In the wake of President Trump's ban from social media, what does it mean for the future of free speech on social media platforms like Twitter and Facebook? What role does the government have in limiting freedom of expression online? And is this a good or bad thing? In this episode of the podcast, we talk to Ira Silverstein, a First Amendment lawyer, about this and other issues related to free speech in the 21st century, including the impact of the Trump administration's anti-Trump policies and the impact on free speech online. Ira talks about the pros and cons of monopolies and their ability to stifle freedom of speech online, and the role of the First Amendment in protecting free speech and the right to freedom of the press. He also talks about how the internet has changed the way we think about free speech, and how it affects our understanding of the world and our ability to think and talk about things we care about, and what we can do to improve our lives and the world we live in today and in the future. Thank you for listening to this episode. It was produced and produced by David Axelrod and Zachary Taylor. Please rate, review, and subscribe to our other shows on Apple Podcasts and wherever else you get your media consumption is consuming content. Please remember to rate and review our work! Subscribe to our podcast! We post polls, thoughts, thoughts and thoughts on the episodes we cover in the comments section below. Send us your thoughts and suggestions for future episodes. We'll be looking out for the next episode. Thanks for listening and reviewing the show! - The Best of the Besties! Timestamps: 5 stars! 5 stars 6 stars 7 stars 8 stars 9 stars 10 stars 11 stars 12 stars 13 stars 15 stars 16 stars 17 stars 16 thumbs up! 17 thumbs up 18 stars 18 thumbs down! 19 stars 19 thumbs down? 21 stars 20 thumbs down 19 22 thumbs up? 21 24 thumbs down?! 26 stars 27 thumbs down ? 27 23 28 thumbs down?? 25 stars 26 29 30 thumbs up ? 26 thumbs up?? 26 ciao 32 3 31 & 33 xx 35 4 6 15
00:00:41.000I mean, we don't exactly know what they are.
00:00:43.000They're not exactly like the Times or like NBC or ABC. But they're close.
00:00:52.000They're certainly in the private sector.
00:00:54.000And the private sector has always had the discretion, it's their First Amendment right, to decide Who to publish and who not to publish.
00:01:05.000You know, it's different with Facebook and Twitter because they claim to be platforms like the telephone company that, you know, anybody can use to have conversations.
00:01:35.000To that extent, what Facebook and Twitter did is perfectly legal and not really different than what a publisher or a broadcasting company would do if it decided to change or fire one of its anchors or one of its columnists.
00:02:34.000And it's a problem we haven't figured out how to work out yet because this medium is in its infancy.
00:02:41.000You know, people forget that the printing press started in the 15th century in 1400 and something And it took hundreds of years before freedom of the press worked itself out in ways that we're familiar with now.
00:02:59.000And we're right at the beginning of this internet speech medium.
00:03:10.000I think Facebook and I'm not saying Trump.
00:03:18.000But the question is, if they start banning anything that they don't like, then they're really closing off the public conversation Yeah, it's also,
00:03:35.000it seems to me that we're using these outdated things to compare, like comparing it to the printing press or comparing Facebook or Twitter to publishers or even comparing them to something like a utility, like the power.
00:03:54.000I mean, I hope it's not going to take hundreds of years to have some sort of a freedom of expression online in these things, but they're monopolies.
00:04:02.000It's not like anybody could have bought or made a printing press and printed their own books or printed their own newspapers.
00:04:07.000Not everyone can make their own Twitter.
00:04:10.000It's so complex and there's so many users on it.
00:04:15.000There's very few places where you can legitimately get your word out in a way that you can with Twitter or express yourself.
00:04:24.000And it's true that this medium is analogous to utilities in some ways, analogous to publishers in some ways, but they are new and they're different.
00:04:39.000When I was growing up, I was a teenager in the 50s, A big problem with free speech and the democratization of free speech was that nobody had access to anything.
00:04:54.000I mean, you had the Times, you had the Washington Post, you had the Hearst newspapers, you had NBC and ABC and CBS. And that's where most speech occurred.
00:05:08.000So even with the monopolistic bans that Twitter and Facebook are doing these days, or can do, have the power to do, the fact is, is that Many,
00:05:23.000many, millions more of people, ordinary people, have access to huge audiences than did 50 years ago.
00:05:33.000You know, if you couldn't get into the Times and you couldn't get into the Washington Post and if you couldn't get onto television, you could speak, you were free to speak, but nobody heard you.
00:05:45.000And so, you know, it's a lot better now, even with...
00:05:51.000Questions about abusing the power of being a gatekeeper that Twitter and Facebook have.
00:06:00.000It's just such a strange time for this because we're at the end of the president's run.
00:06:08.000He's still in office, but yet everybody wants him out as quickly as possible because you're wondering what he's going to do, and he can't really express himself publicly anymore.
00:06:23.000Well, of course, he's still the president.
00:06:26.000If he held the press conference, everybody would cover it.
00:06:32.000I used to say back in the day that my father was a construction worker with a fifth grade education.
00:06:42.000And if he had something to say, he could say it to me, he could say it to our family at Thanksgiving, But he didn't have access to an audience of the kind that Roosevelt had when he went on the radio.
00:06:56.000And he couldn't get into the Times as easily as the governor of New York if the governor of New York held a press conference.
00:07:03.000So, you know, it isn't different in that respect.
00:07:08.000I'm not too worried about A president not having access to a public audience.
00:07:15.000A president has tremendous power to attract attention, and that was true 100 years ago.
00:07:23.000What I'm worried about are ordinary people.
00:07:26.000What I'm worried about are people like you, people You know, who have something to say, but their freedom is that they get to say it in the closet, you know, where nobody hears them.
00:07:42.000You know, there's an interesting story, a real case that happened in the 60s, when James Meredith, who was the first black person to enter the University of Mississippi, was shot on his first day there.
00:08:04.000And a man named Sidney Street, a black guy living up in Harlem in New York, was so angered that he wanted to say, American ideals, American principles of liberty and equal rights have just gone up in smoke today.
00:08:24.000And if he had stood on a street corner at 145th Street in Harlem, And stood up on a soapbox and said that the only people who would have heard him were a few dozen people who passed him on that street corner.
00:08:39.000So what he did is he got out on the street corner and he burned an American flag.
00:08:46.000So he wasn't destroying anybody else's property.
00:08:49.000He burned the American flag and by burning the American flag he attracted television cameras which his words by themselves would not have attracted.
00:08:59.000So the television cameras came, and he got to say, I'm burning this flag to symbolize the fact that if a guy like James Meredith can get shot just for going to school, America's ideals have gone up in smoke.
00:09:12.000And he got onto the 6 o'clock news, and millions of people heard his words.
00:09:19.000And he was prosecuted for burning the flag, which was a crime at the time.
00:09:26.000The case eventually went up to the Supreme Court and the Supreme Court overruled it and said it was symbolic speech.
00:09:33.000But the reason that I'm telling that story is that it demonstrates how before there was an internet, people had to figure out dramatic things to do to get their message to more than a handful of people.
