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Charlie Sykes
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Greg Lukianoff
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Charlie Sykes
I'm Charlie Sykes. Welcome Back to the to the Contrary podcast. Now, some of you may actually be old enough to remember when Donald Trump ran for president as the free speech president, as the guy who was running against cancel Culture, in fact, talked about cancel culture all the time and how he was going to make it possible for Americans to exercise their First Amendment rights. Well, that was then. We've seen, in fact, what the president has been doing. Greg Luciano from FIRE wrote, this administration uses power against enemies, it uses lawsuits, it uses regulators, it uses funding threats, it uses access gatekeeping, it uses merger pressure, it uses investigations, it uses whatever lever is closest to hand. And if that lever breaks, it grabs another one and then another and then another until it's grasping at straws or seashells. A reference to, of course, last week's most absurd criminal prosecution ever, actually indicting the former FBI director for taking pictures of seashells. You know, they're going to be historians who are going to look back and say, no, no, seriously, what was that about? No, it was about seashells. And of course, this takes place the same week where the president of the United States takes time off from waging war in the Middle east to go after Jimmy Kimmel. So let's talk about that. Now. Joining me on the podcast today, who else other than Greg Lukianoff, who I just quoted the president of fire, which is the foundation for individual rights and expression. So, Greg, thanks for coming back on the podcast. I appreciate it.
- [04:19]
Greg Lukianoff
Good to see you, man.
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Charlie Sykes
So, I mean, we can really connect the dots here. You know, Kimmel and Comey, you wrote if it looks like an attempt at chill speech by Trump, it probably is. This is an. Here's what I wanted to ask you. It feels as, and we're gonna walk through a lot of the things that Donald Trump and the Trump administration and the FCC are doing to chill criticism. We've had bad moments in the past in American history. We survived the American midnight of the Wilson administration. We know what happened with Richard Nixon. There was even some jawboning from other administrations. Can you put this in some sort of a historical context? Whether we have seen the kind of full frontal attack on free expression that we're seeing right now? I mean, is it unusual? Is it unprecedented? Your thoughts?
- [05:15]
Greg Lukianoff
I would say it's extremely unusual. It's not unprecedented because as you mentioned, the Woodrow Wilson era, you know, was a time where people were going to jail for free speech quite often. And certainly under fdr, there were actually more free speech cases than people appreciate. And then, of course, there's The Red Scare. But since the First Amendment has been interpreted as strongly as it has been, which started basically in the 50s and 60s, and really it almost had no meaning before, say, 1930, which is surprising to some people. Since the modern era of freedom of speech. It is unprecedented. You can't find another example of a sitting president suing newspapers for defamation, for example, or even for that matter, oftentimes threatening it. And one of the things that was such a. One of the things I really wanted to establish with this piece that I wrote on my substack with the help of a lot of fire researchers was to just list all of the lawsuits, all of the FCC actions he's taken against the media. And it really is exhaustive and exhausting.
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Charlie Sykes
No, we'll post a link to all of this. In fact, I had forgotten, I think I mentioned this to you. I'd actually forgotten some of these cases. I mean, obviously the high profile cases, the threats of the FCC to pull licenses, the demand that ABC fire Jimmy Kimmel. But this pattern that you describe, and you just go through all of this, you know, Trump versus the New York Times, Patel versus cnn. Trump versus cnn. Trump sued Woodward and Simon and Schuster. Trump sued the Wall Street Journal. Patel sued, you know, Figluzzi and msnbc. He's filed suits against. I've forgotten this one. The Pulitzer Prize board for, you know, giving an award for the Russia coverage. The goes on and on. Trump versus the BBC for $10 billion. Trump versus Trevor Noah. The complaints. But let's put it in some context. The criminalization. This would be at the highest level, your reaction to the Comey indictment. Because the Comey indictment is about those seashells. 86, 47. We've talked about this before. 86 is a restaurant term. It means stop service and whatever. 47, 47th president.
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Greg Lukianoff
But this is 86 the bacon.
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Charlie Sykes
Yeah, exactly. Yeah. The 86 the bacon or the, you know, the cheeseburger. But this is. This is directly a criminal indictment that. That wants to send James Comey to jail for 10 years for taking a picture of these seashells. This would be an escalation in any administration. Even Woodrow Wilson might have been embarrassed to do this. Your thoughts on Comey, the Comey indictment. We'll get to Kimmel in a moment here.
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Greg Lukianoff
It's insane. I mean, it's weird to have to argue about this on X because people are like, well, that's a direct threat on the President's life. And even people saying, like, I dare you to say what, 86, 43, 86 45. I'm perfectly willing to say all of these things because nobody actually thinks it's a threat. I don't believe. And the standard for threat is something that would make a reasonable person feel like they're in danger of bodily harm or death. An Instagram picture of seashells spelling 8647 deals like, oh no, I'm going to die nonsense. And it's impossible for me to think that anybody really believes this.
