Free Speech Under Pressure – Nadine Strossen on the First Amendment, Protest, and Power

Former ACLU president and First Amendment scholar Nadine Strossen joins Faithful Politics for a wide-ranging conversation on what free speech actually protects—and what it doesn’t—in today’s political climate. Strossen explains why free expression is the foundation for every other civil liberty, why censorship often backfires, and how both the left and the right have grown more comfortable restricting speech they dislike. 

The conversation moves from campus speech controversies and hate speech laws to protest, ICE enforcement, January 6, and the legal standard for incitement. Throughout, Strossen makes a clear case for viewpoint neutrality and warns that powers used to silence one group rarely stay contained. The episode closes with practical guidance on how Americans should think about the First Amendment in daily life, and why defending speech we oppose is the price of protecting our own.

Guest Bio
Nadine Strossen is one of the country’s leading voices on free speech and civil liberties. She served for 17 years as president of the ACLU, becoming the first woman to lead the organization. She is a law professor at New York Law School and a senior fellow at the Foundation for Individual Rights and Expression (FIRE). Strossen is the author of several influential books, including Hate: Why We Should Resist It with Free Speech, Not Censorship, Free Speech: What Everyone Needs to Know, and The War on Words.

Organizations:

• Foundation for Individual Rights and Expression: https://www.thefire.org/
• American Civil Liberties Union: https://www.aclu.org/

Recommended Readings:

• Hate: Why We Should Resist It with Free Speech, Not Censorship: https://bookshop.org/a/112456/9780190859121
• The War On Words: 10 Arguments Against Free Speech—And Why They Fail: https://bookshop.org/a/112456/9781949846829
• The Coddling of the American Mind How Good Intentions and Bad Ideas Are Setting Up a Generation for Failure: https://bookshop.org/a/112456/9780735224919

Transcript

0:16

Welcome back, Faithful Politics listeners and watchers. If you're watching us on YouTube or listening to us on audio, we are so glad. I guess those are really the two ways that people can consume the media, right? Like listening or watching. If you're listening or watching, thank you. I'm your political host, Will Wright. I'm joined by your Faithful Host, Pastor Josh Bertram. How's it going, Josh? Good, don't forget to like, subscribe, check out the Patreon, all that good stuff. Anyway, let's go. Yeah. You don't have to talk that close to your microphone, uh just perfect. So joining us today, sorry, lot of like programming and logistics stuff this morning. Joining us today is Nadine Strossen. She's one of the country's leading voices on free speech and civil liberties. She served for 17 years as the president of the ACLU, becoming the first woman to lead the organization and is now a law professor in New York Law School and is also a senior fellow at the Foundation for Individual Rights and Expression, FIRE. where she continues her work defending free speech and academic freedom across the political spectrum, is an author of a ton of books, including Hate, Why We Should Resist It with Free Speech, Not Censorship, and Free Speech, What Everyone Needs to Know, and The War on Words, to just name a few. She's testified in front of Congress and has spent decades thinking about the First Amendment, among other really, really important things in the country. And gosh, we are just so happy to have you here today, Nadine. So welcome to Faithful Politics. I'm so delighted to be here. Many thanks to you, Will and Josh, and thank you for modeling what has become all too rare in our country, a vigorous but respectful dialogue and debate format between people who have strong disagreements as well as strong agreements about the always contentious topics of politics and religion. m know. Well, it's interesting that the way that I kind of came to you or came to want to invite you on the show is um regular listeners of the show will know I've been sort of on a Jonathan Haidt kick reading like basically everything he's written. He wrote a wonderful book called The Righteous Mind, which led me to want to read more of his stuff. So I picked up The Coddling of the American Mind, which led me to read The Cancelling of the American Mind, which led me to read The War of Words. ah And I know I've got a lot more reading to catch up on. uh So I've become really interested in First Amendment type stuff, which is why it's so great to have you. But I am curious. Yeah. Jonathan is a great colleague of mine as well. and I'm on the advisory board of the Heterodox Academy, which he founded, think, about 10 years ago now already, and is also making really important contributions, especially in the area of viewpoint diversity and, as the name would suggest, heterodoxy as opposed to the suppressive orthodoxy that is too dominant at both ends of the political spectrum. It's so true. If you tell him, if you see him, you can tell him that you've got two fanboys here that like his stuff. Okay, I'll tell him yet. books. you know he's now full time working on the social media restrictions. And you know, this talk about respectful disagreements, his co-author, Greg Lukianoff and I, got another close colleague, have very strong disagreements with Jonathan about his proposals, which have been successfully implemented in many states to restrict social media access to young people. So that could be a very, very interesting I would be delighted to pass on your invitation. amazing. And I was going to say, my kids don't know who Jonathan Hyde is, they should because he's one of the reasons that they're not getting cell phones until much later. They're 12. They're 12 and 9 right now. I'm going to give them like Hyde's book, The Anxious Mind. But anyway, about you, Nadine, how did you kind of choose to kind of become sort of an expert in the First Amendment. I mean, there's so many amendments. Like, you know, why not something obscure like the Third Amendment, you know? Like, what is it about the First Amendment that really sort of captured your attention? You know, I as national president of the ACLU, actually for almost 18 years, ah and as a lifelong human rights and civil liberties