00:09:51.000And that's why, you know, Benjamin Spock burned draft cards.
00:09:55.000That's why Sydney Street burned the flag.
00:09:59.000That's why there were demonstrations instead of just words.
00:10:05.000And, you know, it worked all right for some people.
00:10:09.000But for the most part, most people could not get their messages out to large audiences until the Internet came.
00:10:20.000Twitter and Facebook acting as gatekeepers in ways that trouble us because we don't know what the limits are, we don't know what the standards are, and we don't know why we should be having these private people decide who gets to hear what.
00:10:36.000But even with that, the ability of ordinary people today to reach huge audiences with whatever it is they want to say It's much, much larger.
00:10:49.000I mean, by orders of magnitude larger than it was 30 or 40 or 50 years ago.
00:10:58.000But it just concerns me when a corporation has the ability to dictate, even if it's a problem president, even if it's someone as crazy as Trump, just when a corporation gets together and they decide that this guy can't use their platform anymore.
00:11:14.000A platform that hundreds of millions of people use.
00:11:19.000Well, it is a problem because there are no standards.
00:11:23.000And that's what I mean when I say we're just at the beginning of thinking about how to do that.
00:11:30.000I mean, here's what I see as the issue.
00:11:35.000If you allow Facebook and Twitter To make these decisions in the same way that you allow the Times and the Washington Post and television networks to decide what they publish,
00:11:52.000then you run the risk of arbitrary exclusions from People's speech reaching large audiences.
00:12:04.000Not just the president, who has alternative means, but ordinary people.
00:12:10.000The only way to remedy that is by law.
00:12:15.000The only way to remedy that is to give the government the power to regulate what these corporations can do.
00:12:23.000And all of our history shows That if you give the government the power to regulate speech, you're going to be in a lot worse shape than if you allow the private sector to do it.
00:12:37.000Because who in the government are you going to give that power to?
00:12:45.000You're going to give it to Joe McCarthy?
00:12:48.000You're gonna give it, you know, to Roosevelt during the war who might have barred Japanese Americans from speaking to large audiences?
00:12:57.000I mean, who are you gonna give that power to?
00:13:00.000And our entire history shows that the only way to regulate private power is through government power.
00:13:08.000And if you regulate speech through government power and you give the government the power to decide who gets to speak and who doesn't get to speak, We will be in far worse shape than we are in having the private sector do that.
00:13:26.000Wouldn't another option be make some sort of a law, instead of having the government regulate who gets to speak and not to speak, make some sort of a law that distinguishes or makes a distinction, like what is Twitter?
00:13:55.000My inclination is that the best way to think about it may be to think about it The way we think about the telephone company.
00:14:04.000The telephone company supplies the wires and the mechanism for you and I to have conversations and for us to have conference calls even with hundreds of people on those calls.
00:14:19.000And they don't have anything to say about what we say.
00:14:24.000They don't have anything to say about the content.
00:14:26.000You and I can get on the phone and discuss anything we want, say anything we want, and the telephone company simply supplying the wires.
00:14:38.000I think that that is the best way to start thinking about this problem.
00:14:44.000Now, there are differences because the difference is that Is that on Twitter and Facebook, you're not having a private conversation between two people or even a private conference call with hundreds of people on it.
00:14:59.000You're having a public discussion and everything, it's like having a party line with the entire population being on the line listening in.
00:15:09.000So there are differences that you have to think through.
00:15:12.000But I think that that's the right way to start thinking about this problem.
00:15:18.000Yeah, what do you think about, and now there's this other app called Parler that apparently right-wing people favor, and it was more of an uncensored free speech app.
00:15:28.000And some people had said some bad things on that, so Amazon decided to pull it.
00:15:34.000Facebook pulled it, or excuse me, Google pulled it from their Play Store.
00:15:42.000My fear is that even if someone's saying something problematic, if you shut it all down and only have one side of the argument represented, and in this case it's mostly the left side of the argument is being represented online in these forums.
00:15:59.000That the polarization is going to get even more potent than it is already.
00:16:07.000You know, the mistake that people make in silencing speech is that they think that those speakers go away because they can't hear them anymore.
00:16:18.000But those people are not going away, and they still have the opinions that they had.
00:16:23.000And if they're not speaking in public, they're still speaking, and they're speaking to each other, and they will find ways.
00:16:36.000The issue about alternative sites like Parler is why should Amazon, which basically is functioning as a host, why should Amazon have the discretion To decide that Parler can't exist anymore.
00:16:56.000And the answer to that might be, well, you know, if you have, again, going back to what you said, if you have the utility model, then you don't have to ask anybody's permission to make a phone call.
00:17:13.000They can't tell you, well, we're not hosting your phone system anymore because we don't like what you're saying on it.
00:17:21.000They're not even supposed to listen to what you're saying on it.
00:17:25.000And I don't know if it's possible, for example, to literally have public utilities that can host systems like Parler, Or Twitter or Facebook that are not subject to private discretion,
00:17:47.000Of course, you're not going to get rid of the problem entirely then, because you'll have a government commission that regulates these utilities the way you do with public utilities now.
00:17:59.000And what's to prevent that government commission from functioning in a censorious way according to who's in charge?
00:18:07.000I mean, it's not really possible to rid yourself of the problem entirely.
00:18:13.000It's only possible to contain the problem.
00:18:17.000And I still think that the most dangerous thing we can do is locate the power to decide who should speak with the government.
00:18:27.000I think that that is the single most dangerous thing that we can do.
00:18:31.000But moving in the direction of a content neutral public utility model for all manners of speech is, I think, the right way to begin thinking about it.
00:19:06.000You've always been an advocate for free speech and saying that even though it seems like it's a good idea to ban these ideas or to ban people discussing these things, in fact, it actually turns out to be a terrible idea.
00:19:21.000Well, you see, when people say they want to ban hate speech, what they mean is they want to ban the speech that they hate.
00:19:35.000Something called hate speech to be banned, then the only important question would be, who decides?
00:19:44.000And again, if the government is going to be the one to decide what hate speech to ban, it's not going to be the same speech as the speech you hate.
00:19:55.000It's going to be the speech they hate.
00:19:59.000Think if, again, for liberals who are very hot these days about banning hate speech, what they mean is they want to ban speech that is bigoted against people based on skin color or based on sex or based on religion.
00:20:41.000What if it was Giuliani who tried unsuccessfully when he was mayor of New York to ban art in the Brooklyn Museum of Art that he didn't like because he thought it was disrespectful of his religion.
00:21:00.000Now, the speech he hated wasn't the same speech that I hated.
00:21:03.000The speech he hated wasn't the same speech as liberals or progressives hated, but he was the one who got to decide, not they.
00:21:14.000And that's, you know, that's the problem.
00:21:17.000That's really why hate speech cannot be a category that is allowed to ban because it all depends on who's going to decide and what they hate is not going to be the same as what you hate.
00:21:31.000In the 1990s, there was a big move on a lot of college campuses to ban hate speech.
