The Joe Rogan Experience - Joe Rogan Experience #1595 - Ira Glasser

00:00:08.000 Alright, let's just get into it.

00:00:15.000 Ira, first of all, thank you for being on the show.

00:00:17.000 I really appreciate it.

00:00:18.000 Well, thank you for having me.

00:00:20.000 It's great.

00:00:20.000 It's a perfect time to have you on.

00:00:24.000 We're talking about free speech in the time when the President of the United States has been banned off of Twitter and Facebook.

00:00:31.000 It's a wild time.

00:00:32.000 What do you make of that?

00:00:34.000 Well, you know, Facebook and Twitter...

00:00:39.000 Our private publishing, right?

00:00:41.000 I mean, we don't exactly know what they are.

00:00:43.000 They're not exactly like the Times or like NBC or ABC. But they're close.

00:00:52.000 They're certainly in the private sector.

00:00:54.000 And the private sector has always had the discretion, it's their First Amendment right, to decide Who to publish and who not to publish.

00:01:05.000 You 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.

00:01:16.000 But they're not quite that.

00:01:19.000 They really are a lot like a publisher.

00:01:22.000 And, you know, The Times decided to fire one of its columnists because it didn't like what he wrote.

00:01:29.000 They have a First Amendment right to do so.

00:01:32.000 They're not the government.

00:01:35.000 To 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.

00:01:57.000 On the other hand, We're good to go.

00:02:21.000 You run the risk of them closing people out of a national dialogue and depriving people of an audience, basically.

00:02:32.000 And that's a problem.

00:02:34.000 And it's a problem we haven't figured out how to work out yet because this medium is in its infancy.

00:02:41.000 You 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.

00:02:59.000 And we're right at the beginning of this internet speech medium.

00:03:06.000 And it's hard to say.

00:03:10.000 I think Facebook and I'm not saying Trump.

00:03:18.000 But 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,

00:03:35.000 it 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.

00:03:51.000 There's something new.

00:03:52.000 There's something completely different.

00:03:54.000 I 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.

00:04:02.000 It's not like anybody could have bought or made a printing press and printed their own books or printed their own newspapers.

00:04:07.000 Not everyone can make their own Twitter.

00:04:10.000 It's so complex and there's so many users on it.

00:04:15.000 There's very few places where you can legitimately get your word out in a way that you can with Twitter or express yourself.

00:04:24.000 And 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.

00:04:37.000 That's right.

00:04:38.000 But consider this.

00:04:39.000 When 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.

00:04:54.000 I 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.

00:05:05.000 And nobody had access to that.

00:05:08.000 So 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,

00:05:23.000 many, millions more of people, ordinary people, have access to huge audiences than did 50 years ago.

00:05:33.000 You 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.

00:05:45.000 And so, you know, it's a lot better now, even with...

00:05:51.000 Questions about abusing the power of being a gatekeeper that Twitter and Facebook have.

00:06:00.000 It's just such a strange time for this because we're at the end of the president's run.

00:06:08.000 He'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.

00:06:20.000 It's just so strange.

00:06:23.000 Well, of course, he's still the president.

00:06:26.000 If he held the press conference, everybody would cover it.

00:06:32.000 I used to say back in the day that my father was a construction worker with a fifth grade education.

00:06:42.000 And 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.

00:06:56.000 And 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.

00:07:03.000 So, you know, it isn't different in that respect.

00:07:08.000 I'm not too worried about A president not having access to a public audience.

00:07:15.000 A president has tremendous power to attract attention, and that was true 100 years ago.

00:07:23.000 What I'm worried about are ordinary people.

00:07:26.000 What 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.

00:07:42.000 You 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.

00:08:00.000 And it was a real outrage.

00:08:02.000 It was in the early 60s.

00:08:04.000 And 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.

00:08:24.000 And 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.

00:08:39.000 So what he did is he got out on the street corner and he burned an American flag.

