Latest / rationally BASED / Episode 39 | Woke Universities, Foreign Campus Radicals, & Free Speech

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Episode 39 | Woke Universities, Foreign Campus Radicals, & Free Speech · rationally BASED

0:00
SPEAKER_02: Welcome back to Rationally Based, a podcast about law and politics on the edge.
0:03
SPEAKER_02: I'm your host, Elon Worman, a law professor at the University of Minnesota Law School.
0:07
SPEAKER_00: I'm Catherine Johnson with Center of the American Experiment.
0:10
SPEAKER_01: And I'm Josh Kinefeld, Rouse Professor of Law at Scalia Law School.
0:14
SPEAKER_02: Catherine, what's on deck?
0:15
SPEAKER_00: Well, we've got two very interesting topics for you guys today, and they both emphasize what I think are pretty interesting divisions within the right between conservatives and libertarians.
0:25
SPEAKER_00: First, we're circling back to a divided 11th circuit uh decision over whether Florida can prohibit the teaching of DEI in its universities.
0:33
SPEAKER_00: The 11th Circuit said it can't without violating the First Amendment, but there were Trump-appointed judges on both sides of the question.
0:40
SPEAKER_00: Second, we'll dive into a recent decision out of the Northern District of California where FIRE, the Foundation for Individual Rights and Expression, convinced a judge that the Trump administration violated the First Amendment by deporting non-citizens here legally for hateful anti-American speech.
0:56
SPEAKER_00: The lawyers here claim these are very difficult and legal and philosophical questions.
1:02
SPEAKER_00: I'm not so convinced.
1:03
SPEAKER_02: And I'm not sure Josh and I agree on all this stuff.
1:06
SPEAKER_02: So let's dive in.
1:27
SPEAKER_02: So we can stay in touch with you directly.
1:29
SPEAKER_02: Josh, you want to set up a little bit of the big picture before we dive into the legal doctrine here?
1:33
SPEAKER_01: Yeah, sure.
1:34
SPEAKER_01: You know, I think the cases today are exhibit A for justice is clear and the law is muddy.
1:41
SPEAKER_01: So not everyone will agree about what justice entails.
1:44
SPEAKER_01: I think the three of us agree, at least in this case, and a lot of our audience will agree.
1:47
SPEAKER_01: So here's the big picture, as I see it at least.
1:50
SPEAKER_01: As to universities, from the standpoint of justice, a public university is we the people spending our tax money for our children when a university is devoted in its everything, in its teaching, its scholarship, its programming, its operations to ideas that the community in which it sits considers false or wrongful.
2:10
SPEAKER_01: You know, the moon is cheese or math is racist or America is evil.
2:14
SPEAKER_01: The we the people community has to be able to do something about that, or we've broken with the most fundamental principles of democracy.
2:21
SPEAKER_01: And there's a difference between public and private universities there.
2:24
SPEAKER_01: Private universities, go with God, do it on your own dime, provided you do it on your own dime.
2:30
SPEAKER_01: But you're free to, you know, say America is evil as much as you want.
2:34
SPEAKER_01: Public university discharging a public function, the legislature should not be helpless.
2:40
SPEAKER_01: Now that doesn't mean the Florida law is perfect or that the issues here are easy.
2:45
SPEAKER_01: I might disagree with you guys about that.
2:46
SPEAKER_01: Well, I guess we'll find out, but the legislature should not be helpless.
2:49
SPEAKER_01: I think that's the big picture.
2:50
SPEAKER_01: And on the immigration front, from the standpoint of justice, it's crazy.
2:55
SPEAKER_01: It is insane for a country to be forced to bring in or to keep in people who are not citizens, who are not citizens, they have not been given citizenship, they have not been naturalized, and they hate the country and they hate the principles for which the country stands.
3:10
SPEAKER_01: And in that respect, there's a line at citizenship.
3:13
SPEAKER_01: If a city if fellow citizens hate this country, the First Amendment means we argue with them about it instead of punishing that them.
3:22
SPEAKER_01: I strongly support that.
3:23
SPEAKER_01: But non-citizens, it's undemocratic and it's suicidal for judges to force the citizenry to accept people who hate the country.
3:33
SPEAKER_01: It's like a Thanksgiving dinner, right?
3:35
SPEAKER_01: I might have to accept the offensive relative because they're in the family.
3:39
SPEAKER_01: You put up with family, right?
3:41
SPEAKER_01: But a house guest who says, I know you all want to be grateful for America here, but I'm here to tell you I hate America, and by the way, I hate you and I hate your family.
3:50
SPEAKER_01: I do not have to keep that person in my home.
3:52
SPEAKER_01: I can be like, get out, you don't belong here.
3:54
SPEAKER_01: And the law gets really complicated.
3:57
SPEAKER_01: I want to acknowledge that it gets complicated.
4:00
SPEAKER_01: But I think it's important to get that big picture perspective on the table first before we dive into the doctrinal complexities.
4:06
SPEAKER_01: Because this is, I mean, Catherine, you would call it common sense.
4:09
SPEAKER_01: I agree it's common sense.
4:10
SPEAKER_01: I call it justice.
4:12
SPEAKER_01: I'm not willing to cede that word to the left, but whatever.
4:17
SPEAKER_01: It's the big picture here is pretty clear to me.
4:21
SPEAKER_00: Well, for the record, I don't let my family say whatever they want at Thanksgiving with no punishment or not getting kicked out.
4:27
SPEAKER_02: But that's probably a topic for Yeah, you can curate, you can curate family for uh Thanksgiving dinner, I think.
4:34
SPEAKER_02: But your point is well taken.
4:35
SPEAKER_02: And I think as Catherine started the episode, she explained that this is sort of a conservative libertarian divide, but it's also a divide within the conservative with among conservatives.
4:42
SPEAKER_02: Like how much state power can you use here, especially when it comes to questions of free speech?
4:48
SPEAKER_02: But as we'll explain shortly, it's not just free speech alone, it's free speech in the context of these public goods or public rights, like an immigration benefit or public university.
4:58
SPEAKER_02: And that's sort of where the fault line is.
4:59
SPEAKER_02: So, Catherine, you want to set up the Florida Stop Woke Act?
5:01
SPEAKER_02: Is that's what it's called, right?
5:03
SPEAKER_00: Yeah, uh Florida Stop Woke Act.
5:05
SPEAKER_00: It basically tries to restrict compelled workplace training and certain classroom instruction involving ideas around race, sex, national origin, and privilege.
5:15
SPEAKER_00: Uh, its central idea was that people should not be required to affirm certain specified beliefs as a condition of your employment or schooling licensing, whatever kind of similar participation.
5:26
SPEAKER_00: The law said it is discrimination, specifically in public schools and public universities, to require a person to participate in training or instruction that quote espouses, promotes, advances, inculcates, or compels belief in any of eight concepts.
5:40
SPEAKER_00: And they list out eight concepts, more in detail, but I'll kind of summarize them here.
5:45
SPEAKER_00: Uh the first one is one race, sex, color, or national origin is morally superior to another.
5:50
SPEAKER_00: So again, these are things that you can't um espouse.
5:54
SPEAKER_02: A person Which by the way, can we just pause on each of these?
5:56
SPEAKER_02: Like I we all agree about that, right?
5:59
SPEAKER_02: So I'm just trying to figure out like who's suing to challenge these things.
6:02
SPEAKER_02: One race, sex, color, national origin is morally superior to another is a prohibited idea.
6:06
SPEAKER_02: Sounds sounds fine, right?
6:07
SPEAKER_02: I mean, don't be racist.
6:09
SPEAKER_02: Okay, next.
6:10
SPEAKER_00: Two, a person by virtue of his or her race, color, national origin, or sex is inherently racist, sexist, or oppressive.
6:17
SPEAKER_00: Okay, well they teach that in some kindergartens here in Minnesota that if you are uh white, you are inherently an oppressor.
6:24
SPEAKER_00: Three, a person's moral character or status as either privileged or oppressed is necessarily determined by his or her race, color, national origin, or sex.
6:32
SPEAKER_00: Four, members of one race, color, national origin, or sex cannot and should not attempt to treat others without respect to race, color, national origin, or sex.
6:41
SPEAKER_00: Five, a person by virtue of his race, color, national origin, or sex bears responsibility for or should be discriminated against or receive adverse treatment because of actions committed in the past by other members of their SAM party.
6:54
SPEAKER_00: A person should be discriminated against, this is number six, or treated adversely to achieve diversity, equity, or inclusion.
7:02
SPEAKER_00: Seven is a person must feel guilt, anguish, or other psychological distress over past actions in which they played no part based on their race, sex, color, and national origin.
7:12
SPEAKER_00: And the last one, number eight, such virtues as merit, excellence, hard work, fairness, neutrality, objectivity, and colorblindness are racist or sexist or were created by members of a particular race, color, national origin, or sex to oppress another.
7:26
SPEAKER_00: So the bottom line here is it prohibits the teaching of these insidious DEI ideas as fact.
7:32
SPEAKER_00: It doesn't prohibit the discussion of them, but rather the treatment of them as inherently true and correct.
7:39
SPEAKER_00: And in a sense, it requires teaching, as you pointed out, Elon, ideas that we've all been familiar with forever, like, you know, all men are created equal, that all individuals have equal dignity and worth, and that, you know, being racist is uh bad, including even being racist against white people, also bad.
7:55
SPEAKER_00: Apparently, these are only conservative values now, I guess.
7:59
SPEAKER_00: So the question in this case is does the First Amendment prohibit Florida from attempting to prohibit the teaching of these really insidious ideas?
8:09
SPEAKER_00: The 11th Circuit divided two to one.
8:11
SPEAKER_00: They struck it down.
8:12
SPEAKER_00: They actually held that it violates the First Amendment.
8:15
SPEAKER_02: Catherine's chuckling if you uh can't tell, uh watching this at home.
8:19
SPEAKER_02: She's she okay, we know where she left.
8:21
SPEAKER_02: Okay, it's absurd.
8:21
SPEAKER_02: Two to one, and the where the Trump judges are.
8:23
SPEAKER_00: They can't teach racism?
8:24
SPEAKER_00: I don't get it.
8:25
SPEAKER_00: How is that a how is that so divided?
8:27
SPEAKER_00: Okay, well, there was one Trump judge, Britt Grant, who was in the majority, and a different Trump judge, Barbara Lagoa, who was in the dissent.
