Latest / The Real News Podcast / Fearless Speech: With Mary Anne Franks | Bonus 2

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Fearless Speech: With Mary Anne Franks | Bonus 2 · The Real News Podcast

• 0:08
  Speaker 1: Hi, folks. I'm your co-host, Michael Fox, and this is
• 0:11
  Speaker 1: The Battle for Free Speech. This is the second bonus
• 0:15
  Speaker 1: episode in this series, and I'm really excited about this one. Today,
• 0:19
  Speaker 1: I'm bringing you my full conversation with Marianne Franks. You
• 0:23
  Speaker 1: will likely remember her from this series as I reached
• 0:26
  Speaker 1: out to her in numerous episodes. She's a professor in
• 0:29
  Speaker 1: intellectual property, technology, and civil rights law at George Washington
• 0:34
  Speaker 1: University and the president of the Cyber Civil Rights Initiative.
• 0:38
  Speaker 1: She's also the author of the incredible book, Fearless Speech,
• 0:41
  Speaker 1: Breaking Free from the First Amendment, which I referenced often
• 0:45
  Speaker 1: in this podcast. That book was published in 2024 by
• 0:49
  Speaker 1: Bold Type Books. So today I'm bringing you my conversation
• 0:53
  Speaker 1: with her in its entirety. We spoke last year, 2025.
• 0:58
  Speaker 1: I hope you like it. In the intro to your book,
• 1:02
  Speaker 1: Fearless Speech, you write unfettered speech does indeed exist, but
• 1:06
  Speaker 1: only for some Americans. Can you tell me what you
• 1:09
  Speaker 1: mean by this?
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  Speaker 2: Yeah, you know, we have this, for lack of a
• 1:12
  Speaker 2: better word, a myth that we tell ourselves as Americans
• 1:15
  Speaker 2: that we have just this absolute right to free speech.
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  Speaker 2: It makes us really unique among all other countries. And
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  Speaker 2: I think that part of the reason why that myth
• 1:24
  Speaker 2: persists is because I think it's true for some people.
• 1:27
  Speaker 2: And it's particularly true, as I say in the book,
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  Speaker 2: that if you are a person who is saying things
• 1:33
  Speaker 2: that go to the sort of worst of American society,
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  Speaker 2: that is the things that we should be most ashamed
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  Speaker 2: of as a society, our sexism, our racism, our elitism.
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  Speaker 2: If you are saying something that kind of converges with
• 1:48
  Speaker 2: some of those ideologies, you get massive amounts of protection
• 1:51
  Speaker 2: and There's protection for really horrific personal forms of abuse,
• 1:56
  Speaker 2: for stalking, for racist, invective. So those individuals, I think,
• 2:00
  Speaker 2: who are invested in those forms of speech really can
• 2:03
  Speaker 2: say with some accuracy that they get to say whatever
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  Speaker 2: they want with no consequences.
• 2:08
  Speaker 1: Where does this happen? And why do these people get
• 2:12
  Speaker 1: to say whatever they want, whereas those people who are
• 2:15
  Speaker 1: trying to stand up or standing for democratic speech or
• 2:20
  Speaker 1: standing up for those people who have always been marginalized,
• 2:23
  Speaker 1: why are their voices silenced? I mean, it seems crazy.
• 2:27
  Speaker 1: And it's incredible that this is, like you mentioned, this
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  Speaker 1: myth that goes back, but it's still here.
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  Speaker 2: Yeah. It is a form of some pretty high level
• 2:38
  Speaker 2: constitutional gaslighting, right? Because what we tell ourselves when we
• 2:42
  Speaker 2: say things like, well, we have so much freedom of
• 2:43
  Speaker 2: speech here, we're using... You know, we're using a kind
• 2:47
  Speaker 2: of cliche that has been passed down for generations. And
• 2:51
  Speaker 2: part of what I try to do in the book
• 2:52
  Speaker 2: is to actually track the history of speech and not
• 2:56
  Speaker 2: in this limited sense. I mean, you think about how,
• 2:59
  Speaker 2: I guess, tautological is the word about how most First
• 3:02
  Speaker 2: Amendment books or articles are written is they go back
• 3:04
  Speaker 2: and they look at the First Amendment canon, right? Cases
• 3:07
  Speaker 2: that were successful, including cases, you know, not just for
• 3:10
  Speaker 2: the pornographers and the KKK, although that's a lot of it.
• 3:13
  Speaker 2: but also in some cases for civil rights protesters, for
• 3:15
  Speaker 2: people who were vulnerable and were trying to say something
• 3:19
  Speaker 2: actually revolutionary. So if you do that and you talk about, well,
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  Speaker 2: there's a success here and there's a success here, you
• 3:27
  Speaker 2: can sort of extrapolate from that that, oh, well, that
• 3:29
  Speaker 2: means that we have always had this really protective attitude
• 3:33
  Speaker 2: towards free speech. One of the things I like to
• 3:35
  Speaker 2: point out, though, is that if you have to go
• 3:37
  Speaker 2: back and look at all the times where people were
• 3:40
  Speaker 2: hauled into court where they were either being sued or
• 3:43
  Speaker 2: imprisoned or otherwise punished for their speech and had to
• 3:46
  Speaker 2: try to fight for their right to be able to
• 3:48
  Speaker 2: do those things. That isn't really a sign of a
• 3:50
  Speaker 2: society that protects free speech. That's a society that keeps
• 3:53
  Speaker 2: arresting people and suing people for free speech that may
• 3:56
  Speaker 2: or may not be vindicated. And for every case where
• 4:00
  Speaker 2: the ACLU decided that it was going to throw its
• 4:02
  Speaker 2: resources behind a particular individual, there are thousands, maybe millions
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  Speaker 2: of incidents where people were just who just went to prison,
• 4:10
  Speaker 2: who just were silenced, who were just harassed into not speaking.
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  Speaker 2: And so if you push aside the cases for a
• 4:17
  Speaker 2: moment and just look at history, right, you look at
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  Speaker 2: the very first instances of radical speech in America. And
• 4:24
  Speaker 2: some of that happens, you know, within seven years of
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  Speaker 2: the ratification of the first amendment, you've got people criticizing
• 4:29
  Speaker 2: the government and the war effort, um, uh, the war
• 4:32
  Speaker 2: with France, and you've got immediately the Congress is doing
• 4:35
  Speaker 2: exactly what it says it's not going to do in
• 4:37
  Speaker 2: the first amendment. and it passes the Alien and Sedition Acts,
• 4:40
  Speaker 2: and then we're off to the races. From the very beginning,
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  Speaker 2: we say as a country, we are protecting free speech
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  Speaker 2: in the same way that we say, we the people.
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  Speaker 2: We don't actually mean it. And if you actually really
• 4:51
  Speaker 2: uncover what we do as a country, you can see that.
• 4:54
  Speaker 2: So you get to the question of slavery, right? The abolitionists,
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  Speaker 2: who were some of the most radical revolutionary speakers the
• 5:02
  Speaker 2: United States certainly has ever experienced, And you had abolitionist
• 5:06
  Speaker 2: literature being literally censored and suppressed, people going to jail
• 5:09
  Speaker 2: for producing it, people being arrested if they were making statements,
• 5:13
  Speaker 2: if they were preaching about the evils of slavery, if
• 5:17
  Speaker 2: they were publishing newspaper articles that tried to document the
• 5:20
  Speaker 2: horrors of slavery. So the whole history, if you think
• 5:23
  Speaker 2: about the incredible work of Ida B. Wells, the pioneering
• 5:26
  Speaker 2: journalist who gave so much attention to the lynchings that
• 5:30
  Speaker 2: were happening in the South, Her entire publishing office was
• 5:35
  Speaker 2: burned to the ground, right? You know, Elijah Lovedroy was
• 5:37
  Speaker 2: shot by an angry mob because he wouldn't stop writing
• 5:40
  Speaker 2: about how slavery was wrong. So you go through that history.
• 5:44
  Speaker 2: You go through the women's rights movement where women were
• 5:46
  Speaker 2: picketing outside the White House in advocating for the right
• 5:49
  Speaker 2: for women to vote, being arrested, beaten, thrown into jail.
• 5:53
  Speaker 2: You fast forward to what happens to Black Lives Matter protesters,
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  Speaker 2: what happens to people who are trying to bring attention
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  Speaker 2: to the Palestinian genocide. What happens to women who are
• 6:01
  Speaker 2: making claims about me too? And you see it again.
• 6:04
  Speaker 2: These are people who are getting arrested and thrown in
• 6:06
  Speaker 2: jail or sued or otherwise humiliated and attacked in a
• 6:10
  Speaker 2: way that sets their entire life on fire. While at
• 6:14
  Speaker 2: the same time, if you are on the opposite of
• 6:16
  Speaker 2: those issues, if you are articulating, and this is complex
• 6:20
  Speaker 2: about the American psyche, because we'll say things like, well,
• 6:22
  Speaker 2: if you are speaking the speak we hate, we will
• 6:26
  Speaker 2: protect you. Or we can't just protect the speech we like.
• 6:29
  Speaker 2: The problem with that kind of cliche is that what
• 6:32
  Speaker 2: does it mean to say the speech we like? The
• 6:35
  Speaker 2: people who have always been in power in the United
• 6:37
  Speaker 2: States have been the people who like racist speech. They
• 6:40
  Speaker 2: like sexist speech. They like a speech that discriminates between
• 6:43
  Speaker 2: the wealthy and the poor. And so when we say that,
• 6:46
  Speaker 2: we're actually really mixing up what is actually happening. It's
• 6:50
  Speaker 2: much more accurate to say that the forces that kind
• 6:53
  Speaker 2: of hold this country together at the origins, right? Which
• 6:56
  Speaker 2: I by no means want to suggest is the limit
• 6:58
  Speaker 2: of our possibility or aspiration, but it was white slaveholding
• 7:03
  Speaker 2: men who did not believe that everybody should get the
• 7:06
  Speaker 2: same rights. So if you are saying something consonant with that,
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  Speaker 2: whether you are the KKK member or whether you are
• 7:12
  Speaker 2: the pornographer, you are most likely going to get your
• 7:14
  Speaker 2: speech protected. And everybody who actually challenges that, if you
• 7:18
  Speaker 2: trace it throughout history, overwhelmingly With a few exceptions, and
• 7:22
  Speaker 2: I do want to say there are exceptions. It's long history.
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  Speaker 2: The difference is that the people who are trying to
• 7:27
  Speaker 2: speak against racism, against misogyny, against elitism, those are the
• 7:32
  Speaker 2: people who get punished. And it's the people who speak
• 7:34
  Speaker 2: in the same chorus as those forces that do get protected.
• 7:38
  Speaker 1: Wow. Can you talk a little bit about your concept
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  Speaker 1: of reckless speech versus fearless speech? I think that this
• 7:45
  Speaker 1: intertwines with everything you're talking about. And then also, what
• 7:48
  Speaker 1: does that mean today in this moment that we're living in?
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  Speaker 2: Yeah. So when I was revisiting the canon, when I
• 7:54
  Speaker 2: was thinking about how to write this book and what
• 7:56
  Speaker 2: it is that I wanted to say, one thing I
• 7:58
  Speaker 2: wanted to do was to talk about how if for
• 8:02
  Speaker 2: a moment we set aside the law and we just
• 8:05
  Speaker 2: sort of look at the speech itself, we forget about
• 8:07
  Speaker 2: whether the answer is, is this constitutionally protected or not?
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  Speaker 2: Because that becomes a virtue in its own right. And
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  Speaker 2: that is very distracting. And you just start to look
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  Speaker 2: at what people actually say. And it's really that I
• 8:20
  Speaker 2: found the concept of fearless speech before the concept of
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  Speaker 2: reckless speech really crystallized for me. And I found that
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  Speaker 2: concept primarily because I was looking at on the recommendation
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  Speaker 2: of a friend of mine who had heard me speak
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  Speaker 2: about the kind of disparities that I saw between the
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  Speaker 2: kind of speech that gets protected and the kind of
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  Speaker 2: speech that gets suppressed. And he said to me, he said,
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  Speaker 2: you know, you read much of Michel Foucault's lectures in
• 8:46
  Speaker 2: the 1980s where he talks about a Greek concept that
• 8:48
  Speaker 2: I think is really similar to what you're saying. I
• 8:51
  Speaker 2: hadn't at that point. And so that was the concept
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  Speaker 2: of parousia, which is Michel Foucault translates as fearless speech.
