← Zero Hour with James Poulos
Zero Hour with James Poulos
Ep 74 | Insider Exposes How the ACLU Became CORRUPTED I Nadine Strossen
00:39:16
Nadine Strossen, former president of the American Civil Liberties Union, debates James Poulos on the issue of freedom of speech being controlled by the government.
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- [00:01]
James Polis
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- [01:17]
Nadine Strossen
I'm delighted to be here. James, what an honor to get to talk to you.
- [01:21]
James Polis
Well, thanks for joining us. I mean, it seems like everything is on fire right now and free speech at the very top of the list. How did we get here and can we get out?
- [01:32]
Nadine Strossen
Well, to be quite candid about it, free speech has always been under fire, to use that metaphor, throughout my adult lifetime. I think what has, and let me also correct a common misperception, it has always been under fire from all segments of the political spectrum. I say that, James, because journalists and others often say to me, well, why is it that liberals and people on the left who used to be so supportive of free speech are no longer. Well, the fact of the matter is, depending on the particular issue, people all across the political spectrum have always advocated censorship. As the wonderful journalist Nat Hentoff put it in the title of a book he wrote in the early 1990s, most people believe in freedom of speech for me, but not for thee. So if I can just go through the decades since I was in law school, ancient history, let's do it. We had then the beginning of so called critical race studies and that propelled proposals by law professors to impose so called hate speech codes on college campuses that have happened starting in the 1980s, actually even a little bit earlier than that. We had also including many law professors, people on the left, prominent feminists who were advocating censorship of what they called pornography, sexually oriented expression that in their view undermined women's safety and dignity. Moving into the 90s, we had mass crusades from the left against violence in the media. This was propelled by the first school shootings, evidence that the shooters had watched, had played video games and so we had prominent Democratic members of Congress advocating measures such as the so called V CHIP on TV and so forth. So, you know, it continues. Now, what I continue, what I find to be a serious shift, but I think it's more a difference in degree than in kind, is that the attacks on free speech in the most recent past have even undermined support for free speech among institutions that traditionally had been completely committed to free speech. Include, well, let's start with academia, for one, moving on to journalism, publishing, libraries, the whole cultural and entertainment world, and even civil liberties and human rights organizations.
- [04:46]
James Polis
So let's start here. Cause I think you're absolutely right. It's just classic sort of fallen human condition where it's like, how about this? I get everything I want and you get nothing, and you get nothing in the way that I want you to have nothing. So, yes, that's definitely been, that's been part of the mix for a long time. I do think that things have become sort of polarized more recently in a slightly different way, because those law professors and that sort of academic culture fed into a system of jurisprudence where speech gradually came to mean sort of everything. There was a case that you could make that any kind of activity, any kind of presentation, any kind of insinuation was speech, and therefore it had to receive these constitutional protection. And so I think what ended up happening was the debate started to become, well, if anything counts as speech, then either everything has to be protected or potentially nothing is protected. And that fight is one that I think just hits differently today, where you poll sort of younger Americans and they're like, we don't want it. Free speech is bad. And if anything is speech, then potentially anything is bad and everything needs to be regulated.
- [05:59]
Nadine Strossen
But in fairness, that is not an accurate discussion description of what the law is or what the most robust free speech advocates contended that the law should be. JAMES so the Supreme Court. So first of all, I don't know anybody who says that speech, and I'm putting the quotes to refer to the First Amendment's language. Congress shall make no law abridging the freedom of speech or of the press. I don't know anybody who has argued that the word speech should be confined literally to speech moving our mouths to talk. Everybody has agreed that certain forms of symbolic expression should come within the ambit of the First Amendment, whether it be a demonstration or waving a flag or wearing an armband. Now, the really important point that a lot of people overlook is just because something comes within the ambit of speech doesn't mean that it is absolutely protected. No speech, including literally talking, is absolutely protected because not every restriction will be considered an abridgment that violates the First Amendment. If I can tell you what the Supreme Court has said, for something to come within the ambitious of at least raising a free speech claim doesn't necessarily mean the claim will survive. The speaker has to intend to convey a relatively particularized message, and the audience has to be able to understand a relatively particularized message. That said, the Supreme Court has also in some cases said, well, we can even go beyond that because a painting by Jackson Pollock or the Jabberwocky by Lewis Carroll might not have a particularized message. And yet everybody agrees that that constitutes expression that deserves some degree of protection.
