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Free Speech Under Fire: From 1776 to the Trump Era · William Cooper Podcast Channel

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Welcome to How Our Constitution Works and Why It Doesn't. I'm Will Cooper and
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with me as always my co-host Ed Larson. Ed, how are you?
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Doing fine. Great to see you again. Great to see you. And we've got a great
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topic as always, free speech and free press today.
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And of course, plenty going on there. It seems to always be big,
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big events in the Trump era and the latest.
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I haven't refreshed the news in a few minutes, but the latest that I've seen,
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Trump is banning outlets from the White House. So we can add that as another
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example of challenges and flashpoints in this area.
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But I think our audience always appreciates you framing the show for us and
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thinking it through the context of our framework and thesis. So the mic is yours.
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Well, free speech and free press has a long history.
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And it has a long history, just like in the present, that it's an ideal that
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we've had since our founding.
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And to understand the Constitution, free press is right there.
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But it's always been challenged. I guess it's in the nature of government.
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As probably every one of our listeners knows, the First Amendment to the Constitution
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says that Congress shall make no laws abridging the freedom of speech or of the press.
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That's what it says. Clear, direct.
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And just to understand that, yes, it does say Congress shall pass no laws,
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but that has always been, always been understood and interpreted to apply to
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the federal government generally,
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not necessarily just to Congress.
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All of those First Amendment provisions apply to the government.
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The reason why they word it that way was the way the Constitution is structured,
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was that it's a government of laws.
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And therefore, to abridge freedom of speech or freedom of press,
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it's got to come through, as the way I understand come through Congress.
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It's not going to be the Supreme Court, or it's not going to be the president,
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or it's not going to be the army.
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It's got to be authorized by Congress. So they always meant the federal government.
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Now, by Congress, meaning the federal government, cannot abridge the freedom
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of speech or of the press.
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It didn't apply initially to the states. It was a limitation on the federal government, but.
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The Constitution only applies to the federal government. It doesn't apply to
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the states, and the states have had that provision because it was so central
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to the very notion of what the framers and founders were creating.
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The two most important, the state constitutions all came about with independence
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or with the proclamation of independence in 1776.
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So the states adopted their new, their first state constitutions at that time.
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Before that, they were colonies.
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And the two, just to capture the importance of the press, freedom of the press,
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and back then, because freedom of the press had played such an important role
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in exposing the abuses of both the king and of parliament, the press in the United States.
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The two most sort of the two foundational state constitutions are Pennsylvania and Virginia.
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All the others tend to be variations on one of those two.
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And one of them was Franklin's constitution and the other was Adams's constitution.
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He advised James Mason. And so James Mason, John Adams' Constitution.
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And then you have Franklin's Constitution. Of course, Franklin was a journalist, among other things.
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So the Virginia Constitution, in their Bill of Rights or their Declaration of
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Rights, they say in their Article 12, and this was adopted in 1776.
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Just before the Declaration of Independence, It said that the freedom of press
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is one of the greatest bulwarks of liberty and can never be restrained but by a despotic government.
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That's the way the state of Virginia, the new state of Virginia put it,
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that the freedom of the press is one of the greatest bulwarks of liberty and
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can never be restrained but by a despotic government.
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And similarly, the Pennsylvania Constitution, which was Franklin's Constitution,
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he was chaired the Constitutional Convention there, also in,
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now this would be in August of 1776.
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It states that the people have the right to freedom of speech and of writing,
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and of publishing their sentiments.
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Therefore, the freedom of the press ought not to be restrained.
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So in that sense, giving history to it, this is fundamental to the notion of ordered government.
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And having the press describe its various views, present its views.
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Of course, the press, even back then, involves opinion.
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It's dealing, yes, with observations, with reporting what are presented as facts,
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but you choose what facts you print, and it also involves opinion.
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There were letters to the editor back then. There were opinion pieces.
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People would place the equivalent of op-eds those were common in the press,
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and that was all part of the press.
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And the press were, there was described as the bulwark of, one of the greatest
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bulwarks of liberty, getting those ideas out.