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  Speaker 2: And he talks about how in Greek society, ancient Greek society,
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  Speaker 2: that's actually the form of speech that is the most
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  Speaker 2: important for the preservation of democracy. It isn't to say
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  Speaker 2: it's the only way we can approach speech or the
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  Speaker 2: only kind of speech that matters, but it's the one
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  Speaker 2: that really is the dividing line between democracy and other
• 9:16
  Speaker 2: forms of government. Now, with all the caveats about how
• 9:19
  Speaker 2: the Greek democracy was also not particularly democratic, but the
• 9:24
  Speaker 2: concept was really fascinating, which is it's not just that
• 9:27
  Speaker 2: you get to say whatever you want. The Greeks did
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  Speaker 2: have a word for that, too, this kind of idea
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  Speaker 2: that you could just say things without consequences. But the
• 9:34
  Speaker 2: Greeks didn't seem to think that that was the particularly
• 9:37
  Speaker 2: valuable form of speech. They thought the most valuable form
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  Speaker 2: of speech was the kind of speech where you had
• 9:42
  Speaker 2: to speak in your own voice. That was the first qualification,
• 9:45
  Speaker 2: which is you can't pretend to be a devil's advocate
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  Speaker 2: or take on a role or just do it for
• 9:49
  Speaker 2: rhetorical purposes. You had to commit to it. And they
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  Speaker 2: said you also had to be speaking to or about
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  Speaker 2: something that was more powerful than yourself as the speaker.
• 10:00
  Speaker 2: someone in power, some force in power. And you could
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  Speaker 2: not be praising it because praising it is possible. Of course,
• 10:06
  Speaker 2: you can do that, but that isn't fearless. To be
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  Speaker 2: fearless about the way you speak about power is to
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  Speaker 2: criticize it. And it's fearless because that creates a risk
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  Speaker 2: to you because once you criticize people in power, you
• 10:19
  Speaker 2: are in danger that the people in power are going
• 10:21
  Speaker 2: to hurt you. So that was the concept that I thought, okay,
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  Speaker 2: that speaks to me as a concept of incredibly valuable speech,
• 10:29
  Speaker 2: a way to distinguish between forms of speech because we
• 10:31
  Speaker 2: tend to be very, you know, just throw it all
• 10:33
  Speaker 2: in the same category. And I thought about the famous
• 10:36
  Speaker 2: cases in the United States, right? That is the KKK.
• 10:40
  Speaker 2: That is Larry Flint. That is any number of forms
• 10:44
  Speaker 2: of neo-Nazi speech, right? And I think about why it
• 10:48
  Speaker 2: is that we can easily say that whatever else is
• 10:50
  Speaker 2: true about those forms of speech, they're not fearless. These
• 10:53
  Speaker 2: are not people who are taking a burden of speech
• 10:56
  Speaker 2: upon themselves and actually taking a risk that they will
• 10:59
  Speaker 2: be hurt by the people in power because they're reinforcing power. Now,
• 11:04
  Speaker 2: by contrast, that is to say, the harm goes in
• 11:07
  Speaker 2: a different direction. If we think of fearless speech as
• 11:11
  Speaker 2: someone who voluntarily assumes the harm against themselves because they
• 11:14
  Speaker 2: know that what they say may mean that they get hurt.
• 11:18
  Speaker 2: You contrast to a speaker like, for instance, Clarence Brandenburg,
• 11:22
  Speaker 2: the subject of this really famous 1969 Supreme Court case
• 11:26
  Speaker 2: where he is full clan regalia doing a march around
• 11:32
  Speaker 2: a burning cross, got the Bible in hand, talking about
• 11:34
  Speaker 2: how black people and Jews need to be removed from
• 11:36
  Speaker 2: the country. Now, that is not the kind of speech.
• 11:38
  Speaker 2: I mean, literally someone in a mask, right, who is
• 11:41
  Speaker 2: proclaiming these things and stirring up dehumanization and rhetoric against
• 11:45
  Speaker 2: people who are, objectively speaking, more vulnerable in society. And
• 11:50
  Speaker 2: in the wake of those kinds of rallies, people did
• 11:52
  Speaker 2: get lynched. They did get attacked, right? And the entire
• 11:55
  Speaker 2: question of Brandenburg was how closely related do his words
• 11:58
  Speaker 2: have to be to the attacks for it to be illegal?
• 12:01
  Speaker 2: And they answered that his words weren't close enough. But
• 12:04
  Speaker 2: forgetting the doctrine for a moment, that's reckless. You are
• 12:07
  Speaker 2: putting this out into the world fully knowing that the
• 12:09
  Speaker 2: people that it's going to hurt or the people that
• 12:12
  Speaker 2: it puts in danger is not you. It's someone else.
• 12:14
  Speaker 2: And there I thought that is a really important distinction
• 12:16
  Speaker 2: that I would like to emphasize.
• 12:19
  Speaker 1: That's so incredible. The thing I've been having trouble grappling
• 12:22
  Speaker 1: with for a while is the fact that when we
• 12:26
  Speaker 1: think about free speech, there's the Constitution. There's the First Amendment.
• 12:30
  Speaker 1: There's what's permitted, what's allowed. And then there's how people
• 12:34
  Speaker 1: embrace free speech. in their movements, like the abolitionists, right?
• 12:40
  Speaker 1: And how people use it. It's almost like there's these
• 12:43
  Speaker 1: two worlds. There's the free speech of the First Amendment,
• 12:46
  Speaker 1: of the constitution of law, and then there's how people
• 12:50
  Speaker 1: take this on in order to kind of push forward
• 12:54
  Speaker 1: important ideas, which of course is linked to the fear
• 12:57
  Speaker 1: of the speech that you talk about. Can you just
• 13:01
  Speaker 1: dig a little bit more into this question of the
• 13:04
  Speaker 1: abolitionist movement how they use this, how important this was
• 13:08
  Speaker 1: for them. I feel like that's like this first movement
• 13:10
  Speaker 1: where within the United States, fearless speech, people are really
• 13:15
  Speaker 1: embracing this concept of free speech kind of for the
• 13:18
  Speaker 1: first time and how important that history is still today.
• 13:22
  Speaker 2: I really like the way that you put this, how
• 13:26
  Speaker 2: you put it, that there's a kind of, it's the
• 13:28
  Speaker 2: use of the concept, right? It's not the abstraction of
• 13:30
  Speaker 2: the concept. It's what was the, you know, how did
• 13:33
  Speaker 2: you enact free speech? And In many cases, I think,
• 13:37
  Speaker 2: the abolitionists, I think for some periods of time, you
• 13:40
  Speaker 2: saw the abolitionist movement sort of self-consciously talking about freedom
• 13:43
  Speaker 2: of speech. But for the most part, you don't see
• 13:46
  Speaker 2: it because if we back up and we think about
• 13:48
  Speaker 2: the evolution of the First Amendment, for more than 100 years,
• 13:52
  Speaker 2: and we had a First Amendment that literally says, Congress
• 13:56
  Speaker 2: shall make no law. So the assumption that everyone made
• 13:59
  Speaker 2: based on that reading, and that's a fair reading, is
• 14:01
  Speaker 2: that it only applies to the federal government. And it
• 14:04
  Speaker 2: only applies in this really narrow sense that Congress literally
• 14:06
  Speaker 2: can't pass laws that say you can't say that or
• 14:09
  Speaker 2: you can't say this. So that when you had states say,
• 14:13
  Speaker 2: we don't like this kind of activism or these kinds
• 14:16
  Speaker 2: of expression that suggests that slavery is wrong or bad,
• 14:20
  Speaker 2: that was not really seen as a First Amendment issue
• 14:22
  Speaker 2: because it wasn't even conceptually or doctrinally possible. Now, I
• 14:27
  Speaker 2: will say that when you look at people like Elijah Lovejoy,
• 14:30
  Speaker 2: he very firmly read the the First Amendment as a
• 14:33
  Speaker 2: protection of his free speech. One of the most poignant
• 14:36
  Speaker 2: things about his story as he is continuing to move states,
• 14:40
  Speaker 2: move cities, because every time he establishes his newspaper and
• 14:45
  Speaker 2: writes about the horrors of slavery and advocates for abolition,
• 14:48
  Speaker 2: he's attacked and he has to move again. So on
• 14:51
  Speaker 2: the day that he dies, the mob has found him
• 14:53
  Speaker 2: once again, and they are at his doorstep and they
• 14:56
  Speaker 2: are saying, you have to stop writing about slavery because
• 14:58
  Speaker 2: And I can't remember the exact quotation, but he says
• 15:01
  Speaker 2: that he has the freedom to speak in this way
• 15:03
  Speaker 2: and he will use that freedom as he sees fit.
• 15:06
  Speaker 2: And he says that right before the mob shoots him
• 15:08
  Speaker 2: to death. So there's a sense in which there were
• 15:11
  Speaker 2: some members who really thought of this as could really
• 15:14
  Speaker 2: see the vision of the First Amendment that I think
• 15:16
  Speaker 2: eventually became how people wanted or at least idealistically thought
• 15:20
  Speaker 2: we meant free speech. Free speech for the most radical
• 15:23
  Speaker 2: democratic forms of speech. But by and large, I think
• 15:27
  Speaker 2: that really wasn't how people perceived it, in part because
• 15:30
  Speaker 2: there was such a backlash. When you look at Pennsylvania Hall,
• 15:34
  Speaker 2: so this is something I write about in the book,
• 15:36
  Speaker 2: the early effort, this wonderful humanistic effort that happens in 1838,
• 15:43
  Speaker 2: I hope I'm getting the date right, where you had
• 15:46
  Speaker 2: all of these luminaries coming together who were staunch anti-slavery advocates,
• 15:52
  Speaker 2: and they were also advocates for women's rights. And those
• 15:55
  Speaker 2: are two of the most controversial positions you can take
• 15:57
  Speaker 2: at the time But you had all of these people
• 16:00
  Speaker 2: wanting to come together, use their own money to build
• 16:02
  Speaker 2: this incredible building that was supposed to become a communal
• 16:07
  Speaker 2: hall for speaking freely. And they referred to the freedom
• 16:10
  Speaker 2: of speech in that way. And that it was going
• 16:12
  Speaker 2: to be for the first time that America would really
• 16:14
  Speaker 2: speak freely. Black people and white people would mingle together.
• 16:18
  Speaker 2: Women and men would mingle together. There would be lectures.
• 16:20
  Speaker 2: There'd be discussions. There'd be a bookstore. And it was
• 16:23
  Speaker 2: such an incredible moment in American history that I think
• 16:26
  Speaker 2: most people never read about. Because what happened when the
• 16:31
  Speaker 2: people of Pennsylvania, and not just in Pennsylvania, there was
• 16:33
  Speaker 2: all of these white-owned presses that were speaking about the
• 16:37
  Speaker 2: abomination of Pennsylvania Hall in their Southern newspapers and advocating
• 16:42
  Speaker 2: for people to go and fight for their rights against
• 16:45
  Speaker 2: what was happening in Pennsylvania. And all these flyers that
• 16:48
  Speaker 2: were put up around Philadelphia by people who were saying
• 16:52
  Speaker 2: that there are abominations going on at this particular hall,
• 16:56
  Speaker 2: and you should do something to stop it. And so
• 16:59
  Speaker 2: for the first week or so when they were having
• 17:01
  Speaker 2: their incredible lectures and there were all of these, this
• 17:04
  Speaker 2: incredible progressive mingling of society, these again kind of living
• 17:09
  Speaker 2: up to the aspirations that the Constitution, the Declaration of Independence,
• 17:14
  Speaker 2: the Bill of Rights actually articulated, and people were furious
• 17:17
  Speaker 2: about it. The white mobs were furious about it. White
• 17:19
  Speaker 2: businessmen were furious about it. And what happens as I
• 17:22
  Speaker 2: recount is that they get so agitated that they burn
• 17:25
  Speaker 2: the entire building down and they break in, they're breaking
• 17:29
  Speaker 2: in with stones. They start pelting the building with stones
• 17:32
  Speaker 2: as some of the speakers are speaking, right? So you've got,
• 17:36
  Speaker 2: and I put this in the book too, Angelina Grimké
• 17:38
  Speaker 2: giving her speech while there's a mob trying to break
• 17:41
  Speaker 2: in and trying to keep her physically from speaking. And
• 17:44
  Speaker 2: she just incorporates it into her speech and talks about
• 17:46
  Speaker 2: how we, she says, that we who are speaking the
• 17:49
  Speaker 2: truth have nothing to fear. They're the ones who should
• 17:51
  Speaker 2: fear and tremble. But when they leave, the mob breaks
• 17:55
  Speaker 2: in and sets and opens all the gas jets. And
• 17:57
  Speaker 2: before you know it, this incredible monument to true free speech, expression,
• 18:03
  Speaker 2: equality has been burned to the ground. So I think
• 18:06
  Speaker 2: to some extent, that was a very powerful kind of
• 18:08
  Speaker 2: dampening of this moment that free speech and democracy were intertwined.