- [08:18]
James Polis
Right. So it seems like inevitably there's just going to be a lot of conflict over who's up, who's down, which, what counts, what's in, what's out. Yes, it would be nice if all of those conflicts did not have to be addressed or solved through the law. Right. You don't want everyone to have to have a defense attorney to their left and a prosecuting attorney to their right. And every time someone says something or throws something out in the public square, then lawyer up because you're going to court. Hopefully. Ideally, these kinds of conflicts can be adjudicated through politics.
- [08:53]
Nadine Strossen
Right, through politics, and I would also say through common courtesy and civility, norms of behavior. I mean, even if you have a right to say something, that doesn't mean that it is right to do so. And this is very complicated because what we're talking about are matters of individual judgment, and norms and social conventions change over time. But the whole debate over cancel culture really epitomizes this difficulty, James, because cancel culture, in essence consists of people either self censoring because they want to avoid being canceled, or other people advocating that somebody should be canceled should not be allowed to speak. But those are themselves exercises of free speech rights. Right. We have the right to persuade people, even quite vigorously, you know, using tools of very strong tools of persuasion and encouragement and discouragement to stop them from voicing certain ideas or engaging in certain kinds of expression. We as individuals have a free speech right to decide we're not going to say something even if we had a legal right to do that. So to some extent, that kind of cancellation and self censorship is completely appropriate. There are many things that I could say here that I'm choosing not to say because it would not be an effective way of conveying my message. Likewise, in the public arena, or classroom anywhere else we speak. The problem, though, is when the fears of cancellation, of unduly harsh repression are so pervasive that people are refraining from engaging in honest, candid conversations, including in places where those conversations are the most important, such as college campuses. Surveys continue to show that a strong majority of students and faculty members simply do not discuss some of the most important current controversies, not for fear that the government is going to punish them, not even for fear that the faculty member is going to discipline them, but for fear of peer pressure. And these subjects that students are saying, I'm referring to, among others, an extensive survey that was done by fire, which you kindly mentioned, the foundation for Individual Rights and Expression and College Pulse. Among the subjects that substantial percentages of students say they cannot have a candid and frank conversation in class, out of class, with professors, with students, informally, formally include abortion, gun control, immigration, police practices, criminal justice, and of course, anything to do with race and anything to do with gender.
- [12:12]
James Polis
Yeah, these are basic, fundamental political questions that citizens need to be able to talk with one another about. Maybe even with some degree of, you know, voices might get raised.
- [12:22]
Nadine Strossen
Yes.
- [12:23]
James Polis
If people can't talk about these things, our system of government is not operative.
- [12:27]
Nadine Strossen
Right. And it shows that. I think the most insidious form of censorship that we face now is through this excessive self censorship. And there is, I mean, as you said, even if there were a legal solution, it would be impractical and undesirable to go to court at every turn. But in fact, there is no legal solution to these problems because the first amendment only restrains government suppression of speech. If my reason for not discussing abortion or police practices is my fear of a viral video, or that I'm going to be shamed and shunned and ostracized by fellow students, or even that my employer will penalize me, none of those actors is bound by the first Amendment. So the only solution is what I think you would call a political one. I usually think of it as a cultural solution. We have to change people's willingness and I would say, hopefully instill an eagerness to return to a more vibrant, frank, and yes, robust and sometimes harsh but candid dialogue about these essential issues.