8:35
SPEAKER_00: That is part of what makes this uh case so interesting.
8:37
SPEAKER_02: Now, um, again, before we go into legal doctrine, now that we've read what the Stop Walk Act actually does, I do want to get Josh's sort of high-level thoughts on this because I think he and I might disagree about how far the Florida law uh goes, maybe it goes a little too far, but I want to crystallize uh this point a little bit, right?
8:53
SPEAKER_02: Here's really the question.
8:54
SPEAKER_02: Let's let's let's pretend we don't live in 2026.
8:58
SPEAKER_02: Let's suppose this is 1850.
9:00
SPEAKER_02: Okay, suppose the first amendment applies to the states.
9:02
SPEAKER_02: Now that that obviously it didn't back then, and it does today through the 14th Amendment.
9:06
SPEAKER_02: We'll we'll talk talk about that, but let's suppose the First Amendment, the freedom of speech, right?
9:10
SPEAKER_02: Congress shall make an law predominant freedom of speech, applies to the states.
9:14
SPEAKER_02: Suppose it's 1850 and we're in Ohio, okay?
9:17
SPEAKER_02: There's this big debate between abolitionists, um pro-slavery in the South, you know, North versus South, eventually it will lead to the to the Civil War.
9:25
SPEAKER_02: And suppose the Ohio legislature, like Florida in this case, suppose Ohio passed a law that says it shall be prohibited for all public primary, secondary teachers, and university teachers, right?
9:37
SPEAKER_02: And all the in those schools, it shall be prohibited for any of them to teach any tenants of what is known as the positive good theory of slavery.
9:46
SPEAKER_02: So the universities shall not teach the writings of, for example, George Fitzhugh, because they are antithetical to our cherished notions of equality and human dignity and inalienable rights and are corrosive to our Republican institutions.
9:59
SPEAKER_02: Now you'll remember, um, Josh, uh, we were all in studio, I think, when we talked about slavery and the descent of the South and the positive good theory of slavery.
10:06
SPEAKER_02: So the question here, maybe the Florida, you know, Stop Book Act goes too far, but isn't the question in its essence the same as the one I just posed, right?
10:14
SPEAKER_02: If the Florida Stop Book Act is unconstitutional, does it mean that the Ohio, you cannot teach in our public universities or in our public schools, the positive good theory of slavery?
10:23
SPEAKER_02: Wouldn't that be equally unconstitutional?
10:25
SPEAKER_02: Okay, so that's the free.
10:26
SPEAKER_00: Is that a real situation or are you making that?
10:28
SPEAKER_02: I'm just hypothetical.
10:29
SPEAKER_02: Yeah, I'm just that as a hypothetical.
10:30
SPEAKER_02: Okay, so before we dive in to the actual legal doctrine, Josh, do you agree that this is a parallel uh that I it's a correct parallel that I've drawn between this hypothetical statute in Ohio and the Florida Stop Wolf Act?
10:42
SPEAKER_02: Do you think one goes too far, the other doesn't go far?
10:44
SPEAKER_02: What are your sort of high-level thoughts before we dive in to the First Amendment itself?
10:47
SPEAKER_01: I love how you set it up.
10:48
SPEAKER_01: Uh it's interesting.
10:50
SPEAKER_01: Um traditionally, the courts have made a distinction between primary and elementary school teachers and high school teachers, so um K through 12 and university professors.
11:04
SPEAKER_01: And the courts, the federal courts, and a number of state courts have sort of constitutionalized the concept of academic freedom, but only with respect to university professors and not with respect to K through 12 teachers.
11:17
SPEAKER_01: And I think that doesn't make sense.
11:19
SPEAKER_01: That seems like the just um the court making a prudential sort of uh political judgment about what they think is good policy instead of really interpreting the original constitution.
11:31
SPEAKER_01: So uh I do agree with the analogy, and I think it it shows that this really shouldn't be decided on a constitutional basis.
11:42
SPEAKER_01: I I don't fully agree with the Florida law, but this shouldn't be decided on a constitutional basis.
11:46
SPEAKER_01: So let me just make a few like background, high-level points about that.
11:50
SPEAKER_01: I think what makes these cases so difficult is precedent and not the original constitution.
11:56
SPEAKER_01: The First Amendment says nothing about public universities funded by taxpayer dollars.
12:02
SPEAKER_01: It says nothing about the free speech rights of educators who are educated on behalf of a government, right?
12:08
SPEAKER_01: It it it all of that is gloss created by judges through precedence.
12:15
SPEAKER_01: Umstitutional law builds up little by little through precedence into doctrine.
12:20
SPEAKER_01: And, you know, if you just hold up the original constitution relative to these issues, it's one of these open-ended issues where to me, and I've talked about this on a million previous podcasts that we've done, the larger principle is where the Constitution does not clearly settle the matter, let the democracy decide.
12:37
SPEAKER_01: And I think this is one of just yet one more instance where we should hold to that.
12:42
SPEAKER_01: And I'd also point out academic freedom came from Germany, not the First Amendment.
12:50
SPEAKER_01: So, okay, there's a history here.
12:52
SPEAKER_01: Um back in the day, before World War I, in the late 19th century and the early 20th century, German universities were the most distinguished in the world.
13:02
SPEAKER_01: Heidelberg University was the pride of the world, uh, Berlin University, Humboldt University of Berlin were the most was the most uh honored in the world.
13:10
SPEAKER_01: And there was a huge train of American academics in the 1850s and 1870s and 1890s and 1910s who came to those universities and absorbed the concepts and brought them back.
13:24
SPEAKER_02: And Josh, you followed, you followed in their footsteps, right?
13:27
SPEAKER_01: I did.
13:27
SPEAKER_01: Uh uh a hundred years later, I followed in their footsteps and went to a German university for my PhD in philosophy.
13:33
SPEAKER_01: I went to an American law school and a German university for my PhD in philosophy.
13:36
SPEAKER_01: Anyway, the academic freedom as developed in those German universities was actually three concepts put together.
13:44
SPEAKER_01: One was called Lehrfreiheit, which translates from into freedom to teach.
13:50
SPEAKER_01: It referred to the present professor's liberty to determine what and how to teach.
13:55
SPEAKER_01: The other part was Forschungsfreiheit, which translates to freedom of research, which is the liberty to choose your questions and your methods and your conclusions and to publish your results.
14:05
SPEAKER_01: And the last, which actually America never adopted, was Lernfreiheit, which is the freedom of students to choose their own courses and to attend or skip lectures to determine their own course of learning.
14:17
SPEAKER_01: We never adopted that.
14:18
SPEAKER_01: You're not free without grade consequences to skip lectures in America.
14:22
SPEAKER_01: And we design majors to a greater extent than Germany.
14:25
SPEAKER_00: So And you should be able to.
14:26
SPEAKER_00: I've long held that.
14:28
SPEAKER_01: Yeah, right.
14:28
SPEAKER_01: Well, there's a long tradition of Americans, you know, going to Germany.
14:33
SPEAKER_01: For example, the distinction between lectures and seminars was a German invention.
14:38
SPEAKER_01: That's why you don't traditionally have it at Oxford and Cambridge, and they have the tutelage style, right?
14:44
SPEAKER_01: We adopted the lecture seminar structure of higher ed from German universities just as we adopted these concepts of um of academic freedom.
14:55
SPEAKER_01: And then we codified them.
14:56
SPEAKER_01: We we uh imported them for about 70 years uh at Johns Hopkins and Harvard and Cornell and New Chicago.
15:04
SPEAKER_01: And then we codified them in the 1915 American Association of American University Professors, AAUP, Declaration on the Principles of Academic Freedom.
15:16
SPEAKER_01: That's how this got started.
15:18
SPEAKER_01: Putting it into the First Amendment is a mashup.
15:21
SPEAKER_01: It's taking something that we borrowed from German universities in the early 1900s and late 1800s and saying, now we're going to constitutionalize it.
15:31
SPEAKER_01: And the fact that we constitutionalized it incompletely for university professors, but not for K-12 teachers, is a dead giveaway that it's not actually the original constitution.
15:42
SPEAKER_01: It's not really the constitution at all.
15:44
SPEAKER_01: It's a prudential judgment about good policy.
15:47
SPEAKER_00: Yeah, that's a good background, Josh, because I think a lot of people in America have this kind of like everything counts view of the First Amendment.
15:55
SPEAKER_00: You know, I should be able to say whatever I want, whenever I want.
15:58
SPEAKER_00: And they don't really understand what the First Amendment actually really does say and protect.
16:02
SPEAKER_00: So, Elon, maybe you can help us with that.
16:05
SPEAKER_00: Um, the First Amendment actually says Congress shall make no law abridging the freedom of speech.
16:11
SPEAKER_00: So you alluded to this earlier, but okay, stupid question.
16:16
SPEAKER_00: Florida, not Congress.
16:17
SPEAKER_00: Does that matter?
16:18
SPEAKER_02: Yeah, so this is super interesting.
16:20
SPEAKER_02: So, okay, Florida is not Congress.
16:23
SPEAKER_02: Um, the president is not Congress.
16:25
SPEAKER_02: Facebook and X are not Congress, right?
16:28
SPEAKER_02: And so as you were just saying, everyone feels like you just have this right to speak.
16:32
SPEAKER_02: And maybe there is this small C constitutional value that isn't enforceable by courts, but enforceable in some way by custom, or at least we respect it as custom.
16:41
SPEAKER_02: And that might include something like academic freedom.
16:44
SPEAKER_02: It doesn't mean judges, so we could value it highly as a prudential matter, and it becomes this sort of customary constitutional principle, but one that nevertheless can be modified by the legislature, right?
16:54
SPEAKER_02: So, okay, well, let's that's the question.
16:56
SPEAKER_02: So let's uh dig uh into the first amendment.
16:58
SPEAKER_02: So Congress, let's start simple sort of what about the president?
17:02
SPEAKER_02: Does this mean the president can violate the First Amendment?
17:05
SPEAKER_02: Or the courts can violate the First Amendment?
17:07
SPEAKER_02: And so this was an argument that people made for a while.
17:09
SPEAKER_02: And then uh there was a very cleverly titled article.
17:12
SPEAKER_02: Uh, I think it was called uh the um First Amendment's first word.