• 18:12
  Speaker 2: I think it really did a lot to erase that
• 18:14
  Speaker 2: from memory or put such a scar on that memory
• 18:18
  Speaker 2: that that really wasn't the way it was articulated for
• 18:20
  Speaker 2: some time. And even when you saw the later abolitionist
• 18:25
  Speaker 2: movements taking up the cause, I don't think they so
• 18:29
  Speaker 2: much talked about it in terms of free speech as
• 18:30
  Speaker 2: they just said, this is about humanity. This is about evil.
• 18:33
  Speaker 2: This is about a compact with the devil, as they
• 18:35
  Speaker 2: called the constitution for its concessions to slavery. So I
• 18:39
  Speaker 2: think in some ways it was so much, the project
• 18:42
  Speaker 2: that they were working on was so much about democracy
• 18:45
  Speaker 2: and the fighting against evil that they wouldn't have articulated
• 18:49
  Speaker 2: specifically as a free speech project, because in some ways
• 18:52
  Speaker 2: that would diminish what they were doing. It was about humanity.
• 18:55
  Speaker 2: It was about stopping the scourge of something that was
• 18:58
  Speaker 2: unforgivable and was America's original sin. Wow.
• 19:02
  Speaker 1: What year was that? Philadelphia Hall, do you remember?
• 19:04
  Speaker 2: May 17th, 1838 was the day that the mob destroyed
• 19:08
  Speaker 2: Pennsylvania Hall. Amazing.
• 19:10
  Speaker 1: Incredible. Can you talk a little bit about Ida B.
• 19:12
  Speaker 1: Wells and her newspaper, Free Speeds? I think it's fascinating
• 19:15
  Speaker 1: that she chose that name for the newspaper. And why
• 19:21
  Speaker 1: was she so important? Why was her writing so important?
• 19:23
  Speaker 1: And what happened?
• 19:24
  Speaker 2: It's the post-Civil War society. She had a really interesting,
• 19:28
  Speaker 2: fascinating career as a schoolteacher. And then when she started writing,
• 19:34
  Speaker 2: she wrote about all kinds of– I can't remember exactly
• 19:39
  Speaker 2: how she phrased it, but she was mostly speaking to
• 19:41
  Speaker 2: Black individuals about what she considered to be sort of
• 19:44
  Speaker 2: interracial problems and for a while was actually quite a
• 19:48
  Speaker 2: sort of a moralistic scolding. I think it's even how
• 19:50
  Speaker 2: she described herself in her own writings, you know, that
• 19:52
  Speaker 2: she was mostly focusing on trying to tell Black people
• 19:55
  Speaker 2: how they should live their lives better. But then she
• 19:58
  Speaker 2: got really consumed by the horrors of lynching because she
• 20:02
  Speaker 2: experienced what had happened to people that she knew and
• 20:06
  Speaker 2: in neighborhoods that she lived in. And suddenly that became
• 20:10
  Speaker 2: what she really felt that she needed to communicate to
• 20:12
  Speaker 2: the public. And as you might imagine, this was not
• 20:15
  Speaker 2: received well. And it was particularly an editorial that she
• 20:19
  Speaker 2: wrote about the horrors of lynching where she wasn't just
• 20:22
  Speaker 2: talking about how lynching was a bad thing. She was saying,
• 20:25
  Speaker 2: here's what I think is actually going on with the
• 20:28
  Speaker 2: problem of lynching. And this was something I think had
• 20:31
  Speaker 2: not really been expressed before, certainly not by a black
• 20:34
  Speaker 2: female journalist. But she says, you know, the The story
• 20:39
  Speaker 2: that we keep hearing about these lynchings is that the men,
• 20:42
  Speaker 2: we're told, the black men who are usually the subject
• 20:44
  Speaker 2: of these lynchings, is that they've done something horrible to
• 20:47
  Speaker 2: white women, that they're raping white women. And she says,
• 20:51
  Speaker 2: here's what my research has shown. Because she went and
• 20:54
  Speaker 2: she would follow on these incidents and she would gather
• 20:57
  Speaker 2: information about them and ask questions. And she would say,
• 21:00
  Speaker 2: and she said, what I think is happening and what
• 21:03
  Speaker 2: seems to be happening in these places is is that
• 21:06
  Speaker 2: there's a problem of competition. And she says, and it's
• 21:08
  Speaker 2: not just economic competition, but that's a big part of it.
• 21:11
  Speaker 2: It just so turns out that many of the victims
• 21:13
  Speaker 2: of lynching are people who are black men who were
• 21:15
  Speaker 2: running businesses that were in competition with white businesses. But
• 21:20
  Speaker 2: then she suggests there's a much more intimate form of
• 21:22
  Speaker 2: competition when she says, it's not about, in many cases,
• 21:25
  Speaker 2: sexual violence against these white women. It was consensual relationships. Perfect.
• 21:31
  Speaker 2: And that, I think, is really what drove the mob
• 21:34
  Speaker 2: around her at this time from being very angry with
• 21:37
  Speaker 2: what she was saying to being enraged in a way
• 21:40
  Speaker 2: that was incredibly destructive. It was because she said, I
• 21:44
  Speaker 2: believe that Black men are not raping white women. I
• 21:47
  Speaker 2: believe that there are consensual relationships happening between Black men
• 21:50
  Speaker 2: and white women. And that is why lynching is actually happening.
• 21:52
  Speaker 2: It's a sexual vengeance project. It is why so often
• 21:57
  Speaker 2: we see that these men are tortured in these ways
• 21:59
  Speaker 2: that are very sexual and very physical. And it really
• 22:03
  Speaker 2: did seem to just animate the worst possible forces where
• 22:08
  Speaker 2: she was in Memphis to drive them to that same
• 22:12
  Speaker 2: kind of mob rage that we saw with Pennsylvania Hall.
• 22:15
  Speaker 2: So she happened to be away when the mob kind
• 22:19
  Speaker 2: of gathered itself together. And like Pennsylvania Hall, it was
• 22:22
  Speaker 2: partly because there were editorials published and newspapers advocating or
• 22:26
  Speaker 2: sort of agitating crowds to sort of get together and
• 22:28
  Speaker 2: do something. They didn't know at the time that it
• 22:31
  Speaker 2: was a woman who had authored this. They had assumed
• 22:33
  Speaker 2: it was the previous editor of her newspaper. They assumed
• 22:36
  Speaker 2: it was a man. They found him. They pistol whipped
• 22:38
  Speaker 2: him until he told them who was actually the author.
• 22:42
  Speaker 2: And at that point, talked about how she needed to
• 22:45
  Speaker 2: be lynched as well. And so there's all of this
• 22:47
  Speaker 2: talk of what they're going to do to silence her.
• 22:49
  Speaker 2: And then they break into her offices and they destroy
• 22:53
  Speaker 2: the presses of the Memphis Free Speech while she's not there.
• 22:57
  Speaker 2: So again, you see that same sense of all consuming
• 23:01
  Speaker 2: rage about the publication of this idea. And you can
• 23:05
  Speaker 2: certainly see it in the way that the white newspapers
• 23:09
  Speaker 2: talked about her editorial. They would reprint her editorial and
• 23:12
  Speaker 2: talk about how unbelievable it was that somebody would make
• 23:16
  Speaker 2: such horrific accusations. And it's so reminiscent in ways of
• 23:20
  Speaker 2: the Pennsylvania Hall reporting. After Pennsylvania Hall was burned, there
• 23:24
  Speaker 2: were a lot of editorials in Southern newspapers where they
• 23:28
  Speaker 2: might say something about how, well, it's a shame that
• 23:30
  Speaker 2: this incredible building was burned to the ground, but not
• 23:34
  Speaker 2: only were these radical ideas being stated in this hall,
• 23:37
  Speaker 2: but also white women and black men were seen leaving
• 23:41
  Speaker 2: together and sitting together. And you could see that this
• 23:43
  Speaker 2: was really something that was animating so much, so much
• 23:46
  Speaker 2: of a part of what was animating this kind of
• 23:49
  Speaker 2: mob hatred, this, you know, real censorship was that sense
• 23:53
  Speaker 2: of you cannot speak to that. You cannot speak to
• 23:55
  Speaker 2: this idea that the black races and the white races
• 23:57
  Speaker 2: might be mingling voluntarily together.
• 24:01
  Speaker 1: I'm fascinated by this idea that you mentioned in your
• 24:04
  Speaker 1: book as well, that racial justice advocates and social movements
• 24:08
  Speaker 1: succeed despite rather than because of First Amendment protections. That's
• 24:14
  Speaker 1: what we've been talking about, obviously, for the last 20 minutes.
• 24:16
  Speaker 1: But it also, like that concept just breaks everything within
• 24:20
  Speaker 1: that this myth, right, that we understand, where it's actually,
• 24:25
  Speaker 1: they might be embracing the idea of free speech, but
• 24:28
  Speaker 1: still they're succeeding, like, despite the protections that are actually
• 24:33
  Speaker 1: waged against them, right? Can you just speak a little
• 24:36
  Speaker 1: bit to this?
• 24:37
  Speaker 2: Yeah, I mean, and I think it's in two ways, right?
• 24:40
  Speaker 2: It's that it's in spite of the First Amendment in
• 24:42
  Speaker 2: part because you think about what would have happened. If
• 24:46
  Speaker 2: we imagine an alternative America, right, where from the beginning
• 24:51
  Speaker 2: we took the concept of free speech in the way
• 24:54
  Speaker 2: that Elijah Lovejoy took it, which is to say, we
• 24:57
  Speaker 2: have to recognize if freedom of speech means anything, it
• 25:00
  Speaker 2: is the freedom to criticize what we are doing, what
• 25:03
  Speaker 2: the powerful people are doing in our society. And the
• 25:05
  Speaker 2: most important thing for us to articulate at that time
• 25:09
  Speaker 2: is slavery. And close on its heels is the subjugation
• 25:14
  Speaker 2: of women, right? Imagine if that had really been allowed
• 25:17
  Speaker 2: to sort of take, if Pennsylvania Hall had never burned
• 25:19
  Speaker 2: down and it really did become a temple of humanity
• 25:22
  Speaker 2: where people began to see that things that they were
• 25:25
  Speaker 2: deeply wedded to, ideas that they had always grown up
• 25:27
  Speaker 2: thinking were correct, if they really had been challenged by
• 25:31
  Speaker 2: other ways of thinking, if that had been allowed to flourish.
• 25:34
  Speaker 2: I mean, think about how radical and revolutionary that would
• 25:36
  Speaker 2: have been. And then imagine that if that had shifted
• 25:40
  Speaker 2: our discourse considerably, Could it have meant that we weren't
• 25:44
  Speaker 2: going to have to have a bloody conflict to settle
• 25:46
  Speaker 2: these scores? Could it have meant that we really did
• 25:49
  Speaker 2: learn the lesson already too late, but still better than
• 25:52
  Speaker 2: nothing to say that is what freedom of speech means
• 25:54
  Speaker 2: and we have to embrace that? That's truly the speech
• 25:57
  Speaker 2: we hate. That is to say, the speech that the
• 25:59
  Speaker 2: powerful members of our society hate. We must give it
• 26:03
  Speaker 2: as much protection as we can, right? I think about
• 26:05
  Speaker 2: the mayor of Philadelphia being the people at Pennsylvania Hall
• 26:10
  Speaker 2: pleading with him to give them protection because they knew
• 26:13
  Speaker 2: that the mob was coming for them. And the mayor
• 26:15
  Speaker 2: was basically saying, well, what can you do? You are
• 26:17
  Speaker 2: saying radical things. And he really basically declined to protect
• 26:20
  Speaker 2: them and later blame them for their own destruction. So
• 26:24
  Speaker 2: imagine that we have this evolution where we move past
• 26:27
  Speaker 2: certain types of racial injustice because we are truly radical
• 26:32
  Speaker 2: and realize that we can get past our own original sin.