- [13:49]
James Polis
Yeah, I'd certainly agree with that. But you know, it's really, I think, a case of technology just kind of looming over this whole debate. Because you're right, you know, it's so much of that fear and anxiety and just seeing people go from high level of prestige and job security to being just obliterated. Everyone knows that in the world we live in with technology, everyone's replaceable. There's a line of people who are more or less interchangeable with you, who are just outside the door waiting to take your spot. And for a long time, I spent a lot of time in Los Angeles. I've been there for a long time. For a long time, that was really the neurosis, the psychosis of the actor. The actor, you know, no matter how beautiful, how wealthy, how charismatic, they were always, you know, always in the back of their mind, they knew that if they just failed at their job in some small way, they could be knocked out right away and replaced with someone, you know, who looked like them and talked like them and was charismatic in the way that they were. And that's kind of started to spread to everyone. This is more than just a victory. It's a turning point. We're witnessing history in the making. President Trump's victory is a triumph for every single American who's had enough of the tired narratives, the spin, and the misleading agendas pushed by legacy media. While those networks were scrambling, Blaze Media was exactly where we promised we'd be, bringing you the unfiltered truth right as it happened. This moment right here, this is the start of the future we've all been waiting for. Big media is more interested in distraction and deception. Blaze Media is dedicated to setting the record straight. We're here to give voice to the truth, to hold power accountable, to expose the lies and to defend the values that make this country great. And we're just getting started, but we can't do it alone. When you subscribe to Blaze Media, you're helping us cut through the noise and reach Americans across the country with the clarity they deserve. We've won a big battle, but if we're going to win this war, we need to keep waking up our fellow Americans, one truth at a time. To celebrate this milestone, we're offering $40 off your annual membership. So if you believe in what we're doing, if you want to join this movement, now's the time. Go to blazetv.com zerohour and subscribe now. Don't miss this stand with Blaze Media today, and let's continue the fight to wake up America, one truth at a time. So, you know, when I look at technology, when I look at the way that, you know, these categories of right and left have kind of blurred over the, you know, since social media has come on the scene, it used to be that if you wanted any kind of really free and open speech, criticizing corporate America, centralization of economic power, military interventionism around the world, secret government, deep state stuff, all of those things. If you wanted any real robust criticism of them, you had to go to the left. And then one day we all wake up, it's 2024, and everything's totally crossed, and it's like, what's going on? Well, you know what I see coming out of the left right now? Is this their response. The dominant response to the problems that you're identifying is, okay, well, here's what we're going to do. We're not going to have a culture of free and open contestation. We're going to put the most virtuous people in charge of this huge technological apparatus, and we're going to tell this giant apparatus, sort of where everyone ranks on this system of injustice. And then you're gonna have basically the supercomputer, through social credit or whatever, ensuring that everyone kind of gets whatever their due is at any moment in time. Because you're right, you can't have an army of lawyers for every individual person assessing their victimhood status at any given time, pausing them when they commit a microaggression, you know, compensating them for unpaid emotional labor. You really need a supercomputer in order to achieve that kind of vision of perfect justice that's in their heads.
- [17:51]
Nadine Strossen
Well, this is such a complicated area. And let me start by saying, as a civil libertarian, I do continue to distrust government more than I distrust powerful private sector actors. And I acknowledge that it's a choice between the lesser of two evils, or I often think of Winston Churchill's famous aphorism about democracy, that it's the worst of all systems, except for all the alternatives. And so to me, freedom of speech, including the speech rights that are exercised by powerful tech companies, recognizing that those powers are exercised in an abusive way, in a way that can often have negative repercussions for free speech, to me, that is still a less bad alternative than corralling government to tell social media and other platforms what they can say, what they cannot say, what speakers they may allow and which speakers they may not allow. So there are a lot of complicated issues here, James, but let me start with one that I think is fairly straightforward. Although unfortunately, a lot of people, especially on the left recently, perplexingly to me, disagree with what I'm going to say. And that is, we're talking about a situation. The Supreme Court recently had a case on point, and the ninth Circuit Court of Appeals recently issued another decision on point. A couple of Days ago, a lot of evidence of government officials and government agencies engaging in enormous amounts of behind the scenes and sometimes open but often clandestine communications with tech companies putting enormous amounts of pressure on them to deplatform or to de. Emphasize certain speakers or certain messages using the buzzwords of disinformation or misinformation. But even often saying, well, it's true information, but it might be misleading or people might blow it out of proportion and they use the Orwellian term mal information for that. Truthful but dangerous, we don't want.