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Charlie Sykes
Yeah. Okay, so this also takes place with the Jimmy Kimmel story. And by the way, I think the Jimmy Kimmel story is fascinating. I've been fascinated for this for some time because that felt like a turning point last year when the President got Kimmel suspended for a short period of time. But there was a pushback back. ABC brings Kimmel back on. Kimmel is unbowed, is not backing off. But very clearly, once again, Donald Trump is not just criticizing Jimmy Kimmel. Not just, you know, being thin skinned about being joked about, but his sicking the FCC on Disney and abc. This is the kind of thing that Richard Nixon would have loved to have done, but I don't think that he would have said it in public necessarily. But talk to me about this, what they're doing with the fcc.
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Greg Lukianoff
Well, Brendan Carr is a comedic Shakespearean tragedy combination here because he basically came in saying that the FCC should not be abused to punish speech. And he sounded like a First Amendment
- [09:55]
Charlie Sykes
champion in the before times.
- [09:58]
Greg Lukianoff
Yeah. And he's been abusing FCC power to silence or chill speech in ways that are just absolutely mind boggling. And going after ABC for Jimmy Kimmel jokes, you know, obviously it backfires. That's the first point. You know, like, that anybody who's even like ruthless should understand is that if you try to go after someone for their jokes are going to be amplifying it, not shutting it down. But, but second of all, like the FCC was established primarily for a very simple problem. The electromagnetic spectrum, you know, has to be allocated to people so that you don't have two people on 1.3 hits today competing with each other. You have to figure out how to do that. Now, honestly, do I think that's solvable without a massive bureaucracy? Of course I do. I'm not a full libertarian, but I'm sufficiently libertarian to be like, that was an easier problem to solve than the way we do it. But he's been abusing the power of the FCC with threats. And the idea that this is the second time they've gone after Jimmy Kimmel. And as Part of the article that I wrote, the reason why I got so particularly kind of exasperated by it was because as soon as Melania came out and said, you know, like, ABC must fire Jimmy Kimmel, I was like, okay, here we go again. This is beginning. And I got all of these like, incredulous, like, no, no, she's just speaking her mind. I was like, well, first of all, speaking her mind, saying someone has to be fired is troubling, but do you seriously think it's going to end here? Then it was immediately followed by Trump saying it and then tada, Brendan Carr, you know, servant of the administration. The day after exactly the body that we thought would go after it, it starts reviewing Disney's licenses. What an odd coincidence.
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Charlie Sykes
Well, the word you use, I think is the key is the attempt to chill speech because you don't have to throw everybody in jail, you don't have to take everybody's license away. So talk to me a little bit about, you know, what the overall intent here is to make people self censor, right, to obey in advance. And we've seen this in other contexts, which we will get to in a moment, that what Donald Trump is trying to do is plant the idea in the mind of corporate media and other individuals. You know, think twice, three times, four times before you joke about the President or you criticize the President. I mean, that is the definition of chilling speech, isn't it?
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Greg Lukianoff
Yeah, Well, I mean, think about the Wall Street Journal example. I mean, multiple Wall Street Journal examples at this point. But, but the biggest one was that drawing that all evidence points to actually being Trump himself having a birthday picture, gross birthday picture for Jeffrey Epstein. And they sued, claiming that it's defamatory to claim that that was his picture when it looks like truth is an absolute defense, by the way, to defamation, that it was just plain old ordinary like his picture. And the temerity to actually come out with a lawsuit that's claiming something that everyone kind of knows is true, is not just not true, but also defamatory, that you knew that it was false, that you act with reckless disregard for the truth, is just completely nuts for any other reason other than trying to chill speech. Because they know they're gonna lose in a lot of these cases. They just want to raise the cost of ever going crosswise of this administration. I mean, the lawsuit that they filed against the New York Times right around the same time, which, by the way, I was speaking to the New York Times and there have been so many of these cases I forgot about the. Against The New York Times was sent back to them to be like, state a claim. We don't even know what you're saying here. This is utterly bizarre. So it is an effort to chill speech. But when it comes to things like arresting people, that's not just trying to chill speech. That's trying to punish. That's trying to put people in jail for speech. So that is a special kind of scary escalation.
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Charlie Sykes
Well, and to a certain extent it works, though, doesn't it? I mean, going back to Jimmy Kimmel, I think one of the worst moments of the pre Trump 2.0 presidency was when ABC agreed to settle what I thought was a clearly bogus lawsuit against Donald Trump about whether he'd been adjudicated as a sexual abuser or a rapist. When ABC caved in, it kind of sent a message that, okay, we're not going to defend ourselves. We are gonna cave in. And quite frankly, if you're not abc, you're thinking, okay, I mean, there's a cost to this. I mean, now the New York Times can absorb it, the Wall Street Journal can absorb it. Maybe the washing absorb it. You would assume that ABC would be able to absorb it when they caved in in advance. It kind of sent a message right. To other people. Really be careful, because he is going to use all of these levers of power to intimidate you if you use the wrong word.