crusader, I continue to strongly defend all fundamental freedoms for all people. And I have, you know, advocated and testified and lobbied and debated about everything from, you know, women's rights to privacy, to due process, to rights in the criminal justice system, etc, etc, etc. The ACLU's agenda, I used to say, was everything from A to Z or abortion to zero tolerance, to take just two examples. And I continue to really support those freedoms. However, uh for the past 10 or so years, I have focused my efforts on the cluster of rights in the First Amendment, uh freedom of speech, thought, religion, conscience, association, assembly, the right to petition for redress of grievance, not because they are more important than the other rights, but because they are the essential foundation for advocating all of the other rights. If we don't have free speech, We can't advocate for the Second Amendment rights or the Third Amendment rights or for that matter we can't advocate for or against any cause at all. And in addition to understanding the special role that is rights protecting role that is secured by the First Amendment or at least in theory secured by the First Amendment, I also began to realize about years ago, maybe a little bit longer than maybe a dozen years ago, that there was an increasing tide of illiberalism in the classical sense, resistance to free speech, eroding support from both ends of the political spectrum, including of greatest concern to me as somebody who's always been a traditional liberal in terms of policy as well as, you know, in the classical liberal sense, the people on the left end of the political spectrum were increasingly abandoning support for free speech uh and seem to be completely unaware of the long history in this country and around the world and the fact that to this day, suppression of free speech has been the predominant tool for stifling liberal crusaders for racial justice. justice, for social justice, economic opportunities, and basically all of the left causes have completely depended on free speech, and censorship has been the major tool for suppressing them. If I could just make one other observation, uh today, the day that you're interviewing me, I happened to hear a wonderful story about this 15-year-old girl who, she became an 86-year-old woman who recently died. Sorry, I'm blanking on her name, which is so embarrassing because I really had never heard of her and was just astounded to learn that when she was 15 years old, nine months before Rosa Parks heroically refused to give our per seat on the bus in Montgomery, Alabama, this 15 year old girl had done something very similar. um you know, that reminds me that the civil rights movement in this country was constantly subject to suppression and yet the mechanisms that it used were dependent on what then became the Supreme Court's increasing protection of free speech, including for pro-civil rights demonstrators and protests. why did Martin Luther King write his historic letter from the Birmingham jail? People know that he was in jail, but most people have no idea what his crime was. I'm using scare quotes. quotes for those who are only listening to this. His crime at the time, it was a crime, was to seek to peacefully protest unconstitutional government policies advocating for political reform. And by the way, both of you, Will and Josh, are so intertwined in King's struggles because of course he was a minister and The Civil Rights Movement was deeply a movement of faith as well as politics. It suffered enormously through censorship, but fortunately was rescued by a Supreme Court, which specifically in the context of the Civil Rights Movement finally started strongly enforcing free speech, meaningfully enforcing it. You know, I'm curious of your thoughts on like why... there seems to be kind of this erosion of First Amendment either, I don't know if protection is the right word, because it seems like most people aren't starting their day off reading the First Amendment, thinking about it and then using that as somewhat of a filter throughout their day. So it's normally like we call something a First Amendment issue like after the fact. So there's like no preventative thing in our brain that keeps us up, we're pushing up against First Amendment, we better sort back away. I'm thinking specifically about, and I can't remember the name of the college in Washington state, Green something. uh Yeah. So like the students, you know, like we're infringing upon free speech, ah but it's like, don't necessarily think that they were doing that because they're like, today's the day we're going to fight against free speech, you know? You're exactly right. have throughout my decades on the hustings debated every advocate of every measure that I consider to be a censorship measure, including former United States Attorneys General. um And every single one of them has said, as I think 100 % of Americans would say, I support free speech. I do not support censorship. But this restriction isn't censorship. This restriction is protecting national security. This restriction is protecting the safety of women and children. So for example, the kinds of measures we were talking about earlier to restrict kids' access to social media. People who support those measures, including my dear friend and colleague John Height, would never accept the C-word label for themselves. They're saying, no, we are advocating child protection. And so that and that really is a very serious issue because freedom of speech along with other fundamental freedoms protected in the Constitution is not an absolute right nor should it be. We have to recognize important countervailing concerns including national security and child children's welfare of course but the significant question is Can the government satisfy the appropriately heavy burden of proof that it should bear in order to justify a speech restriction? The presumption is in favor of free speech and that presumption should be overcome only if government can show, and here I'm going to paraphrase the legal standard, that the restriction is necessary to promote a countervailing goal of compelling importance and necessary literally means necessary as the Supreme Court has clarified that there is no less speech restrictive alternative that would be as effective or perhaps even more effective. So