17:15
SPEAKER_02: I think it was Professor Dan Hamill, um, who's actually a tax professor, who explained, wait a minute, the president can only execute laws of Congress.
17:22
SPEAKER_02: That's what the president is allowed to do.
17:23
SPEAKER_02: And if Congress can't pass a law abridging the freedom of speech, then there should be no law abridging of speech for the president to execute.
17:30
SPEAKER_02: And uh so presumably, you know, pursuant to the president's other powers, like commander-in-chief, like of course you could tell a soldier not to speak or whatever, right?
17:36
SPEAKER_02: There's no other independent basis of power to which the president would violate the freedom of speech.
17:41
SPEAKER_02: So that resolves that question at the federal level separation of powers.
17:44
SPEAKER_02: What about the states?
17:45
SPEAKER_02: Well, we've talked a little bit about this before.
17:48
SPEAKER_02: This has to do with the 14th Amendment.
17:49
SPEAKER_02: After the Civil War, um, Congress uh um enacted and the people ratified an amendment that says uh no state shall do various things.
17:58
SPEAKER_02: This is where we get no state shall deprive someone of life, liberty, or property without due process, deny them equal protection of law.
18:04
SPEAKER_02: And there is this phrase that says, no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.
18:11
SPEAKER_02: And uh, you know, through some combination of these clauses, it's a little awkward, okay, because the Supreme Court messed up a lot of this doctrine uh in the 1870s almost immediately.
18:21
SPEAKER_02: Uh, the Supreme Court has applied the Bill of Rights, the First Eight Amendments, to the states.
18:25
SPEAKER_02: And so now the first eight amendments are enforceable against uh the states through this clause that says, you know, no states shall, um, which are the clauses again on um a little bit unclear.
18:36
SPEAKER_02: For the record, I've written in my scholarship that I think this was a mistake, that the 14th Amendment's drafters did not intend to make the first eight amendments, the Bill of Rights, applicable to the states, but that's a minority view.
18:47
SPEAKER_02: I'm right about it, but it nevertheless is always uh is a minority uh view.
18:52
SPEAKER_02: Okay, so that's why uh it applies to Florida.
18:55
SPEAKER_00: Okay, what about the discussion?
18:57
SPEAKER_01: Could I just I'm so sorry, may I just jump in there really quick?
19:00
SPEAKER_01: It's so complicated, but I I here's here's my takeaway from all the complexity.
19:06
SPEAKER_01: Um the way the modern First Amendment works is no state actor can prohibit free speech.
19:15
SPEAKER_01: Uh uh there's i I could put that a little more delicately.
19:20
SPEAKER_01: Um any state actor who tries to abridge the right of freedom of speech is subject to judicial scrutiny.
19:26
SPEAKER_01: But non-state actors still are free to abridge free speech when they want to.
19:31
SPEAKER_01: So if you like work for Coca-Cola and they say you can't endorse Pepsi, that is an abridgement of your freedom of speech based on your terms of employment and they can do that.
19:40
SPEAKER_01: Uh, it is different, but you know, if um if the president tells me, like if I get a letter from the president and it says you can't criticize me, that would be an abridgement of my freedom of speech, even though the first word is Congress.
19:55
SPEAKER_01: Agreed?
19:55
SPEAKER_01: That's right.
19:56
SPEAKER_01: Okay, yes, good.
19:57
SPEAKER_00: Yeah.
19:57
SPEAKER_00: Okay, so let's go to uh kind of another hypothetical.
20:01
SPEAKER_00: Like, what if it was private universities and private schools?
20:05
SPEAKER_00: That would make this case a lot easier, right?
20:07
SPEAKER_02: Yeah, so this is sort of the a middle question to what Josh was just asking, right?
20:11
SPEAKER_02: I mean, in one respect, um, a private university is just like that hypothetical, the person Josh was just describing that the president sends a letter to, right?
20:18
SPEAKER_02: So um if Congress or the state or state actors says you in private schools cannot teach X, Y, or Z, you as a parent cannot teach or say A, B, and C to your kids, that is a violation of the First Amendment and possibly other rights, which we've talked about on this show, like substantive due process, right?
20:34
SPEAKER_02: Um, and so again, there's so at issue there is a state actor telling a private person that they can't do something.
20:41
SPEAKER_02: And uh there, let me just go through uh the doctrine um uh really quick.
20:45
SPEAKER_02: Um uh the First Amendment, obviously, some speech can be regulated even in that context, right?
20:50
SPEAKER_02: So, like uh the doctrine says if you uh discriminate on the basis of viewpoint, uh if you tell schools you can only teach democratic values rather than Republican values or whatever, these private schools.
21:01
SPEAKER_02: Viewpoint discrimination is per se unconstitutional.
21:03
SPEAKER_02: Then there's something called content-based restrictions where you have to know the subject matter, but you're not sort of discriminating among views.
21:09
SPEAKER_02: That gets what we call strict scrutiny.
21:11
SPEAKER_02: And time place and manner restrictions, which say, you know, you just can't express your view with a you know through a megaphone in front of my house at 10 p.m.
21:18
SPEAKER_02: at night, you know, that's content neutral.
21:20
SPEAKER_02: That gets these time place and manner restrictions.
21:22
SPEAKER_00: Really quick, but then you you our thing is, you know, this law is about not being racist, right?
21:28
SPEAKER_00: So in theory, if schools are teaching racist principles, wouldn't that already be discrimination?
21:34
SPEAKER_00: And even if you're a private school, it's not like you can just be a racist private school, right?
21:39
SPEAKER_02: Uh-huh.
21:39
SPEAKER_02: So that's a that's a really good point.
21:41
SPEAKER_02: So even if we're dealing with private schools and private universities, right?
21:46
SPEAKER_02: This the the let's go to commercial speech, for example.
21:50
SPEAKER_02: So if you're a doctor prescribing medicine, you can't the the state is allowed to regulate you.
21:55
SPEAKER_02: If you're a lawyer representing clients, we've talked about this before, too.
21:58
SPEAKER_02: Like the state is allowed to regulate.
22:00
SPEAKER_02: Your speech to some degree.
22:02
SPEAKER_02: Now, obviously, the state has an interest in school speech, in teacher speech.
22:08
SPEAKER_02: They can establish curriculums.
22:09
SPEAKER_02: They are a curricula, right?
22:11
SPEAKER_02: So just because the state is involved in determining some content of a private school or private university, you can't say X, you can't say Y, doesn't mean it's necessarily unconstitutional.
22:23
SPEAKER_02: Usually it takes the form a bit differently.
22:26
SPEAKER_02: Usually, when the state regulates a uh a private institution like that, it doesn't say you can't say X, Y, or Z.
22:33
SPEAKER_02: Usually it says, well, you must at a minimum teach A, B, C, D, E, and F.
22:37
SPEAKER_02: You must meet these curricular requirements.
22:39
SPEAKER_02: And if you have room for other stuff, I guess we're not going to tell you you can't do it, which is a little bit different, right?
22:44
SPEAKER_02: Here, though, it's it's it's not private, right?
22:48
SPEAKER_02: And that may um lead to sort of a different question, right?
22:51
SPEAKER_00: Well, what I found kind of interesting in reading this case was that it seems weirdly unsettled, like how the First Amendment applies to this kind of law.
22:59
SPEAKER_00: Um, the court analyzed two lines of doctrine, so-called government speech and a separate doctrine involving public employee speech.
23:06
SPEAKER_00: So government speech, this one seems straightforward to me.
23:09
SPEAKER_00: The government is allowed to have a viewpoint when speaking as the government.
23:13
SPEAKER_00: So it's allowed to decide what monuments to have on public grounds, it's allowed to decide what museums to open and what to have those museums display.
23:21
SPEAKER_00: So one possibility is are public universities just the government here?
23:26
SPEAKER_00: And the curriculum is actually government speech, and the teachers are instruments of the government.
23:32
SPEAKER_00: I actually feel like maybe that could make sense.
23:35
SPEAKER_02: Yeah, so before we go onto the next thing, right?
23:37
SPEAKER_02: So I know I know what you were gonna say because we talked about we both wrote the case and we talked about in advance.
23:42
SPEAKER_02: There's one possibility is government speech, right?
23:44
SPEAKER_02: It's the public university's speech is the speech in question and it's just the government talking.
23:48
SPEAKER_02: Yeah.
23:48
SPEAKER_02: The other is it's actually the university professor's speech, it's the speech of the public employees.
23:52
SPEAKER_02: And the analysis is different.
23:54
SPEAKER_02: But let's just set, you know, settle for a moment on the government speech thing.
23:57
SPEAKER_02: I'm wondering, Josh, what you think.
23:58
SPEAKER_02: Like, why can't we just say that the public universities have a public mission?
24:03
SPEAKER_02: The idea is to raise and cultivate a certain kind of citizen, but all and that ultimately requires some degree of academic freedom, some degree of academic inquiry in order to cultivate that citizens.
24:13
SPEAKER_02: But the state, because it's ultimately using a state institution to advance a state mission, is allowed to have ideas of the limits of academic freedom and may us, you know, weigh that against other values, promoting certain ideas.
24:26
SPEAKER_02: Why can't we say that the university professors, um, and again, we'll we'll analyze in a moment you know the doctrine related to public employee speech, which is really, I think, how this case is ultimately going to be analyzed.
24:39
SPEAKER_02: Why can't we treat this as government speech?
24:42
SPEAKER_02: And maybe you can't separate them because maybe the answer is um uh, well, you know, they have their own speech rights, these individuals.
24:49
SPEAKER_02: And then I would say, well, but you you aren't entitled to work at a university, which goes to the unconstitutional conditions doctrine, which we will talk about next.
24:56
SPEAKER_02: But is this not just a government speech case?
24:58
SPEAKER_02: I mean, you know, normally, as you were saying, government speech is like you get to choose what monuments to have on government land or what to have on your state license plates or what your state motto is going to be, right?
25:07
SPEAKER_02: I mean, I don't know, Josh.
25:08
SPEAKER_02: Before we get into unconstitutional conditions, public employees' speech, what's wrong with that?
25:13
SPEAKER_02: Just saying public universities have a mission, and it's a mission that it's a government mission, and they can, it's government speech.
25:20
SPEAKER_02: Everything that they allow there in effect is government speech.
25:22
SPEAKER_02: Is it just too detached from the facts?
25:24
SPEAKER_02: Because obviously individual professor speech is not government speech.