00:08:44.000 It was his flag.

00:08:46.000 He owned it.

00:08:46.000 So he wasn't destroying anybody else's property.

00:08:49.000 He burned the American flag and by burning the American flag he attracted television cameras which his words by themselves would not have attracted.

00:08:59.000 So 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.

00:09:12.000 And he got onto the 6 o'clock news, and millions of people heard his words.

00:09:19.000 And he was prosecuted for burning the flag, which was a crime at the time.

00:09:26.000 The case eventually went up to the Supreme Court and the Supreme Court overruled it and said it was symbolic speech.

00:09:33.000 But 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.

00:09:51.000 And that's why, you know, Benjamin Spock burned draft cards.

00:09:55.000 That's why Sydney Street burned the flag.

00:09:59.000 That's why there were demonstrations instead of just words.

00:10:05.000 And, you know, it worked all right for some people.

00:10:09.000 But for the most part, most people could not get their messages out to large audiences until the Internet came.

00:10:17.000 And so even with...

00:10:20.000 Twitter 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.

00:10:36.000 But 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.

00:10:49.000 I mean, by orders of magnitude larger than it was 30 or 40 or 50 years ago.

00:10:57.000 Unquestionably.

00:10:58.000 But 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.

00:11:14.000 A platform that hundreds of millions of people use.

00:11:17.000 It just seems very strange.

00:11:19.000 Well, it is a problem because there are no standards.

00:11:23.000 And that's what I mean when I say we're just at the beginning of thinking about how to do that.

00:11:30.000 I mean, here's what I see as the issue.

00:11:35.000 If 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,

00:11:52.000 then you run the risk of arbitrary exclusions from People's speech reaching large audiences.

00:12:04.000 Not just the president, who has alternative means, but ordinary people.

00:12:10.000 The only way to remedy that is by law.

00:12:15.000 The only way to remedy that is to give the government the power to regulate what these corporations can do.

00:12:23.000 And 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.

00:12:37.000 Because who in the government are you going to give that power to?

00:12:42.000 You're going to give it to Trump?

00:12:43.000 You're going to give it to Giuliani?

00:12:45.000 You're going to give it to Joe McCarthy?

00:12:48.000 You're gonna give it, you know, to Roosevelt during the war who might have barred Japanese Americans from speaking to large audiences?

00:12:57.000 I mean, who are you gonna give that power to?

00:13:00.000 And our entire history shows that the only way to regulate private power is through government power.

00:13:08.000 And 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.

00:13:22.000 That's the dilemma.

00:13:26.000 Wouldn'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?

00:13:37.000 What is YouTube?

00:13:38.000 Is it a public square?

00:13:39.000 Is it a place where people should have the freedom to discuss, just like we have the right to use the electricity?

00:13:46.000 There's certain utilities that you have a right to use those.

00:13:53.000 That is my inclination.

00:13:55.000 My inclination is that the best way to think about it may be to think about it The way we think about the telephone company.

00:14:04.000 The 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.

00:14:19.000 And they don't have anything to say about what we say.

00:14:24.000 They don't have anything to say about the content.

00:14:26.000 You and I can get on the phone and discuss anything we want, say anything we want, and the telephone company simply supplying the wires.

00:14:38.000 I think that that is the best way to start thinking about this problem.

00:14:44.000 Now, 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.

00:14:59.000 You're having a public discussion and everything, it's like having a party line with the entire population being on the line listening in.

00:15:09.000 So there are differences that you have to think through.

00:15:12.000 But I think that that's the right way to start thinking about this problem.

00:15:16.000 Yes, as a public utility.

00:15:18.000 Yeah, 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.

00:15:28.000 And some people had said some bad things on that, so Amazon decided to pull it.

00:15:34.000 Facebook pulled it, or excuse me, Google pulled it from their Play Store.

00:15:37.000 Apple pulled it from the App Store.