for example, I think the best known example is when the Supreme Court has upheld freedom for the thought that we hate saying, know, an even more effective way of uh countering hateful ideas rather than punishment and censorship, which always increases attention to the very message that you're trying to suppress, right? And it turns the speaker into a free speech martyr. That education and information and argumentation is more effective as well as less speech restrictive. I mean, I absolutely love this. Like one thing is I'm a huge fan of free speech and thank you so much for all the work that you've done to defend it over the years. I feel like I'm in the presence of royalty somewhat and so I should be like, you know, I guess that is true. No, you know, you're right. I don't either actually. Well, personally, I have one King, Christ, but you know, that's just me being a pastor, you know. And so I love this, but I'm a huge free speech person. I think that you should be able to offend me as much as you want. being your arguments, right? Obviously, don't come into my house and on my property and try to, anything weird. Anyway, we all know that. I'm a huge fan of free speech. In this idea though, like growing up or even just seeing around now that the free speech or like, let me give you an example. Like even my son, like he's starting to learn, you he's 12 and he's starting to learn his rights. And I'm like, yeah, you might have a free speech in school, but you don't have free speech in home. So, you know, and again, I say that kind of tongue in cheek, obviously I let him express himself, but at some point I'm like, be quiet and do what I'm saying. Yeah, I've heard what you said about the dishes, go do them. Thank you for expressing your opinion. So anyway, like we have this idea though that we can do whatever we want, say whatever we want, right? And you're, but you kind of said, Hey, there are some, there are some limits and yet those limits need to be really, really scrutinized. And, and even this idea of like hate speech, people are like, you can't say like even something like extremely offensive, like the N word or some racial slur, like the F word, not the one you're thinking of, the other one that would be offensive towards those in the LGBTQ community. Yeah, I don't want to say it. So anyway, you you have these words, right, that are very offensive and could be considered hatred. And yet, Josh because I think it's interesting, it's so interesting that you as a Republican conservative are giving examples of the kinds of hate speech that would be offensive to liberals, right? In particular, predominantly are the ones that cite racist speech or anti-gay speech as what they think should be punishable hate speech. ah But in Western Europe, in democracies and the UK and Canada and Australia and on and on on, speech by Christian ministers as well as by Islamic imams has been regularly punished and criminalized as hate speech because of even just reading certain passages from the Bible and the Quran. And you know the ones that are always singled out. And I know that there are completely non-hateful interpretations, but we truly are seeing seriously the imprisonment, the prosecution of people for expressing their deeply held religious views. So, censorship, the concept of hate speech, and I'm using scare quotes, inherently subjective, right? It's a value judgment. What one person considers to be hateful speech, somebody else considers to be loving speech. And so by definition, whoever is enforcing it is enforcing either their own personal subjective values or those of powerful majoritarian community interests. And in these European prosecutions, we're talking about people on the left end of the political spectrum. spectrum in government and public, know, say, using their interpretation or perhaps misinterpretation of the biblical and Quranic passages and enforcing them. But I always have to point out, but be careful what you wish for. In the United States, for example, we have had a number of powerful government officials say that Black Lives Matter advocacy is hate speech. hate speech against white people or it's hate speech against police officers. So you always have to remind yourself that the power that you want to have enforced against speakers and ideas that you dislike can be turned around against yourself and speakers you like and agree with. you are making an unbelievable point that we, I just want to say again to everyone, my conservative brothers and sisters, everything happening right here, my MAGA brothers and sisters, everything happening right now, just wait till a uh charismatic, liberal president comes that now wields the kind of power that Trump wields. I know I'm kind of getting up, but it's just like, what are we thinking here? What do we think is going to happen? Well, and especially because you don't have to warn your MAGA colleagues. about the future just remind them of the extremely recent past which is still the present on most college campuses which are predominantly to the left where it's conservatives and republicans and uh traditional Christians who are censored over and over and over again including you know anybody who is anti-abortion and trying to advocate against abortion or anybody who departs even, you know, moderates and liberals who depart from the, you know, extreme transgender rights orthodoxy. had this um argued in the Supreme Court yesterday and I'm all in favor of equal rights and opportunities for people regardless of their gender identity. But I think, you know, for people to be accused of engaging in hate speech when they say, well, but maybe that it starts to infringe on women's rights if you're a allowing, you know, prison and sports and other particular contexts where there are some countervailing considerations, that is still considered to be hate speech. You know, I read yesterday that Martina Navratilova has been canceled and lost, you know, business and economic opportunities because she was advocating a middle way. She wanted to be sure that women would own, biological women would only compete against each other. said, well, let's have a third category for, you know, other people who are, and so to be fair, and you know, that doesn't strike me as you may disagree, but to call that hate speech and to call her, so please MAGA folks, you