• 26:35
  Speaker 2: So that would have been a very different context in
• 26:37
  Speaker 2: which civil rights wouldn't have had to take the path
• 26:39
  Speaker 2: that it did. But also we would have learned that
• 26:42
  Speaker 2: that is what it means to be radical and revolutionary
• 26:46
  Speaker 2: in the sense of the First Amendment. Instead, you get
• 26:49
  Speaker 2: the Clarence Brandenburg version of what it means to be
• 26:51
  Speaker 2: radical and revolutionary. We skip the part where it actually
• 26:54
  Speaker 2: becomes the norm that slavery and all forms of racism
• 26:59
  Speaker 2: and sexism are evil and wrong. Instead, it goes from
• 27:01
  Speaker 2: becoming the way the world, the way that society is
• 27:04
  Speaker 2: constructed to, oh, he's saying something very edgy that's probably
• 27:07
  Speaker 2: making you uncomfortable, but for that reason, we should protect it.
• 27:10
  Speaker 2: And it's like there's nothing in between. And so at
• 27:13
  Speaker 2: that point, it gets, quite literally, the KKK gets a
• 27:16
  Speaker 2: second life and a third life, right? And it's partly
• 27:18
  Speaker 2: because it's revitalized through these perversions of the concept of
• 27:22
  Speaker 2: free speech to say, well, we must be allowed to
• 27:24
  Speaker 2: say these things now that slavery has been abolished. We
• 27:27
  Speaker 2: fix things in terms of racial equality. injustice and now
• 27:30
  Speaker 2: it's all gone too far. And so we are going
• 27:32
  Speaker 2: to be the old guard who is going to be
• 27:34
  Speaker 2: talking about how things used to be. And then immediately
• 27:36
  Speaker 2: that's what gets so much protection, gets so much rhetorical
• 27:41
  Speaker 2: resources and protection. So you do that and then you
• 27:44
  Speaker 2: allow for things like what I talk about in the
• 27:48
  Speaker 2: book about birth of a nation and how it goes
• 27:51
  Speaker 2: from being this very controversial play that sparks riots everywhere
• 27:55
  Speaker 2: it's performed to becomes a movie, which sparks riots and
• 27:58
  Speaker 2: lynchings everywhere it is seen. And you get one of
• 28:01
  Speaker 2: the first sort of showdowns between the NAACP and the ACLU, right?
• 28:04
  Speaker 2: Where the NAACP is saying, this is going to get
• 28:07
  Speaker 2: people killed. And the ACLU saying, you really need to
• 28:10
  Speaker 2: understand that if you're trying to advocate for censorship, it's
• 28:13
  Speaker 2: going to hurt you too at some point. And it's
• 28:16
  Speaker 2: one of those moments in the book where I'm trying
• 28:17
  Speaker 2: to articulate the expression on my face when I read this,
• 28:20
  Speaker 2: you know, this idea of the NAACP being lectured by
• 28:24
  Speaker 2: the ACLU, by the white director of the ACLU say,
• 28:27
  Speaker 2: it's going to come around and hurt black people, right?
• 28:29
  Speaker 2: The law isn't going to work for you if you
• 28:31
  Speaker 2: advocate for restrictions now. And the obvious point being that
• 28:35
  Speaker 2: the law has never really worked for black people. Of course,
• 28:37
  Speaker 2: it's going to be used against them. It has been
• 28:39
  Speaker 2: this entire time. That whole premise of the, well, don't
• 28:43
  Speaker 2: censor the radical white supremacist speech because it's going to
• 28:47
  Speaker 2: mean that you'll get censored too, completely erases the fact
• 28:50
  Speaker 2: that Radical abolitionist speech, as we were just talking about,
• 28:53
  Speaker 2: has always been censored, has always been suppressed. So it's
• 28:56
  Speaker 2: this kind of retelling of history that is so perverse
• 28:59
  Speaker 2: because it's also this kind of lecturing that says, if
• 29:02
  Speaker 2: you just had a sophisticated enough view of speech and
• 29:05
  Speaker 2: just enough confidence in the American people, you would understand
• 29:08
  Speaker 2: that we just need to allow this kind of material
• 29:11
  Speaker 2: to flourish so that you will be saved as much
• 29:14
  Speaker 2: as the white supremacists will be saved.
• 29:16
  Speaker 1: Yeah, I'm so grateful to talk with you today. This
• 29:19
  Speaker 1: is like, this is so important, because this is the
• 29:21
  Speaker 1: question I always that I keep coming back to as well, like,
• 29:25
  Speaker 1: that what you just mentioned is the is the discourse, right?
• 29:28
  Speaker 1: It is like, it needs to be free for everybody.
• 29:31
  Speaker 1: And that's why we have to defend, you know, KKK
• 29:34
  Speaker 1: and neo Nazis and whatever else, but yet, people that
• 29:36
  Speaker 1: are standing up with fearless speech, they don't get defended.
• 29:39
  Speaker 1: This is like the next step to that. Do we
• 29:43
  Speaker 1: need regulation? Should there be regulation around hate speech? Should
• 29:46
  Speaker 1: there be regulations limiting like the reckless speech of people
• 29:51
  Speaker 1: or the speech that leads that is rooted in hate
• 29:54
  Speaker 1: or racism, whatever else?
• 29:56
  Speaker 2: One of the things that I think we need is
• 29:58
  Speaker 2: to stop thinking of hate speech as a category. I
• 30:01
  Speaker 2: think that I say this for the American context because
• 30:04
  Speaker 2: it is meaningful in the European context because they have
• 30:07
  Speaker 2: a definition of it. It has legal force in other places. Here,
• 30:12
  Speaker 2: I really feel like it always distorts the conversation because
• 30:15
  Speaker 2: we don't actually all agree, I'm sure, about what it
• 30:18
  Speaker 2: actually means to say what hate speech is. And when
• 30:21
  Speaker 2: we say either of these two very familiar assertions, which
• 30:26
  Speaker 2: is either The First Amendment protects hate speech. It just does.
• 30:28
  Speaker 2: That's what makes us so special. Or the First Amendment
• 30:31
  Speaker 2: doesn't protect hate speech, which we heard the Trump administration
• 30:34
  Speaker 2: of all administrations trying to say. They're both wrong, right?
• 30:38
  Speaker 2: Because partly because we're not, we don't really have a
• 30:41
  Speaker 2: category like this. When you think about how you can't
• 30:44
  Speaker 2: actually use racial slurs in the workplace, for instance, you
• 30:48
  Speaker 2: cannot threaten people, whether it's based on their race or
• 30:52
  Speaker 2: something else. If you're making a true threat towards someone,
• 30:54
  Speaker 2: that's not allowed either. Many people would consider non-consensual pornography
• 30:58
  Speaker 2: to be a kind of form of antagonistic speech that's also,
• 31:02
  Speaker 2: as far as we know, until the Supreme Court says differently,
• 31:04
  Speaker 2: also not protected by the First Amendment. So I think
• 31:09
  Speaker 2: we shouldn't enter this discourse of, is it hate or
• 31:12
  Speaker 2: not hate? Because it's always been such a strange concept, right?
• 31:17
  Speaker 2: Part of what I think, what I sometimes refer to
• 31:19
  Speaker 2: cynically as the free speech industry speak about this is,
• 31:22
  Speaker 2: They like those terms like hate because they're so ambiguous
• 31:25
  Speaker 2: that you can do whatever you want with them. That's
• 31:27
  Speaker 2: how you get the cliche of we have to protect
• 31:29
  Speaker 2: the speech we hate without ever asking, what does that
• 31:32
  Speaker 2: mean to someone like Hugo Black, who himself was a
• 31:34
  Speaker 2: KKK member in his youth, right? He's sitting on the
• 31:37
  Speaker 2: Supreme Court. What is the speech he hates? I don't know.
• 31:39
  Speaker 2: I mean, so I think we ask much more usefully
• 31:43
  Speaker 2: and always have asked, but we haven't been clear about
• 31:45
  Speaker 2: what we've been asking. The best version of the First
• 31:48
  Speaker 2: Amendment and the balance of what we're trying to do
• 31:51
  Speaker 2: by protecting speech, because it can't just mean you protect
• 31:54
  Speaker 2: all speech all the time. We never have as a country,
• 31:56
  Speaker 2: and it would not be an ideal way to run
• 31:59
  Speaker 2: a country. I don't think you could run a country
• 32:01
  Speaker 2: by saying all speech is protected. When you think about
• 32:04
  Speaker 2: all the ways that we do already restrict speech, we
• 32:07
  Speaker 2: don't allow perjury. We don't allow the counterfeiting of money.
• 32:09
  Speaker 2: We don't allow you to say, at least knock on
• 32:12
  Speaker 2: wood right now, that a bottle of aspirin is actually
• 32:15
  Speaker 2: heroin or the other way around. We don't allow people
• 32:18
  Speaker 2: to engage in child pornography. We don't allow people to
• 32:21
  Speaker 2: defame others completely even if they know that things are untrue.
• 32:26
  Speaker 2: So the best version of what we have under the
• 32:31
  Speaker 2: First Amendment is we separate harm from offense. The best
• 32:35
  Speaker 2: version of the First Amendment we could have is one
• 32:37
  Speaker 2: that says we can restrict, we always have restricted things
• 32:41
  Speaker 2: that we consider to be harmful and we can regulate
• 32:44
  Speaker 2: those in certain kinds of ways. Now the only debate
• 32:46
  Speaker 2: should be over what falls into that category. What we
• 32:49
  Speaker 2: ought to get rid of are things like hate and
• 32:51
  Speaker 2: offense and whatever those things mean, because they are so
• 32:55
  Speaker 2: incredibly subjective and so easy to weaponize, right? You look
• 32:59
  Speaker 2: at how the Republicans, the Republican party has for many
• 33:02
  Speaker 2: years tried to say that they are the free speech
• 33:04
  Speaker 2: party and they're just out there trying to advocate for
• 33:07
  Speaker 2: the radical speech and the speech we hate. And then
• 33:10
  Speaker 2: as soon as it's speech that they don't like, they
• 33:13
  Speaker 2: come out swinging saying, well, you can't, possibly speak ill
• 33:15
  Speaker 2: of charlie kirk right so you know how easy it's
• 33:18
  Speaker 2: going to be to weaponize concepts like hate and offense
• 33:21
  Speaker 2: and you know people shouldn't be allowed to say distasteful
• 33:23
  Speaker 2: things i think we really need to be clear though
• 33:26
  Speaker 2: the fact that something is offensive or distasteful or hateful
• 33:29
  Speaker 2: also is not a sign of its merit right we
• 33:31
  Speaker 2: don't need to fall for that either it's just that
• 33:33
  Speaker 2: it's irrelevant and it was really well put in a
• 33:35
  Speaker 2: few of our previous supreme court cases like cohen versus
• 33:38
  Speaker 2: california which is the fuck the draft case the court
• 33:41
  Speaker 2: says the fact that it's offensive is not enough reason
• 33:44
  Speaker 2: to regulate it. And that's exactly right. But there may
• 33:48
  Speaker 2: be points at which, for instance, as the court says
• 33:50
  Speaker 2: about child pornography, there are certain forms of speech that
• 33:52
  Speaker 2: are so harmful. And just to be clear, because I
• 33:55
  Speaker 2: know people always think when they hear that exception, they think, well,
• 33:58
  Speaker 2: that's because it always really involves a crime. Not true.