25:27
SPEAKER_02: So it's is is that the response?
25:29
SPEAKER_02: Have I just talked myself out of it?
25:30
SPEAKER_02: I don't know.
25:30
SPEAKER_02: What what what do you think uh about this initial possibility?
25:35
SPEAKER_01: Um, I think this whole inquiry is distorted by the fact that we're treating um the issue as a constitutional one.
25:43
SPEAKER_01: So then we have to draw the constitutional distinctions.
25:46
SPEAKER_01: Is this a condition?
25:47
SPEAKER_01: Is it uh uh is it government speech?
25:50
SPEAKER_01: Is it government employees speech?
25:52
SPEAKER_01: Well, free speech doctrine is modified in these different contexts.
25:56
SPEAKER_01: I if we looked at this as a non-constitutional matter, because again, the First Amendment does not clearly speak to this.
26:03
SPEAKER_01: And in my view, I am a constitutional minimalist.
26:06
SPEAKER_01: With a constitution does not speak, it is silent, which is to say the issue belongs to the democracy.
26:12
SPEAKER_01: And so um, constitution doesn't speak to this at all.
26:15
SPEAKER_01: And what a university is is a question of what the state government makes it, right?
26:20
SPEAKER_01: So most state governments, all state governments thus far, have chosen to make their universities places of education and scholarship, not just the expression of government speech, right?
26:31
SPEAKER_01: So you don't like regularly get a new legislature or a new governor, a new party, and they say, okay, we are hereby going to change the entire message of the university.
26:42
SPEAKER_01: Here's how you're gonna teach history now, because this is history from a Democrat point of view.
26:46
SPEAKER_01: Here's how you're gonna teach history, it's from a Republican point of view or philosophy or law.
26:51
SPEAKER_01: We we don't do that, right?
26:53
SPEAKER_01: Because the way we have by statute defined the mission of the university is this is a truth-seeking education institution, it is about education, it is about scholarship and scholarly discovery, and we think that requires sort of a substantial free hand to take place.
27:10
SPEAKER_01: But if it's democratically created, it could be democratically changed, and you could start to say, okay, new mission.
27:18
SPEAKER_01: This is now the organ of the expression of the government.
27:22
SPEAKER_01: And we are going to teach you, you know, Arkansas values, Alaska values, Texas values, California values, and not just hard passes.
27:30
SPEAKER_02: On those last values, on those California values, hard pass.
27:33
SPEAKER_01: Not just California values, but the values of California under the political control of these people at this place and time.
27:41
SPEAKER_01: That is to say, you know, Newsom and the legislature he has, um, uh, and likewise with the other states.
27:47
SPEAKER_01: I think that would be a terrible way to organize universities.
27:50
SPEAKER_01: I do not think it's unconstitutional.
27:52
SPEAKER_01: So you know, we actually, can I mention here, Ilan and I, when we were first thinking about creating this podcast, um thought about calling it uh stupid but constitutional.
28:05
SPEAKER_01: That was the other name we were thinking about.
28:06
SPEAKER_01: Don't embarrass me.
28:07
SPEAKER_01: Don't embarrass me.
28:08
SPEAKER_01: It's good.
28:09
SPEAKER_01: It is good.
28:10
SPEAKER_01: Stupid but constitutional.
28:11
SPEAKER_01: That what you're proposing, that treating universities as just an organ of government speech, is a classic case of stupid but constitutional.
28:20
SPEAKER_02: Yeah, and again, the government, you can treat it as government speech, and the government can decide that it wants to allow academic freedom because of the value that academic freedom provides for the pursuit of truth.
28:30
SPEAKER_02: I will say that that how do we know that the First Amendment doesn't speak to this, Josh?
28:34
SPEAKER_02: It might we might actually be begging the whole question, right?
28:36
SPEAKER_02: Because if it is university professor speech, then the state or Congress has made a law abridging their freedom to speak, right, by passing these laws.
28:44
SPEAKER_02: But if the speech is not of the university professor as such, then of course the First Amendment doesn't say anything because it's just the government speech.
28:51
SPEAKER_02: It hasn't abridged anybody's speech at all.
28:52
SPEAKER_02: The government can choose to speak and it can choose not to speak.
28:55
SPEAKER_02: So, in a way, we're begging the question, or it's just a matter of framing, right?
28:58
SPEAKER_02: You can frame it as government speech of some kind or a state creation entirely.
29:03
SPEAKER_02: And then we've concluded through that framing that the First Amendment doesn't apply.
29:07
SPEAKER_02: But let's go to the other thing, which is if it is the university professor speech, then how do we analyze that?
29:12
SPEAKER_02: Because they'll say, Well, you're bridging my First Amendment right.
29:15
SPEAKER_02: And so and that seems to be how they're going to analyze it, I think.
29:18
SPEAKER_00: Yeah, this this this doctrine, the one, the public employee speech, does answer some questions for me because one of the things that came up when I'm reading the first one is okay, what if you have a postal worker, someone who's delivering mail, and they put something on Twitter, like, are they, excuse me, ex, are they now, you know, can they not do that?
29:36
SPEAKER_00: Can the government stop them from doing that?
29:38
SPEAKER_00: Well, here's what the the public employee speech doctrine would say.
29:41
SPEAKER_00: Uh it would, if you simply work for the government, let's say you're a postal carrier or a police officer.
29:45
SPEAKER_00: The state can, of course, control what you say with respect to your official duties, but they they can punish you for things you say as a private citizen on matters of public concern.
29:54
SPEAKER_00: Um, for example, can they fire you or demote you for having made that kind of speech?
30:00
SPEAKER_02: Yeah, so there is a um famous expression from Justice Holmes when he was on the Massachusetts Supreme Court, which is um much uh high court of Massachusetts, um, supreme judicial, whatever, the high court in Massachusetts before he became a justice of the US Supreme Court, in which he says, you have a right to be a policeman, um, but it uh I'm sorry, you have a right to speak, but you don't have the right to be a policeman.
30:23
SPEAKER_02: So if we're gonna hire you as a policeman, there could be genuine restrictions on your speech that are conditions uh sort of of your job.
30:30
SPEAKER_02: So you laid it out correctly.
30:32
SPEAKER_02: It's it seems obviously true uh that they could control your official speech.
30:36
SPEAKER_02: So if you're a policeman, while you're on the job, acting as a policeman, they can tell you certain you're not allowed to say certain things, you're not allowed to do certain things.
30:44
SPEAKER_02: When you're a postal carrier, you're not allowed to say certain things, you're not allowed to do certain things.
30:48
SPEAKER_02: Like you can't deliver a ballot and say, oh, you should vote for X.
30:52
SPEAKER_02: Right.
30:52
SPEAKER_02: I mean, they could control your official speech.
30:55
SPEAKER_02: The question, though, uh is well, actually, could you say that this is official speech as part of a university professor?
31:02
SPEAKER_02: I was gonna jump to the other thing, which is like on your own, on your own time, but in a way, could you just say this is official speech, which is very similar to government speech?
31:10
SPEAKER_02: I mean, that's that's one possibility, and I think Florida has invoked um that argument.
31:15
SPEAKER_02: But the real question is uh, can you uh can the state restrict a postal carrier uh is ability to speak outside of duties for some reason?
31:25
SPEAKER_02: Or if you're a civil servant and you work for the civil service, can they say we don't want you engaging in politics ever on the job, outside the job, because we want an apolitical neutral civil service by accepting what is effectively a public privilege, a government job that you're not otherwise entitled to, right?
31:42
SPEAKER_02: There's no private right to this.
31:43
SPEAKER_02: Can they condition it on you foregoing rights you might otherwise have?
31:48
SPEAKER_02: Right?
31:48
SPEAKER_02: So again, if this is like uh uh so again, if this is a private citizen wanting to teach private students, obviously the Florida Stopwalk Act would abridge the freedom of speech.
31:59
SPEAKER_02: But that private individual also does not have a right to be a public school teacher.
32:04
SPEAKER_02: That is a public privilege, that is a public job, that is a public good, kind of like receiving welfare benefits.
32:10
SPEAKER_02: And so the question is you uh you know, you unquestionably would have the right to say these things if you were purely private.
32:15
SPEAKER_02: You don't have a right or an entitlement to this public benefit or public good.
32:20
SPEAKER_02: So if we give you that public benefit, that public job, right, or that public privilege, that public employment, can we condition that second thing on you forgoing some rights you would have had if you had just been a private citizen?
32:32
SPEAKER_00: Yeah, what's the answer?
32:34
SPEAKER_00: That's a great question.
32:36
SPEAKER_02: That's why I'm here.
32:37
SPEAKER_02: But let me suggest uh that this is the question, right?
32:40
SPEAKER_02: And the courts are very confused about this across doctrines.
32:43
SPEAKER_02: The doctrine is called the unconstitutional conditions doctrine.
32:45
SPEAKER_02: And why is it so confusing?
32:47
SPEAKER_02: It's confusing because the court has sometimes said things like the government is not allowed to condition public benefits on requiring that the recipient forego some sort of private right or constitutional right.
32:58
SPEAKER_02: But that's actually not true.
32:59
SPEAKER_02: The court allows it all the time.
33:01
SPEAKER_02: And the question is whether the condition is germane.
33:04
SPEAKER_02: It's called the germainess analysis.
33:06
SPEAKER_02: Is the condition, the forgoing of this private right, related in some way to the public benefit you are receiving?
33:12
SPEAKER_02: So let me give you some examples.
33:13
SPEAKER_02: I wrote some down.
33:14
SPEAKER_02: This is actually an area of my scholarship.
33:16
SPEAKER_02: In the 1970s, if you were a recipient on welfare, by the how much times have changed, you had to accept um suspicionless, warrantless searches of your home by government officials.
33:29
SPEAKER_02: Otherwise, it would violate your Fourth Amendment rights.
33:31
SPEAKER_02: Okay, but the question was can the government, as a condition of giving you these welfare benefits, say you must submit to what what were called home welfare searches?
33:40
SPEAKER_02: Because we and the and the answer was yes.
33:42
SPEAKER_02: Yeah.
33:43
SPEAKER_02: The government, the Supreme Court and the Supreme Court, and you you you're radical, like we're all radical and based on this podcast.
33:49
SPEAKER_02: You, of course, um uh would agree with that.