know, keep your eye on the larger picture. There is a lot of censorship going on by local officials, by campus officials, by state officials against your idea. And I want to quote, so the golden rule, it's obviously a religious concept to the best of my knowledge, it's concept in every single world religion throughout history. And the golden rule of free speech is if you want freedom for the speech that you love, you must defend it for the speech that you loathe. That preaches right there. You gave me my sermon for this weekend. I say it all the time. Thank you, Nadine. I really like that. I'm going to use that. But I want to just change gears a little bit and focus on some current events. mean, we will focus on the Minnesota thing, but ah I want to just ask you. ah deeply personally upsetting. bet it is. Well, why don't we start there first? So, uh woman Renee Good was shot recently by an ICE agent. uh We don't need to get into the particulars of the case, but kind of just focus on the free speech uh part of it. So two questions, really. uh Based on current reporting, it seems as if she was, I don't know, protesting, blocking, whatever the case may be, uh which ultimately resulted in her death. I'm not saying there's a cause and effect relationship there. I'm just saying, yeah, those are just the facts. um Additionally, there have been quite a few people filming ICE agents and I've heard that there's a free speech um element to them filming them. So my question is, what the heck? oh You know, the right to peacefully protest is baked into not only the First Amendment right to freedom of assembly. and the right to petition the government for redress of grievances. Those are expressly in the First Amendment in addition to the right to freedom of speech. But even further back, this is baked into the DNA of our country. If you look at what gave rise to the wonderful Declaration of Independence, I mean, wonderful in its ideals. Obviously, we were far away from living up to the ideals, but you know, it was of historic significance that the nation at least committed to pursue these ideals and we have been making progress. Never enough, but a huge amount uh since 1797 or 1776, going back to the Declaration itself. And uh before that, what we had was massive protests and demonstration, not only peaceful, but some that were quite disro- including, you know, and arguably threatening to the government officials, which were namely, you know, the British, including the British military. had hangings in effigy. We had tarings and featherings. We had the Boston D Party. You know, we think of that as protest, but from the British perspective, it was vandalism and trespass and assault and robbery. And the so-called Boston massacre. That's how we learned about it in US history in when I was a kid. But as I got older and studied history and learned that John Adams of all people had defended the British soldiers who were accused of the massacre and got them acquitted by a jury of American patriots. These soldiers were subject to enormous provocation. reminds reminds me very much of some of the provocation that's going on toward ICE agents. know, people were, there was a big mob and a smaller group of soldiers, and the mob was throwing snowballs at them and rocks, and some of the snowballs had rocks in them, and they were legitimately afraid for their lives. one of my friends and colleagues who's a great First Amendment expert and runs a First Amendment project at New York University, Steve Solomon, about 10 years ago wrote a wonderful book called Revolutionary Dissent and he talked about how the right to dissent in all of these demonstrative ways going way beyond printing of pamphlets and making speeches was not only widely accepted but in fact was what generated the creation of the United States through the Declaration of Independence. And so of course we have to strongly defend the most robust protest because we the people to quote the opening words of the Constitution wield sovereign power. The Constitution itself was a terrific document, but the framers recognize that it was as imperfect as all human endeavors are. And to their credit, they included an amendment process that amendment process has been invoked, almost every single amendment, starting with the Bill of Rights, has been for the purpose of bringing us closer and closer to those ideals of liberty and justice for all. So increasing rights and increasing protection and equal protection for groups of people that had been excluded, including uh African Americans, black people, and women, and so forth. So that the right to protest is not only an individual liberty that is enormously important, but is also an essential element of our democracy, of our republic, to use the technically correct term, right, our democratic republic. That said, along with all other freedom of expression and for that matter all other rights, it is not absolute and government may and in fact should protect non-peaceful protests. In fact, the First Amendment itself includes the word peaceably. It doesn't just protect the right to assemble without qualification. It is the right of the people peaceably to assemble and to petition their government for redress of grievances. So certainly any kind of violence is illegal. Any kind of, you use the word will, obstruction. You know, to the extent her car, Renee Good's car, was obstructing traffic, obstructing the processes of the law enforcement officials, including ICE, that violates the law. Now, some protesters, including some during the Civil Rights Movement and the Women's Suffrage Movement and other movements, have decided, made a conscious decision, we are going to violate the law, we are going to trespass on, you know, whites only uh lunch counters, or we are going to obstruct traffic. People do that for all kinds of causes, including environmental causes or anti-nuclear causes. But we are willing to accept the punishment as the price that we are paying for making a dramatic mistake. They you do not expect to say this is my first amendment right and I can't be punished if you are punished not because of the idea that you are conveying but because of the you know external impact you're having disrupting traffic doesn't matter what you're saying You can't disrupt traffic. You can be saying I love ice, you know, let's let's