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Greg Lukianoff
Well, I slightly disagree on the ABC one, and here's why. Because I learned that lesson the hard way. I came out sounding exactly like you just sounded and then found out that the evidence actually indicated that he'd been told by. That. What's his name, Stephanopoulos? Been told by ABC's lawyers to not actually call him a rapist because that was one of the things he was found not responsible of. He was found responsible of sexual abuse. So apparently he was notified several times not to actually use that word, which is, if I'm the head of abc, I'm like, ooh, that gets you a lot closer.
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Charlie Sykes
The federal judge used the word, though. The federal judge actually, in the clarifying actually used the word rape.
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Greg Lukianoff
Yeah, it's something that might even encourage your average general counsel to be like. And not in an abundance of caution and like, we might be in trouble here, but for practically every other one, you know, that we've seen. They've been absolute BS and they're hoping to find stuff on the. On the fishing expedition that will make them look bad is a big part of what the strategy is here. Now, the One that I find particularly funny for this part though, is the lawsuit by Kash Patel against the Atlantic because I think they're following this playbook again. And I will say this flat out, I have tremendous respect for the Atlantic because I've been published in many places. The most thorough fact checking I've ever seen in my entire career was actually at the Atlantic. So I have a lot of respect that place as a news gathering place. And this whole theory that, oh, terrible things about bias are going to come out when you start doing discovery. It's like, yeah, but in this case, what you're going to find in discovery is how many people are claiming that Kash Patel was a drunk. Do you really want to do that discovery? My guess is no. My guess is they're going to, they're going to try to settle this case. Just. But just in the interest of chilling any future coverage of the accusations against Kash Patel.
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Charlie Sykes
So one of the points that you make in the article though is, and this is why this conversation is interesting, is that you and your organization have been talking about the illiberalism on the left for many years. There's of course, one of the blowbacks. Well, what about, what about the Biden administration or what about what the left has been doing? And you guys spent, have spent years talking about the two front war. It is really a two front war. I mean, there is the illiberalism on the right, which is right now being weaponized by the federal government, which makes it a much more urgent issue. But there's a long record of illiberalism on the left. And I guess the point is that I think even if for people who say there's not a moral equivalence, it felt like it softened up the ground. And I wrote about this last week, soften up the ground. When the left began to lose its. When free speech lost its luster for the left. And you had all of this rhetoric about, well, speech we don't like can be violence. And now we've seen how that can be weaponized and misused by somebody with, you know, much bigger cudgels.
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Greg Lukianoff
Yeah, no, no, agreed. And I mean, you know, I, from day one, fire's taken on the right and left, but at first we were focused just on campus. So there were certainly from my very first letter, by the way, was post 9 11, it was people on the right trying to get someone fired for cracking a joke about 9 11.
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Charlie Sykes
Yeah.
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Greg Lukianoff
But that being said, it was. Those are left dominant spaces and the censorship there has been terrible. And I Have to say I've been kind of embarrassed on behalf of, like, some people who just like us oppose what Trump is doing, like, so strongly, but then feel like because they oppose what Trump is doing, they have to sort of like water down or downplay the kind of insanity that's been going on on campuses for a couple decades. And here's the thing. I'm a civil libertarian, not a full on libertarian, but I'm a civil libertarian. I oppose censorship, both from the left and from the right consistently. And another thing that people miss is these things always exist in tension with each other. They always feed it, and I call it like the polarization, downward spiral that essentially it makes this stuff worse. So what's been going on on campuses has been terrible, and we've written and documented a tremendous amount about it. But this attempt, you know, this administration, though, is, is definitely, you know, the worst First Amendment institution, you know, I can think of in modern times. You know, you can make an argument for some of the stuff Nixon was doing, but Nixon generally was, like you said, trying to do that behind the scenes, which is not commendable, but it is something great. If you're doing it behind the scenes, it's not so clear. You're trying just to flat out chill. This is, I'm threatening you. I'm going after you. Even if it's true, I don't care.
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Charlie Sykes
You wrote an essay a year ago, actually less than a year ago, everyone is a free speech hypocrite. If you're a free speech lawyer, which you are, you face a choice. Either expect to be disappointed by people of all political strikes stripes, or go crazy. I choose low expectations. So what do you mean when you say everybody's a free speech hypocrite? Because I think that's one of the problems right now is that many of the people who are completely outraged right now, though, where were you when these other things were going on a couple of years ago? And do you understand how that softened up the ground on free speech? So why is everybody a free speech hypocrite?
- [20:17]
Greg Lukianoff
Well, that was the title that the New York Times gave the piece, and it's a little less nuanced than I would say. It's like, I would say something more like too many people are free speech.
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Charlie Sykes
Yeah.
- [20:28]
Greg Lukianoff
And it is the kind of thing where if you don't have a sense of. Of humor in this business, you will go crazy.
- [20:32]
Charlie Sykes
Oh, I think so.