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So that goes back to the very beginning.
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Then in the earliest, early 20th, about 100 years ago, the freedom of speech
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and the freedom of press under the Constitution.
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So the U.S. constitutional provision, Article Amendment 1, was the Supreme Court,
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added that or extended that to apply to state and local governments as well
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as the federal government.
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And then fleshing it out importantly was the Times v. Solomon decision,
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which was the Supreme Court issued in 1964, I think.
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And what that importantly said is the way you could go after the press,
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a publication, or go after speech would be by a defamation action, some sort of libel.
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And to bolster the freedom of speech and freedom of press.
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And the Supreme Court expressly used, Amendment 1, they expressly used and referenced
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both the freedom of the press and freedom of speech.
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Said, if you're a public official then, a couple of years later,
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in another case, it was extended to all public figures.
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If the press publishes something that might not be factual, accidentally or
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unknowingly, they couldn't be sued for it.
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Private citizens, if you defame them, that is, injure them by a false statement,
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you're liable for defamation or liable.
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But if you're a public figure, sort of giving, sort of putting meat on the bones
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of the First Amendment, if you're a public figure, you've got to show that the author of that was...
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Had actual malice, that they knew or should have known that this was false,
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not enough that it's accidentally false.
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And that is different than many other countries. That is the way in England,
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they sort of still limit the press.
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So given those provisions, and that's what I want to emphasize for history,
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that shows a history of a rigorous support for freedom of speech and freedom of press.
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But the history also is repeated restrictions going all the way back to the beginning.
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You just have to think of the Sedition Acts that were passed by Congress.
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In the 1700s during the Adams administration, which outlawed the criticism of
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the government or of the president.
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And publishers were sent to jail for it. And private speakers were sent to jail for it.
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And then you get repeated actions because when a government does something and.
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Gets criticized, it's in the nature of government to lash out and want to stop it.
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Woodrow Wilson did it during the First World War, claiming national emergency.
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Presidents have done it with executive orders.
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Congress has passed laws, both restricting the freedom of speech and freedom of press.
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Roosevelt called freedom of speech one of the four freedoms that is foundational
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to the American Republic.
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The Constitution is clear. But what we look at here is.
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How the Constitution works, what it says, and why it doesn't.
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And why it doesn't is you get thin-skinned elected leaders, whether they be
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in Congress or the White House, and they want to lash out against criticism.
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George Washington didn't lash out, but George Washington himself became so criticized
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during his second term, particularly for Jay's treaty, which many people thought,
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was a concession to the British without getting anything back,
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that it was this constant attacks in the press for Jay's treaties that was one
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of the contributing factors.
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There were other of why he decided, I just don't want to do this for a third term and stepped down.
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So it's been a constant issue and maintaining freedom of press and freedom of
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speech as the bulwark of our liberty has been a constant back and forth battle.
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Thank you. Great context. I personally am a very ardent First Amendment free speech advocate.
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I think having very few limits is really, really important to society.
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Noam Chomsky is somebody who
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I have agreed with and disagreed with many times. I'm fascinated by him.
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But he said, you don't have freedom of speech at all unless you have it for
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the people you despise. And I agree. And there are lines that can be crossed.
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But for me personally, I'm fairly moderate in my politics in a number of ways.
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But when it comes to free speech, I'm pretty much a zealot.
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And so one of the reasons why I am so, you know, such a big proponent of letting
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people speak is on full display right now with President Trump.
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And so we have this incredibly partisan political system right now.
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And the Democrats and the Republicans, the passionate leaders.
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Zealots in both parties see it they see the world extremely differently.
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They do they live in two universes they're not they speak different languages
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they're not seeking a translator they're just looking at reality very very differently
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so when trump sees an article about him that he doesn't like he in his mind,
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given his partisanship and zealotry he thinks it's false and wrong and not okay.
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And therefore he feels justified in, in the steps he takes. That's my view.
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And I think you're being too generous. I'm being, I'm being generous.
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Yes. But I think, I think he, I think you've got people with extremely divergent.