deport all of the all of the immigrants But if you're blocking traffic that is equally illegal regardless of your viewpoint and as long as it's not the viewpoint that's being punished but the conduct that is causing some other harm independent of the ideal, then government has the right to restrict that. I really appreciate that explanation. I want to do something a little bit fun. If it doesn't work, I'll move on from it. But I'm going to read each phrase of the uh First Amendment. I just want you to give us a grade right now in America, A to F. Just quick. Don't take whatever first comes to your mind. right? No great inflation here. oh I kind of just want to get into, it's going to be a little, but I didn't get into like, how are we doing in your assessment of it. So, but let's see, Congress shall make no law, establishment of religion, A through F on. would say C. I see. Okay, that's cool. How about prohibiting the free exercise thereof? You're probably more of an expert on that than I am. I would say a B. Okay, yeah, mean, I'm not really sure that I like that abridging the freedom of speech. D. D. D, ouch. How about of the right of the people peaceably to assemble? D, ouch. And to petition the government for a redress of grievances. Wow. No F's though. Go ahead, yeah. You know, because, and this in some way, uh I didn't completely take into account in the grading because government officials are, I was basically grading the government officials and other powerful sectors in society that restrict speech, but only in the legislative and executive branch. The ultimate backstop is the courts and the courts have actually been doing quite well, which is why even when government officials are doing, other government officials are doing poorly. The courts have by and large been standing up to strongly protect these rights. You notice I gave different grades to the two rights relating to religion, Josh, of particular concern to you. And there the C grade on establishment is because the Supreme Court in the recent past has been greatly cutting back on the concept that most people think of as separation of church and state, which is that there may not be government endorsed religion, that people are free to engage in religious exercises unrestricted by government. But by the same token, the traditional liberal classical liberal interpretation of the non-establishment or separation of church and state was that government must remain neutral toward religion. may neither favor either religion in general or any particular religion nor disfavor it. And in recent Supreme Court decisions, that approach has been dismantled to allow government to impose measures that I think are fairly described as endorsing religion. So that's why we have laws in a number of states that have required all public schools and I think in some cases even universities to post in every classroom the Ten Commandments and a particular version of the Ten Commandments, right? That certainly seems to be government favoritism of particular religious tenets. can I Nadine? just saw a And I'll let you keep going but I just I saw a post from Department of Homeland Security one of them. They're very Christian right now in there in their Messaging, but it's literally said blessed are the peacemakers for they will see God and it showed ICE agents out and like people with guns and and I was like, this is a terrible interpretation of that verse, please don't wasn't satire? Are you serious? I saw that and I thought that was somebody mocking. no, no, no, no, no, that's from the department. That's the official. That is the official uh social media page. of irony? Why? No, yeah, bless their the peacemakers for they will see God and I'm like looking at this and I'm like, and then they had one where is Isaiah? Send me who will go and all these like people like in military garb like This is a dominion ism. It's a kind. It's um, it's very concerning. Anyway, sorry but I mean, but that's so interesting because it shows that even within a relatively narrow sliver of Christianity, right, of religion, we've got Christianity and we have Protestantism, right? And then these very strong, so even freedom of speech and debate is integral to free exercise of religion. The reason I gave a better grade to free exercise of religion is that the Supreme Court has been strongly protecting it, but perhaps in a way over-exaggerating the religious concerns of some people, even if they have a suppressive, including a speech and religion-suppressive, impact on other people. So there was this case from right in your state, in northern part of Virginia, closer to D.C., I think Fairfax County. I'm sorry, I'm blanking out on it. whatever the, it's, so it's the largest public school district in the country, I think, and the most religiously diverse. And the Supreme Court upheld the claims of a particular group of parents, all of whom had, forgive my terminology, but I would say fundamentalists of uh Christianity and Islam who had relatively narrow interpretations of what could be looked at consistent with their religion. And the Supreme Court upheld their right to demand that their kids be exempted from even exposure to Montgomery County. Right, thank you. But I factually described it as the largest public school district and the most religiously diverse. So the practical impact of that is that any parent who is asserts a religious objection to any book, it not only is going to exempt their own kid, which I think is more defensible, although I'm still a little concerned about the kids, right? At some point, you know, with all due respect to your comment in the home, you're the boss. But, you know, at some point kids have a right to education, right? But putting that aside, parents certainly don't have the right to impose their religious views on everybody else. in the school system, but the Supreme Court upheld that right saying this is free exercise of religion. Well, it may be, but you have to consider the countervailing costs to other people's freedom of conscience and freedom of speech. Yeah, I mean with when it comes to like religion and politics We've we've covered sort of like that that connection ad nauseam and continued to do so and and I remember I don't know if it was a conversation we had with amanda tyler. We were talking about the supreme court And there was a