• 34:01
  Speaker 2: Kids who take pictures of themselves, right? That gets distributed
• 34:05
  Speaker 2: by adults. That is considered child pornography, even though the
• 34:08
  Speaker 2: original act is not criminal. So we've just decided that
• 34:13
  Speaker 2: certain things are harmful enough. And now let's just actually
• 34:16
  Speaker 2: be inclusive about that and count other people than, say,
• 34:19
  Speaker 2: white men in the category of people who can be
• 34:22
  Speaker 2: harmed and things that maybe white men in particular might
• 34:25
  Speaker 2: really like but really hurt other people maybe deserve to
• 34:28
  Speaker 2: be regulated because they might be things that are as
• 34:31
  Speaker 2: serious as defamation, as serious as perjury, as serious as
• 34:34
  Speaker 2: a HIPAA violation, and actually consider what it means to
• 34:37
  Speaker 2: articulate harm in that sense and regulate accordingly.
• 34:42
  Speaker 1: Can you talk about the marketplace of ideas? For you,
• 34:45
  Speaker 1: what does this mean? And is our praise for this
• 34:48
  Speaker 1: idea flawed?
• 34:50
  Speaker 2: For a long time, I used to criticize the metaphor
• 34:53
  Speaker 2: because I thought, well, what a horrible metaphor that is.
• 34:56
  Speaker 2: That shouldn't be the way that we look at speech.
• 34:57
  Speaker 2: And now I've come to the point of saying, it's
• 35:01
  Speaker 2: not that it's a horrible metaphor, it's that it's entirely accurate.
• 35:04
  Speaker 2: And because... Because this is something I've noticed about the
• 35:08
  Speaker 2: strange convergence between civil libertarians and economic libertarians, right? Which
• 35:13
  Speaker 2: is this idea that the market somehow is good. The
• 35:16
  Speaker 2: presumption that markets are good and that markets work and
• 35:19
  Speaker 2: that the best way to have a functioning market is
• 35:22
  Speaker 2: to never regulate it. And none of that is true, right?
• 35:26
  Speaker 2: But all the things that I think people who are
• 35:28
  Speaker 2: savvy about free market ideals would say, which is that
• 35:31
  Speaker 2: there's no such thing as an unregulated market. full stop.
• 35:35
  Speaker 2: There's always regulation. You can't have a market unless you regulate.
• 35:38
  Speaker 2: The question is always, how do you regulate? Who do
• 35:41
  Speaker 2: you regulate? And what are you regulating for? Once you
• 35:44
  Speaker 2: understand that, you realize that deregulation is almost always an
• 35:47
  Speaker 2: ideological pre-commitment to an asymmetry, right? The haves have and
• 35:52
  Speaker 2: the have-nots don't. And so, yeah, we'll just freely let
• 35:55
  Speaker 2: them have interactions with each other and hope for the best.
• 35:59
  Speaker 2: And that's really what we are doing with our free
• 36:01
  Speaker 2: speech discourse. We are saying, whatever the status quo is,
• 36:05
  Speaker 2: just don't touch it, right? We just shouldn't. I mean,
• 36:07
  Speaker 2: we've got enough laws. We can't possibly come up with
• 36:09
  Speaker 2: anything now that would be wise. And so just leave
• 36:11
  Speaker 2: it alone. And that's ridiculous. And I think most people
• 36:15
  Speaker 2: who would hear that about the market, the actual economic
• 36:18
  Speaker 2: market would understand that's a crazy thing to say, that
• 36:20
  Speaker 2: you're going to get the best possible outcome by just
• 36:23
  Speaker 2: letting the status quo flourish. And so I would just
• 36:26
  Speaker 2: suggest that we be as critical about the marketplace of
• 36:29
  Speaker 2: ideas as we ought to be critical about economic inequality
• 36:33
  Speaker 2: and distorted markets and monopolies and all the things that
• 36:35
  Speaker 2: we should recognize are bad things when they happen economically
• 36:39
  Speaker 2: and are really bad when they come to ideology as well. Amazing.
• 36:43
  Speaker 1: Marianne, just a few more questions and thank you so much.
• 36:46
  Speaker 1: What is your definition of free speech and would you
• 36:52
  Speaker 1: say that Trump is trying to kind of redefine what
• 36:54
  Speaker 1: we understand as free speech today?
• 36:58
  Speaker 2: Yes, I definitely think that there's a redefinition going on.
• 37:02
  Speaker 2: And it's not just Trump. I mean, it's been in
• 37:03
  Speaker 2: the works for some time. His administration is putting it
• 37:07
  Speaker 2: into effect in a way that we've never seen before.
• 37:10
  Speaker 2: We've never seen on the scale. I think it is
• 37:12
  Speaker 2: really close, as many people have highlighted, is close to
• 37:16
  Speaker 2: the McCarthy era version of what free speech, of not
• 37:19
  Speaker 2: what free speech is, but the McCarthy era of what
• 37:21
  Speaker 2: we are allowed to suppress in the name of ideological conformity.
• 37:25
  Speaker 2: And this is where I think it's really important because
• 37:27
  Speaker 2: I've noticed this about reactions to my book where people
• 37:31
  Speaker 2: seem to think what I'm saying is, well, we shouldn't
• 37:33
  Speaker 2: protect any speech except fearless speech. And then the criticism is, well,
• 37:37
  Speaker 2: who gets to decide what fearless speech is? You just
• 37:38
  Speaker 2: want speech you like. Okay, so I want to separate
• 37:42
  Speaker 2: that fearless speech is what I consider to be valuable
• 37:45
  Speaker 2: and interesting and we should celebrate. But that's actually different
• 37:48
  Speaker 2: from the legal question of what should be protected by
• 37:51
  Speaker 2: the First Amendment. It's a cultural question versus a legal one.
• 37:55
  Speaker 2: But the legal one, I think, is one about staying
• 37:57
  Speaker 2: true to the best versions of our doctrinal tradition. And
• 38:01
  Speaker 2: we do have some really good lights on this. And
• 38:04
  Speaker 2: particularly the case of West Virginia Board of Education versus
• 38:07
  Speaker 2: Barnett is, I think, it is the case that we
• 38:10
  Speaker 2: should be looking to to see what the First Amendment
• 38:13
  Speaker 2: really should have always meant and should continue to mean
• 38:17
  Speaker 2: if it is going to do its one job. And
• 38:20
  Speaker 2: I firmly believe this. And if I'm on the other
• 38:23
  Speaker 2: side of people when I say this, so be it.
• 38:25
  Speaker 2: But the First Amendment's one job is to keep us
• 38:27
  Speaker 2: from becoming a totalitarian society. That's its primary job. Everything
• 38:31
  Speaker 2: else is secondary. And if your free speech doctrine, if
• 38:35
  Speaker 2: your free speech law isn't keeping us from sliding into fascism,
• 38:38
  Speaker 2: but is instead accelerating our path to fascism, then it's
• 38:41
  Speaker 2: not working. So what do we have in 1943? We
• 38:44
  Speaker 2: have Justice Robert Jackson, who in two years later, is
• 38:47
  Speaker 2: going to become such a key figure in the Nuremberg trials,
• 38:50
  Speaker 2: someone who is paying attention to what is happening in
• 38:52
  Speaker 2: Nazi Germany, who is paying attention over and over again
• 38:56
  Speaker 2: to the idea that democratic ideals, including freedom of speech,
• 39:00
  Speaker 2: can be appropriated for fascist ends. He is aware of
• 39:03
  Speaker 2: it in a way that I think is probably singular
• 39:05
  Speaker 2: among Supreme Court justices. And we get this case that
• 39:08
  Speaker 2: is seemingly innocuous, right? It's a case about So kids
• 39:13
  Speaker 2: in a public elementary school who have refused because of
• 39:15
  Speaker 2: their religion, their Jehovah's Witnesses, have refused to take the
• 39:18
  Speaker 2: Pledge of Allegiance in this compelled way to give the pledge,
• 39:22
  Speaker 2: to recite the Pledge of Allegiance, and they're expelled. And
• 39:25
  Speaker 2: the question is whether a public school as an arm
• 39:27
  Speaker 2: of the government is allowed to force that kind of compulsion.
• 39:32
  Speaker 2: And not only does Justice Jackson point out something that
• 39:35
  Speaker 2: I think gets lost in a lot of our First Amendment,
• 39:39
  Speaker 2: sort of the culturally popular, popular culture version of the
• 39:41
  Speaker 2: First Amendment, which is the freedom to speak is as
• 39:44
  Speaker 2: much about the freedom not to speak as anything else.
• 39:47
  Speaker 2: So he says, yes, compelled speech, the government telling you
• 39:50
  Speaker 2: the ideas you have to have is just as damaging
• 39:53
  Speaker 2: as telling you what ideas you're not allowed to have.
• 39:56
  Speaker 2: So why do I love this case? And why do
• 39:58
  Speaker 2: I think that that is the version of free speech
• 40:01
  Speaker 2: we need to have? And I guess I would be
• 40:04
  Speaker 2: a little pedantic about this to say, I don't know
• 40:08
  Speaker 2: that it's a My version of free speech is large
• 40:11
  Speaker 2: and cultural and needs sort of content. My version of
• 40:15
  Speaker 2: the First Amendment is you cannot impose government orthodoxy. That's
• 40:19
  Speaker 2: what Justice Jackson says in this case. Whether by punishing
• 40:24
  Speaker 2: people for saying things that are critical of the government
• 40:27
  Speaker 2: or by forcing people to say things that we consider
• 40:29
  Speaker 2: to be the right way, either one of those violates
• 40:32
  Speaker 2: the First Amendment. And it's such a clear... articulation of
• 40:36
  Speaker 2: what is so important about the first amendment which is
• 40:38
  Speaker 2: that it's it's the the the purpose of the first
• 40:41
  Speaker 2: amendment is to restrain the government restrain the government not
• 40:44
  Speaker 2: to restrain social media unless of course the person who
• 40:47
  Speaker 2: owns social media is also a government official which is
• 40:50
  Speaker 2: true of true social because donald trump owns uh true
• 40:53
  Speaker 2: social which was true when elon musk was in the
• 40:56
  Speaker 2: government so putting that aside because that should never have
• 40:58
  Speaker 2: happened um It is not about lecturing universities about what
• 41:03
  Speaker 2: they can and can't say. It is not about lecturing
• 41:05
  Speaker 2: social media companies or Jimmy Kimmel or anybody else. It
• 41:08
  Speaker 2: is about the government not being allowed to tell you
• 41:10
  Speaker 2: what to say and not being allowed to punish you
• 41:13
  Speaker 2: for what you say simply because it doesn't like it.
• 41:16
  Speaker 2: That I think is the best articulation of what the
• 41:18
  Speaker 2: First Amendment's job really is. And that is how the
• 41:21
  Speaker 2: Trump administration has flipped it entirely on its head, right?
• 41:24
  Speaker 2: Because what is the Trump administration saying over and over again?
• 41:27
  Speaker 2: It's saying to private actors, We, the government, are allowed
• 41:30
  Speaker 2: to tell you what to say, right? Jimmy Kimmel said
• 41:33
  Speaker 2: something we don't like. We, the government, are going to
• 41:35
  Speaker 2: try to get him fired or threaten someone so that
• 41:37
  Speaker 2: he does get fired. The government is now saying, we
• 41:40
  Speaker 2: think that there's one way for you to respond to
• 41:42
  Speaker 2: Charlie Kirk's death. And if you don't say that, then
• 41:44
  Speaker 2: we can punish you for that. That is exactly the
• 41:47
  Speaker 2: opposite of what free speech means in a meaningful First
• 41:49
  Speaker 2: Amendment sense. It has to be about restraining the government
• 41:52
  Speaker 2: so that the rest of us who are not in
• 41:54
  Speaker 2: the government are allowed to speak as freely to each
• 41:57
  Speaker 2: other as we want. not to have that criticized as
• 41:59
  Speaker 2: cancel culture or wokeness or whatever one wants to call it. DEI,
• 42:03
  Speaker 2: look at that, right? Diversity, equality, inclusion. Those are forms
• 42:07
  Speaker 2: of speech. Those are forms of exchange. Those are forms
• 42:09
  Speaker 2: of having debates, having a question about whether more values
• 42:14
  Speaker 2: as opposed to fewer values is a good idea. Those
• 42:18
  Speaker 2: things are speech and those attempts to restrict it by
• 42:21
  Speaker 2: the government are forms of censorship. And that's what we
• 42:23
  Speaker 2: have to see beyond the distortions of what the Trump
• 42:26
  Speaker 2: administration is telling us.