00:21:38.000And what they meant by that is they wanted to ban racist speech.
00:21:41.000And a lot of black students were in favor of it.
00:21:44.000And I was then the head of the ACLU and I used to go around speaking to these audiences and I had a very substantial reputation as being an advocate for racial justice and affirmative action and all that.
00:22:01.000So I was sort of on their side and they knew that in terms of the substance.
00:22:06.000But I didn't preach to them about the First Amendment.
00:22:10.000I used to ask those black students If you succeed in getting your university to ban hate speech, what do you think is going to happen next?
00:22:22.000Do you think you're going to be the ones to decide, or do you think the Board of Trustees is going to be the ones to decide?
00:22:29.000And the Board of Trustees are white, and the Board of Trustees don't share your politics, and the truth of the matter is, if there had been hate speech codes On college campuses in the 1960s, their most frequent victim would have been Malcolm X,
00:22:55.000The problem is always who gets to define what's hateful and who gets to decide what to ban.
00:23:03.000And it isn't often going to be the ones who advocate for these codes.
00:23:10.000You know, the same thing happened in England in 1973 when the National Student Union banned hate speech, banned racist speech from college campuses in England.
00:23:23.000And a group of Zionist kids who were among the leaders of the National Student Movement at the time were all for that.
00:23:35.000And then a few years later, a very few years later, The students changed, there were different students deciding, and they decided to ban a Zionist speaker on the grounds, they said,
00:24:38.000Yeah, I mean I can completely understand the position that a social media company would have where they wouldn't want to have what they consider hate speech on their platform because they think it reflects poorly on them and they also think that it radicalizes young people.
00:24:53.000It gets young people to think along the same lines.
00:24:57.000If they're very charismatic and they're enticing, they could get young people to join what they believe are hate groups.
00:25:05.000So is the solution just leave everything up and let everybody just kind of duke it out in the town square of ideas?
00:25:15.000And the reason I think that is that the only alternative is to give somebody the power to decide what should be excluded from the town square.
00:25:29.000You know, I don't think you can get out of that dilemma.
00:25:33.000You know, at the very beginning of our history, when the First Amendment was first invented, we all learned in school that people like James Madison and Tom Jefferson and the rest of them were all these super advocates of free speech and First Amendment.
00:25:55.000A lot of them believed that the First Amendment did not protect false speech.
00:26:00.000Because the same way that people now about hate speech is, well, what is the virtue of false speech?
00:26:07.000Why does false speech contribute anything to a rational discussion?
00:26:13.000How does false speech enhance democracy?
00:26:17.000So there was largely a consensus at the end of the 18th century when the country began.
00:26:26.000There was largely a consensus, even among the fiercest advocates of free speech, that false speech was not protected by the First Amendment.
00:26:40.000Then, under John Adams' presidency, the second president of the United States, They passed something called the Alien and Sedition Acts.
00:26:52.000And this was a federal statute that Congress passed, and it made it a crime to say false things, critically false things,
00:27:09.000And the problem was is that it was the president who decided To whom that law should apply.
00:27:19.000So it ended up that people who were critical of John Adams, including a member of Congress, including several editors of newspapers, including lots of people, they were arrested and convicted and sent to jail under this.
00:27:41.000It happened because the people in charge Said that their speech was false.
00:27:47.000The speech of the people that they prosecuted.
00:27:50.000And, you know, when people think of true or false, they think of things like, well, if you say two plus two is five, we know that two plus two is four, so two plus two is five is false.
00:28:02.000But in the world of politics, almost everything It can be interpreted as true or false depending on who the speaker and who the listener is.
00:28:13.000Look at what just happened with our elections.
00:28:18.00070% of people among Republicans believed that the election was fraudulent.
00:28:26.000Now, you can argue about whether that's true or whether that's false, but do you really want to make it a crime?
00:28:33.000For people to say that the election was fraudulent?
00:28:42.000Otherwise, you're going to end up using these bans as weapons to use against people you don't agree with by simply claiming that what they said was false.
00:28:53.000That was the history in the early part of the American experiment.
00:29:00.000And the thing is true today about hate speech or bigoted speech or any other kind of speech.
00:29:06.000You know, the price we pay for having the freedom to speak and listen and argue is that some of the stuff we have to hear is ugly.
00:29:26.000And what we're insuring against is if we don't want to hear the ugly speech, if we want to ban ugly speech, we give the government the power to decide what's ugly enough to be banned, and then we'll lose our own rights to free speech for sure.
00:29:41.000And I don't think there's any way out of that.
00:30:23.000It's something I didn't understand really until I got to the ACLU and began to come to grips with these kinds of problems we're discussing now.
00:30:32.000Was it an easy thing to come to grips with or did you go back and forth with it?
00:30:38.000No, it's not an easy thing to come to grips with because it's not intuitive.
00:30:50.000People from the Klan talking or neo-Nazis talking.
00:30:55.000My first instinct was I wanted to take a club and beat them over the head.
00:30:59.000I mean, how could your first instinct not be that?
00:31:06.000But I began to see that the consequences of that was to give the government, which was often going to be In the hands of people that didn't like what I believed.
00:31:24.000To give the government the power to decide who to beat over the head and for what speech.
00:31:31.000And I began to see pretty quickly, as you come to grips with these in real life cases, that if you give the government the power It will as often be your speech as it will be the speech that you don't like.
00:31:50.000And that powerless people, people who are discriminated against, black people, women, gay people, Jews, Muslims, political minorities, socialists, communists,
00:32:06.000whatever, Those are never the people who get to decide what speech to ban.
00:32:11.000They are the victims of the speech bans.
00:32:15.000Because the people who get to decide are more often, as I keep saying, more often going to be people like Joe McCarthy and Richard Nixon and Trump.
00:32:30.000And why would we want to trust, why would Black Lives Matter protesters Want to trust their speech rights to somebody like Donald Trump?
00:32:44.000Why would right-wing people want to trust their speech rights to Bernie Sanders, say?
00:32:55.000And you know, this doesn't often just break down on liberal conservative lines.
00:33:02.000I mean, remember that In one of the worst atrocities of civil liberties that this country has ever seen, American citizens of Japanese descent, these were not aliens, these were not immigrants,
00:33:18.000these were American citizens of Japanese descent.
00:33:22.000Not one of whom was ever charged with anything criminal or with anything treasonous or with anything traitorous.
00:33:33.000120,000 of them were plucked from their jobs and their homes and their businesses and sent off to camps for the duration of the war for no other reason than descended from Japanese people.
00:33:46.000And this was done by Franklin Delano Roosevelt.
00:33:50.000You know, so the fact is you can never trust the powerful with your civil liberties.
00:33:59.000That's true about speech and it's true about all civil liberties.
00:34:33.000It doesn't mean some laws, and it doesn't mean, well, bad laws they can abridge, but not good laws, because you can't trust what they decide is good and what they decide is bad.
00:34:46.000So, yeah, I think, I do think you gotta duke it out with words.