00:15:42.000 My 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.

00:15:59.000 That the polarization is going to get even more potent than it is already.

00:16:05.000 Yes.

00:16:06.000 Well, I think that's right.

00:16:07.000 You 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.

00:16:18.000 But those people are not going away, and they still have the opinions that they had.

00:16:23.000 And if they're not speaking in public, they're still speaking, and they're speaking to each other, and they will find ways.

00:16:31.000 And suppression has never worked.

00:16:36.000 The 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.

00:16:56.000 And 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.

00:17:13.000 They can't tell you, well, we're not hosting your phone system anymore because we don't like what you're saying on it.

00:17:21.000 They're not even supposed to listen to what you're saying on it.

00:17:25.000 And 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,

00:17:44.000 that are really public utilities.

00:17:47.000 Of 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.

00:17:59.000 And what's to prevent that government commission from functioning in a censorious way according to who's in charge?

00:18:07.000 I mean, it's not really possible to rid yourself of the problem entirely.

00:18:13.000 It's only possible to contain the problem.

00:18:17.000 And I still think that the most dangerous thing we can do is locate the power to decide who should speak with the government.

00:18:27.000 I think that that is the single most dangerous thing that we can do.

00:18:31.000 But 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.

00:18:45.000 Yeah, I would agree with that.

00:18:47.000 I don't know how we get ourselves out of the mess we're in currently.

00:18:50.000 You've always been a staunch advocate for free speech, even when that speech is hate speech.

00:18:55.000 And that's a very – it's a difficult argument for people to have in this day and age because people want to ban hate speech.

00:19:04.000 They want to ban people from talking.

00:19:06.000 Right.

00:19:06.000 You'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.

00:19:21.000 Well, you see, when people say they want to ban hate speech, what they mean is they want to ban the speech that they hate.

00:19:31.000 Yes.

00:19:33.000 But if you allowed...

00:19:35.000 Something called hate speech to be banned, then the only important question would be, who decides?

00:19:44.000 And 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.

00:19:55.000 It's going to be the speech they hate.

00:19:59.000 Think 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.

00:20:15.000 That's what they mean by hate speech.

00:20:18.000 But what I always ask liberals is, well, what makes you think you're going to have the power to decide what's hateful?

00:20:29.000 You're never the ones who are going to have the power.

00:20:31.000 What would happen if the guy who decided what speech to hate and ban was Joe McCarthy?

00:20:38.000 He would have banned your speech.

00:20:41.000 What 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.

00:20:58.000 And he hated that speech.

00:21:00.000 Now, the speech he hated wasn't the same speech that I hated.

00:21:03.000 The speech he hated wasn't the same speech as liberals or progressives hated, but he was the one who got to decide, not they.

00:21:14.000 And that's, you know, that's the problem.

00:21:17.000 That'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.

00:21:31.000 In the 1990s, there was a big move on a lot of college campuses to ban hate speech.

00:21:38.000 And what they meant by that is they wanted to ban racist speech.

00:21:41.000 And a lot of black students were in favor of it.

00:21:44.000 And 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.

00:22:01.000 So I was sort of on their side and they knew that in terms of the substance.

00:22:06.000 But I didn't preach to them about the First Amendment.

00:22:10.000 I 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?

00:22:22.000 Do 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?

00:22:29.000 And 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,

00:22:46.000 not David Duke.

00:22:49.000 And the kids would look at me like they had never thought of it that way.

00:22:53.000 But that's the problem.

00:22:55.000 The problem is always who gets to define what's hateful and who gets to decide what to ban.

00:23:03.000 And it isn't often going to be the ones who advocate for these codes.

00:23:10.000 You 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.

00:23:23.000 And a group of Zionist kids who were among the leaders of the National Student Movement at the time were all for that. 0.99

00:23:35.000 And 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,

00:23:50.000 that Zionism was a form of racism.