- [20:34]
James Polis
Right. There's a risk of offline harm, and.
- [20:38]
Nadine Strossen
You know, there may well be. But to me, it is more dangerous for the government to be acting through these proxies in getting them to restrict expression that everybody agrees the government itself may not censor. The vast majority. Certainly any truthful information is constitutionally protected, but even a lot of false information is constitutionally protected because the Supreme Court has said, we don't want people to steer too close to the line. They may be afraid that they will be found guilty, culpable of defamation or fraud or some other kind of infraction for false information. The price we pay for a robust, vibrant discourse where we're free to engage in the most vigorous debate about public policy and vigorous criticism of government officials is we'll have some false speech, but that's better than government repression, which is going to eliminate a lot of true speech. So very disturbingly to me, the United States Supreme Court recently made it very, very difficult to show that that degree of government coercion raises a First Amendment issue. And that holding was echoed by the appellate court in California more recent recently. And I find that deeply troubling because you have this unholy alliance between government actors that are acting behind the scenes so not subject to the usual checks and balances of democratic accountability. And then you have these private sector companies that are not subject to any constitutional constraints whatsoever, and they're teaming up to decide what is safe for the rest of us to hear and to say. And we don't even know often what speech is being taken down. We don't know what we're missing.
- [22:46]
James Polis
It's out of control. And, you know, I think for a lot of Americans, they feel like, oh yes, misinformation or as it was once known, opinion. And there used to be robust civil society institutions working, you know, not always hand in glove, but at least working, working at the same time across the country to shore up the free speech rights that, yeah, there was some controversy around the edges. Is it okay to burn the flag? Is it not okay to burn the flag? We need an amendment. No, we don't. Okay. Sort of standard political stuff. This went on for decades and decades, but now the situation, of course, is much different. And I think for many Americans who remember the old aclu, they sort of look at each other and they go, what the heck happened to the acl?
- [23:29]
Nadine Strossen
Well, in fairness, I have to say the old ACLU quote unquote, let's say when I was president, which is quite a long time ago, we were always subject to criticism, both for defending too much speech and for not defending enough speech. So those critiques continue to exist and it's really nothing new. And in fairness, James, the new current ACLU has been robustly defending very controversial speech and taking a lot of heat from the left. So I think the ACLU's best known case, and it kind of epitomizes not only the ACLU's defense of freedom, even for the thought that we hate to quote Oliver Wendell Holmes, but that is the core, what the Supreme Court has called the bedrock principle under the First Amendment itself. The case that I think epitomizes that is the so called Skokie case from the late 1970s when the ACLU came to the defense of a group of neo Nazis who were demonstrating in Skokie, Illinois, a city that had at the time not only a large Jewish population population, but many of them were Holocaust survivors. And even card carrying ACLU members resigned in droves, saying, we support free speech. But this goes too far. The ACLU lost 15% of our members. That was back in 1977-78. Now, even though that case was a loser in the court of public opinion, including among ACLU members, it was an easy winner in the courts of law because of that bedrock viewpoint neutrality principle. Government may never punish speech solely because its viewpoint is loathsome and loath. The ACLU came to the defense of that exact same principle in a very factually similar case almost exactly 50 years later in 2017 in Charlottesville, the Unite the Right demonstrations. And there the ACLU defended the free speech rights of the Unite the Right white supremacist demonstrators because there was no evidence, according to the police commissioner who testified, there was no evidence that any violence was planned. And besides, if their violence does erupt, we're well prepared to deal with it. And the only basis that was given for the last minute attempt to try to cancel the Unite the Right demonstration was loathing of their viewpoint, which is squarely unconstitutional. So the ACLU won that case, as we should have. Unfortunately, it turns out law enforcement was not prepared, was not on top of the plans that had been made, and did not adequately deal with it. That was absolutely tragic. And I have to tell you how often I and the ACLU are blamed for the violence that took place. How dare you have defended freedom of speech for these white supremacists. More recently, just this year, we won a case in the United States, a previous court, that did not make us popular on the left. Our client was the nra, the National Rifle Association. The ACLU disagrees with NRA on many Second Amendment and gun control issues, but we completely defend their free speech rights and their free association rights, which were under assault from the Democratic, Democratic administration in New York State. That was putting pressure on the insurance industry, the banking industry, others in the financial sector. Basically saber rattling that, you know, if you