report that or a study that was done not too long ago like a year ago Where it showed that you know when it came to religious liberty cases the supreme court was much more likely to take those up and to rule in favor of of the Christian bringing the case. So, I mean, there's just a lot of issues going on with that. But I want to switch to Trump for a second, and specifically Trump on January 6th. So there has been a lot of talk. Trump still talks about it Now, about his speech that he gave, where it's been alleged that he was sort of the cause of the of what happened at the Capitol, insurrection, riot, whatever you want to call it. uh And the evidence I keep hearing for his defense is sort of grounded in First Amendment. Like he has a right to kind of say what he did ah when he said it. I'd love to kind of just get your thoughts. Help us kind of work through how we should view what he said and sort of the aftermath ah when he was done. Very important question, I'm delighted to do, but since you, this is a first mention of Donald Trump. I'm going to show you my favorite cap and those who are only listening, I'll have to give a verbal description. It looks like a MAGA cap, but instead of saying, make America great again, it says, make J.S. Mill great again. And I, some people say who is J.S. Mill? John Stuart Mill, who wrote the classic work on Liberty in 1859, which continues. to make the strongest case for free speech and for listening to every idea, including ideas that we hate. If I can just basically summarize his approach, he says, you know, there are only three logical consequences possible if you hear an idea that you think is dangerous or evil or wrong. um Number one, you might actually, if you're listening to it, you might actually change your And isn't that a benefit to realize that what you have believed is wrong? You've seen the error of your ways. Number two, you might not completely accept the new perspective, but it refines your understanding. So you reform and uh refine and perfect and improve your own ideas. That's also a benefit. The third possibility is you'll listen to it and It won't be convincing at all. will simply reinforce you in your pre-existing understandings. having been forced to think through the counter arguments, you now appreciate and understand and can more powerfully and effectively defend your pre-existing idea. And by the way, I got this wonderful cap in of all places, Prague in the Czech Republic. A few years ago I speak. to a wonderful human rights group there and they had actually commissioned this cap and I was salivating over it so the the executive director gave it to me. I'm Adam Rusica. I'm always happy to thank her for it. do have to warn you though, I saw yesterday on a threads post somebody was training their crows to grab red hats. uh And I sent that to my wife because my wife is now trying to attract crows, not for that purpose, but there's this TikTok thing going, there's peanuts laying all around her yard. outside, you know, and she's like, I think I hear a crow. We have a crow caller. My that that we look. smart, maybe they can tell the difference. But this is a really important question and the First Amendment doctrine that is applicable results from a unanimous 1969 decision in a case called Brandenburg versus Ohio, which I'm very proud is an ACLU case. And in that case, the Supreme Court held It struck down laws that uh punished advocacy of violence or of crime and said that, course you can punish the person who actually commits the violent or the criminal act, but when can you punish a speaker who allegedly induces the third party to carry out the violent or illegal act? And there the Supreme Court came up with a very, and I appropriately narrow concept and before I tell you what it was let me say not only was that decision way back in 1969 unanimous but every single Supreme Court justice who has sat on the court since then has reaffirmed that decision so we're talking about a concept that's not right that's not left for all of the huge ideological divergence among all of those many Supreme Court justices, all agree on this standard. It's usually called the intentional incitement standard. So the Supreme Court said mere advocacy, and it used that adjective, mere, mere advocacy of violence or unlawful conduct is constitutionally protected. So you have the right to advocate even genocide, right? When people say in the context of the case, Well, is from the river to the sea, is that advocating genocide? Doesn't matter. Even if it were, that would be constitutionally protected. What is illegal is only, and here every single word is significant, intentional, incitement, right? Incitement, not advocacy, of imminent lawless or violent conduct, which is likely to happen imminently. one of those strict requirements uh must be satisfied and I'll tell you why later on. And as with all First Amendment standards, it is very fact specific, right? You can't look just at the words. You have to look at them in the overall context in order to answer whether those standards were satisfied. We've had a couple of decisions and many legal Scholars have parsed not only every word in Donald Trump's January 6 speech But also all of the surrounding circumstances not only on that day itself But also leading up to it and in fairness I have to say that a couple of courts have ruled differently as to whether that standard would be satisfied in fairness um in some cases it wasn't a final ruling but uh enough to, so one judge allowed a civil lawsuit that was brought by a number of members of Congress, including Benny Thompson from Georgia as the first named plaintiff. um In that case, the court refused to dismiss the complaint on First Amendment grounds. He said, you know, it's possible that this would be shown to actually satisfy those standards at this point based on the evidence that's been produced so far, I'm not going to categorically take that decision away from the jury or the judge, whoever is the fact finder. ah But let me tell you the factors. Obviously, Trump, if you looked at the words themselves, is quite ambiguous because Trump is using a lot of uh exhortatory, incendiary language about, you know, I can't the exact words but you know go now and go to the Capitol and he probably said it in even stronger languages but at the very end almost at the