been a long standing prejudice in this country that there's some sect Back then it was Catholics. At other times it's been other groups. Yeah. So we don't have a great track record on this front, even though it's been aspirational that we tolerate people's religious beliefs.
- [37:43]
A
I love this. And I only have this up sky. I'm not this big of a geek that I have ever since versus Board of education just on immediate recall, but here is the way the Supreme Court in 1947 described the early American republic. In the colonies, the practices of the old world, speaking of religious oppression, were transplanted and began to thrive in the soil of the new America. The very charters granted by the English crown to the individuals and companies designated to make the laws which would control the destinies of the colonials authorized these individuals and companies to erect religious establishments which all, whether believers or non believers, would be required to support and attend. An exercise of this authority was accompanied by a repetition of many old world practices and persecutions. Catholics found themselves hounded and proscribed because of their faith. Quakers who followed their conscience went to jail. I like this sentence. Baptists were particularly obnoxious to certain dominant Protestant sects, which is not surprising because if you know the history of Baptists, they were early in on religious liberty. Yep. Men and women of varied face who happened to be in a minority in a particular locality were persecuted because they steadfastly persisted in worshiping God only as their own conscience is dictated. There you have it. We already were recreating the wars of religion history in embryonic phase in an embryonic way in this new world. So that's the practical reason. You know, the practical reason is been there, tried that, and it's bloody and horrible and awful.
- [39:20]
B
Okay, again, to play devil's advocate, you could make a case that. All right, well, let's have religious tolerance. People can practice their faith. They can hold their views in their synagogues, in their mosques, in their churches or cathedrals, in their homes, whatever. But in the public square, it's only Christianity and maybe some narrow form of Protestant evangelical Christianity that's acceptable. But you can do whatever you want. We're not going to throw you in jail for being a Quaker or Baptist or whatever, but just shut up in the public square. We don't want to hear, and certainly not anywhere where my children could possibly be exposed to an idea or a belief that I don't want them exposed to. Why not take that road?
- [39:58]
A
Well, I mean, it's exactly so I. I don't want to. Here's why I might put it C E G. The previous five minutes of the podcast.
- [40:11]
B
Okay. You don't think it'll stay contained like that?
- [40:15]
A
People don't consent to second class citizen status. So what you're doing is you're saying to other human beings, you are a second class citizen in this country. People don't consent to that. Right. They don't. And then here's this other thing. Humility, Sky. Humility.
- [40:31]
B
You're asking too much now, David.
- [40:33]
A
It's just too much humility. Let me, let's put it this way. If you read scripture from start to finish, is it a ringing endorsement from start to finish of religious authority?
- [40:47]
B
This is where I was hoping the conversation would end up. I think you, I mean, I agree obviously with all the arguments you're making, but I do think there is a uniquely biblical New Testament argument to be made here for free speech. We are followers of a faith that spread through persuasion and love. It was Jesus speaking to the crowds. It was Peter preaching to the crowds in Jerusalem. It was Paul going to Athens and Philippi and at times being thrown in the jail because of what he was saying.
- [41:17]
A
But.
- [41:18]
B
But they made their appeal openly and through winning hearts and minds to the message. Obviously the power, regenerative power of the Holy Spirit at work there too. But it was that ability to make their case to the population that won them over to the faith and to have a faith that began that way and grew that way and persuaded that way to then turn around once it was in power and say, okay, now everyone else needs to shut up. Because only we have the bully pulpit now. That doesn't seem right. And I find it to not only be humble, it's a weird kind of humility. It's humble, but it's a humble confidence that in a free market of expression and ideas, I trust that the gospel will do just fine.
- [42:06]
A
Yes, yes, Sky. I mean, so what's fascinating, and this is why civic education is so freaking important, what is fascinating is that when you read early American documents, and including documents from the 17th century in England, so not early American English documents talking about liberty, it's striking how many of them are making the argument in explicitly Christian terms. And so because they're speaking to a community that is largely Christian, whether they're that practicing or not, they're largely Christian. And so it's very explicitly in Christian terms. So if you read, for example, Jefferson's statute, if you're going to read the Virginia Statute for Religious Freedom, you're going to read, actually in the argument, in the statute itself, a religious argument for religious freedom. And some of these arguments rested on a very simple and what should be non controversial fact, and that is when Jesus himself came, he did not establish a religious authority on this earth. So who are we to do that? If Jesus came, the son of God came in an oppressive environment. The Roman Empire was far more oppressive than any oppression that the Democrats have inflicted on Republicans or Republicans and on Democrats. If he came into an oppressive environment as part of an oppressed people and then did not establish, though he had all the power to do it, religious authority on this earth, who are we to think that is God's plan for us? And that, I think, is an extraordinarily powerful statement. And then you combine it with the actual facts of Jesus. Birth, life, death, resurrection. If you had religious authority in charge, which you did in many ways in Jewish civil, you know, in Israel, then the Romans delegated a lot of control, especially over religion, to the religious leaders. You got oppression and injustice. And so this the, you know, it is no accident that the history of the crucifixion of Jesus involves intolerant religious authorities and an unjust state working together. And so this sort of idea that says, well, when Jesus came, the son of God a sinless man, that he did not establish an earthly rule, but we, full of selfishness, envy, vanity, spite, greed, ambition, even the best of us are tempted by these things that will get it right, is theologically, I think, bankrupt, and then as proven by only 2000 years of history since so.