• 42:28
  Speaker 1: So important. What's your level of concern around the state
• 42:34
  Speaker 1: of free speech today under Trump? Have we ever seen
• 42:38
  Speaker 1: a situation like this in modern America?
• 42:42
  Speaker 2: I don't think we have. I mean, in the early
• 42:44
  Speaker 2: days of the second Trump administration, I, along with a
• 42:47
  Speaker 2: lot of other people, were making comparisons to the McCarthy era.
• 42:51
  Speaker 2: And I think most of us who are paying attention
• 42:52
  Speaker 2: are saying this is so far beyond what happened during McCarthy,
• 42:57
  Speaker 2: partly because McCarthy didn't have the same cult of personality
• 43:01
  Speaker 2: around him and he wasn't the president. There were limitations
• 43:04
  Speaker 2: on how much power and how much damage he could do.
• 43:08
  Speaker 2: And there are no limitations on Trump because of our
• 43:10
  Speaker 2: Supreme Court basically telling him that there are no limitations
• 43:13
  Speaker 2: on what he's allowed to do. And whether we in litigation,
• 43:17
  Speaker 2: because I don't want to sound fatalist in the sense
• 43:19
  Speaker 2: that it is true that people are standing up and
• 43:22
  Speaker 2: fighting and courts, some courts, are acting on their principles
• 43:27
  Speaker 2: regardless of the personal threats to them, which it is
• 43:30
  Speaker 2: a horrific thing to have to acknowledge in our society
• 43:33
  Speaker 2: that judges are under threat because they are doing their jobs.
• 43:38
  Speaker 2: And that litigation is going to save some of this, right?
• 43:40
  Speaker 2: But then in the meantime, we have an administration that
• 43:43
  Speaker 2: does not believe that it is constrained by the law.
• 43:45
  Speaker 2: I don't think we've ever seen that in the United States,
• 43:47
  Speaker 2: at least in modern history. And so it's not just
• 43:51
  Speaker 2: the free speech question, but again, the free speech question
• 43:53
  Speaker 2: is hugely important But this is a government that is,
• 43:56
  Speaker 2: in fact, declared an all-out assault on all speech that
• 44:01
  Speaker 2: does not conform to what Trump says it should conform to.
• 44:05
  Speaker 2: And so we're being attacked on every side. It's universities.
• 44:08
  Speaker 2: It's social media. It's mass media. It's newspapers. And it's
• 44:11
  Speaker 2: not just through, we're going to throw you all in
• 44:13
  Speaker 2: jail or we're going to send armed soldiers towards you,
• 44:17
  Speaker 2: although that's a huge part of it. It's also because
• 44:20
  Speaker 2: of the marketplace, the literal marketplace. where Jeff Bezos owns
• 44:25
  Speaker 2: the Washington Post and Amazon and a gazillion other things.
• 44:28
  Speaker 2: And Elon Musk has all this power to use X
• 44:31
  Speaker 2: as a propaganda channel for his own views, for Donald
• 44:34
  Speaker 2: Trump to be able to get personal enrichment from Truth
• 44:37
  Speaker 2: Social as his propaganda channel. It is the conglomeration, all
• 44:41
  Speaker 2: the consolidation we're seeing around mainstream media as well. The
• 44:44
  Speaker 2: fact that we've got like one handful of corporations that
• 44:47
  Speaker 2: are controlling all the ways that we get information, exchange information,
• 44:51
  Speaker 2: this is a real problem and the Trump administration didn't
• 44:54
  Speaker 2: create it, but it's been going, they are making such
• 44:56
  Speaker 2: good use of the fact that there are, our entire
• 44:59
  Speaker 2: information ecosystem is essentially dominated by six men, right? So
• 45:04
  Speaker 2: that is something that we should all be terrified by
• 45:06
  Speaker 2: because it is the government acting with its powers to,
• 45:09
  Speaker 2: to hurt people, to deport people, to kidnap people, to
• 45:13
  Speaker 2: torture people, which is hugely, there's no way that we
• 45:16
  Speaker 2: can have free speech under that kind of regime. And
• 45:19
  Speaker 2: we know that when we look at other countries, but
• 45:21
  Speaker 2: also unprecedented levels of entanglement between the government and all
• 45:25
  Speaker 2: forms of media communications, social media, media, other forms. So
• 45:29
  Speaker 2: they're also controlling the kind of output as well as
• 45:31
  Speaker 2: the input. It's all under this kind of, frankly, fascistic control.
• 45:35
  Speaker 2: And it's what I've called a techno-fascist control because the
• 45:40
  Speaker 2: intertwining of these industries has meant we have a kind
• 45:44
  Speaker 2: of a fully surveillance society where the capacity for the
• 45:47
  Speaker 2: government to control what we're saying or try to control
• 45:50
  Speaker 2: what we're saying is it's like nothing we've ever seen before. Yeah.
• 45:54
  Speaker 1: I want to talk about social media just for a
• 45:56
  Speaker 1: second because I feel like, you know, you mentioned Jeff Bezos, right?
• 46:00
  Speaker 1: When he decided earlier this year that the opinion pages
• 46:03
  Speaker 1: of the Washington Post would only be pro-free market because
• 46:07
  Speaker 1: now social media is there and anyone can say whatever
• 46:10
  Speaker 1: they want. There's this myth out there that social media
• 46:12
  Speaker 1: has democratized our ability to communicate with each other. What's
• 46:17
  Speaker 1: really at play now With social media, what are the
• 46:22
  Speaker 1: biggest concerns, the challenges? Is it really a force for
• 46:25
  Speaker 1: good and for free speech in kind of our world today?
• 46:30
  Speaker 2: Well, the short answer is no. And, you know, the
• 46:33
  Speaker 2: complicated answer is could it have been? And I think
• 46:35
  Speaker 2: the answer to that is yes. But it was, again,
• 46:38
  Speaker 2: the same mistake that America makes over and over again,
• 46:40
  Speaker 2: which is assuming that our aspirations are reality, right? You
• 46:44
  Speaker 2: think about how in 1996, when the Communications Decency Act,
• 46:48
  Speaker 2: the first attempt to try to regulate the Internet is
• 46:51
  Speaker 2: passed and it includes this Section 230, which is trying
• 46:55
  Speaker 2: to go in a different direction because there was this
• 46:57
  Speaker 2: huge push to kind of a moral panic over, well,
• 46:59
  Speaker 2: the Internet's going to mean that kids can access pornography.
• 47:02
  Speaker 2: So most of the Communications Decency Act was about trying
• 47:05
  Speaker 2: to restrict the Internet and And you have this little
• 47:09
  Speaker 2: Section 230 that was trying to say, oh, actually, we
• 47:11
  Speaker 2: think that this is the marketplace of ideas. And so
• 47:15
  Speaker 2: here's an approach that lets them regulate themselves. And you
• 47:20
  Speaker 2: give it a few years, and the Supreme Court has
• 47:21
  Speaker 2: said all that stuff about regulating the internet is unconstitutional.
• 47:24
  Speaker 2: And the part that remains is that part that says,
• 47:27
  Speaker 2: let them regulate themselves and do what they want. So
• 47:30
  Speaker 2: I think when you think about why that was the case,
• 47:33
  Speaker 2: the rhetoric that was already suffusing that conversation, which was,
• 47:37
  Speaker 2: we are, you know, Americans are amazing. And all we
• 47:39
  Speaker 2: need is, is to have unfettered access to each other
• 47:42
  Speaker 2: and to talk like, as long as, you know, we,
• 47:43
  Speaker 2: now we have this, this brand new tool, we'll just
• 47:45
  Speaker 2: do wonderful democratic things with it. And, you know, a
• 47:49
  Speaker 2: lot of people want to romanticize what the internet looked
• 47:51
  Speaker 2: like in 1996. And to explain all this by saying, well,
• 47:54
  Speaker 2: they just didn't know what was coming. And the truth
• 47:56
  Speaker 2: of the matter is, if you were paying attention, you
• 47:58
  Speaker 2: did know where this was coming, because what has been
• 48:01
  Speaker 2: the story of everything of our society, which is powerful tools,
• 48:05
  Speaker 2: great opportunities in the United States, are they going to
• 48:08
  Speaker 2: be used to actually be democratic and to expand equality?
• 48:13
  Speaker 2: Are they going to be used by the powerful to
• 48:15
  Speaker 2: shore up more power for themselves and crush everybody else?
• 48:18
  Speaker 2: Why would we think this was going to be different,
• 48:20
  Speaker 2: especially given the fact that for several years before 1996,
• 48:24
  Speaker 2: white supremacists had already made clear that the internet was
• 48:27
  Speaker 2: their future. white supremacists were writing manifestos where they said,
• 48:31
  Speaker 2: imagine computers connected all throughout the world where we can
• 48:34
  Speaker 2: bring about the next great white reckoning. It was already there.
• 48:38
  Speaker 2: It was all already there. And the idea that any
• 48:41
  Speaker 2: legislator could sit back and say, well, I really, I'm
• 48:43
  Speaker 2: just going to trust that this is all going to
• 48:45
  Speaker 2: work out because this is a new tool. New things
• 48:48
  Speaker 2: will happen. We're finally going to be democratic. You can
• 48:50
  Speaker 2: call it naivete, you can call it idealism, or you
• 48:52
  Speaker 2: can call it a cynical kind of reaction that says that, yes,
• 48:56
  Speaker 2: people in power always assume that things are going to
• 48:58
  Speaker 2: work out well for them. And oftentimes they're right. As
• 49:01
  Speaker 2: it turns out this time, I think they're actually wrong
• 49:03
  Speaker 2: because unless you're a part of the uber, uber wealthy,
• 49:06
  Speaker 2: all of us together, including the more privileged and the
• 49:09
  Speaker 2: less privileged, we are all in trouble. All of us
• 49:12
  Speaker 2: are suffering because of it. And any person, it's not
• 49:15
  Speaker 2: just women now, and it's not just racial minorities now.
• 49:18
  Speaker 2: It's not just people whose gender identity is controversial. It
• 49:21
  Speaker 2: is everyone who is going to be surveilled. Anyone who
• 49:25
  Speaker 2: can be put in jail for their thoughts. It's, it's,
• 49:27
  Speaker 2: you know, we've seen this in terms of the fragmentation
• 49:29
  Speaker 2: on the right, when people on the right are starting
• 49:31
  Speaker 2: to figure out that actually, wait, you too. Yes. First,
• 49:34
  Speaker 2: they came all of that. You didn't learn this lesson
• 49:37
  Speaker 2: ever before, but I think you're about to learn it now.
• 49:40
  Speaker 2: So what was the problem? Part of the problem was
• 49:42
  Speaker 2: that original kind of blank check to the industry to say,
• 49:45
  Speaker 2: do whatever you want, we trust you. And for that
• 49:47
  Speaker 2: never to change, even as we saw power consolidate and
• 49:50
  Speaker 2: we saw all the kind of radical, interesting dissent that emerged,
• 49:56
  Speaker 2: all those kind of fun, amazing spaces on the internet,
• 49:59
  Speaker 2: just all get flattened out into Facebook and into Twitter
• 50:03
  Speaker 2: and into Again, three or four handful of platforms that
• 50:06
  Speaker 2: become the dominant ones who just so happen to be
• 50:08
  Speaker 2: multi-billion dollar corporations that keep buying up other platforms. And
• 50:12
  Speaker 2: here we are. And what have they been saying this
• 50:15
  Speaker 2: entire time? They've been trading on this idea that online
• 50:19
  Speaker 2: is free speech, that they are democratic guardians somehow. But
• 50:22
  Speaker 2: of course they're not. And the reason that they were
• 50:24
  Speaker 2: able to convince people they were was because they weren't charging, right?