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Greg Lukianoff
Because it's really frustrating to watch people who could be so good on free speech when they're sympathetic to the person being censored or hostile to the person doing the censoring. Just be absolutely terrible or self deluded or just in a blind, you know, rage about this stuff. So much so that they have to say, because I hate Trump, the stuff from the left that didn't exist or wasn't bad. And it's just obvious nonsense. You know, like, I've watched this happen too many times meanwhile, you know, like, I'm an, I'm an old school ACLU guy. One of the things that I just, just blew me away as a kid was seeing was finding out, you know, I grew up, I'm first generation, both my parents are immigrants. I grew up in a, in a neighborhood where a lot of other kids were either either immigrants or first generation Americans. And the idea that there were Jewish lawyers who were so principled, they were out there defending the Nazis was like, wow, these Americans, they really mean this. And so I think that we, people our age and older, Charlie, got used to the idea that kind of like, that's how you show principle. You know, basically not saying, I'm standing up for my side, but saying, you know, I don't like that guy, but I'm gonna stand up for him. And that's something that always made America pretty globally unique. And people have been asking me, like, how do we fight back against free speech? And I say this in some rooms and it's funny how it goes over in others, you know, and just like, well, stand up for people you disagree with. And I remember one time I said this, getting this kind of like, oh, kind of like look from someone in the audience being like, yeah, that really physically hurts you to think about doing that, because then you might have a problem.
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Charlie Sykes
Well, but that was the iconic moment that you're describing when you had civil liberty lawyers, you know, Jewish civil liberty lawyers who defended the right of Nazis to march through Skokie, Illinois, which was, I mean, it was horrific. There were Holocaust survivors there. It was in many ways kind of the most extreme possible case. So what they established was the most robust defense of free speech is if you stand up for the most loathsome person out there. Because, you know, that's how we do it. You know, defending my right of free speech doesn't have that sort of an edge. So in your piece, you point out, speaking of hypocrisy, and we're going back to the old enough to remember when Trump ran on this on his. On the first day of his second presidential term, Donald Trump signed an executive order I had forgotten this. Signed an executive order titled restoring freedom of Speech and ending Federal censorship, which feels ironic at the moment, and then castigated the Biden administration a little bit for pressuring online platforms to censor American speech. Last Thursday, Trump mused that when broadcasters portray him negatively, maybe their license should be taken away. We've seen that. Or consider hate speech. The concept was developed in the 1980s by leftist legal scholars, you name them, and it shaped the campus speech codes and the so called political correctness of the 1990s. Intellectuals on the right were quick to contest the idea of hate speech. We go on. And yet last week, Attorney General Pam Bondi vowed that we will absolutely target you, go after you if you are targeting anyone with hate speech. So the side switched completely on the issue of hate speech. So it became a matter of whose ox is being gored. Right, but. But if that's the approach to free speech, then we're in trouble.
- [24:06]
Greg Lukianoff
Oh, absolutely. Well, my favorite one, which is kind of new this week, in terms of adopting terms of the left by the right is stochastic terrorism.
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Charlie Sykes
Yeah, I hear that a lot.
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Greg Lukianoff
And it's such a stupidly academic way to put it. That's one of the reasons that gave him some amount of immunity from being adopted by the right, because it just sounds so like, oh, please, give me a break. But just this idea that you can kind of create an environment for violence through your speech, which of course means that, well, if I can argue that what you're doing is creating environment violence, even if you're giving your honest opinion, then I can censor you. And they've been making this argument about 86, 47, or calling or insulting Trump by saying he's a fascist, or all this kind of speech that we all know is fully protected. It's just another way to try to get an end run around free speech. And my problem here is that. And after the murder of Charlie Kirk, I gave a story about us kind of becoming like everybody else in the country, sorry, in the world. Like. And what I meant by that is most other countries are dominated by a left that tends to be centralized government, utopian maybe, maybe Marxist and a right that is maybe monarchist, maybe ethno nationalist and centralized. Basically, both sides want someone to have all the power. They just are different about who. America was always so different in that we had this big liberalism that we agreed on, like this idea, small L liberalism. Not everything should come from government. Government should be divided. We should have checks and balances, all these beautiful ideas. And instead we're falling just into this. Well, I believe in free speech when it's my side. Free speech is just a tool, not a principle.
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Charlie Sykes
Well, you mentioned the murder of Charlie Kirk and that seemed like a real inflection point because afterwards JD Vance, who had been so eloquent in his opposition to cancel culture, came out and, and rather explicitly said, we need to cancel everybody that was guilty of wrong think in their response to Charlie Kirk. And that was, I mean, that felt like a throwback. Let's, you know, hunt down everyone that might have said something wrong, report them to their employers. I mean, that was kind of an extraordinary moment, wasn't it?