very end he said go in peace and that cautionary note has been stressed by people who say you know again the presumption is in favor of free speech and Trump was being very careful there's one final decision. ah Not about that particular speech, but something very similar. When Trump was first campaigning for the Republican nomination ah in 2016, he ah at a rally somewhere in the Midwest, I'm sorry, I can't remember which state it was right now, ah but in heart of the country, there was a rally, a Trump rally, and there were some counter demonstrators. and they have no right, by the way, to be at a Trump rally. So they could be ousted for trespassing. And Trump riled up some of his supporters and he said, used some, again, some incendiary language. Get them out of here, get them out of here. And then he even said things like, you know, in the old days, we'd take them out on a stretcher. But then he said, don't hurt them. That was the very last thing that he said and some of his supporters did roughhouse some of the counter demonstrators who appropriately sought redress against the people who physically assaulted them. But they also sought to hold Trump accountable. And that case was decided by a judge, not a jury. And the judge went through the pros and the cons. And then he said, you know, the saving grace was that last phrase, don't hurt him. So I think that Trump is a very shrewd guy. who has been advised by lawyers and he goes just up to the edge, but not quite over the edge. And again, you know, regardless of what you think about Trump, regardless of what you think about what he said on that day or about the issue, think about other examples where we would not want uh equivalent speech to be punished. And I'm going to give you a very specific other example. Black Lives Matter. and I'm forgetting the name of one of its leaders. uh Sorry, the name I guess doesn't matter, but a major leader of Black Lives Matter who was giving, and the ACLU represented him all the way up to the Supreme Court. He was giving a very heated, uh fervent speech in Louisiana where um police were accused of violence, unjustified violence against black men, young black men. And the speaker was um making very incendiary statements. You could say they were rhetorical hyperbole, but the crowd got very riled up against police officers. And somebody threw a brick and hit a police officer in the head. He was injured and they never found the person who actually threw the brick who of course would be culpable. ah But the police brought a lawsuit against the against Black Lives Matter the whole movement and against the speaker and they were actually found liable in the lower courts. They were held responsible for allegedly having incited the brick thrower and the ACLU took up the representation and uh essentially won in the Supreme Court. So I say to people, you know, again it's this, if you want to have freedom for that Black Lives Matter speech, then you have to have freedom from Trump's speech and vice versa to the MAGA supporters. If you want Trump's speech to be protected, then the Black Lives Matter speech has to be protected. Yeah, I completely agree with that. I mean, it just seems like that should be common sense. know that that doesn't seem to prevail sometimes. You know, but this is bringing up the topic to me of the weaponization of First Amendment or even free speech maybe by activists or even like because you're just even talking about this like a shield like Donald Trump, like understanding this being, you know, really from what you said, how you described it, right? I'm trying to kind of paraphrase what you're saying that he was instruct, he's been probably instructed by lawyers on how to really say what he needs to say, get it all the way up to the edge and then pull it back. And then is this a weaponization of free speech? Is there such a thing or is it just? I like the word, and I'm not blaming you, it's such a common word, weaponization, because that suggests that there, well, you may not, some people like weapons, right? So maybe that's a compliment. But I think people tend to use the term in a pejorative way for whatever use of free speech they disagree with, right? But it is the vigorous use of free speech. ah And so of course, we should always question just the fact that somebody is speaking or engaging in some kind of expressive conduct, triggers a First Amendment analysis. Again, the First Amendment is not absolute. Just because you are using your mouth or you're engaging in protest doesn't mean that you can do anything at all. After all, a political assassination is a very powerful means of communicating a message. That does not mean it is constitutionally protected. All right, so my... My last question for you and just for the record, I could probably talk to you for another couple hours, but I'm sure you've got much more busy. So like, what's one thing that you wish all Americans knew about free speech or maybe another way to kind of word it is like, what's one thing we all get wrong about free speech? I know that we've talked quite a bit about it. We've kind of talked about some case studies and whatnot, but at the end of the day, once we're done recording, we're all gonna go back to our normal lives, you know, and we'll probably not think about First Amendment issues until the next one pops up. So, what's your advice to Americans about how to think about First Amendment? that you have to look beyond the particular speaker and the particular idea because by definition the ones that get attention tend to be the ones that are the most provocative and the most controversial and understand that what is at stake is an underlying principle that each of us, no matter who we are, no matter what we believe, no matter what we uh disbelieve, we have the freedom of choice to think what we want, to believe what we want, to say what we want, as long as we are not infringing on the rights and safety of other people. And that is a right that fortunately is taken for, and to some extent it's fortunate that it is taken for granted because it is by and large protected in this country and respected in this country. is not surprising to me that some of the strongest advocates in the free speech movement in this country are people who have emigrated here or have recent family history of having come here from