00:34:52.000And the line between what's permissible and what's not permissible needs to be between speech and conduct.
00:35:00.000That mob in Congress in the Capitol building the other day was free to stand out there and chant and say anything they wanted, and no matter how hateful it was, what they didn't have the right to do Was to break into the building and cause mayhem and injure people and break into offices.
00:37:57.000The history of incitement is that during World War I, for example, There were people who were against America's entry into World War I. This was around 1917,
00:38:14.0001918. And there were people who distributed leaflets opposing the draft.
00:38:28.000They didn't incite anybody to violent conduct.
00:38:33.000They just spoke out against the draft and tried to get other people to oppose the draft.
00:38:42.000They were arrested and charged with inciting insurrection because suppose people listened to them and supposing people resisted the draft and suppose people attacked, physically attacked the draft boards and so they were arrested And charged with incitement to illegal conduct,
00:39:47.000They just wore black armbands and went to classes.
00:39:52.000The principal suspended them from school on the grounds that the black armbands were an incitement to violence.
00:40:00.000That case was overturned by the Supreme Court.
00:40:05.000So the word incitement has not had a great history.
00:40:08.000But eventually, also in 1969, in a case called Brandenburg, the Supreme Court said that incitement has to be imminent, it has to be explicit,
00:40:25.000it has to be part and parcel of igniting conduct.
00:42:12.000The issue of incitement has a long sorry history of being used against speech which everybody would think is protected by the First Amendment now.
00:42:26.000Even this more conservative Supreme Court would unanimously support the right of people to distribute leaflets being against the draft.
00:42:38.000That didn't happen in 1918, but it would happen now.
00:42:42.000So the question of incitement now is really defined by that 1969 Supreme Court case.
00:42:50.000It has to be imminent, it has to be Really kind of explicitly tied to the conduct.
00:42:56.000Now, the question then under that standard is, do Trump's words satisfy that?
00:43:33.000I mean, that's basically what he said.
00:43:34.000And then they turned around and they broke into the Capitol building.
00:43:39.000So the question is, was what Trump did sort of, you know, symbolic, rhetorical, A speech that is protected by the First Amendment, or was what he did more analogous to the guy at the head of the lynch mob,
00:43:56.000whose words kind of triggered their action?
00:44:01.000If it's that, then he can be indicted for criminal incitement.
00:44:11.000That's what they're trying to impeach him about.
00:44:13.000That's what the impeachment article accused him of that they just passed yesterday.
00:44:46.000With the president, they want to get him out of office, and they want to bar him from ever running again, and that's what the impeachment effort is about.
00:44:56.000It doesn't have to be criminal in order for it to be impeachable, but if he were not the president, if he were not a public official, if he were a private individual, It is.
00:45:40.000And you've got to be careful here because liberals, and I count myself as one of them, are so anxious to get Trump to this.
00:45:58.000So anxious to make sure he can never again occupy a position like this.
00:46:05.000That I'm nervous that the definition of an incitement will be broadened and loosened to cover speech that is in fact should be protected by the First Amendment.
00:46:18.000It took us 180 years before the Supreme Court finally decided in that Brandenburg case in 1969 that incitement should be defined Narrowly enough so that it is unmistakably a part of illegal conduct and not speech that should be protected by the First Amendment,
00:46:46.000no matter how inflammatory that speech could be.
00:46:49.000It took us a long time to get to that standard that is speech protective.
00:46:57.000I worry about the politics of the moment and the anger, legitimate anger that so many people have about Trump, broadening the definition of incitement so that it ends up being a backward step from that 1969 Supreme Court case.
00:47:20.000As far as I'm concerned, I think he should be convicted under this impeachment article.
00:47:31.000And maybe there are things he should be indicted for that have to do with his finances and other things that are pending in different jurisdictions.
00:47:40.000But I myself would not be in favor of indicting him for the crime of incitement if he is convicted under the impeachment clause.
00:47:50.000I think that would probably be protective enough.
00:47:54.000So you think that even though you could argue that he incited those people, you don't think he should be convicted for that?
00:48:00.000I think he should be convicted under the impeachment process.
00:48:05.000I don't think it's necessary that he be indicted criminally afterwards.
00:49:19.000That that documentary, Mighty Ira, that they at Fire made recently about me and part of my career at the ACLU, that's the exact lesson in that film.
00:49:33.000That you have to be very, very careful about not allowing bad cases with really ugly speech in it to end up weakening The rights of free speech of all of us.
00:49:53.000And there's an old saying among lawyers that bad cases make bad law.
00:50:01.000Because the truth is, in the area of the First Amendment, and that's what the documentary shows over and over again, is that the first target of speech restrictions is never the last.
00:50:15.000And that when the government gains the power to restrict some really bad speech that you don't like, it also gains the power to ban your speech.
00:50:33.000Sometime in the 70s, I was invited onto the Phil Donahue show, which was then the most popular and widely watched show And the issue was the ACLU's defense of the free speech rights of the Klan in Georgia to march.
00:51:01.000There was no question of them being violent at that time.
00:51:04.000They were just marching, having a demonstration in Atlanta against school integration.
00:51:14.000And a lot of us who had fought for school integration and had opposed segregation hated everything that they said.
00:51:22.000So why did we defend their rights to say it?
00:51:26.000And the reasons were because we didn't want the government to gain the discretion, in their case, To ban speech that the government didn't like.
00:51:37.000Because we knew that if they gain the power to ban the Klan speech today, they will also gain the power, the discretionary power, to ban some other speech tomorrow.
00:51:51.000And so I was on the Donoghue show to argue this, and Phil invited A man named Hosea Williams onto the show,
00:52:07.000thinking that he would be the one who would argue with me about it.
00:52:12.000He was a lieutenant of Martin Luther King Jr.'s and a prominent civil rights advocate of the time.
00:52:21.000And to Phil's surprise and the audience's surprise, After I finished explaining why I thought we had to defend the free speech rights of the Klan, Phil turned to Hosea Williams, and Hosea Williams said that he agreed with me.
00:52:56.000And if they get the right to stop a peaceful march by the Klan on Monday, they will use that power to stop me from organizing blacks to register to vote on Tuesday and Wednesday and every day thereafter.
00:53:15.000And I would rather allow the Klan to say their hateful things than to give the government the discretion over my speech.
00:53:31.000You know, in today's day and age, a lot of what we're talking about is not really the government censoring speech, but social media censoring speech.
00:53:40.000And you're seeing a lot of people on social media that disagree with certain folks that want them censored or want them deplatformed.
00:53:50.000Does it frustrate you to have had these arguments and made these eloquent arguments over years and years of discussions of the importance and the significance of free speech and that the best way to combat bad speech is with better speech?
00:54:42.000I mean, it didn't work that way with alcohol in the 20s and 30s.
00:54:46.000It didn't work that way with drugs in the last 40, 50 years.
00:54:53.000And it doesn't work that way with bad opinions.