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Greg Lukianoff
Oh, absolutely. And I mean, and fire has the statistics on it. It was insane. It was. And the funny thing about the Jimmy Kimmel thing, I've talked to so many people who became aware of fire or became aware of free speech as an issue that didn't really care that much about it before being turned onto this due to the high profile nature of the Jimmy Kimmel case. But the thing that I say that maybe I shouldn't is that wasn't even the worst thing the administration had done that week, because that week there was Pam Bondi coming out talking about hate speech. We looked at about 60, 70 different examples of people getting punished for saying things that might have been, in some, some cases vile about the murder of Charlie Kirk. In some cases. As controversial as what I say about Charlie Kirk is that I disagreed with him about a ton of things. You know, it's like, so what? But the worst of them, by the way, was, was another New York Times article I wrote on the Larry Bushart case. This was a guy in Tennessee. Now, it wasn't directly the Trump administration. This was a guy in Tennessee who was. He was a former police officer and he had become kind of like the liberal gadfly for this town. And all he did was when they were planning to have a vigil for Charlie Kirk, some kind of event to commemorate his murder, he sent out a response that was a picture of Trump responding to a school shooting in Iowa, saying, I think we need to just get over it. We need to get over this. Which was considered by many people to be very insensitive from Trump. People disagree on what he was actually trying to say there, but either way, it was criticism of Trump, but as a way of saying, basically, I don't really care that much about this. I'm going to remind you what Trump actually said about this. He was put in jail for 37 days.
- [28:06]
Charlie Sykes
How did that happen?
- [28:08]
Greg Lukianoff
Small town. Clearly the sheriff didn't like him. Clearly a judge was able to be convinced. The argument was. And if you're going to try to make this make sense, good luck. So the school at issue was Perry High School in Iowa, I think, and there's a Perry County High School in Tennessee. So the argument was that somehow. Yeah, exactly. Publishing that quote was a threat to the lives of the kids at Perry High School in Tennessee, which nobody thought. So it really is a case where power just didn't think anybody was looking and they thought they could get away with it. And yeah, it's just an absolutely horrible. And Fire's representing him at the moment, but it is honestly, I can say the worst case of my career.
- [28:59]
Charlie Sykes
Okay, you're saying you're representing him at the moment. So this case is still going on.
- [29:03]
Greg Lukianoff
Well, he's out of jail and now we're trying to. Now we're trying to get some recovery out of it because it's just absolutely outrageous.
- [29:12]
Charlie Sykes
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- [31:21]
Charlie Sykes
I want to come back to this, but you know, because you, you write about the whataboutism which, which I think is legitimate to address. You know, you write always the what? What about Biden? What about Obama? What about COVID What about YouTube? What about Europe? What about the Democrats? What about every annoying campus activist from 2015? What about things that you have been criticizing in books, articles, speeches, lawsuits, and probably in conversations with unlucky Uber drivers for the last 25 years or more. Now there may be people who go, okay, well this didn't happen. And by the way, there is that weird flex on sometimes among progressives, which is if they just to pretend that nothing happened or that it wouldn't was a matter. But what about the whataboutism? Because this has been going on for years. Why are we upset about right wing intolerance when there's been so much? I mean, basically, isn't it just payback? I mean, isn't the Trump administration just doing what the Biden administration and the Obama administration and lefties on campus have been doing for decades? What's the answer?
- [32:27]
Greg Lukianoff
What about ism is the favorite weapon of the Trump administration and it's maddening. It doesn't work very well on fire because we've in all of these cases, sometimes people will point out, you know, like, oh, but in 2015, you didn't say anything about that. I'm like, we were a campus organization in 2015, you know, like, so yeah, we didn't say. But when I've written about it since I wrote a book called Canceling of the American Mind, the great Ricky Schlott. I wish more people read it. It had the misfortune of coming out right around October 7th. But what about ISM is a weapon that's shared by both the left and the right, but the Trump administration has taken it and run with it that I don't have to talk about this thing because of this other thing over here. Now, first of all, it's illogical. It's Kind of like, I'm arguing about this thing. And you're like, hey, what about this bad thing over here? I'm like, how does that not make this thing bad? But they're trying to point out that you were a hypocrite. Doesn't really work on fire. But at the same time, it's like, but in terms of scope and scale and aggressiveness, these aren't comparable. Yeah, absolutely. The Biden administration went after people through, through, through jawboning. We, we. On the Missouri v. Biden case, which became Mercy v. Missouri, we actually thought that the case should have been decided and it should have said that the government cannot censor, cannot pressure private organizations to censor speech that they themselves are banned from saying. That's our, our overall stance on this. But at the same time, a lot of that stuff, you have to actually go into discovery. You actually had to find out that was happening because the administration wasn't constantly bragging about actually doing it. Meanwhile, like, one of the, one of the most hysterical kind of like elements of the Trump administration that's actually kind of genuinely funny in a messed up way is how often you'll see him have a, have something that you think he can kind of get away with potentially. And then Trump will say, by the way, untrue social. By the way, my motive was unconstitutional viewpoint discrimination. And he did this, like, with the investigation just last week when the FCC was trying for half a second there to claim. It's like, oh, it's just going after Disney's licenses. That's not because of the Jimmy Kimmel thing. And then of course, socially, the Jimmy Kimmel thing is totally the reason why we're going after licenses. It's like, well, it must be maddening to be his lawyer.