• 50:28
  Speaker 2: If Comcast had tried to say, we are your democratic pathway,
• 50:31
  Speaker 2: I think people would have been skeptical, but that's partly
• 50:33
  Speaker 2: because they're paying, right? No one really likes Comcast. But
• 50:36
  Speaker 2: when you offer the free, right? And I'm putting quotation
• 50:39
  Speaker 2: marks around this. You let people believe that, no, we're
• 50:41
  Speaker 2: only invested in your speech. Like we just, we really
• 50:44
  Speaker 2: want to give you a platform to express yourselves, to
• 50:46
  Speaker 2: have community. But of course, none of these companies were
• 50:49
  Speaker 2: interested in that. And I find that to be the
• 50:51
  Speaker 2: most perverse thing. Comcast doesn't pretend to be a guardian
• 50:55
  Speaker 2: of free speech. Facebook pretends to be. Twitter X now
• 50:59
  Speaker 2: pretends to be the whole public town square idea. There's
• 51:02
  Speaker 2: never been a cable company or a newspaper that's ever
• 51:04
  Speaker 2: had pretensions of saying, oh, we're the public square, right?
• 51:07
  Speaker 2: And so you had all these companies that are deeply
• 51:09
  Speaker 2: invested only in this kind of speech as a form
• 51:12
  Speaker 2: of their free labor so that they can actually, they
• 51:15
  Speaker 2: don't have to produce anything. We can get people to
• 51:17
  Speaker 2: produce stuff for free for us. And we can tell
• 51:19
  Speaker 2: them that they are advocating for themselves and expressing themselves
• 51:23
  Speaker 2: and that we're going to defend them. And of course,
• 51:25
  Speaker 2: we've seen exactly what that means. So far as it
• 51:27
  Speaker 2: might work out for the bottom line profit, will these
• 51:31
  Speaker 2: companies protect your free speech? Sure. The moment it doesn't
• 51:33
  Speaker 2: become profitable, they won't. And of course, they're also going
• 51:36
  Speaker 2: to be taking their side, you know, as much as
• 51:38
  Speaker 2: they can, which is extract all the data from you
• 51:40
  Speaker 2: that you don't even know that they're looking at and
• 51:42
  Speaker 2: use you as a kind of piece that they can
• 51:43
  Speaker 2: move around the chessboard. And then you get ideological alignment
• 51:46
  Speaker 2: with the Trump administration, either in terms of, I really
• 51:49
  Speaker 2: like what Trump is saying, which I think on some level,
• 51:52
  Speaker 2: that is exactly where the Musk Trump mind meld was
• 51:54
  Speaker 2: for a while. Or, You get him threatening you, right?
• 51:58
  Speaker 2: That Trump says, I'm going to put Mark Zuckerberg in jail.
• 52:01
  Speaker 2: Whatever the case is, you now have these companies who've
• 52:04
  Speaker 2: had all the freedom, freedom that no newspapers ever had,
• 52:07
  Speaker 2: no cable companies ever had. No one's ever been given
• 52:10
  Speaker 2: the freedom to do and to protect as much speech
• 52:13
  Speaker 2: as the tech industry. And what have they done for
• 52:15
  Speaker 2: 30 years? Except allow people to be harassed and defamed.
• 52:20
  Speaker 2: And whenever the government asks them for information, turn it over.
• 52:24
  Speaker 2: And now... quite literally say, we are going to help
• 52:26
  Speaker 2: this administration do whatever it wants to do in terms
• 52:29
  Speaker 2: of its ideological agenda. All the power in the world,
• 52:32
  Speaker 2: all the power in the world, and they choose to
• 52:35
  Speaker 2: do a Jeff Bezos, to say, basically, I'm going to
• 52:38
  Speaker 2: provide cover, ideological cover for a fascistic government. That's what
• 52:44
  Speaker 2: happens when you give people freedom when they're not interested
• 52:47
  Speaker 2: in protecting anybody's freedom except for their own.
• 52:50
  Speaker 1: Yeah. Not even to mention the algorithms, right? Which is
• 52:54
  Speaker 1: a whole other You know, it's fascinating. Marianne, I've been
• 52:59
  Speaker 1: in the Bay Area for the last couple of days.
• 53:00
  Speaker 1: I used to live in San Francisco. And so yesterday
• 53:03
  Speaker 1: I drove down to in front of the head offices
• 53:07
  Speaker 1: of Meta. And just so I could kind of do
• 53:10
  Speaker 1: a stand up for this podcast, kind of like this
• 53:12
  Speaker 1: is what it looks like. Here I am in Meta.
• 53:14
  Speaker 1: You know, it's like Facebook, Instagram, WhatsApp, Messenger. You know,
• 53:16
  Speaker 1: it's all right here. Right. And I was driving back
• 53:20
  Speaker 1: up to San Francisco and I was fascinated because along
• 53:23
  Speaker 1: the side of the highway. there is billboard after billboard
• 53:27
  Speaker 1: after billboard for AI companies. That's the new, we went
• 53:34
  Speaker 1: from computers and tech to internet, social media, and now
• 53:38
  Speaker 1: it's AI. For you, what does AI mean for free speech?
• 53:44
  Speaker 1: What does it mean within the midst.
• 53:45
  Speaker 2: Of all of this? It means that everything's about to
• 53:48
  Speaker 2: get so much worse. And again, these are lessons that
• 53:52
  Speaker 2: you know, we cannot comfort ourselves by saying no one
• 53:55
  Speaker 2: saw this coming. Yeah, people saw this coming, right? When
• 53:58
  Speaker 2: companies basically tell you, you know, they'll say to your face, well,
• 54:01
  Speaker 2: we care about your speech, we care about protecting democracy
• 54:04
  Speaker 2: or freedom of expression, but are extracting data from you
• 54:07
  Speaker 2: for purposes that they will never be transparent about. Now
• 54:10
  Speaker 2: we're saying, trust us because we've taken all the collective
• 54:13
  Speaker 2: expression from you and we have, you know, in a
• 54:18
  Speaker 2: quite a direct sense. We have actually just sort of
• 54:20
  Speaker 2: created a massive consciousness by sucking up all of the,
• 54:23
  Speaker 2: the ideas that you have voluntarily given us. And now
• 54:26
  Speaker 2: we're going to give that back to you and sort
• 54:28
  Speaker 2: of let that control everything. Isn't that wonderful? Right. I mean, they,
• 54:33
  Speaker 2: the reason why it's not like in the horror films,
• 54:35
  Speaker 2: I guess, is because I don't know that this is
• 54:37
  Speaker 2: such a, um, the fact that it's so banal at
• 54:41
  Speaker 2: the end of the day, right. That, they've really been saying,
• 54:43
  Speaker 2: we're extracting data from you to manipulate you over and
• 54:46
  Speaker 2: over again. I mean, Cambridge Analytica, a hundred times over, right?
• 54:49
  Speaker 2: And I don't want to blame the population for being
• 54:53
  Speaker 2: passive about this. I mean, although that's part of it,
• 54:55
  Speaker 2: but it's also because what were the alternatives, right? By
• 54:58
  Speaker 2: this point, when people realize they're in the web, right?
• 55:00
  Speaker 2: It's a little late. So I think it's a predictable,
• 55:03
  Speaker 2: you know, what was, if we're speaking at a very
• 55:06
  Speaker 2: high level of what is the tech industry after? Well,
• 55:08
  Speaker 2: the tech industry is after becoming the consciousness to replace
• 55:11
  Speaker 2: our own consciousness. And I don't mean that in kind
• 55:13
  Speaker 2: of the robot overlord sense, but just look, if we
• 55:17
  Speaker 2: have now convinced entire generations of people that what chat
• 55:21
  Speaker 2: GPT has to say is more important than something that
• 55:24
  Speaker 2: they could come up with on their own or better
• 55:26
  Speaker 2: than trying to have a conversation with an expert or
• 55:28
  Speaker 2: to actually do research and do cross references, right? That
• 55:31
  Speaker 2: we've convinced people of this, but that's just a version
• 55:33
  Speaker 2: of what Google convinced all of us with regard to
• 55:35
  Speaker 2: its search engine. And for a brief period of time
• 55:38
  Speaker 2: was actually not a bad description of what Google was.
• 55:41
  Speaker 2: So all of this stuff starts out in a way
• 55:43
  Speaker 2: that is revolutionary and innovative, and it's meant to serve
• 55:46
  Speaker 2: human interests. But then you realize, and I think about
• 55:49
  Speaker 2: a book that was written pretty early on, I guess
• 55:51
  Speaker 2: it's a decade old now, Astra Taylor's People's Platform. She
• 55:54
  Speaker 2: was already saying in 2014 or whenever it was. So
• 55:58
  Speaker 2: when did the radicalization happen? When did we actually get
• 56:00
  Speaker 2: a revolutionary internet? Because it certainly looks like we are
• 56:04
  Speaker 2: all being conformed into these spaces and told to like things,
• 56:07
  Speaker 2: dislike things, feel this kind of emotion, shape this kind
• 56:10
  Speaker 2: of post and have them all just talk to each other.
• 56:12
  Speaker 2: That's a flattening of discourse. It's not a proliferation of discourse.
• 56:16
  Speaker 2: She was right then and it's just gotten worse now.
• 56:18
  Speaker 1: Do we need to reanalyze our understanding, our definition of
• 56:23
  Speaker 1: free speech today?
• 56:25
  Speaker 2: We definitely need to analyze it and we definitely need
• 56:28
  Speaker 2: to stop. What I really do think sincerely about you know,
• 56:32
  Speaker 2: having now had many conversations with many different audiences about
• 56:35
  Speaker 2: what do people think free speech means? What does it
• 56:37
  Speaker 2: mean to them? Overwhelmingly, what I realized is that it's
• 56:40
  Speaker 2: because there's a kind of narcotic effect of those words.
• 56:43
  Speaker 2: People are kind of lulled into a sense of don't
• 56:46
  Speaker 2: ask me about the details. I know what free speech is.
• 56:49
  Speaker 2: And it's because we think we know it so well
• 56:51
  Speaker 2: that we don't know anything about it. So we need
• 56:55
  Speaker 2: to do a kind of estrangement from free speech. Free
• 56:57
  Speaker 2: speech needs to become strange to us. And we need
• 56:59
  Speaker 2: to think about if we could sweep away whatever we
• 57:02
  Speaker 2: thought we understood about the First Amendment, whatever we think
• 57:05
  Speaker 2: reflexively about how we don't like it when someone criticizes
• 57:08
  Speaker 2: us or when someone doesn't give us access to a platform,
• 57:11
  Speaker 2: if we push all that to a side, and I've
• 57:14
  Speaker 2: asked my students about this when I teach First Amendment,
• 57:17
  Speaker 2: and I ask them, when is the last time you
• 57:19
  Speaker 2: had a really good conversation? And they'll start giving the
• 57:23
  Speaker 2: same set of characteristics. And it's either maybe on a
• 57:26
  Speaker 2: bus or at the kitchen table or friends' conversations, but
• 57:30
  Speaker 2: they'll say, I'll ask them, well, what made it good?
• 57:33
  Speaker 2: And they'll say, well, we took turns talking. I learned something.
• 57:36
  Speaker 2: The other person listened to me. We weren't shouting at
• 57:38
  Speaker 2: each other. And we both came away thinking that there
• 57:40
  Speaker 2: was something valuable that we learned. And I thought, well,
• 57:43
  Speaker 2: is that a version of free speech that is more
• 57:46
  Speaker 2: robust and more significant than whatever we think we mean
• 57:51
  Speaker 2: by this kind of mix of quasi-legal, quasi-psychological, quasi-cultural concepts
• 57:56
  Speaker 2: of free speech? I really do think that term free
• 57:59
  Speaker 2: speech has become emptied of meaning. And we need to
• 58:01
  Speaker 2: start thinking specifically about what is a good speech outcome
• 58:06
  Speaker 2: for the environment I'm in right now? What does it
• 58:08
  Speaker 2: mean to have a good family conversation? What does it
• 58:11
  Speaker 2: mean to have a good classroom conversation? What do I
• 58:13
  Speaker 2: want a newspaper to teach me? What do I want
• 58:15
  Speaker 2: to learn? What are my goals for this particular interaction
• 58:19
  Speaker 2: I'm having with someone else? And really kind of resist
• 58:22
  Speaker 2: the idea that free speech can be something meaningful in
• 58:24
  Speaker 2: that abstract sense. It usually means something quite concrete in
• 58:28
  Speaker 2: the context that we find ourselves.