continue to do business with the nra, we're going to make your life tough. And the ACLU argued, look, you know, you know, maybe a Democratic administration is going to use these kinds of tools against the nra, but make no mistake about it, a Republican administration could use those tools against Planned Parenthood or the ACLU itself. We got a tremendous amount of heat for doing that. And even the New York State affiliate of the ACLU dissented from the national ACLU position. So I think the complex reality is that there has always been a lot of debate within the ACLU and outside, we have continued to take very unpopular, controversial positions defending free speech for anti civil libertarians as well as people on the right. But here I'm going to acknowledge again the kind of shift that I acknowledged earlier. And it's a generational shift. It's not really one that can be mapped according to politics or other demographic factors, race, gender, and so forth. But younger cohorts within all of these institutions that had traditionally supported free speech, academia, journalism, publishing, ACLU librarianship, etc. Every indication, including certain surveys, show that the younger you get, the less supportive people are of classical free speech values. And you see that even in the legal profession. So at some point that dwindling support for classical liberal free speech values may affect the judiciary as well.
- [29:25]
James Polis
It's tough because at the same time, that's dwindling. Also, respect for civility is dwindling. And you're getting this from both sides on the right. It takes the form of, well, okay, civility, but this is actually wimpiness. And you just will continue to lose all of these political and cultural fights until in the name of civility. You got the gun to the back of your head and the trench in front of you on the left. The version is, okay, civility, it sounds great, but you're being nice to people who hate and you're enabling cruelty and that's the worst thing that you can possibly do. So you're complicit in the system of oppression. How do you defend civility in this world?
- [30:01]
Nadine Strossen
Well, first of all, I would, I think this goes without saying, but I'll earn favor, always earn favor of saying too much that's free speech rather than too little. I would oppose any kind of government mandated civility, including on state university campuses. And that's a serious issue, James, because as you know, there have been many attempts under the guise of hate speech codes to impose requirements of civility in communication. You may not communicate in a way that's insulting or offensive. That's very, very dangerous.
- [30:39]
James Polis
You've even seen this come out of the right where they, you know, there's a bit of an attitude of like a, well, if these are the new rules of the game, then you know, we're going to pass the law. So any anti antisemitic, you know, expression is going to be banned.
- [30:50]
Nadine Strossen
Exactly. And you know, both subs. The Supreme Court said in very important ACLU case from the 1970s, I'm not sure if I can say this on your TV show on broadcast, am I allowed to use four letter words?
- [31:06]
James Polis
It's live to tape so we can, we can beef you out as needed.
- [31:09]
Nadine Strossen
Okay, well, there was a very famous case that involved and anti Vietnam draft protest where the protester, a college student, was wearing a jacket that said fuck the draft. And that was considered to be very outrageous language at the time. I think for people to understand the significance of the case, they have to understand that that word in the early 1970s was as taboo as the N word is today. Really something that no polite person would say, no respectable person would say.
- [31:42]
James Polis
It was the F word. Do you remember that term?
- [31:44]
Nadine Strossen
Yes, yes. So the Supreme Court really showed such a strong protection for free speech when it upheld the right not only to convey a message that was deeply unpopular because the draft itself was still popular at that time, the Vietnam War was still popular at that time. But also to convey it in a way that was seen to be deeply uncivil. That's an understatement. And Justice John Marshall Harlan, who wrote the opinion for the court, interestingly enough, a respected conservative Republican. So we're not talking about some flaming Warren Court liberal. Right. Harlan who had been a corporate lawyer on Wall street before he went to the Supreme Court, said, make no mistake about it, government cannot outlaw certain words without also outlawing certain ideas. So I think he was channeling Marshall McLuhan, that part of the message is the way that you convey it. And incivility and intemperateness can well be conveying the depth of your feeling. Right. And the seriousness of your idea. So at some point, to restrict civility is to restrict the ideas that can be conveyed. That said, and here I'm going to quote the famous Chicago University of Chicago free speech principles, which were adopted in 2015 and have been adopted by colleges and universities all across the country as the model of protecting free speech. Those principles say, of course, we value civility in our discourse. It fosters more constructive exchanges about the ideas that we are all here to explore. So we urge people, whenever feasible, to convey your ideas, to express yourself in a courteous, civil, respectful manner. But never, ever at the price of not expressing an idea. If the only way that you convey it can convey it, or the most effective way you can convey it, other people view as uncivil, so be it. Go ahead. And don't censor the idea itself.