00:54:57.000Because at the end of the day, you still have to give somebody the power to decide What to prohibit, and that person is not likely to be you.
00:55:06.000You know, I used to be asked all the time when I was at the ACLU whether or not it's frustrating when you spend so much time arguing for the right of free speech that so many Americans, such a majority of Americans,
00:56:53.000Can the private sector so restrict speech that it It basically means that the only people who can speak are the people who have access to money and the means of utilizing the mediums.
00:57:08.000Yes, that's always been the case, though.
00:57:11.000You know, I say again what I said before.
00:57:15.000When I grew up, if you didn't own a newspaper or a television or radio network, you didn't have much right to speak except to the people right around you.
00:58:25.000Somehow, sometime, the people of this country have to understand.
00:58:32.000It's not an easy thing to learn, because as I said, it's not intuitive.
00:58:37.000People are going to have to understand that they are protected when they protect the rights of their enemies to speak, and that they are in danger.
00:58:51.000When they support restrictions against their enemies.
00:58:54.000Because you can't limit those restrictions and you can't trust who's going to be in power to enforce them.
00:59:01.000And so the price of our free speech is to be insulted by the ugliness of speech we hate.
00:59:11.000And there is no way out of that dilemma.
00:59:15.000And if anything good comes out of this Horrendous period that we've just lived through and are still living through.
00:59:25.000I hope it's that people come to understand that.
00:59:29.000I'm not very confident of it because I've been tooting that horn and fighting this fight for many decades.
00:59:37.000And it's the hardest thing for people to understand.
00:59:40.000You know, in the documentary Mighty Ira that Fire made, it shows...
00:59:50.000Me and Ben Stern, the survivor of six or seven concentration camps, sort of being very affectionate with each other and becoming friends at the end of our debates about whether or not the neo-Nazis should have had a right to march in Skokie where he lived.
01:00:11.000And I spent many hours talking to him when we first met.
01:00:16.000And I can't say that I convinced him of the kinds of arguments I'm making now.
01:00:26.000But I did move him a little to understand that the proper remedy for the neo-Nazis coming to demonstrate in Skokie was the remedy that he finally undertook.
01:00:40.000He organized 60,000 people to come and march in opposition to them.
01:00:47.000And they were so intimidated by that That they never came to Skokie.
01:00:53.000Now they tried to ban the neo-Nazis from coming to Skokie and they lost in every court that considered the case.
01:01:01.000Because if you're going to allow a town to ban neo-Nazis in Skokie, then you have to allow a town in Alabama to ban Martin Luther King Jr. So the courts always struck down those kinds of bans.
01:01:15.000So the efforts of Skokie to keep the neo-Nazis out failed In terms of the legal prohibition.
01:01:23.000But when Ben Stern organized 60,000 people to demonstrate an opposition to them, when he counted their bad speech with better speech,
01:02:01.000It does not seem like 20 or 30 crazies.
01:02:04.000It seems overwhelming that one of the things that Trump stirred up were millions and millions of people who want to take their country back.
01:02:14.000And what they mean by their country is they mean white, male, Christian.
01:02:32.000And so there are a lot of liberals who are now saying, well, but this isn't just 12 crazies, you know, which was what we had in the Skokie case.
01:02:40.000These are millions and millions and millions of people.
01:03:29.000I mean, let us not forget, from all the bluster about the election and worrying about the 74 million people who voted for Donald Trump, That he lost that election by 7 million votes.
01:04:06.000Giving people like Trump the power to ban Speech will be used against us.
01:04:14.000Outvoting people like that, which requires freedom of speech because it means you have to be able to talk to people, you have to be able to leaflet, you have to be able to organize people.
01:04:47.000But the quick fix doesn't work, and it's dangerous.
01:04:54.000The remedy that happened in Georgia, the remedy that Stacey Abrams and her colleagues pulled off, is the answer To the problem that most liberals and progressives are seeing when they look at the wreckage of Trump's tenure.
01:05:15.000Do you think there's a danger in generalizing all of Trump's supporters into that group?
01:05:20.000Because some of them clearly just don't like the Democrats and their ideas.
01:05:26.000They're not interested in Kamala Harris eventually being president.
01:05:31.000They don't think that Joe Biden's record is admirable.
01:05:50.000And one of the great dangers of political demonization that happens in hotly contested elections is that you fall into the trap of thinking that the people who Severely,
01:06:10.000not mildly, severely disagree with you, who would take the country in a very different direction, in a direction that you regard as dangerous.
01:06:17.000But those people are not your mortal enemy.
01:06:22.000I've never been a big Joe Biden fan, but what he said in his acceptance speech after the election was that people who disagree with us are not our enemies.
01:06:42.000If you have a mortal enemy, then you can't be civil to him.
01:06:48.000If you have a mortal enemy, then you have to hit him before he hits you.
01:06:54.000But if you regard your opponents as mortal enemies all the time, then you can't have a democracy.
01:07:01.000And so you have to be careful about that.
01:07:05.000I mean, I think one of the great, great dangers that we face now is this severe polarization that we have where everybody's in a silo and everybody is, you know, talking to themselves and preaching to their own choirs and,
01:07:21.000you know, and in some cases literally think that their opponents are devils.
01:07:28.000I mean, you just had a newly elected member of Congress from From what is it?
01:08:01.000And the real question I have for the voters who voted for Trump who are not racist or bigots is how did they bring themselves to vote for him this time?
01:08:19.000Knowing that this election was a referendum in many ways about racism and bigotry Those are the terms that Trump set.
01:08:38.000He was the one who turned our politics into a politics of either or.
01:08:47.000And what I don't understand are people who've been lifetime Republicans, who support different economic Views than I do.
01:08:57.000Who have a whole lot of different views about politics than I do.
01:09:06.000And I think that there was something immoral in a lot of those 74 million people who were not racist and bigots becoming complicitous with racism and bigotry by voting for this guy.
01:09:21.000I was not a fan of Joe Biden's As I said, I had no doubt that I had to vote for him this time.
01:09:32.000I have friends who say, yeah, but I'm nervous about Kamala Harris and Joe Biden could die in office and Joe Biden is a one-term president because of his age and I don't know if I want to vote for that ticket because I'm nervous about Kamala Harris.
01:10:13.000But don't you think that there's plenty of other people that don't share that perspective?
01:10:18.000And there's a lot of people that don't think of it that way.
01:10:20.000They thought, for whatever reason, they thought that Donald Trump has America's best interests in mind.
01:10:27.000And that what Joe Biden represents is politics as usual.
01:10:30.000And he's just going to bring all the swamp creatures back into Washington, D.C., And they were hoping that Donald Trump was going to fix everything.
01:10:39.000And they will point to the fact that the economy before COVID was doing fantastic, that unemployment was very low, and the stock market was booming.
01:10:49.000They felt like he was making the right steps in the right directions to strengthen the country.
01:10:55.000To frame it all entirely as bigotry and white nationalism, I just don't think the people that voted for him see it that way.