- [34:54]
Charlie Sykes
Oh, yeah. So just very briefly, talk to me about jawboning. You use the phrase. And this is, you know, the. Again, the case gets the attack on Kimmel. Talk about jawboning, which is when the government pesters and pressures private companies to censor speech. Now, that doesn't necessarily involve overt action, but what are the protections against jawboning? What does that mean?
- [35:21]
Greg Lukianoff
Jawboning is basically the idea that you would like. The idea of jawbone kind of like talk someone's ear off about doing something with some amount of implicit, implicit threat, even if it's not directly stated in order to get a private entity to censor speech that the government itself would not be allowed to censor under the First Amendment.
- [35:40]
Charlie Sykes
Is that unconstitutional? Just, just like, just talking.
- [35:45]
Greg Lukianoff
If it comes with an implicit threat. Yes. Okay. And even in the Murthy v. Missouri decision, they said, listen, if you can prove this, then, yeah, that is a serious First Amendment concern. If the state was leaning on social media companies to censor speech just because they didn't like it, that's a first. Or think it's bad. That's a First Amendment issue for sure. Now, the government is able to say, and it has said in the past that we disagree with this coverage or have been critical of coverage, but without that implicit threat, without some of the behavior that they directed towards Twitter, for example, or Facebook, that was well documented in the Murthy v. Missouri case. The only reason why the Murthy v. Missouri case was. Wasn't decided, though, is they couldn't prove standing of the people who actually brought the lawsuits. And what was particularly frustrating there is if it had been ahead of a social media company and Zuckerberg came out like a month or a couple months after the decision was derailed due to lack of standing, saying that he really should have stood up to some of the Biden administration stuff. If Zuckerberg had been a party to the lawsuit, there's no question in my mind find they would have. That jawboning would have been more clearly defined and that the complainants were one. It would have actually shown that it's like, no, this is not something the government can actually do. So jawboning. I think there's going to be another candidate. It probably will come out of this administration because we've already seen this, by the way, on Facebook. We just had a decision, I think. Was it last week, Charlie? It's so busy.
- [37:23]
Charlie Sykes
I know.
- [37:24]
Greg Lukianoff
Really hard to keep up.
- [37:24]
Charlie Sykes
Time's a flat circle.
- [37:26]
Greg Lukianoff
Yeah. We had a case where the administration told Facebook to take down some of these chat groups that kind of tells people where ICE is so they can run for it. And we won a victory in one of these. And that's jawboning. The idea of going to Facebook, you have to take this down, down, or there's going to be consequences. That's something that I think that we need a Supreme Court saying. It's like, listen, the government cannot achieve through other means what it's not allowed to censor under its own power.
- [38:00]
Charlie Sykes
There's been a lot of controversy about the Supreme Court and some of the decisions they've made. My sense, correct me if I'm wrong on this, is that the court, even the conservatives, have been pretty good on the free speech issues, the free expression issues so far that they have been Kind of a guardrail with what is your sense of their track record in protecting free speech when it gets to the Supreme Court?
- [38:24]
Greg Lukianoff
It's a little bit more mixed, but I would say overall the cynicism about the Supreme Court. I think a lot of times a lot of the cynicism about the Supreme Court as it currently exists is confused with the fact that it is a more conservative court. So of course they're going to agree with Trump on more things than a more liberal court would. However, are they afraid to disagree with Trump? No, not at all so far. And there have been lots of cases where they've demonstrated that. So I think that the sort of reflexive cynicism about the court was inappropriate and in many ways kind of like corrosive because I do think they deserve some credit. On some of the free speech cases, for example, I'm concerned, and this is funny as a co authoring of Coddling of the American Mind, a book that was very critical, which I want to
- [39:10]
Charlie Sykes
talk about in a minute.
- [39:11]
Greg Lukianoff
Yeah. Of social media media. I'm scared that my work is being used to justify sort of not just age gating, but necessary sort of identity gating of all social media websites which more or less requires. It could effectively destroy more or less anonymity on the Internet. And that scares me as the defender of freedom of speech, that people be much more careful about what they say if they think that the government, government can easily watch them and everybody knows what they're actually consuming. And the, and the case there was about whether or not you can have verification to use adult websites. Now the original version of that law, by the way, was actually literally show a driver's license if you want to see porn. Right. You know, and it's like, okay, that's pretty, pretty ham fisted. Now by pushing back, you ended up with some provisions being added to the law that allowed for more privacy, protective stuff and all this kind of stuff stuff. But now that we know, we know that the court is actually saying that, yeah, you can, you can have greater protections to keep kids off of porn sites, which I honestly saw coming because there's an old case called Ginsburg B, New York going back to 1968 that that was eventually coming. But the, the idea that it's there no further is, is pretty much our, our stance because I, I'm watching some other, you know, I'm watching the European Union, I'm watching some of these unfree countries jump on the rationale of using child protection as they so often do, as a rationale. For clamping down on speech that the government in the UK for example, doesn't like. And certainly everywhere else, you know, Russia or the European Union doesn't like and certainly would in. In the US So we slightly disagree on that one. I'd say the TikTok case was a little bit of a mess because I think that the. In that decision, the Supreme Court ruled that a law banning TikTok in the United States was constitutional because TikTok is Chinese spyware. And here's the thing. If the law had just said that TikTok was Chinese spyware and that it was a threat to national security because it was Chinese spyware, I think we'd probably agree with them to be like, yeah, no, the government can't actually do that. If they think of some major privacy issue, then then they can do that. The problem was the law itself was actually way, way, way broader than that and said that this we can ban propaganda and propaganda is way too vague, way too broad, like something way out of, like out of line. So the Supreme Court did something kind of like you're not supposed to do, but basically they kept. They kind of like ruled unconstitutional law they wish they were facing instead of the way around.