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Views of what reality they live in and we all live in.
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And that is a fundamental why you must have robust protections to not let reality
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and the press be captured by one of those competing views. Are you going to say something?
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Well, no, I agree with you. And sometimes it's that cause.
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Other times it's just power.
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People, it's in the authoritarian handbook.
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It's common of fascist governments, they always go after free press and they
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want, and you can see it in communist governments as well.
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You want a press that is present.
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The way people view the world is fundamental to how they see the world.
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And you need, and by presenting the world in a different way. You allow people to,
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place the facts in a different context. And that's what led to the American Revolution.
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People put the facts in a new context.
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And that's what partisans want to do. And I think that's what both MSNOW and Fox News do.
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They put a variety of facts in a particular context. And then you can get to
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much more radical outlets.
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And so then people are seeing the world through that lens, which I agree with you.
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But if you're a player, if you're after power, if you're after money,
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you want them to see the world in your context.
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So if you see the news in Russia today, which has greatly suppressed this free
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press and freedom of speech, you see the Ukraine war, for example, in one way.
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You see it as a fight against fascism. You see it as a fight against a fight
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for justice, a fight for that's the way it's presented.
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You see it in a different light with different facts. And so same way in China,
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same way in North Korea, they present the facts in their way.
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That's why I think China is so intent on developing its own AI, because.
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AI, when you type in something now, rather than going to websites,
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they give you a little summary and they thank whatever their AI agent.
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And so you get a little bit of a picture. You get whatever you're asking about
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in the context of how that AI operates.
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And China wants it to operate in a way that promotes the party,
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the Communist Party, their own government, their own.
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And so how you present those and structure the facts and the lens you give people
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is incredibly important to maintaining power and making money. And, you know,
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One advantage of the capitalistic system, as long as antitrust laws are vigorously
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enforced, you're by force, you're
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going to have different types of AI and different types of viewpoints.
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And what Benjamin Franklin said is, I'm for free press, not because I don't
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think some of the press is wrong,
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but because we need to have all those different viewpoints so that the reader
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can sort it out for themselves.
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And if we don't give them all those different viewpoints and you only give them
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one viewpoint, if you're only giving the, in the, in his context,
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you're only giving the British viewpoint.
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And the British troops carried on their way, on their ships,
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they carried printing presses.
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And they printed during the revolution, they would print their own version of
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the local newspaper and pass it around.
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And the Patriot Press would use the same newspaper title and pass around their copies.
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It was a competition of ideas.
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And that competition of ideas, the only way a republic works is a free exchange
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of ideas and a competition in that competition. And that requires free speech and free press.
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So I certainly agree with you on the centrality of this of this issue.
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I just think that, you know, it's not just that they see it differently.
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I think they're consciously trying to present it differently.
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And I agree with you. We saw both Republican and Democratic presidents.
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Yeah, it's definitely a mix of lots of factors. I agree.
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I have an interesting personal anecdote where I went to UCLA for undergrad. I had a professor.
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I actually really liked him a lot. But he was a radical liberal,
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brilliant guy, wonderful person, but a radical liberal.
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People's political views don't impact whether I like them or not.
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But I wrote about it in a book how he stifled speech in his classroom and wouldn't
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let dissenting views from students much younger than him,
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some 19-year-old kid, and he was in his 50s, and he would argue and stifle speech.
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And I went to UCLA and did a podcast to promote the book. This is about two
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and a half years ago. And I talked about that.
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And the professor, Paul von Blum, again, a really great guy.
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We're both A's fans and nothing personal.
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And I talked about that. And then the editorial board of the UCLA student paper
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that hosts the podcast would not allow the podcast to air.
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So it was very ironic that me talking about free speech problems on campus was,
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not allowed to actually get on the air.
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And that type of activity where you are suppressing speech in the classroom,
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in a podcast or whatever, that is, to me, it's very, it degrades the debate.
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It degrades the public square. And then it just, to me, reveals weakness.
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It reveals a lack of confidence in your own ideas and your own ability to express them.