01:12:02.000But I think what happened in the Capitol building on January 6th was predictable, was inevitable, was a consequence of who Trump is and what,
01:12:20.000given the opportunity, he would become.
01:12:23.000And I know a lot of people who voted for him don't see it that way.
01:12:29.000Well, I think that the attack on Capitol Hill opened up a lot of people's minds as to how much anger was seething below the surface of these people.
01:12:38.000And then I think my concern is not just those people, but what's next.
01:12:45.000Trump is still president for the next six days.
01:12:48.000And what can happen between now and then?
01:13:07.000You know, I was saying to one of my sons the other day...
01:13:13.000That Trump losing the election does not end the problem.
01:13:18.000That the furies that have been let loose are still out there.
01:13:23.000And they're not going away like you turned off a light switch.
01:13:27.000And even if Trump himself does not have any strength of leadership left after these recent events in the coming years, A lot of those people out there are still angry and still believe things that aren't true,
01:13:53.000still believe that the election was a fraud, still believe...
01:13:58.000I mean, there was even a member of Congress, a new member of Congress yesterday, who said that on January 21st she was going to introduce articles of impeachment to impeach Biden.
01:15:18.000Do you think it helps getting him out of office?
01:15:20.000I do think it helps getting him out of office.
01:15:23.000Well, because he's the instigator in chief.
01:15:27.000And I also, but you know, I've said for a long time, I thought the guy who was the worst player in the last four years was not Trump, but Mitch McConnell.
01:15:41.000Because Mitch McConnell was the accomplice in chief.
01:16:49.000I mean, the fact is, is that those furies are out there, and they are unleashed, and they feel legitimate because Trump gave them legitimacy, and they feel wronged.
01:17:03.000And I don't know how you get those people back to where they were.
01:17:08.000My concern is also that they don't feel like they have a platform for expression.
01:17:12.000They feel like if they express themselves on Facebook or Twitter or YouTube or anywhere, they're going to be censored.
01:17:20.000Well, I don't think that's their main grievance.
01:17:22.000I think the kind of people who broke into the Capitol building were people who felt betrayed by life in more general ways.
01:17:33.000I don't think that there was a lot of normality there.
01:17:37.000But one of the things that I would do if I were the Democrats is I would speak more focused On the working class people who have sort of been outstripped by modern technology.
01:18:05.000You know, the people who only know how to mine coal at a time when there is no more coal to mine.
01:18:11.000The people who worked in the steel industry when the steel industry isn't there anymore.
01:18:18.000Those are the people that the New Deal Raised up from terrible depression.
01:20:13.000Those people became, we called Reagan Democrats.
01:20:17.000And what happened is the Democrats stopped appealing to them.
01:20:22.000And they stayed hunkered down, you know, in their two blue fortresses in California and New York.
01:20:29.000And they appealed to all, you know, the identity politics of women's rights and gay rights and Rights for blacks and immigrants and Muslims.
01:20:44.000Now those are all issues that I feel very strongly about.
01:20:49.000But you can't do it in a way that abandons working class people Because then you invite them to go over to the other side.
01:21:41.000But if the Democrats don't begin to champion the problems of the people who are being left behind as the economy changes, they will make themselves politically vulnerable We're good to go.
01:22:45.000I think there's a lot of people concerned about the effect that social media is having on both parties and that the polarization is being accentuated by these algorithms and these algorithms that are created to sort of highlight whatever you're interested in or whatever you engage with.
01:23:02.000I don't know if you've seen the documentary The Social Dilemma.
01:23:08.000And it shows how this genie's out of the bottle and it's not going to go back in.
01:23:15.000And that these echo chambers, they're just pulling us further and further apart and cementing people's positions on the left and on the right, on either side.
01:23:25.000They're picking a team and they look at the other folks as the enemy.
01:23:27.000And it seems like it's far worse than it's ever been before and getting worse every day.
01:23:37.000The only thing I would say, so as not to be too completely depressed by it, is that I think it's worse now because I think social media and the internet have enabled it.
01:23:55.000But it's not as different as it used to be.
01:24:01.000I mean, again, when I grew up There were people who read the Times, and there were people who read the Herald Tribune, and there were people who read the Daily News and the Daily Mirror, and never the twain shall meet.
01:24:15.000No, New York used to be considered an integrated city, and it was, if you looked at the population of New York City, all told.
01:24:26.000But in fact, New York was a collection of ethnic enclaves.
01:24:31.000There were Jewish neighborhoods, There were Italian neighborhoods, there were Irish neighborhoods, there were Czech neighborhoods, there were German neighborhoods, and they were completely separate.
01:24:46.000The only time that there was violence was on the border lines, where one of those silos merged with the other.
01:24:55.000But where I lived in Brooklyn, I mean, it's People get astonished when I say this.
01:25:01.000I grew up in Brooklyn in the mid-40s, right?
01:25:05.000Where I lived in Brooklyn, I could walk 20 blocks, as long as I could walk, in any direction from my building where I lived and never see anybody who wasn't white and Jewish.
01:25:26.000Not only would I never see a black person, I would never see a Christian person.
01:25:33.000Not in my school, not in any of the shops, not in any of the parks where I played, not if I walked, as I say, 10 blocks from the hub of a wheel along the spokes in any direction.
01:25:48.000And the same thing was true in Italian neighborhoods, and it was true in Irish neighborhoods.
01:25:55.000If you lived on the borderline where an Irish Catholic neighborhood bordered on a Jewish neighborhood, there would be issues along the borderline.
01:26:09.000But they were usually issues of violence.
01:26:16.000But most people grew up in New York City in those days in rigidly segregated areas.
01:26:27.000When I tell my kids and my grandkids these days that I never saw a black person, not in my school, not in any of the shops, not on the movie screens,
01:26:46.000not even when I went with my parents to the local place to vote, Not even when I went with my father to the hiring hall of the union that he belonged to.
01:28:51.000It isn't gonna go away in a fast, quick way.
01:28:56.000Finding a way to live together across different differences is the problem of humanity.
01:29:10.000I mean, we have evolved from a system of tribes where if you weren't in your tribe, then the other tribe was hostile It's taken us centuries and centuries and centuries to move away from that.
01:29:34.000And I don't think, like I said, I don't think this is a new problem, and I don't think it's a problem that is gonna go away anytime soon, but it's a problem we continue to have to work at.
01:29:48.000I was once asked as a kid, Whether I hated antisemitism.
01:29:57.000And of course, you know, I was Jewish.
01:29:58.000I grew up during World War II. I knew what was happening in Germany.
01:30:04.000But for me, antisemitism was not special.
01:30:10.000My passion for dealing with the problems of racial justice in this country came from the fact that I was Jewish.
01:30:19.000I believe that anti-Semitism and racism against blacks or bigotry against Muslims were all different flavors of the same poison.
01:30:32.000And that's why I loved working at the ACLU. Because that's where it all came together.
01:30:41.000That's what I think the film Mighty Ira, that fire made, that's what they captured.