33:50
SPEAKER_02: And the Supreme Court did too uh in the 1970s.
33:54
SPEAKER_00: Because you don't have to take welfare benefits.
33:55
SPEAKER_02: Bingo, the only consequence of your failure to agree to the search is you lose your benefits, right?
34:02
SPEAKER_02: If someone comes and says, Okay, we we we're here for that welfare search and you decline, you don't go to jail.
34:07
SPEAKER_02: They don't ransack it anyway, you just lose your benefits.
34:09
SPEAKER_02: You lose the public privilege, and that's key to the germanus analysis, right?
34:13
SPEAKER_02: There are other examples.
34:14
SPEAKER_02: Um, this, by the way, explains why sometimes administrative law judges can impose regulatory fines.
34:21
SPEAKER_02: Um, if you look at the historic cases, they were all the fines were only imposed in public uh privilege cases.
34:27
SPEAKER_02: So, like if you wanted to bring in immigrants, you don't have a right to do that.
34:30
SPEAKER_02: It's a public right, it's a public privilege.
34:32
SPEAKER_02: Right?
34:32
SPEAKER_02: Immigration is a public privilege, which we'll get into with with um the second case.
34:36
SPEAKER_02: So if you brought in immigrants with disease that could have been detected prior to embarkation or disembarking, I guess, um you were fined.
34:44
SPEAKER_02: It does this violate your Seventh Amendment right to a trial by jury?
34:47
SPEAKER_02: Who's this administrative law judge to just impose this hearing officer to just impose this customs official to just impose this fine?
34:53
SPEAKER_02: And the answer was well, the only thing you lose if you refuse to pay the fine is a public privilege.
34:58
SPEAKER_02: We will refuse your right to clear your vessel and unload the immigrants.
35:01
SPEAKER_02: This, by the way, is a live issue in the Supreme Court right now, the Sun Valley Orchards case over the constitutionality of regulatory fines.
35:08
SPEAKER_02: I submitted an amicus brief along these lines.
35:10
SPEAKER_02: So to all the Supreme Court justices that are and clerks that are listening to this, look at that brief.
35:14
SPEAKER_02: That is the answer to uh that case.
35:15
SPEAKER_02: Let me give you one other example, and then um I'll tell you how I think this all cuts here, and then we'll bring Josh in for um his thoughts.
35:22
SPEAKER_02: This is the Hatch Act.
35:23
SPEAKER_02: Government employees cannot, even off the job, are not allowed to host political fundraisers.
35:28
SPEAKER_02: They're not allowed to run for partisan political offices, right?
35:31
SPEAKER_02: These are rights that government employees would have had if they were private citizens, right?
35:35
SPEAKER_02: But the question is, as a condition of giving them a government civil service job, is it germane?
35:40
SPEAKER_02: Is it related?
35:41
SPEAKER_02: Is it reasonable to say you must forego some rights you would otherwise have?
35:45
SPEAKER_02: And the answer is is it related to the purpose of civil service to have a neutral apolitical, you know, government workers and employees, such that you can, you know, you can run for office or you could be a government employee, but you can't do both, you know, partisan office.
35:57
SPEAKER_02: And the courts upheld this.
35:58
SPEAKER_01: Yeah.
35:58
SPEAKER_01: Just a really quick interjection on the doctrine.
36:01
SPEAKER_01: There are limits, even for um germane conditions or conditions considered germane for public employees.
36:07
SPEAKER_01: For example, uh it would be unconstitutional under current doctrine to require a public employee off the job or maybe even on the job to affirm like support for the president.
36:20
SPEAKER_01: Right?
36:21
SPEAKER_01: Correct.
36:22
SPEAKER_01: If uh President Trump gave an executive order that said every person who works for the federal government must say President Trump is a great president and the right president and should be the president, and they must say it on the job and off the job, surely courts would hold that unconstitutional.
36:40
SPEAKER_01: So it's not like they lose all First Amendment rights.
36:43
SPEAKER_01: They lose First Amendment rights to the extent that the deprivation of constitutional rights can be sort of proved to a court satisfaction to be germane to the job.
36:53
SPEAKER_02: Bingo.
36:54
SPEAKER_02: That's a that's exactly right.
36:55
SPEAKER_02: And if I may digress briefly, my first larvae article ever, which I wrote as a student note, was about drug testing welfare recipients.
37:02
SPEAKER_02: And the whole joke, I was a little more libertarian at the time.
37:04
SPEAKER_02: I'm now much more radical and conservative uh today.
37:08
SPEAKER_02: Oh, yeah, I grew up.
37:09
SPEAKER_02: I'd like to say.
37:10
SPEAKER_00: Everyone was more libertarian in college.
37:13
SPEAKER_00: And then you learn, you learn more, you grow up, you realize wait, libertarians are like the dumbest of all.
37:18
SPEAKER_00: I'm sorry.
37:19
SPEAKER_02: Okay, okay.
37:19
SPEAKER_02: We, if you're a libertarian watching the show, we love you.
37:22
SPEAKER_02: Please continue listening.
37:23
SPEAKER_02: I think it's possible to be base libertarian, though it's hard.
37:26
SPEAKER_02: Um and you can call in and uh and write us and convince us that we're wrong.
37:29
SPEAKER_02: But on the welfare, what I there was a series of litigations uh in the last decade um over, I think Florida, it was Florida again, tried to impose as a condition of receiving welfare suspicionless drug testing.
37:40
SPEAKER_02: And I basically showed that this is an unconstitutional conditions question, which hadn't been sort of uh shown before.
37:46
SPEAKER_02: And what I basically said is if drug if the data show that drug use is related to absenteeism and your you know likelihood of retaining a job and getting off welfare and so on, then of course it's a germane condition and you should be allowed to test them.
37:58
SPEAKER_02: And if the data don't bear it out, then we should legalize drugs because what's the point of you know prohibiting drugs?
38:03
SPEAKER_02: But that was the whole libertarian punchline.
38:05
SPEAKER_02: You can have one or the other.
38:06
SPEAKER_02: Either it's a constitutional condition because it's germane, or we should legalize drugs.
38:09
SPEAKER_00: Heroin for all.
38:10
SPEAKER_02: Exactly.
38:10
SPEAKER_02: And I've moved past that.
38:12
SPEAKER_02: I believe the law now has an educative function.
38:14
SPEAKER_02: But anyway, the point is simply to amplify what Josh said, which is germaneness is the is the test, right?
38:19
SPEAKER_02: You can't just do some random unrelated condition, right?
38:21
SPEAKER_02: Uh, you can't say only Republicans get welfare benefits.
38:24
SPEAKER_02: Um it has to relate somehow to the to the benefit of the.
38:28
SPEAKER_00: It seems really broad, like a lot of things in the law.
38:29
SPEAKER_00: Like germaneness, I feel like could be interpreted in so many different ways, but okay, I get it.
38:33
SPEAKER_02: That's a that's a fair point.
38:34
SPEAKER_02: And I think what Josh would say, though maybe I'll get back to him in a second, uh, would be well, yeah, you give a lot of leeway to the legislature.
38:40
SPEAKER_02: But at the end of the day, surely courts have a role in saying, well, you can't just say only Republicans get welfare.
38:47
SPEAKER_02: So so so you have to draw the line somewhere.
38:50
SPEAKER_02: One is clearly unconstitutional, in my view.
38:52
SPEAKER_02: And then there might be a zone of twilight, someone might say, where it's contested.
38:56
SPEAKER_02: And then I think you should give some deference to those questions, you know, to the so okay, how would this bear out here, in my view, in the Florida Stop Woke Act?
39:02
SPEAKER_02: Then we'll bring Josh his big picture sort of view on this, and then we can pivot uh to immigration if you were both ready.
39:08
SPEAKER_02: Well, again, it seems to me public employment in a public university or a public school is a public privilege.
39:13
SPEAKER_02: You do not have a right to educate in the public universities.
39:16
SPEAKER_02: Okay, it's a privilege.
39:18
SPEAKER_02: So is it germane to condition your exercise and enjoyment of that right to speak or that public privilege, that public right, you know, to be a public university professor and to inculcate the next generation of citizens?
39:29
SPEAKER_02: To can is it okay to condition that on establishing parameters as to what can be taught?
39:35
SPEAKER_02: And to be honest, I think the answer is yes.
39:37
SPEAKER_02: I think the answer is yes.
39:38
SPEAKER_02: Academic freedom, as Josh would say, it's a German idea, so I'm already against it.
39:41
SPEAKER_02: As sort of like just the default.
39:43
SPEAKER_02: I know Josh, I know he's ready to go, Josh.
39:45
SPEAKER_02: We'll bring you in.
39:46
SPEAKER_02: Uh just my hago.
39:47
SPEAKER_02: I've got my hago.
39:49
SPEAKER_01: But this is German ideas and they're really good.
39:52
SPEAKER_02: That yeah, that looks like the Cambridge text version, though.
39:55
SPEAKER_02: So you know it's a little British too.
39:57
SPEAKER_01: Well, okay, fair.
39:58
SPEAKER_01: Yeah.
39:58
SPEAKER_02: No.
39:59
SPEAKER_02: Um anyway, and so like academic freedom, as Josh was saying earlier, is is a value.
40:04
SPEAKER_02: It is not a First Amendment value, it is a value and an important value that the state can uh should advance and articulate, but it can also put limits on it.
40:12
SPEAKER_02: Let me give you an example.
40:14
SPEAKER_02: Can the shouldn't the state say anyone who doesn't believe in academic freedom as a general matter, or anyone who doesn't believe in free inquiry, everyone who believes um that, you know, um the purpose uh you know of love life, of university, of political power is to make sure everybody submits to Allah or something.
40:33
SPEAKER_02: Okay, I I'm just I'm not saying all Muslims believe that.
40:35
SPEAKER_02: I'm just saying there are some Muslims who believe that.
40:37
SPEAKER_02: Can you say if we have too many people who think like that, this whole free market of ideas, this whole free inquiry itself would collapse?
40:43
SPEAKER_02: And so we need to police that.
40:45
SPEAKER_02: You know, uh can we say, you know, if you believe in the violent overthrow of the US government because you're a communist, we're not gonna tolerate that.
40:52
SPEAKER_02: Because if everybody thought that, then the whole idea of liberal democracy would collapse.
40:56
SPEAKER_02: You can't have academic freedom in all of those other societies, so you can't allow enough of those other people in who would undermine that.