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I love brilliant people disagree with me. That's fun.
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And my favorite part of this show is when you and I disagree and we have a respectful debate about it.
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And so I just really hope that more and more people can see the virtue of debate
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and the free expression of ideas in a public square.
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Because there's too many people that if they don't like the idea,
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they don't want to give it air. And I don't think that's right.
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And I think the real danger comes when it's the government doing it.
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And UCLA professor, I'm not disagreeing here on.
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I think ideas should come out, but a UCLA professor, even though he's technically
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employed by a government university,
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is not the government in the sense that it's a classroom and all the students
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can go outside and complain like you did and take other classes.
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Here, when you have the government.
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Like with the Alien Sedition Acts, or like when both Congress and President
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Wilson administration barred people from,
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speaking, criticizing the American war effort in World War I,
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which had a lot of reason to condemn it, and discouraging enlistment in World War I.
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And we've seen that at other times in our history.
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That can be that undermines the very nature of a democracy you said of course there are some limits on,
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free speech sure there are and the and the congress and the supreme court has
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talked about them in their nobler decisions like you can't shout fire in a crowded
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building that's the classic one
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you can't say something that is designed to create an imminent threat of danger,
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But even if you're calling for revolution.
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That's part of the debate. You should be able to call for a revolution as long
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as you're not saying it in a way that causes immediate violence.
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But if you're throwing out an idea that can then be discussed and debated.
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That's what our patriots were doing.
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They were calling out for a rebellion against parliament and a rebellion against
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the king. That's what we're celebrating on this, the 250th anniversary of 1776.
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And it's the ability to say those ideas and say those criticisms and criticize our leaders.
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And it may, in some cases, as you suggest, involve weakness on their part.
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But it also, I just think it's part of the playbook,
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of of a of some an authoritarian a playbook in whether the authoritarian be
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a fascist or a communist or whoever they want,
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power and they don't want people to spur ideas that undermine them and in a way it comes it,
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it shows a certain weakness but it also comes from strength they have the power to do it,
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and they're going to exert that power.
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And that's why the provisions of the Constitution are so remarkable.
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They don't exist in places like Russia or China or North Korea or Iran.
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There they filter ideas to present their particular, in the case of Iran,
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their particular theistic world, their, you know, their Islamic.
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Worldview. And you have limitations in other ones, promoting the communist state
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or a particular authoritarian regime.
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We saw it in Italy during the run-up to World War II, fascist Italy.
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This is just the way things go, I'm sure happens in Cuba.
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And we, at the bottom, we have to get these ideas out. So there's a free flow of ideas. So,
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In all these fundamental respects, I think we speak from the same voice of the centrality of it.
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And right now, we're seeing another example, and I will call it another example,
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another example of the constant danger.
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We hear calls for getting rid of the Sullivan decision, Times versus Sullivan
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decision, of allowing people to sue.
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For defamation, to shut down voices in the press or private individuals if they speak.
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And you can pick through. And if you have, if you're a rich oligarch
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or you're the government and have the whole justice department at your command,
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you can find factual errors buried in almost any presentations or what you profess to be.
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And then you bring the people to court and you try to get a civil judgment against
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them. And that's why the rule that you need to show actual malice,
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that is, you know, these facts were wrong.
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These defaming facts.
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And so I think it's critical that the Supreme Court maintains that decision
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because that's not in the Constitution per se.
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But I do think that's an example of where the Supreme Court has taken the words
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of the Constitution and expanded them or clarified them and made them work.
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So there's an example of the Constitution working. If we lose that,
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Same way when they do it sort of indirectly, and we've seen this in the current
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administration, but we saw it before, Richard Nixon did it, where you hold up,
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to a publisher such as CBS.
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They tell CBS, if you don't retract this or if you don't get rid of those people
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on the late night show or you don't get rid of those people.
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You'll lose your broadcast licenses because we have the right to give out broadcast
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licenses and we can pull your broadcast license or we can prevent a merger.