- [34:12]
James Polis
All right, final question. You mentioned Marshall McLuhan. The medium is the message. There's a lot of him going on in this book, which likes to hang out on this table for some reason. Earlier, before the show, I asked you what the best way was for people to get in touch with you, and you said, email.
- [34:29]
Nadine Strossen
I know.
- [34:30]
James Polis
And then you said, you're not on social media. I think a lot of Americans today, you know, when the Internet first arrived, oh, it's amazing. It's like there's going to be a book about everything, and we can just go into the public library in the cloud and read about everything. And over time, social media, again, shiny object looked very exciting. Seemed like it was going to free up everyone to have that civil conversation about whatever they pleased. And now I think the attitude among a lot of people is actually it's the worst of both worlds. It's the worst of concentrated private power and the worst of concentrated public power working together to make it just very difficult to have any kind of quality, meaningful, enriching sort of discussion. And, yeah, you know, there's some bright spots. And, you know, people have sort of different opinions about Elon Musk and what he's been able to do. And I'm not trying to minimize any of that stuff. But I just wonder, you know, in closing, do you Think that we're really not going to get where we need to go unless people kind of take a beat and think about really whether they need to be using social media as much as they are.
- [35:27]
Nadine Strossen
Well, I could not be an activist without being an optimist. I have a tremendous number of reasons for the optimism, including the kinds of thoughtful critiques that you and others. My colleague Jonathan Haidt has written a best selling book that's very critical of social media. And I think that as you and all of the critics acknowledge, there's a great deal of positive that has been able to been brought about thanks to social media, including all kinds of social causes and, and political causes that could not have gotten off the ground with the enormous expense involved in the more traditional media. So what we have to do is harness and reinforce that positive by going back to I think what the utopian but realistic vision of the Internet was at the outset, that it truly would empower all of us to freely communicate or choose not to communicate with all of us. And what has happened with the platformization is centralized gatekeepers have been interposed that have reduced that freedom of choice, that wealth of opportunities. And we have to enact measures, pursue policies that will restore it. For example, the kind of vigorous antitrust enforcement that had been dormant for a while and is right now being revived. Another really important example would be measures that would impose transparency requirements on these companies and privacy protections so that they would have to robustly disclose what their moderation policies are when somebody has violated, allegedly violated a norm, given an opportunity to appeal and to stop the harvesting without our consent of, you know, untold measures of data about us, including even those of us who aren't on social media. I realize my data is also being snatched up. We have to restore true informed individual freedom of choice. There has to another measure, interoperability, so that other third party software vendors could use these platforms to impose different kinds of moderation options that each one of us could choose according to our own tastes and preferences. So I think there are measures that can restore the model of user empowerment and to reduce the choke hold that is now being exercised by some dominant companies. And worse yet in collaboration with the government.
- [38:21]
James Polis
Well, there's no doubt that, you know, free speech, free association, like anything else, can have its excesses and its extremes that go too far. But I think it's increasingly clear that, you know, these things do need to be defended. We do need a broad coalition to defend them. And if we don't, you know, it's just not going to be America anymore. So, Nadine Strossen, thanks so much for joining us.
- [38:39]
Nadine Strossen
Thank you so much, James.
- [38:40]
James Polis
All right. And that's all the time we've got till next time around. I'm James Polis. This is Zero Hour. May God have mercy on us all.