- [41:55]
Charlie Sykes
Yeah, I mean, this is a tricky one because, you know, the Coddling of the American Mind, which was one of your. Which is a book that I enjoyed very, very much. You co wrote with Jonathan Haidt, who of course has been one of the leaders in warning about the danger of the smartphones and social media on kids. So on the one hand, you're kind of close to being a free speech absolutist. Your co author is saying we need to do things to protect children from some of this slop that's coming through their phones. So. So how do you square that circle? Or do you want to reject the squaring the circle? There seems to be a little tension there.
- [42:36]
Greg Lukianoff
Oh, absolutely. No. And John knows I disagree with him on some of the things that he would like to see law. And I always have to say, and I love John very much, we're very close friends, but I'm a civil libertarian and I'm worried about tyranny. I'm worried about government having too much power. And particularly at a moment like this, the idea that, that you'd allow any possibility for ending anonymity on the Internet, that's not an acceptable risk. I don't think it's very dangerous. But right now, in particular, it's extra scary. I do think that there are less harmful ways to Go after this. For example, one thing I fully support, not just I'm okay with, but like I'm completely support, is getting phones out of the classroom.
- [43:20]
Charlie Sykes
Right? That's a difference.
- [43:21]
Greg Lukianoff
Essentially these laws, and I don't think they pose any serious First Amendment issue where essentially you check in your phone at the beginning of the day, you get it back in the beginning of the day, you get it back at the end of the day. That's great. Like I got no issue with that whatsoever. And I think that that's a great break to have from that. I think that some of the things that John recommended, for example, is if every, you know, phone company decided, particularly without government coercion, to have a default setting that when you buy your phone it's set to like kid mode or like whatever, and then you just have to turn it off, that would be a step in the right direction. That would be to. That would be an industry way of solving the problem. That'd be totally fine. What I'm not fine with with is something that says that anything that has an algorithm, for example, that, that you have to particularly show ID because like that's, that that's the end of anonymity on the Internet, which should scare everybody. And that.
- [44:13]
Charlie Sykes
And it should.
- [44:14]
Greg Lukianoff
And we frame a lot of what we're talking about here to be very clear is we're concerned about the free speech rights primarily of adult.
- [44:23]
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- [45:24]
Charlie Sykes
well, you know, I mean, this is. Stepping back for a moment. You know, I've talked on this on this podcast a lot about our failure of Imagination, you know, that one of the reasons why things have gotten so bad is that we did not imagine what would happen if certain other people. And as I go back through the free speech debates that we had 10 years ago on university campuses, I think there was a failure of imagination. Do you really want to restrict speech that hurts people's feelings or equating speech with violence? How might that be used by malign actors with great power? And I think that now, now there is that. Okay, well, you know, I'm guessing that people are willing to listen to that argument more and more. And so going back to, you know, this, this culture of censorship, there was also that assumption of fragility that has been used. And I've written about this, you've written about this, you know that, you know, before Donald Trump came along, there were the safe spaces and the trigger, the trigger warnings and the speech code. And one of the underlying assumptions was that if speech was offensive, it needed to be regulated because people were so sensitive and so fragile that they would be hurt by it. The free speech, free market culture is really based on the belief that citizens are robust. Right. That we can handle. Watching Nazis marching in Skokie, that idea was eroded, wasn't it? This whole idea that these college students were so, so vulnerable, so fragile, that if they were exposed to a speaker or a word or a thought that they didn't like that they needed to be, be sheltered and coddled in your phrase about that. I mean, that's part of the problem. And you now see it being kind of bizarro world, weaponized by the right, that if somebody says Donald Trump's a fascist, that people will, oh my God, won't be able to handle that.
- [47:25]
Greg Lukianoff
Yeah, and it's not a new trick, by the way. One of the interesting things about John C. Calhoun, you know, who I, you know, a lot of people like to remember, as good as a deep dive. I mostly remember him as a fervent defender of slavery, is he made a argument for banning abolitionist speech in the early 19th century because it was harmful to the dignity of slave owners. That basically it hurts their feelings. You know, like. So this is, this is a common argument all throughout history, sometimes framed in something that sounds really high minded, like dignity, but usually it sneaks in from saying that because we have to protect children from things. And I'm sensitive to that more than most First Amendment people are, that, you know, protecting kids is something that I have sympathy for that therefore we should ban this, you know, even if it restricts the rights of Adults. But implicit in that was a belief and an understanding, frankly, that part of being an equal citizen in a free country is that it requires a certain amount of belief in their autonomy, belief in their toughness, their ability to actually be a free people, which is not easy. And when I think about some of the best examples of people saying, you know, it's easy, you know, it's less painful than freedom. It's the old pro czarist arguments that I used to read from in late 19th century Russia where basically they would talk about, about the Russian peasant as having the ultimate kind of freedom, which is the freedom from the burden of freedom.