01:30:48.000That it was possible to be in opposition with people like Bill Buckley or with people like Ben Stern, and yet to be friends while you continue to oppose each other and fight in civil ways.
01:31:08.000We've gotten a long way away from that in the last few years, but I think that We have to start moving on the way back, and I'm hopeful that the change from Trump to Biden is the beginning.
01:31:38.000What do you think, other than this new administration coming into office, what other things do you think can be done to sort of hit the brakes on this rapid increase in polarization?
01:31:53.000It seems like more staunch tribalism than ever.
01:32:12.000I think in Congress there has to be some attempt to separate out the lunatics from the people with sharply different views.
01:32:24.000You can't be having votes All the time.
01:32:31.000That are unanimous Democrats for one thing and unanimous Republicans for the other.
01:32:37.000I was cheered by the fact that in the impeachment vote yesterday, 10 Republicans voted to impeach.
01:32:45.000Not because I was in favor of impeachment.
01:32:47.000I was, but that isn't the reason I was cheered.
01:32:51.000I was cheered by the fact that if you can't reach across the aisle and find Some combination of Republicans and Democrats to support similar things.
01:33:06.000Then there's going to be no end to the paralysis and to the anger.
01:33:11.000And if you can't do it in Congress, where can you do it?
01:33:16.000You know, I know people who say, I can't talk anymore to anybody who supported Trump.
01:33:23.000And my response is, well, you've got to talk to them.
01:33:26.000Now, you know, you may not be able to talk to the guy who's coming after you with a gun and a wrist tie, but you've got to talk to some people who voted for Trump.
01:33:43.000And you've got to at least reach across, in a human way, across those differences in opinion.
01:34:03.000You gotta sit down in a room and talk about that.
01:34:06.000You gotta do with people like that what you and I are doing now.
01:34:11.000Because the very contact, the very discussion is humanizing.
01:34:17.000You know, one of the reasons that Buckley and I became friends Was that we were in combat so often.
01:34:26.000I mean, I was on his show fighting with him so many times and we would fly down on the same plane to where the show was being televised and we would sit around in the green room before the cameras went on and talk and we would talk afterwards and then once in a while,
01:34:48.000you know, he invited me to dinner at his home and His wife would be there and his colleagues from the National Review would be there.
01:34:57.000And once I took him to a ballgame, as the documentary shows.
01:35:03.000And what those were was that they were attempts to reach across the divisions of opinion that we had and that we had till the day he died.
01:36:21.000And I was the guy who was defending the rights of people with swastikas on their arms to demonstrate in the town where he lived.
01:36:32.000Now, I'm not going to lecture that guy about the First Amendment.
01:36:38.000I'm not going to tell him he should not feel the pain and the anger that he feels.
01:36:46.000Because I know that, had I been in his position I would feel the same way.
01:36:54.000But when we sit together in his kitchen for two hours and we eat food together and we drink and we talk about the fact that our common ancestors came from Poland and we just talk about some personal things before we get into our disagreement It changes the whole nature of the interchange.
01:37:23.000And I think people have to start doing more of that.
01:37:28.000I think part of the function of free speech is you want to invite people to disagree, and then you want to disagree with them.
01:37:38.000And what speech is, is a ritualized form of combat.
01:37:45.000That substitutes words for guns and clubs.
01:37:59.000And to the extent that we have moved away from that in recent years, we have to, all of us, consciously, explicitly, even if it's against our instinct, step back in that direction.
01:38:16.000I just don't know what the path forward is.
01:38:18.000I think one of the problems that we have in the podcast world is if you have someone on that you disagree with or you think they have bad opinions, people will be upset at you for platforming that person.
01:38:31.000They don't even think you should talk to them.
01:38:33.000And I always think that's so ridiculous.
01:38:35.000Or they'll decide that if you have a right-wing person on your show, you are now a right-wing person or maybe even a far right-wing person.
01:38:44.000No, that's exactly, and that's a problem.
01:38:47.000I mean, one of the, you know, when the people at FIRE first approached me and said they wanted to make a documentary about my career at the ACLU and what I agreed to do it, you know,
01:39:03.000I had been retired almost 20 years by then, and I was happy to be out of the fray, but I said, yeah, well, sure, that would be nice, but I never imagined That they would do as sensational.
01:39:17.000I mean, these were three young men who had never made a film before.
01:39:21.000And I never imagined that the film would be as moving as it was.
01:39:27.000But one of the ways that it was moving is it demonstrated exactly what you just said.
01:39:33.000That it's possible for people with very severe disagreements Not only to be civil to each other, but to be affectionate with each other.
01:39:46.000And that even though it didn't change the nature of the disagreements on public policy, it didn't demonize each other.
01:42:38.000I think there's a lot of people that dismiss the idea that the president, that it's important because they are the identity of the country.
01:42:47.000A lot of people dismissed that before because they didn't think of it.
01:42:50.000We had presidents that were statesmanlike, like Obama.
01:42:55.000They spoke well, they were very measured and very intelligent, and we never had to worry about them.
01:43:05.000When Trump got into position, and you did hear this kind of fiery rhetoric from him, and the inspiration that these people got from it was not positive.
01:43:30.000The capacity of the President of the United States, the capacity really of any national leader, to legitimize certain kinds of behavior, to normalize, is very powerful and can be a force for good and can be a very dangerous force for evil.
01:43:51.000I've been doing a lot of reading in recent years about Germany in the 1930s.
01:44:00.000And, you know, that's what Hitler did.
01:44:03.000You know, just before he was appointed chancellor in 1933 by von Hindenburg, the polity in Germany was split.
01:44:19.000I mean, the Social Democrats and the communists and the people on the left We're about 50%.
01:44:25.000And people who were sort of against the Weimar Republic and wanted to restore a kind of authoritarian government were about 50%.
01:44:35.000And they were at war with each other all the time in the streets.
01:44:43.000Some of it, you know, they fought with guns and clubs.
01:44:46.000But it was pretty much evenly divided.
01:44:50.000And then When Hitler got power, and you know, he never won an election.
01:44:56.000He never, the votes for him were never the majority.
01:45:00.000He was appointed chancellor by von Hindenburg because von Hindenburg wanted to destroy the Weimar Republic and figured he could use Hitler to do that, and that he figured he could control Hitler, which he was wrong about.
01:45:26.000And suddenly it wasn't 50-50 anymore because the 50 who were against him were in jail.
01:45:32.000And suddenly the whole country changed and he became the model.
01:45:37.000And he made these inflammatory speeches and these speeches full of hate and scapegoating.
01:45:46.000And, you know, the next thing you knew, Jews and homosexuals and others were being carted off to concentration camps, and it became normal.
01:46:00.000The problem of what happened in Germany was that evil became normal in such a way that a lot of people couldn't even recognize it as evil anymore.
01:46:12.000And that's what's dangerous about national leadership.
01:46:16.000And to a large extent, That's the kind of change that I think Trump is responsible for in this country.
01:46:25.000And the only thing that can step back from it is national leadership that shows a different kind of normality.