00:23:53.000 Well, the Zionist kids who had supported those hate speech bans, they didn't think that Zionism was a form of racism.

00:24:02.000 But a few years later, a majority of the National Student Union did so think.

00:24:08.000 And so the very hate speech bans that these kids supported ended up being used against their own speakers.

00:24:19.000 There are hundreds of examples like that.

00:24:21.000 And the reason why these bans don't work is that nobody can define what hate speech is, and it all ends up coming down to who decides.

00:24:34.000 And most often, it ain't you.

00:24:38.000 Yeah, 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.

00:24:53.000 It gets young people to think along the same lines.

00:24:57.000 If they're very charismatic and they're enticing, they could get young people to join what they believe are hate groups.

00:25:05.000 So is the solution just leave everything up and let everybody just kind of duke it out in the town square of ideas?

00:25:13.000 Well, I think so.

00:25:15.000 And 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.

00:25:26.000 And who is that somebody?

00:25:29.000 You know, I don't think you can get out of that dilemma.

00:25:33.000 You 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.

00:25:53.000 But they weren't.

00:25:55.000 A lot of them believed that the First Amendment did not protect false speech.

00:26:00.000 Because the same way that people now about hate speech is, well, what is the virtue of false speech?

00:26:07.000 Why does false speech contribute anything to a rational discussion?

00:26:13.000 How does false speech enhance democracy?

00:26:17.000 So there was largely a consensus at the end of the 18th century when the country began.

00:26:26.000 There was largely a consensus, even among the fiercest advocates of free speech, that false speech was not protected by the First Amendment.

00:26:40.000 Then, under John Adams' presidency, the second president of the United States, They passed something called the Alien and Sedition Acts.

00:26:52.000 And this was a federal statute that Congress passed, and it made it a crime to say false things, critically false things,

00:27:08.000 about the president.

00:27:09.000 And the problem was is that it was the president who decided To whom that law should apply.

00:27:19.000 So 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.

00:27:39.000 And why did that happen?

00:27:41.000 It happened because the people in charge Said that their speech was false.

00:27:47.000 The speech of the people that they prosecuted.

00:27:50.000 And, 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.

00:28:02.000 But 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.

00:28:13.000 Look at what just happened with our elections.

00:28:18.000 70% of people among Republicans believed that the election was fraudulent.

00:28:26.000 Now, you can argue about whether that's true or whether that's false, but do you really want to make it a crime?

00:28:33.000 For people to say that the election was fraudulent?

00:28:37.000 You have to fight it out.

00:28:39.000 You have to duke it out.

00:28:42.000 Otherwise, 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.

00:28:53.000 That was the history in the early part of the American experiment.

00:29:00.000 And the thing is true today about hate speech or bigoted speech or any other kind of speech.

00:29:06.000 You 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.

00:29:22.000 And it's like an insurance policy.

00:29:26.000 And 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.

00:29:41.000 And I don't think there's any way out of that.

00:29:45.000 It's not intuitive.

00:29:46.000 You know, I used to say, I was a kid who grew up in the streets of Brooklyn.

00:29:51.000 If somebody called me a dirty Jew or insulted my mother or anything else, I mean, there were two responses. 0.67

00:30:00.000 You didn't argue with them.

00:30:02.000 I didn't know about free speech when I was 11 years old on the streets in Brooklyn.

00:30:07.000 If somebody insulted you or said something bigoted to you, you had two choices.

00:30:11.000 You punched them out or you ran if they were bigger than you or there was more of them than you.

00:30:18.000 Free speech is an acquired taste.

00:30:20.000 It's something you learn about later.

00:30:23.000 It'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.

00:30:32.000 Was it an easy thing to come to grips with or did you go back and forth with it?

00:30:38.000 No, it's not an easy thing to come to grips with because it's not intuitive.

00:30:43.000 The first time I saw...