- [45:05]
B
Great point. Okay. In our remaining time, we've talked about sort of the constitutional foundations of freedom of speech, some of the history that led to it in this country. We've talked about the Christian argument for the freedom of speech, the biblical argument. I want to pivot to the future of the freedom of speech and where you think the country is going. So one of the things that caught my attention in the midst of all that's been happening is your former organization, fire, does a survey every year of college students asking them what their tolerance level is for speech that they do not like. And I don't have the numbers in front of me. Actually, we talked about it with Drew Dick on a previous Skypon episode, but it's not looking great. I think it's something like 43 or 45% of college students today say that violence may be necessary to suppress speech I don't like or that I think is harmful. Am I in the ballpark?
- [46:01]
A
You are very much in the ballpark. I've actually got some of these numbers here. That are from a survey. And I think what's really critical is this is a survey by generation. Yeah, okay, 93% of baby boomers and 86% of Gen Xers agree that violence is never acceptable to stop speech.
- [46:23]
B
Okay. Which, the fact that that goes down at all is, is not good. But it's still.
- [46:27]
A
They're high numbers that 93 and 86. We can live with that. That's.
- [46:32]
B
Yeah, we can sustain a republic with those numbers.
- [46:34]
A
Yeah. But hold on to your hat, sky millennials. 71% of millennials agree that means 29% agree that it can be acceptable to use violence. Only 58% of Gen Z. Only 58% of Gen Z says violence is never acceptable to stop free speech.
- [46:55]
B
Which is, it's insane to me that that's where we are. And I mean, fire's not been around forever. They don't have longitudinal studies or numbers that go way back. I don't know what Gen X would have said when they were college students, but I'm still, I'm Gen X, you're Gen X. I can't imagine it was roughly 50% that said violence was okay to suppress speech.
- [47:17]
A
Oh, it would, I think that would be, would have been unthinkable. Right. I mean, you know, when I, when I talked about the intolerance that I experienced at Harvard, that was aberrational. Like, this was something that was confined to a large degree in a lot of the elite schools in America, like as best as I recall. And I'm sure a listener could correct if we're wrong in like comments or whatever, but I don't think that SEC schools, for example, there were people who were being shouted down necessarily, or Big ten schools or whatever. And, and, but there was just this sort of idea that violence could be used to stop speech. It just wasn't happening. It was more like, I'm going to out shout you, I'm going to yell at you, I'm going to scream at you, not I'm going to kill you. And in spite of that one message, you know, go die, you fascist. But again, that was not a threat. And so it's absolutely true. But I feel like I've got an explanation for it, Scott.
- [48:19]
B
That's what I wanted to hear. Why are we where we are with this generation and their intolerance of speech?
- [48:27]
A
One of the biggest problems that we have is what you might want to call the great forgetting or just simply a lack of experience. So what do I mean by the great forgetting? People who either don't live through catastrophic historical events or don't learn about catastrophic historical events, are prone to repeat catastrophic historical events.
- [48:52]
B
Those who don't learn their history are doomed to repeat it.