• 58:30
  Speaker 1: I love that idea of, well, what do we want
• 58:33
  Speaker 1: to achieve? And then working back from there, because that's,
• 58:36
  Speaker 1: you know, particularly like on the local within our own
• 58:40
  Speaker 1: family members, it's so true, you know, or even in
• 58:42
  Speaker 1: a community, like in the fact that we've been isolated
• 58:44
  Speaker 1: into these silos and social media, or I only get
• 58:46
  Speaker 1: these images or these posts from these people, it's the
• 58:50
  Speaker 1: exact opposite of what's happening right now to all of us. Marianne,
• 58:54
  Speaker 1: and I promise this is my last question, and thank
• 58:56
  Speaker 1: you so much. I really, really appreciate your time. It's
• 58:58
  Speaker 1: been incredible. Two of the episodes in this podcast series,
• 59:03
  Speaker 1: one of them I want to focus on Brazil, and
• 59:06
  Speaker 1: the other is I'm going to focus on Europe. And
• 59:08
  Speaker 1: the reason being is because they have these kind of
• 59:10
  Speaker 1: very different concepts of free speech than we do. In Brazil,
• 59:15
  Speaker 1: Bolsonaro said the same thing that Trump did about the elections,
• 59:19
  Speaker 1: where he called them, look at the fraud and the
• 59:22
  Speaker 1: voting machines and how there's fraud happening. And they actually
• 59:26
  Speaker 1: banned him. This is even before he was you know
• 59:29
  Speaker 1: sent to jail for you know sentenced to jail for
• 59:32
  Speaker 1: two decades but they actually banned him from running for
• 59:34
  Speaker 1: office for eight years because he was disparaging the country's
• 59:36
  Speaker 1: democracy and for brazil they say you know your right
• 59:40
  Speaker 1: to free speech can go up to here but when
• 59:41
  Speaker 1: you start attacking our democracy that's a line you can't
• 59:44
  Speaker 1: cross and i just spent a month and a half
• 59:46
  Speaker 1: in europe speaking with people there as well about kind
• 59:50
  Speaker 1: of their understanding of of regulation over social media around
• 59:54
  Speaker 1: fake news around conspiracy theories how does this like work
• 59:58
  Speaker 1: and fit in, they're trying to kind of be very
• 1:00:00
  Speaker 1: much on kind of the forefront of, of how to
• 1:00:03
  Speaker 1: do this in a way that people have their right
• 1:00:05
  Speaker 1: to free speech, but also at the same time, they're
• 1:00:07
  Speaker 1: not disparaging or, you know, spreading lies to, to a
• 1:00:12
  Speaker 1: full extent. Like, how do you, and I know this
• 1:00:14
  Speaker 1: is so different from the United States, from our own
• 1:00:17
  Speaker 1: kind of understanding of this, like, how do you see these, these,
• 1:00:21
  Speaker 1: these different realities? How does our free speech Should in
• 1:00:25
  Speaker 1: the United States, should we be looking at other realities abroad?
• 1:00:29
  Speaker 1: Should we be looking at other definitions abroad and how
• 1:00:31
  Speaker 1: people are doing this elsewhere? It's particularly in a moment
• 1:00:34
  Speaker 1: where fascism is on the rise and authoritarianism and the
• 1:00:40
  Speaker 1: idea or the concept of free speech, we can say anything,
• 1:00:42
  Speaker 1: is being used to actually attack our own system with
• 1:00:46
  Speaker 1: the United States.
• 1:00:47
  Speaker 2: Yeah. I go back and I think about that moment
• 1:00:49
  Speaker 2: in 1943 where Our Supreme Court is looking at totalitarianism
• 1:00:54
  Speaker 2: taking over other countries and Justice Jackson saying, here's why
• 1:00:59
  Speaker 2: we will not be like those countries. And it's because
• 1:01:02
  Speaker 2: we recognize that the real evil here is the government
• 1:01:06
  Speaker 2: imposition of orthodoxy, that they're being told that for their
• 1:01:10
  Speaker 2: own good or for whatever reason, or being convinced that
• 1:01:15
  Speaker 2: they are choosing this kind of domination. And I think
• 1:01:20
  Speaker 2: about how... tragic it seems to me that if we're
• 1:01:24
  Speaker 2: ever going to get out of our own destroyed society
• 1:01:27
  Speaker 2: right it's because we're going to have to look to
• 1:01:28
  Speaker 2: other countries it's going to have to flip right it's
• 1:01:30
  Speaker 2: actually going to be europe probably teaching us a lesson
• 1:01:34
  Speaker 2: and i think about i've i've thought about that even
• 1:01:36
  Speaker 2: before the second trump administration when um even before we
• 1:01:40
  Speaker 2: saw the the kind of the onslaught, but that I
• 1:01:42
  Speaker 2: think will change some people's minds about how if the
• 1:01:45
  Speaker 2: First Amendment couldn't stop Trump from doing everything he's doing,
• 1:01:49
  Speaker 2: then what is it worth, right? This might be what
• 1:01:51
  Speaker 2: actually shakes us out of our complacence to say, why
• 1:01:53
  Speaker 2: do we keep saying against all evidence to the contrary
• 1:01:56
  Speaker 2: that the First Amendment protects us uniquely when we're not
• 1:01:58
  Speaker 2: allowed to say that we didn't like some of the
• 1:02:01
  Speaker 2: views of someone who was killed and other countries that
• 1:02:05
  Speaker 2: would not be something you could go to jail for, right?
• 1:02:07
  Speaker 2: So we become that country. that we're looking at as
• 1:02:09
  Speaker 2: the kind of object lesson of what you don't do
• 1:02:12
  Speaker 2: in a democracy. And that is a really difficult thing
• 1:02:14
  Speaker 2: to have to come to terms with. But even before that, right,
• 1:02:18
  Speaker 2: if you looked at, and I did, right, 10 years ago,
• 1:02:21
  Speaker 2: 20 years ago, if you look at the indexes of
• 1:02:23
  Speaker 2: freedom of expression, if we stopped just sort of assuming
• 1:02:26
  Speaker 2: the truth about our own uniqueness as a society, you
• 1:02:29
  Speaker 2: look at what Article 19's rankings of freedom of global expression,
• 1:02:33
  Speaker 2: and we can quibble with the methodology, but it is
• 1:02:36
  Speaker 2: a pretty robust metric, United States is nowhere near the top,
• 1:02:40
  Speaker 2: nowhere near the top 10, right? We're lucky if we're
• 1:02:42
  Speaker 2: in the 20s or so. And the ones that are
• 1:02:44
  Speaker 2: always on top, Scandinavian countries. Norway is always up there.
• 1:02:47
  Speaker 2: Denmark is always up there. And so I look at
• 1:02:50
  Speaker 2: their laws and I see how, yes, they have robust
• 1:02:53
  Speaker 2: protections for freedom of expression, but they also have really
• 1:02:55
  Speaker 2: robust protections against harmful speech, including misinformation, including propaganda, including
• 1:03:01
  Speaker 2: the kind of health misinformation that will get people killed.
• 1:03:04
  Speaker 2: And the very logical principle that says, Those things are
• 1:03:07
  Speaker 2: bad for society. It's not because we don't like them
• 1:03:09
  Speaker 2: or they're just distasteful. They cause harm. And so we're
• 1:03:13
  Speaker 2: not going to have them be fully protected. And it's
• 1:03:16
  Speaker 2: not only that you get more protections because we sometimes
• 1:03:20
  Speaker 2: think of those as opposites, right? You get more, you know,
• 1:03:22
  Speaker 2: if you lean on the side of safety and then
• 1:03:25
  Speaker 2: you destroy free speech. There's a trade-off between free speech
• 1:03:28
  Speaker 2: and safety. I think the lesson of Scandinavian countries is
• 1:03:31
  Speaker 2: they're not trade-offs. They are very much the same question, right?
• 1:03:36
  Speaker 2: If you actually want there to be something meaningful about speech,
• 1:03:38
  Speaker 2: then you cannot simply say, let's let the worst forms
• 1:03:41
  Speaker 2: of destructive, actually just, you know, destructive in the real
• 1:03:44
  Speaker 2: physical sense flourish. We're actually going to teach students how
• 1:03:48
  Speaker 2: to identify misinformation. We're actually going to teach people how
• 1:03:51
  Speaker 2: to have good conversations, um, in a way that will
• 1:03:53
  Speaker 2: be useful for them. And we're going to take a
• 1:03:56
  Speaker 2: pretty close look at speech that tries to dehumanize other
• 1:03:59
  Speaker 2: people and tries to encourage people to commit violence because
• 1:04:02
  Speaker 2: we think those things are destructive to us as a society.
• 1:04:06
  Speaker 2: So not only do they get safer communities, but they
• 1:04:08
  Speaker 2: also are outdoing us by a long shot when it
• 1:04:12
  Speaker 2: comes to freedom of expression by really quite good metrics.
• 1:04:16
  Speaker 2: Same thing is true about the Reporters Without Borders Index
• 1:04:20
  Speaker 2: of press freedom, right? We are in the 50s at
• 1:04:23
  Speaker 2: this point, and that was before the most recent Trump
• 1:04:27
  Speaker 2: attacks on the media. So we've never done particularly well
• 1:04:30
  Speaker 2: in terms of press freedom. We just have assumed that
• 1:04:32
  Speaker 2: we're great, but we're not. And again, what are the
• 1:04:34
  Speaker 2: countries at the top every time? European countries that take
• 1:04:37
  Speaker 2: a pretty nuanced view, not only of what is misinformation,
• 1:04:41
  Speaker 2: what is harmful speech, but also free speech isn't just
• 1:04:45
  Speaker 2: about saying what you want to say. It's about who
• 1:04:47
  Speaker 2: controls the money. How much of a diversity of newspapers
• 1:04:50
  Speaker 2: do you have? What is your diversity of radio stations?
• 1:04:53
  Speaker 2: What is the level of education in society? How much
• 1:04:57
  Speaker 2: are journalists attacked or prevented from accessing certain spaces? You
• 1:05:02
  Speaker 2: look at those kinds of metrics and you see that
• 1:05:04
  Speaker 2: United States is just really, really far down. We have
• 1:05:08
  Speaker 2: destroyed the local news environment. We've destroyed journalism, right? We've
• 1:05:11
  Speaker 2: done all of these things to make ourselves less informed
• 1:05:14
  Speaker 2: and less good at being able to hold our government accountable.
• 1:05:18
  Speaker 2: So I take a deep lesson already before again, before
• 1:05:21
  Speaker 2: we ever got to the second Trump administration, that clearly
• 1:05:24
  Speaker 2: there were certain aspects of what Europe in particular was
• 1:05:27
  Speaker 2: doing that were preserving democracy and freedom of expression and
• 1:05:30
  Speaker 2: freedom of the press better than we were doing. And yes,
• 1:05:33
  Speaker 2: we should definitely be learning some lessons. Amazing.
• 1:05:36
  Speaker 1: Thank you so much, Marianne. I really, really appreciate this.
• 1:05:40
  Speaker 1: It's been so incredible speaking with you.
• 1:05:42
  Speaker 2: It's been such a pleasure. Thank you. Hi, folks.
• 1:05:50
  Speaker 1: I hope you enjoyed our conversation. As I mentioned before,
• 1:05:53
  Speaker 1: this is the second bonus episode of this series, and
• 1:05:56
  Speaker 1: there are more on the way. Please watch out for
• 1:05:59
  Speaker 1: those in your feed, This is the battle for free speech.
• 1:06:03
  Speaker 1: This podcast is co-hosted by myself and Mark Steiner. This
• 1:06:06
  Speaker 1: show is produced by The Real News. You can find
• 1:06:09
  Speaker 1: out more about my work and this show on my Patreon.
• 1:06:12
  Speaker 1: That's www.patreon.com forward slash MFOX. As always, please make sure
• 1:06:18
  Speaker 1: to sign up for The Real News Network's newsletter so
• 1:06:20
  Speaker 1: you never miss an episode. You can find that at therealnews.com.
• 1:06:24
  Speaker 1: Thanks so much again for listening to this podcast series.
• 1:06:29
  Speaker 2: See you next time.