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Well, if you're doing it to suppress speech, and I said it's done before,
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Richard Nixon was an example. He allegedly got the Smothers Brothers show pulled from CBS.
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He also got them to pull a song out of the musical 1776 because he found it
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offensive because he had so many levers of power that he could use coming from other fronts.
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So the free press is not just being restricted overtly.
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It can be restricted in ways you bring suits for this or that,
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and then you get a settlement because the government has other levers of power.
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So what we have to be alert to, and this was perhaps periodically throughout
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American history, we have to
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be alert to the governments using its very powers in strange and odd ways,
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with the ultimate goal.
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Of restricting free speech and freedom of the press.
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Absolutely. Definitely agree. I think we've got a few more minutes.
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And so I think I'll add one thought to the equation about modern society.
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And we are exemplifying this with our show.
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The days of having networks and small number of gatekeepers,
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Nixon's day, for example, and certainly for that and after that.
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But now, Joe Rogan, one person who schedules a show on his phone,
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has more people paying attention to him than entire networks that have been around for decades.
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And there's also a vibrant ecosystem of shows that aren't that big.
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But when you add it all up, people can just start a podcast,
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get going. you and I a few months ago started a podcast and we've had Justice
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Breyer and, and probably 10 of the top 15 legal scholars in the world on our show.
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And we didn't need to ask anybody for permission or anything like that.
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And so that to me makes, it helps it. There's, there's a variety of consequences
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to that ecosystem, but it makes it a lot harder for a president to suppress speech.
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When Trump kicks out MS Now and Politico, a lot of times it actually is counterproductive
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because it increases the discussion of his behavior in all the other.
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Channels. And NBC used to be 19% of the, or 23% of the media,
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and now it's 0.23% of the media.
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And so what do you think? Why don't you, why don't you close the show?
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What do you think about our modern media in this dynamic?
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Well, to me, it's, I'm a historian and I've written books about the election
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of 1800 and we're back there.
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In 1800, there was no, in that great campaign of 1800 between Jefferson and
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Adams, you had the press unleashed.
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And despite the efforts of the Sedition Acts, they'd throw editors,
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Jeffersonian editors in jail, and somebody else would,
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destroy their printing presses, and they'd find somebody else to keep printing.
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And there was a multitude of voices.
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And we're back to the multitude of voices.
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I think there was always other currents, but somehow with World War II,
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before World War II, there were a lot of voices.
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World War II, the whole nation got on board in a national crusade.
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Unlike in World War I or the Civil War, where there was a Spanish-American War,
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Mexican War was an enormous amount of dissent, and it increased a variety of viewpoints.
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When everybody got on board and then the Eisenhower administration,
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we had this period where people closed down.
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We ended up with three, four major, there's a mutual broadcasting too,
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three, four major TV radio networks coupled with television.
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Local, dominant local newspapers. And there was this single voice,
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I think, and partly because America did have a single voice.
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Most people followed that voice.
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There were dissenting, small dissenting outlets, the village voice or whatever.
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But now we're going back to this wide variety of voices.
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I think that's healthy as all these people are speaking.
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Now, it tends to pull us apart. It tends to fragment us.
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That's part of the way it works. But you should not have government.
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Government shouldn't be putting a thumb on it.
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And it is in the nature of government. It's in the nature of leaders.
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It's in the nature of authoritarian governments to try to do it.
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And people need to speak out against it because they do think in the long run, It will help them.
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And I honestly believe that the
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results that they got by taking away free press in Germany in the 1920s.
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They did empower the government by Putin violently suppressing free press.
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When he took back over, just as the communists had before, everything opened up under Yeltsin.
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Then Putin, sure, he took his blows for cracking down on this newspaper,
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cracking down on that radio station, closing down.
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But he's done it so completely that other voices do have a very hard time getting
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into Russia or into China.
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They can even control the internet in those places.
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And so this is, even today, even with a multitude of possible sources of news,
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this is a real risk because government has even more tools at its hands.
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Well put. I'm not going to improve on that. So let's close the show there.
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Important topic. Great show. Thank you, Ed.