- [48:54]
A
Right, exactly. So why would the baby boomers be 93%? It's never acceptable. The Cold War, World War II, and they live through the cities burning in 68. And they lived through the wave of assassinations. And they have to, they, they saw it all in the 1960s and they, they have the memory of their parents fighting World War II. They. All of this. And so this sort of idea of speech is violence is absurd. No, violence is violence. Now. If you're Gen Z, you've not lived through a world war, right? You've, you've grown up in peace and relative prosperity. I would say economic instability, but still a lot of prosperity by historical human standards, a pile of prosperity. And you've also grown up in a period of extremely intense partisan animosity and hatred. So you have not really seen violence at scale and you really hate your opponent. And that's another thing that's different. If you're going to go back to the Gen X politics, yeah, partisanship was intense, but the data's all there. Partisan hatred has been arising. And so I wrote this in my piece. I said, this statistic helps explain why there are people who actually celebrated Kirk's death. They have rejected free speech so thoroughly that they were happy to see a bullet stop a conversation. They believed his words merited a violent response and relished in the deadly results. The text of the shooting suspect in which he allegedly told his roommate, I had enough of his hatred. Some hate can't be negotiated out, suggests that he was exactly such a person. And so this is where we are. If you combine hatred and I'm not, I'm not saying dislike. I'm not saying just animosity. I'm saying hatred with a total absence of kind of the experience or memory of what violence really is. I think that's when you start to get here and when you start marching and I can see it happening. We are marching down a road, and it's a road that is paved with blood. The further down that road you march it and you know, you can stand there with historical memory and scream and yell and jump up and down and say, no, no. And people will blow right past you because they hate the other side. And they think, this time, this time we can do Christian nationalism, right? This time we can do authority, right? And besides, what choice do we have? Because that other side is so Purely evil.
- [51:33]
B
Yeah. I mean, it doesn't bode well for the future if 50% of this younger generation doesn't believe in supporting freedom of speech. I mean, what we just saw with Jimmy Kimmel, like I said before, brought me some hope because it felt like it was a bipartisan agreement that this is too much. We can't be shutting down comedians at the president. Can't be shutting down comedians just because of the things they say. And okay, great, well, fast forward 20 or 30 years from now, would the country still rally and say, no, this is unacceptable? Or would a significant chunk of the country go, yeah, that's what should happen because silence is violence or speech is hatred or whatever.
- [52:17]
A
I have a thought. When I first saw. And you couldn't avoid it, you couldn't avoid it if you were on X, the close up video of Charlie Kirk's assassination.
- [52:27]
B
Thankfully, I did avoid it.
- [52:28]
A
One of the most horrific things you'll ever see, just beyond horrific. And it was just beamed to millions and millions of people, just beyond horrific. And I mean, I have seen worse things because I was in Iraq, but if I'd never served in wartime or whatever, that would have been one of the most horrific things my eyes I'd ever laid eyes on. And there was a lot of concern that people would be desensitized as a result. I wonder if an opposite thing could happen. Because the one thing you can absolutely say beyond a shadow of a doubt to anyone who says speech is violence, words are violence. Words cannot do that to another human being. And when you see what violence actually is, the argument that speech is violence isn't just a bad argument, it's not just a specious argument, it's stupid to the point of evil. And so when you see what happened to him, to a human being created in the image of God, who, no matter what you thought about his views, no matter what you thought about his views, that fundamental truth does not change. He was a human being created in the image of God, worthy of being treated with dignity and respect. And to be cut down like that over his speech, over his speech is horrifying and repugnant at a level that I hope to God that one of the, one of the outcomes of that awful, awful video being put around the Internet was just puts an end to the argument that words are violence, just puts an end to it. Because no word, no matter how cruel and evil and malicious, can do that to another human being. And so I don't know. I don't know, Sky. Part of me wonders if Gen Z is going to try to march us down a dark road. But guess what? Gen Z is not the only generation. They're not the only group of Americans. And so it's incumbent on older Americans who have some wisdom and experience to continue to jump up and down, wave our arms, do everything we can to throw our bodies in front of the idea that we have to address our political disagreements with violence.
- [54:45]
B
Amen to that. I think that's a pretty good place for us to wrap up. David, I'm grateful for your advocacy for free speech, your lifelong advocacy for it and informing us so much about it. And I hope people come away from this episode with a sense that this isn't just an American value we ought to defend.
- [55:02]
A
It is.
- [55:03]
B
It's not just a human right that we ought to defend. It is. But it's deeply consistent with our Christian beliefs, as you said, because we are infinitely valuable, created in the image of God, and we are also infinitely capable of error and sin and fallenness. And therefore we need to be open to correction. And one of the best ways to do that is to not invest any one person or any one point of view with too much power. And free speech keeps us from that error.
- [55:34]
A
And Christians, if you believe that the truth is empowered by the Holy Spirit of the living God, Creator of the universe, there isn't a conversation you should fear.
- [55:47]
B
Amen. David, thanks for being with us. I look forward to talking to you again next month. And hopefully there's less exciting news.
- [55:56]
A
Yeah, Amen to that. Sky.
- [55:58]
B
All right, thanks everyone. See you next week. French Friday is a production of Holy Post Media featuring David French and me. Sky Giottani Music and theme song by Fish Phil Vischer. This show is made possible by Holy Post patrons. To find out how you can become a Holy Post patron and to find more common good Christian content, go to holypost.com.