01:46:37.000And it's not going to happen in four years.
01:48:04.000And you keep making progress toward that place.
01:48:07.000But you know that in your own lifetime, you're probably not going to ever see that place.
01:48:12.000Because the span of a lifetime is pretty short in terms of social and political change.
01:48:20.000I mean, you know, we lament the fact that 50 years or so after the Civil Rights Act passed, there's still racial injustice in this country.
01:48:31.000Well, we came out of a history of 300 years of slavery and another 100 years of Jim Crow.
01:48:39.000And you don't turn that 400 years around in the space of 30 or 40 or 50 years of remedial legislation.
01:48:52.000And, you know, Martin Luther King Jr. liked to say that the arc of justice is long, but it bends, that the moral arc of the universe is long, but it bends toward justice.
01:49:03.000Well, it does, but it doesn't bend evenly, it doesn't bend fast, and it doesn't bend by itself.
01:49:13.000It requires all of us to bend it, A little bit at a time, during the time we have the opportunity to do so, and to have some faith that there will be people after us who will continue to bend it, and that despite the ups and downs of our fortunes,
01:49:31.000liberty and freedom and individual rights and equal justice will get better, not worse.
01:49:42.000And my faith in that is not rooted in illusion.
01:49:48.000There are more rights protected today.
01:50:02.000As imperfect as all those are, and as long as we still have to go on all of them, they're all better than they were on the day I was born.
01:50:17.000I came to work for the ACLU. We are a freer country with more rights that are enforceable and more equality of justice than we were in 1920 or 1930 or 1950 or 1960. We tend to measure progress by the brevity of our own lives.
01:50:40.000We tend to be over impressed by what's happened in the last four years.
01:50:55.000One, that the progress that we have made encourages us to believe that we can make more progress.
01:51:03.000And that the progress we have made, as significant as it is, is far from sufficient.
01:51:11.000In 1920, the year that the ACLU was created, was 131 years after the Bill of Rights was passed.
01:51:23.000131 years after the Bill of Rights was passed, the Supreme Court had never, in our entire history in 1920, had never, after 131 years, had never struck down a single law or government action on First Amendment grounds.
01:52:08.000You're going to protect free speech at a time when, after 130 years, the Supreme Court has never Struck down any government action or law on First Amendment grounds?
01:52:25.000But in 1981, when I was the Executive Director of the American Civil Liberties Union, Roger Baldwin, who was the guy who started it with those 40 colleagues, was still alive.
01:52:38.000He was 97. And when I talked to him, He looked back upon a time when the progress that we had made in 1981 was unthinkable in 1920. But he was still alive to see it.
01:52:58.000And I believe that that kind of progress, and it wasn't because the progress was easy, and it wasn't because the progress was even or steady or not without stunning defeats.
01:53:35.000And To fill out that metaphor, you know, we started this fight for freedom and liberty and equal justice in the shadow of our own goalposts.
01:53:54.000And getting thrown for a few losses along the way ought not to be discouraging.
01:54:03.000Vince Lombardi, the legendary Green Bay coach, football coach, once said at his retirement dinner, he got up and he said, you know, he said, I never lost a football game.
01:54:18.000People's eyes widened and he smiled and he said, once in a while, time ran out.
01:54:25.000And I always loved that line because I always thought that in our fight for civil liberties, That's a game where time never runs out.
01:54:36.000You absorb the losses, you figure out your strategies, you call better plays, you tough it out, and you realize that the game is long and there's been more victories than there have been defeats.
01:54:55.000So that's my preaching from the pulpit.
01:55:02.000And thank you for everything that you've done.
01:55:04.000And thank you for your unwavering commitment to free speech.
01:55:08.000It's one of the things that I worry most is lost on today's youth, the cancel culture and this desire to de-platform people.
01:55:21.000I worry that that complicated and, as you said, non-intuitive process Way of thinking is going to be lost.
01:55:31.000Well, part of it, you know, Joe, is that a lot of the young progressives today are progressive, but they're young.
01:55:40.000And they don't know, and certainly haven't lived through, a lot of history.
01:55:46.000I spoke to University of Chicago audience a few years ago, and I loved the audience when I walked in.
01:55:53.000They were the kind of thing that I could only dream about 30 years ago.
01:55:57.000They were men and women, blacks and whites, Muslims, people of all ethnicities.
01:56:06.000It was a rainbow audience of law school students.
01:56:12.000And after the question and answer session, they began to ask me about About hate speech, and it was clear that they were in favor, they weren't big fans of the First Amendment.
01:56:27.000They regarded themselves as advocates of social justice, and they regarded the First Amendment and free speech as antagonists.
01:56:36.000And why did they regard free speech as antagonists?
01:56:40.000Because they saw so many people around them speaking hateful, bigoted words.
01:56:47.000They saw that as an impediment to social justice.
01:56:52.000So I said to them, you know, there's never been a social justice movement in America that didn't require the First Amendment when it began.
01:57:07.000Free speech is not an antagonist of social justice.
01:57:10.000Free speech is an accessory to social justice.
01:57:15.000Look at every social justice movement in America, every one.
01:57:19.000Look at the labor union movement, which required the right to leaflet, the right to meet, the right to organize, the right to speak.
01:57:28.000And when those rights were taken away from them, the unions died.
01:57:33.000Look at the right, the anti-lynching movement in the 1920s in America.
01:57:40.000People like Ida Wells, who Who organized the anti-lynching movement and made it a popular cause, a relatively popular cause.
01:57:59.000All of this required First Amendment protection.
01:58:02.000Look at the movement for women's right to use birth control.
01:58:07.000When Margaret Sanger started distributing leaflets providing women with information on birth control in New York in 1916, she was arrested every other day because the First Amendment wasn't there to give her the right to continue to do what she was doing.
01:58:26.000There would have been no birth control movement, just as there would have been no labor movement and no anti-lynching movement without the right to free speech.
01:58:36.000And look at the Civil Rights Movement in our own time, in our own lives.
01:58:42.000Where would the Civil Rights Movement have been if Martin Luther King Jr. didn't have the right to organize the Montgomery bus boycott after Rosa Parks was arrested?
01:58:54.000Where would the Civil Rights Movement have been if people who hated them had the power to stop them from marching in the streets in the South?
01:59:06.000Where would the Civil Rights Movement and the Voting Rights Act of 1965 been if people didn't have the right to march across the Selma Bridge?
01:59:16.000John Lewis, who recently died and who ended up a senior member of Congress, as a young person in his 20s, was one of the young people who led that march across the Selma Bridge and who had his skull fractured as a result.
01:59:38.000Nobody was a better symbol of the fight for social justice, racial justice, than John Lewis.
01:59:48.000But what he said about the First Amendment was that without the right to free speech and the right to dissent, the civil rights movement would have been a bird without wings, a plant without sunlight or water.
02:00:24.000And if young progressives today think that they can fight for social justice without the benefit of the First Amendment, they are making a tragic political mistake.