repressive societies and they just are so amazed at the freedom and it is so precious to them and they are conscious of it. I mean things that we take for granted that we can criticize the government that we can protest against the government. If anything, people take it too far, quote unquote, and thinking that they can even obstruct, you know, government officials from carrying out. But nobody questions that you have the right to peacefully protest. These are precious rights for which those who founded our country 250 years ago, you know, sacrifice their lives, right? And people all around the world are still sacrificing their lives and their freedom for these rights. And we only start to notice how precious they are when they are eroded. you know, as an activist, I have to be an optimist. And there's always a silver lining to every cloud. The fact that we are seeing so much repression from the Trump administration and other sources, I think is making people very aware of how precious and how fragile free speech is and how important important it is and to recognize that they have the power. We the people through demonstrations and other exercises of First Amendment freedom to force the government to honor the First Amendment in reality and not just in theory. I love that and would love to get your reading recommendations of books if people want to learn more about the First Amendment, educate themselves, and then also some contact information if you're open for people to reach out and follow. love to do that. um all of the books that I wrote, I wrote because I hope that ah people will find, I was writing for the general public and not for a scholarly audience, but let me just mention the most recent one and the briefest one. For those who are watching, I'm holding it up. It came out last year, co-authored with my dear friend and colleague, Greg Lukianoff, who is the CEO and president of FIRE, the foundation. for Individual Rights and Expression is called The War on Words, 10 Arguments Against Free Speech and Why They Fail. And we were, you know, over and over and over again, Greg and I in our constant evangelizing about free speech, hear the same arguments ah and we never get tired of answering them, but we thought that it would be useful to crystallize our responses. And interesting. We each wrote independent responses to each of these questions, even though we agree philosophically, our take on the issues and our explanation is slightly different. I think readers, I've gotten many positive comments from readers. In terms of classic works, I mentioned John Stuart Mill, I'm putting on my cap again here. On Liberty, 1859, I reread it every few years and it really stands. test of time. I highly recommend that. oh In terms of, and here's one that, this is a classic book that was just republished a few months ago. It's called Defending My Enemy, um Skokie and the Legacy of Free Speech in America by Arié Neier. Skokie will mean something to many people. It is a city in Illinois where in 1977, the ACLU famously or infamously, depending on your perspective, successfully defended the free speech rights of neo-Nazis to demonstrate in this city that had a large Jewish population. Moreover, many of them were Holocaust survivors. It was a very easy case in the courts of law because of what the Supreme Court has called the bedrock principle of free speech, viewpoint neutrality. Government may never punish speech solely because of disapproval or disagreement with its viewpoint. And there was no threatened, seriously threatened danger in that case. But it was a very tough case in the court of public opinion. And Arié Neier, who was the executive director nationally of the ACLU, was himself a Holocaust survivor. He was born in Germany shortly before Hitler rose to power. And so you have this, but to many people is just a paradox of, know, somebody was almost killed in the Holocaust and his extended family was completely murdered by the Nazis. Why is he of all people defending free speech for neo-Nazis? And he so powerfully explains why it's Jews and blacks and any other traditionally excluded, destigmatized minority that has the greatest stake in free speech because by definition we, I'm Jewish, my father's a Holocaust survivor, so I say we by definition are never going to have majority power. Our only way of affecting majoritarian political processes is through the precious First Amendment freedoms. It's a great book. It had gone out of print and I had the idea along with some other colleagues of republishing it. So it's the original book plus a new chapter by R.A. that talks about what's happened in the last 50 years since it was first published. And he kindly invited me to write an afterword, which I did. And we have a new introduction by Eleanor Holmes Norton, the Black woman crusading civil rights activist who has been a long time non-voting representative of the District of Columbia in Congress. And she began her illustrious career as an ACLU staff lawyer defending freedom for white supremacists including George Wallace, Alabama governor, um and she did it not despite her commitment to the civil rights movement but precisely because of it. She knew that these precedents would come to the defense of the Student Nonviolent Coordinating Committee and other activists in the civil rights movement. So that would be my third recommendation. Wow, that is a lot of reading that I'm going to have to catch up on. uh It is. Well, I read it and big props to you because the war on words, was like, I mean, it's really accessible. So like if you're listening to this still, like it's super accessible. There's a question that it's like a question I'm sure everybody has had. And then there's a response and the response makes very, very much, it makes a lot of sense. So definitely recommend the war words. I've read it myself, extremely helpful. And uh thank you so much, Nadine, for being here. This has been terrific. Well, thank you so much, Will and Josh, for your really effective exercise of all of your First Amendment freedoms and for empowering your audience to appreciate and exercise their First Amendment freedoms as well. Yeah, awesome. thank you to our audience. Hey, thanks again for stopping by. And as always, remember, keep your conversations not right or left, but up. And we'll see you next time. Take care.