41:02
SPEAKER_02: That's just an example.
41:03
SPEAKER_02: Maybe the Florida Stop Walk Act goes too far and does too much, but in principle, why isn't that Florida's judgment to make?
41:09
SPEAKER_02: Okay, Josh, go.
41:11
SPEAKER_02: Agree, disagree.
41:14
SPEAKER_02: He's thinking I agree with the uh yeah, your perspective's really hard.
41:19
SPEAKER_02: Josh, just say whatever it is that you wanted to say before I just did that 60 mile an hour monologue or 120 mile an hour.
41:25
SPEAKER_00: You're going faster than you for you.
41:26
SPEAKER_02: There is something about being in studio, which if you'll noticed, I'm I'm still on sabbatical, but I'm in Minnesota today, so we're in studio.
41:33
SPEAKER_02: There is something about this that makes me talk fast, isn't there?
41:36
SPEAKER_00: You're just so excited to be here.
41:37
SPEAKER_00: Happy to be here with me.
41:38
SPEAKER_00: I know.
41:39
SPEAKER_00: The vibes are good.
41:40
SPEAKER_00: Josh, what do you think?
41:41
SPEAKER_02: Josh is looking great uh over there in his library.
41:44
SPEAKER_02: All right, Josh, go ahead.
41:45
SPEAKER_01: Well, first of all, you always talk fast, but it's okay.
41:47
SPEAKER_01: We love it.
41:48
SPEAKER_01: Um as usual, I think this thicket of doctrine um obscures more than it illuminates.
41:58
SPEAKER_01: And we have to back up for a second and think about the big picture here.
42:06
SPEAKER_01: I think there's a tremendous irony.
42:09
SPEAKER_01: A university is supposed to be a place of intellectual freedom.
42:13
SPEAKER_01: In that respect, I, you know, you could say I disagree with the Florida Act, except that I think the Florida Act is trying to restore intellectual freedom, right?
42:21
SPEAKER_01: University is supposed to be a place of genuine intellectual freedom where you're presented with lots of ideas, the marketplace of ideas, and um you reason collectively to find the truth, and there's no constraint on the effort to find the truth other than quality constraints, right?
42:40
SPEAKER_01: We do say there are quality constraints.
42:42
SPEAKER_01: We we don't say that you have to have Wiccans in the medical school or astrologers in the physics department.
42:47
SPEAKER_01: We do impose quality constraints, but beyond that, it's supposed to be excellence in reasoning.
42:52
SPEAKER_01: No fair-minded person thinks that is what is actually happening in American universities today.
42:59
SPEAKER_01: I cannot think of any ideal in America more betrayed in practice.
43:04
SPEAKER_01: You know, foreign visitors come to American universities and they're like, oh my gosh, academic freedom, free speech on American campuses is a joke.
43:12
SPEAKER_01: I have never felt more unfree in my life, including in my country where we don't have a First Amendment.
43:18
SPEAKER_01: American professors, the American professoriate has twisted academic freedom to mean they pick exclusively like-minded peers as colleagues.
43:28
SPEAKER_01: The administration does the same with students, and it's created an ideological cartel that suppresses free thought, suppresses speech, and leads to groupthink.
43:37
SPEAKER_01: And these numbers on this are known and they are astonishing.
43:41
SPEAKER_01: So, you know, latest numbers I've seen are from Harvard, for example, where I think, as I recall, 97% of the faculty are left of center and 95% of the students.
43:54
SPEAKER_01: Similar numbers can be seen throughout all of the elite colleges and universities of America.
44:00
SPEAKER_01: America, essentially.
44:01
SPEAKER_01: Even places that you would think might be dissenting because of where they're located geographically, for example, like the University of Virginia, well over 90% of the faculty and well over 80% of the students are left of center.
44:13
SPEAKER_01: It is impossible not to have oppression in that kind of environment.
44:17
SPEAKER_01: It's just unrealistic.
44:18
SPEAKER_01: Like sociologically, of course, you have oppression in an environment that's that ideologically unified.
44:25
SPEAKER_01: And there's research on what happens in conditions of groupthink to the mission for which universities exist, the mission of seeking truth, the mission of scholarship, the mission of teaching, right?
44:36
SPEAKER_01: So let me tell you about one experiment about this.
44:39
SPEAKER_01: Some researchers gave people uh um surveys about what they think about climate change.
44:46
SPEAKER_01: And it put them in an array of one to ten, where one is like, this is a hoax, it's not happening, and ten is like, this is happening and it's the greatest emergency on earth, right?
44:55
SPEAKER_01: And then they took all of the fours and they said, go talk about climate change for an hour and then take the survey again.
45:03
SPEAKER_01: And they took all the sixes and said, go talk about climate change for an hour and take the survey again.
45:08
SPEAKER_01: And guess what happened?
45:10
SPEAKER_01: The fours became twos and became incredibly confident about it.
45:14
SPEAKER_01: The sixes became eights and became incredibly confident about it.
45:18
SPEAKER_01: In other words, people reinforce each other in groupthink environments and they cause a systematic kind of increase in extremism and confidence.
45:28
SPEAKER_01: So that is death to the search for truth.
45:32
SPEAKER_01: In scholarship, it just makes ideas seem obvious that would not seem obvious in conditions of genuine marketplace of ideas and free speech.
45:40
SPEAKER_01: And in teaching, it makes teaching into inevitably a kind of propaganda.
45:45
SPEAKER_01: It becomes, instead of like the transmission of like the best practices of reason and what we know about the universe, it becomes a kind of instruction in how to be a well-accepted member of a social class.
45:59
SPEAKER_01: If you are to be a member of the top half of America or the American elite or whatever it is, here are the things you have to believe.
46:07
SPEAKER_01: The French actually have a term for this.
46:09
SPEAKER_01: Uh so here's another European country for you, Elon.
46:12
SPEAKER_01: Bien croissant.
46:13
SPEAKER_01: Bien croissant.
46:14
SPEAKER_01: I'm probably butchering the, but it it means, I'm probably butchering the pronunciation, but it means something like here is what decent educated people believe.
46:23
SPEAKER_01: And that's what you get in the American classroom is this sort of ideological indoctrination, which is ultimately extremely classist.
46:31
SPEAKER_01: It's ultimately a kind of class instruction.
46:34
SPEAKER_01: Yeah, so okay, can we simplify?
46:37
SPEAKER_01: Yeah, I I I just I want to land this one idea.
46:41
SPEAKER_01: The twisted irony here is that the First Amendment is being trotted out to defend this totally unfree intellectual environment.
46:50
SPEAKER_01: And I just, it is unbearable, right?
46:52
SPEAKER_01: It is maddening.
46:54
SPEAKER_01: Because what's going on is we have a failure of freedom.
47:00
SPEAKER_01: And then the legislature is trying to intervene.
47:04
SPEAKER_01: I think this legislation is a little clumsy, but the legislature is trying to intervene to get rid of the oppressive groupthink, the woke, the DEI ideas, which students, by the way, and professors are punished for violating at American universities all the time.
47:21
SPEAKER_01: There is this ideological bullying, there's this control.
47:26
SPEAKER_01: The legislature is trying to restore the marketplace of ideas, restore freedom of speech and thought.
47:32
SPEAKER_01: And the universities and their supporters, including some judges who rank among their supporters, are saying the First Amendment prevents the legislature from trying to make sure the First Amendment is actually a reality on the ground.
47:44
SPEAKER_01: And this has got to be wrong.
47:46
SPEAKER_01: And we can talk about the doctrinal pathway, but this has got to be wrong.
47:50
SPEAKER_01: I love, I love that point about the irony.
47:52
SPEAKER_02: It's like you're trying, what did you say?
47:54
SPEAKER_02: I just want you to repeat.
47:54
SPEAKER_02: So, or I can repeat it.
47:55
SPEAKER_02: It's you're trotting out, they're trotting out the First Amendment and this idea of academic freedom to create the conditions in which they literally dominate, and 99% of the students and the faculty all think the same thing, and it's oppressive, and there's no actual academic freedom.
48:08
SPEAKER_02: And that is ironic.
48:09
SPEAKER_02: We should, wouldn't it be better to use state power, the state legislature, to restructure the university to actually create genuine conditions of academic freedom?
48:17
SPEAKER_02: I love that point.
48:17
SPEAKER_02: And Josh, you mentioned astrology, right?
48:20
SPEAKER_02: Like this quality control.
48:21
SPEAKER_02: So let me just give you an anecdote.
48:23
SPEAKER_02: I I thought it was on video, and I swear I heard this, but I haven't been able to find it.
48:26
SPEAKER_02: But I I, if I'm not imagining this, which I might be imagining it, but whatever, I want to believe this is true.
48:31
SPEAKER_02: And other people have said similar things.
48:33
SPEAKER_02: I was at a conference at Stanford University over a decade ago about this question of intellectual diversity.
48:38
SPEAKER_02: And I swear I heard a former dean of Stanford Law School who was asked, Well, why don't you have more originalists on the faculty?
48:45
SPEAKER_02: And he said, Well, that's kind of like asking a chemistry department to hire an alchemist, or, you know, as you said, astrology.
48:51
SPEAKER_02: So it's like it's quality control, but the problem is they just think conservatives are crazy.
48:55
SPEAKER_02: Uh and this is this is this is a serious problem.
48:57
SPEAKER_01: Like um, there is on Twitter, I'm sorry, yeah, this really happens in conditions of groupthink.
49:03
SPEAKER_01: So you could think this is just bad faith or whatever, but when you are in a 97, 98% environment, as you would be at Stanford Law School, for example, um, it will genuinely appear to you that like originalists are crazy because there is a distorting effect on the mind of being in an ideological environment of ideological domination.
49:28
SPEAKER_01: That's why it's so important to prevent an environment of ideological domination.
49:32
SPEAKER_01: Ilan, I did I didn't want to interrupt, but I just wanted to interject that.
49:35
SPEAKER_01: That's the group thing problem.
49:36
SPEAKER_02: No, that's that's great.
49:37
SPEAKER_02: And it's going on now.
49:38
SPEAKER_02: I mean, on X, there's a professor from the University of Pennsylvania.
49:41
SPEAKER_02: I think he does antitrust.