- [48:57]
Charlie Sykes
The freedom from the burden of freedom. Okay, one last question in the time that we have left because so for example, in my newsletter yesterday, I talked about Elon Musk, the world richest man, going off on this racist screed storm where anti Semitic rhetoric about white genocide, the kind of things that white supremacists, female fever swamps used to revel in. And I guess part of the problem and I said, you know, it's interesting that there are no consequences now there's a line between cancel culture and also saying there should be no accountability. And this is one of the tricky things because you know, in a marketplace of ideas you don't censor or cancel necessarily, but that doesn't also mean that you are not accountable. That bad speech is supposed to be countered by my better speech. Right. So I guess the question is, so how should we be reacting to the insidification of Twitter, the rise of all that racism, or the fact that the world's richest man is spewing and normalizing racist rhetoric doesn't mean that free speech, doesn't mean that we shut up or that we react with crickets. Right. So what is the appropriate response to all of this?
- [50:10]
Greg Lukianoff
Well, the appropriate response was something that people actually even thought was kind of impossible for a while there. So much they're a passing line laws that treated X as if or what was formerly known back when it was known as Twitter, as if it was like a public park. So they were trying to both. And you know, when Texas, Florida and California all agree on a problem, you should probably be careful about what the solution is. And they all had kind of ideas of ways to sort of impose something to treat private companies as public utilities essentially because people thought nobody would ever leave X. Well, I guess, guess what? People left in huge numbers to go to go to Mastodon, to go to blue sky, etc. Now people don't think that's sufficient because some people don't think Blue sky has enough reach. But that's a different problem, that essentially, if people want to get. Want to get off Twitter, want to protest Elon, there's a million different ways it can do that, and they should. And if they get in trouble for it, come to fire. But we will happily defend you. But I do think that the idea that anything would be improved if, for example, you know, Musk was punished or jailed or fined for his speech. I think that that's the kind of thing that has a tendency to really badly backfire as well. It gets people saying, oh, he must be onto something if they're trying to shut him up this bad.
- [51:31]
Charlie Sykes
Well, but on the other hand, if I'm a business, and I'm doing business with. With Elon Musk, and he posts something like this, and I said, you know, you know what? I don't want to be in business with you anymore. You know, I'm not going to invite you to my party. That's legitimate. I mean, I think it's also important to stress that criticism is not a form of censorship. That if I say, you know, what you are saying is racist, and frankly, no, I don't want to invite you to my birthday party. That's not cancel culture. That's just, you know, countering speech with speech and using social. That there are still social norms that are not censorship.
- [52:03]
Greg Lukianoff
Oh, of course. But this has been a frustrating thing, though, watching people, the same people I was complaining about about before, who like to pretend there was never a threat on the left. They'll be like, but cancel culture is just criticism. I'm like, in my definition of cancel culture, I'm talking about groups of people getting together to make sure people are fired, you know, pushed off campus, censored, et cetera. It's not criticism. It's not just criticism. It's this desire to ruin someone's life, which I do think is toxic for a democracy, that essentially, if you reach a point where you can have.
- [52:35]
Charlie Sykes
But sometimes it's justified.
- [52:36]
Greg Lukianoff
Right. I think that essentially you have to think about it, what it'd be like if this happened all the time, that essentially you could have a job or an opinion, but not both. And that's one of the reasons why it gets frustrating sometimes for lawyers, because they're sort of like, well, the lines aren't as clear. And it's like, well, of course, because it's not actually law. We're talking about cultural norms, and there should be a high premium on the idea of everyone's entitled to their opinion and my little addition to that. And it's valuable to know what people really think because you're not safe for knowing less about what people really think.
- [53:06]
Charlie Sykes
Oh, I think this is a great point because this was one of my critiques of the campus speech codes. They did not stop people from saying things. They just stopped people from saying things openly where they might be subject to being refuted. It just drove much of it underground. And I think we're actually seeing the consequences of driving many of these opinions underground. Greg Lukianoff, thank you so much. We will post links to Greg's recent articles and his stuff and contact information on my website to the Contrary. Greg, thank you so much much for your time and your insight.
- [53:35]
Greg Lukianoff
Great seeing you, Charlie. Take care.
- [53:37]
Charlie Sykes
And thank you all for listening to this episode of to the Contrary podcast. I'm Charlie Sykes. We do this every single week because it is so important to remind ourselves that we are not the crazy ones.
- [53:58]
Greg Lukianoff
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