49:42
SPEAKER_02: I'm not sure actually, I might be convinced, confusing what he does with what someone else does, but I think it's Herb Hovenkamp, who's a professor at the University of Pennsylvania.
49:48
SPEAKER_02: And he's fighting with people on X because he's like, he's saying enough affirmative action for conservatives.
49:52
SPEAKER_02: If conservatives uh were good, then we have a free market of ideas and we would hire them.
49:57
SPEAKER_02: And I'm like, are you are you serious?
49:59
SPEAKER_02: You know, it's just like you hear yourself, he's been in an echo chamber for 40 years and doesn't realize that actually you are discriminating.
50:06
SPEAKER_02: And the reason you think conservatives aren't good is because, you know, of your own intellectual biases in this universe in which you've never had to confront legitimately, you know, these positions, perspectives from the other side.
50:16
SPEAKER_00: But on the outside of this, you do see that the people have formed their own opinions outside of the academic circles.
50:21
SPEAKER_00: Like I was just talking to a number of uh supporters of our organization the other day about, you know, sending your kids to college, and they all agreed with what it was.
50:28
SPEAKER_00: Sean Duffy who said, uh, I would never let my daughter go to Harvard.
50:33
SPEAKER_00: They take good young girls, they indoctrinate them into left-wing social justice crazies.
50:38
SPEAKER_00: And that is exactly what all these people agreed with.
50:40
SPEAKER_00: They said spot on, I would never let my kids go to Harvard.
50:44
SPEAKER_00: And so I think now what you see is the people trying to take those universities back through voting for people like Ron DeSantis.
50:50
SPEAKER_00: And that is something I think we should celebrate.
50:52
SPEAKER_02: Okay, Josh, I know you had more thoughts, but we're got about 15 minutes left, tops.
50:56
SPEAKER_02: So, Catherine, let's talk about the um immigration case, which is, as we'll see, similar and related, right?
51:02
SPEAKER_02: Uh, so what what's the second topic?
51:03
SPEAKER_02: Uh and it's related.
51:05
SPEAKER_00: Second topic.
51:06
SPEAKER_00: The question is can the government revoke a student visa if the foreigner engages in undesirable speech?
51:12
SPEAKER_00: And we're going to get into a little bit of X-beef here that you were involved in, Elon, which is his favorite thing.
51:16
SPEAKER_02: But immediately you can see the structure of the problem is the same.
51:19
SPEAKER_02: A public benefit, immigration, foregoing a private right, freedom of speech.
51:23
SPEAKER_02: Okay, keep going.
51:24
SPEAKER_00: FIRE, the Foundation for Individual Rights and Expression, secured a victory in the Northern District of California, getting a district judge to hold that the federal statutes authorizing the Secretary of State to remove foreigners for certain kinds of speech were unconstitutional.
51:38
SPEAKER_00: And then we have a we have a ex post here from a fire representative who said this fire won a huge First Amendment victory today.
51:45
SPEAKER_00: And before anyone mischaracterizes it, this ruling does not say the government must admit anyone, issue anyone a visa, or grant anyone citizenship.
51:53
SPEAKER_00: It says that once a person is lawfully here, the government cannot deport them because they engaged in protected speech.
51:59
SPEAKER_00: The government cannot tell an illegal immigrant an American is free to say this, but if you say it, you're out.
52:05
SPEAKER_00: That's the principle we sued to defend, and today we won.
52:09
SPEAKER_02: And this was from Greg Lukianov, who does really good work with FIRE.
52:12
SPEAKER_02: Again, used to be Foundation for Individual Rights in Education, so related to our first topic.
52:16
SPEAKER_02: Now it's uh more a more general organization, as you said.
52:19
SPEAKER_02: But yeah, I thought he was wrong.
52:20
SPEAKER_00: And you pointed that out in your own.
52:22
SPEAKER_02: I will post this, um giving the eye to Isaac.
52:24
SPEAKER_02: We'll post this uh ex post uh for our YouTube watchers.
52:28
SPEAKER_00: Okay, so here's what Elon said.
52:30
SPEAKER_00: Fire does amazing work, but this is just wrong.
52:32
SPEAKER_00: The government is in fact allowed to condition public privileges, including immigration privileges, on the recipient foregoing rights he might otherwise have, so long as the condition is germane to the privilege.
52:43
SPEAKER_02: So you already got you already got it.
52:44
SPEAKER_02: Yeah, this is what we talked about today.
52:46
SPEAKER_02: So you would have already had this if you follow me on X.
52:49
SPEAKER_02: Follow me on X.
52:50
SPEAKER_00: The government should absolutely be able to kick out foreigners if they say things like death to America or whatever.
52:55
SPEAKER_00: So based on your post, if I'm following, it's the exact same issue we just talked about, right?
53:00
SPEAKER_00: Immigration is a privilege, and the question is whether the government can condition that privilege of being here in America legally on the foreign student foregoing some kind of free speech rights that he might otherwise have if he were a citizen.
53:14
SPEAKER_02: Yes, correct.
53:15
SPEAKER_02: You are understanding it correctly.
53:16
SPEAKER_02: This is a classic unconstitutional conditions.
53:18
SPEAKER_02: Immigration is not a right, it is a privilege, it is a public privilege.
53:21
SPEAKER_02: We can close off the country to anyone we want.
53:24
SPEAKER_02: We don't have to allow them in.
53:25
SPEAKER_02: And so the question becomes can we condition allowing them in, this grant of this public privilege, on their foregoing rights they might otherwise enjoy and exercise?
53:34
SPEAKER_02: And I think the answer is yes.
53:36
SPEAKER_02: Now, again, I think it would be trickier to say uh that uh only, you know, we should we should admit having a blanket policy or an express policy of only allowing Republican value people, you know, to come into this country, you know, big R Republican, maybe smaller Republican would be okay in some way.
53:51
SPEAKER_02: Um, but again, to say, but if you say things like death to America, or if you believe in autocracy, or if you believe in the violent overthrow of the US government, then we can kick you out and super germane, if you ask me.
54:02
SPEAKER_00: Yes, Max Germain.
54:04
SPEAKER_02: And to be clear, not germ, not not German.
54:09
SPEAKER_01: I love it.
54:09
SPEAKER_02: Yeah, Max Germaness, not Germanness, though, just to be clear, which I oppose.
54:13
SPEAKER_01: People would think Mr.
54:14
SPEAKER_01: Max Germain, yeah.
54:15
SPEAKER_02: But yeah, so so I think it's exactly that the problem.
54:17
SPEAKER_02: Now, I don't know exactly what remind me.
54:19
SPEAKER_02: Did did we find exactly what kind of things that were said?
54:21
SPEAKER_00: Or is the Stanford Daily did the lawsuit and the Yeah, the lawsuit is the Stanford Daily Publishing Corp, which is a student running.
54:27
SPEAKER_02: Which how does the Stanford how does the Stanford Daily even have standing?
54:30
SPEAKER_02: Open question, but we're not gonna talk about standing again.
54:32
SPEAKER_02: We got some feedback that the last episode was a little too technical on the standing stuff.
54:37
SPEAKER_02: Okay, fair enough.
54:37
SPEAKER_02: But so it's Stanford Daily, right?
54:39
SPEAKER_00: Yeah, and they also had a a Jane Doe, a non-citizen visa holder.
54:43
SPEAKER_02: Okay.
54:43
SPEAKER_00: Um and actually no immigration enforcement actions have been taken against either party or its members, but lawfully present non-citizens have refused writing projects, quit the paper, stopped submitting op-eds, and things like that.
54:55
SPEAKER_00: So basically they're arguing like their speech was chilled as a result of some of the um actions the Trump administration.
55:01
SPEAKER_02: Wait, just like the parents of the transgender kids were their activities were chilled by fear of the law and the uh it's almost like you know, voluntarily affect, you know, changing your behavior should create standing.
55:12
SPEAKER_02: Uh so anyway, I don't want to revisit that episode, but that's was my argument on the last episode.
55:16
SPEAKER_02: And I was right.
55:17
SPEAKER_00: And Jane Doe for her for her part, you know, said, you know, she had decreased or eliminated her expression of support of Palestine, criticisms of the US foreign policy and opposition to the Israeli government out of fear, she no longer attends protests, where is a kafia, flies the Palestinian flag, etc.
55:35
SPEAKER_00: things like that.
55:35
SPEAKER_00: So that was mostly what we're focusing on here.
55:37
SPEAKER_00: And they use stories like what happened to uh Mamau Khalil in their argument.
55:41
SPEAKER_00: As many listeners remember, he was one of those protesters at Columbia University who the Trump administration accused of pro-Hamas, pro-Hijad, pro-Jihadist protest activity, and also like anti-Semitic and anti-American activity more generally.
55:56
SPEAKER_00: They used him as basically an example, saying cases like that are chilling our free speech to be able to speak out against America and Israel.
56:02
SPEAKER_02: So let me just say a quick point about this, and then Josh, maybe you can bring us home and maybe connect uh the two topics together um with your thoughts.
56:10
SPEAKER_02: So the first is I don't think there's a question of Secretary of State Marco Rubio's statutory authority here, right?
56:16
SPEAKER_02: It's very broad.
56:16
SPEAKER_02: Uh, you know, it basically allows him to remove anyone that he thinks is inimical to the foreign policy interests of the United States and so on.
56:22
SPEAKER_02: Uh, but let's put so so he he has the authority, the the statutory authority.
56:26
SPEAKER_02: But the constitutional question is what we're talking about today.
56:28
SPEAKER_02: Like, is it right?
56:29
SPEAKER_02: Is that statute right if it applies to this kind of speech?
56:31
SPEAKER_02: And so the question, as you said, is is Germanus.
56:34
SPEAKER_02: And if you can kick out communists, which the Supreme Court has allowed, right, uh, in the past, uh, because they support the violent overthrow of the United States government, well, you know, this is a bit of harder case here, okay?
56:44
SPEAKER_02: If you if you say I think October 7 was glorious, I want more October 7.
56:49
SPEAKER_02: If you say I want death to Jews, death to America, easy.
56:52
SPEAKER_02: Kick them out.
56:52
SPEAKER_02: But if you just generally have advocacy for, say, Palestine or anti-Israel, hard question.
56:58
SPEAKER_02: But I think that's a judgment call that uh should be left to the Secretary of State in that case, right?
57:02
SPEAKER_02: If it's open to reasonable disagreement.
57:04
SPEAKER_02: And the germanist analysis that I would make is Israel uh is, and it's just not original to me.
57:09
SPEAKER_02: This is, you know, this idea, Israel is hated so much because there are Jews there and people always hate Jews.
57:16
SPEAKER_02: But put that aside, it's an outpost of Western civilization.
57:18
SPEAKER_02: That's what kids are taught today, right?
57:20
SPEAKER_02: We have enough of these, Josh, as you said, the Thanksgiving dinner table.
57:23
SPEAKER_02: We have enough, you know, you know, ingrown, homegrown, homegrown uh teachers who teach this stuff already, right?
57:30
SPEAKER_02: This idea that Israel is a settler colonial state is an outpost of the West, and that's why it must be destroyed, because it is an outpost of Western civilization, but the attack is on Western civilization itself.
57:39
SPEAKER_02: And I think it's okay to say we don't want people here who want to attack and undermine Western civilization.
57:44
SPEAKER_02: Close call, but if there's a reasonable debate on the germanus of the question, uh, I think we should defer to um the Secretary of State Rubio, and I think it would be constitutional.
57:52
SPEAKER_02: Uh, and so I think it the the structure of the case is is similar and uh actually quite disappointed in fire of which, by the way, also sued in the Northern District of California.
58:00
SPEAKER_02: So even fire forum shops uh for favorable judges, it turns out.
58:03
SPEAKER_02: But with that, I think that's what I wanted to say about the case.
58:06
SPEAKER_02: I wanted to connect the two topics.
58:07
SPEAKER_02: Josh, uh, I know both you and Catherine, I think, had some final thoughts, so why don't you uh bring us home, the two of you?
58:13
SPEAKER_01: My big picture thought on this is that um uh our country, any country, should be able to take ideology into account when it comes to immigration.
58:25
SPEAKER_01: Uh and that could be we don't want communists here, it could be we don't want jihadists here, it could be we don't want people who just hate America and hate American values here.
58:35
SPEAKER_01: And um I think the distinction fire is invoking between uh people who he, you know, the Greg Lukyanoff guy who you quoted, he may keep them out, but once but once they're here.
58:50
SPEAKER_01: But once they're here, you can't do anything about their speech.
58:53
SPEAKER_01: And I think that's all that's a distinction without a difference.
58:57
SPEAKER_01: I mean, what's the difference between someone who wants to come to America and otherwise would be allowed to come, but is being prevented because of their ideology, and someone who is here on like a student visa or an H1 visa and is espousing the same ideology.
59:11
SPEAKER_01: No, the line is between citizenship and non-citizenship.
59:16
SPEAKER_01: If someone is a citizen, we we argue with them, we don't punish them.
59:22
SPEAKER_01: That's what citizenship means, right?
59:24
SPEAKER_01: But if someone is not a citizen, we can say, well, we don't want you to be part of our political community because you detest our political community and what we stand for together.
59:33
SPEAKER_01: And that is a line courts can actually maintain in a sensible way.
59:37
SPEAKER_01: It's not a distinction without a difference, it's a distinction with a difference, the most fundamental difference of all.
59:42
SPEAKER_01: Are you inside or outside this civilization, outside of this uh political community?
59:47
SPEAKER_01: And I think this is a civilizational issue that the left and libertarians the left doesn't like and libertarians, including fire, don't get.
59:57
SPEAKER_01: So what's going on with the left is they sympathize with these people, even if they don't outright agree with these people.
1:00:05
SPEAKER_01: They think they're directionally right, you know.
1:00:08
SPEAKER_01: I I have no doubt that the, you know, if there was a flood of immigrants who were like, America needs to be more devoted to colorblindness and free markets and small government, the Kamala Harris administration would have something to say to that, or America needs to be more nativist.
1:00:25
SPEAKER_01: The Kamala Harris administration would have something to say about that, right?
1:00:28
SPEAKER_01: No, they sympathize with the perspectives that are being brought in.
1:00:32
SPEAKER_02: And on the and the By the way, Josh, just just if I may interrupt, real quick, they we see this with the South African, the Afrikaners or the Boers that have come in, um, you know, the white South Africans, it's all over.
1:00:43
SPEAKER_02: Maybe it's just my ex-feed, but the the left hates the idea that we bring in them.
1:00:48
SPEAKER_02: So it's the it's exactly the same thing, except the shoe is on this foot rather than their foot, right?
1:00:52
SPEAKER_02: So exactly.
1:00:53
SPEAKER_01: The libertarians are more principled, but also much, much more naive and much more overconfident.
1:01:00
SPEAKER_01: They just don't understand how sociology works.
1:01:03
SPEAKER_01: They imagine that people are blank slates, and you know, students will come here on student visas and won't be formed by the alternate ways of life.
1:01:12
SPEAKER_01: They'll just see the virtues and they'll do like a cost-benefit analysis.
1:01:16
SPEAKER_01: Oh, I like the American system.
1:01:17
SPEAKER_01: It wins.
1:01:18
SPEAKER_01: I'm gonna change my fundamental view of the world.
1:01:20
SPEAKER_01: And they imagine, they always assume, I find it so infuriating, they always assume that when we bring in people with ideas antithetical to our civilization, we will change them instead of they will change us.
1:01:36
SPEAKER_01: And that is the naivety, that is the overconfidence.
1:01:40
SPEAKER_01: It's just as likely that they will change us as we will change them.
1:01:44
SPEAKER_01: That's what we've seen in Europe, for example.
1:01:46
SPEAKER_01: And it's what we've seen in the United States with, for example, the explosion of anti-Semitism, which is clearly influenced by the uh mass migration of immigrants who are more anti-Semitic than the native population.
1:01:57
SPEAKER_01: And there's a last issue, and you know, I haven't wanted to lean on my um background as general counsel, acting general counsel, and then chief counsel of the Department of Education.
1:02:08
SPEAKER_01: Um, but I worked on all of these issues.
1:02:11
SPEAKER_01: I worked on university reform issues, and I worked on foreign infiltration of American universities issue.
1:02:18
SPEAKER_01: And um, and and I just want to, I don't want to lean on that too much, but there is something very important to say here.
1:02:27
SPEAKER_01: One of my sort of lines of primary work uh in the Department of Education was overseeing uh or helping to oversee foreign funding to American universities.
1:02:39
SPEAKER_01: And that requires TSSCI clearance.
1:02:42
SPEAKER_01: I had that clearance, so there's a lot I can say here.
1:02:44
SPEAKER_01: There's also a lot I can't say.
1:02:46
SPEAKER_01: But let me just say this folks, especially libertarians, you are underestimating the degree to which there is serious foreign infiltration of American universities.
1:02:58
SPEAKER_01: And it's not just the views of the individuals involved, they are working for state actors, they are working for foreign governments that have malign intent, uh, that are adversaries of ours.
1:03:09
SPEAKER_01: And they have identified universities as the soft underbelly of our immigration system and a sort of a point of infiltration and counterops, propaganda, right?
1:03:21
SPEAKER_01: So there is, I mean, Avril Haynes, who was Biden's uh uh uh uh uh director of national intelligence, um, uh said, declassified the fact that Iran was quote, I'm gonna quote her, trying to stoke discord and undermine confidence in our democratic institutions by providing financial and other support to Gaza protests on college campuses.
1:03:46
SPEAKER_01: Biden's DNI thought it was worth declassifying that critical fact, which was a major act and a sort of uh uh contrary to administration act.
1:03:59
SPEAKER_01: There is so much more there.
1:04:02
SPEAKER_01: Uh I think there's reason to believe that um China and Russia were involved in the Gaza protests as funders and as putting students as plants, students who worked for those governments.
1:04:14
SPEAKER_01: Why would China and Russia care?
1:04:16
SPEAKER_01: They have no interest in Hamas and they have no interest in Israel.
1:04:19
SPEAKER_01: It's purely for destabilization purposes.
1:04:22
SPEAKER_01: If you can change the ideological environment on campus, you change elite opinion.
1:04:27
SPEAKER_01: And if you change elite opinion, you change the American nation and its willingness to fight for certain things, and that is in the interests of adversaries.
1:04:35
SPEAKER_01: And so there's this whole dimension of this that has to do with like serious national security concerns that the libertarians seem totally blind to.
1:04:45
SPEAKER_00: But that's also why libertarians exist in these kinds of circles, in your circles and academic circles.
1:04:51
SPEAKER_00: And then if you take that ideology and you ask anyone on the street, should people uh here on a student visa be able to espouse anti-American views, they say uh WTF, that's like obviously no.
1:05:01
SPEAKER_00: So I think that we also, you know, talk a long time about the ideas of libertarians and things like that that don't represent necessarily huge portions of the actual population because when you take them to their end form, they're destructive, they're self-destructive.
1:05:14
SPEAKER_00: We don't need to have a constitution in a country that is self-destructive.
1:05:19
SPEAKER_00: But I will say one thing about this episode.
1:05:21
SPEAKER_01: Oh, I was just gonna say this, and I totally agree with you, Catherine.
1:05:24
SPEAKER_01: But when you marry libertarian values with leftist values with a lot of legal skill, you can win in court.
1:05:33
SPEAKER_01: And they just did win in court, and it's important for you know, people like me and Elon and you to counter those ideas, even if it should be common sense.
1:05:42
SPEAKER_00: Totally agree.
1:05:43
SPEAKER_00: And one thing I liked about this episode, this is a great episode because often my refrain is that you lawyers really muddle things up, you confuse things that are obvious.
1:05:52
SPEAKER_00: I love the germane thing that like made the whole issue make sense for me.
1:05:56
SPEAKER_00: I feel like legal principles helped me today understand this issue so much better.
1:06:00
SPEAKER_00: So thank you guys.
1:06:01
SPEAKER_00: I thought that was very successful.
1:06:03
SPEAKER_02: And based on what Josh just said about foreign infiltration, sounds like germaneness, and we should certainly defer to the Secretary of State's sort of uh view on this.
1:06:12
SPEAKER_02: Well, this was a real uh fun episode to have.
1:06:14
SPEAKER_02: I was so glad to be back in studio taking a sabbatical for my sabbatical to come uh here uh to do it.
1:06:19
SPEAKER_02: There's so much more we could have said.
1:06:21
SPEAKER_02: Uh, and if you like the conversation, as always, like and subscribe, follow us on Substack, and we will see you next week.