00:30:50.000 People from the Klan talking or neo-Nazis talking. 1.00

00:30:55.000 My first instinct was I wanted to take a club and beat them over the head. 0.99

00:30:59.000 I mean, how could your first instinct not be that? 0.95

00:31:06.000 But 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.

00:31:24.000 To give the government the power to decide who to beat over the head and for what speech.

00:31:31.000 And 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.

00:31:50.000 And that powerless people, people who are discriminated against, black people, women, gay people, Jews, Muslims, political minorities, socialists, communists,

00:32:06.000 whatever, Those are never the people who get to decide what speech to ban.

00:32:11.000 They are the victims of the speech bans.

00:32:15.000 Because 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.

00:32:30.000 And why would we want to trust, why would Black Lives Matter protesters Want to trust their speech rights to somebody like Donald Trump? 0.72

00:32:44.000 Why would right-wing people want to trust their speech rights to Bernie Sanders, say?

00:32:55.000 And you know, this doesn't often just break down on liberal conservative lines.

00:33:02.000 I 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,

00:33:18.000 these were American citizens of Japanese descent.

00:33:22.000 Not one of whom was ever charged with anything criminal or with anything treasonous or with anything traitorous.

00:33:33.000 120,000 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. 1.00

00:33:46.000 And this was done by Franklin Delano Roosevelt.

00:33:50.000 You know, so the fact is you can never trust the powerful with your civil liberties.

00:33:59.000 That's true about speech and it's true about all civil liberties.

00:34:04.000 Power is the antagonist.

00:34:07.000 Not Republicans, not Democrats.

00:34:11.000 Power is the antagonist.

00:34:12.000 And whoever has it is a danger to civil liberties if they're not restrained.

00:34:18.000 And one of the restraints is in the First Amendment, Which says, Congress shall make no law that abridges speech.

00:34:31.000 Now, you know, no law means no law.

00:34:33.000 It 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.

00:34:46.000 So, yeah, I think, I do think you gotta duke it out with words.

00:34:52.000 And the line between what's permissible and what's not permissible needs to be between speech and conduct.

00:35:00.000 That 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.

00:35:29.000 That's conduct.

00:35:30.000 That isn't speech.

00:35:32.000 Now, that kind of conduct expresses a point of view, but it's not the sort of expression that the First Amendment protects.

00:35:40.000 We used to represent at the ACLU almost all the abortion clinics in the country.

00:35:50.000 And at the same time, we used to defend a lot of the people who demonstrated against abortion outside those clinics.

00:35:59.000 And some of those people said the most hateful, horrible things to women going inside.

00:36:05.000 Baby murderers, and they screamed very ugly things to them.

00:36:11.000 We defended them. 0.77

00:36:12.000 What we didn't defend is when they threw a bomb Through the window of an abortion clinic.

00:36:18.000 What we didn't defend was what they shot doctors who worked at the abortion clinic.

00:36:24.000 Now, throwing a bomb through the windows of an abortion clinic expresses an opinion.

00:36:30.000 But that form of expression is not what the First Amendment protects. 0.95

00:36:35.000 The First Amendment protects your right to stand outside the clinic and yell, baby murderers, baby murderers, all you want. 0.68

00:36:43.000 It does not protect You're right to throw a bomb through a window or physically prevent women from going into the clinic as they wish.

00:36:54.000 And that's the distinction that you have to try to draw.

00:36:57.000 Not between the words that are ugly and the words that are not ugly, but between the words and the conduct.

00:37:07.000 Now, in the case of Donald Trump, the argument with Twitter gets even more complicated because it's not necessarily the things he said.

00:37:13.000 It's what he was inciting people to do.

00:37:17.000 Yeah.

00:37:18.000 Because it wasn't just his opinions on things.

00:37:20.000 He was calling for action.

00:37:22.000 He was calling for them to be strong.

00:37:24.000 You have to be powerful.

00:37:27.000 You've got to march down there and show them.

00:37:29.000 He was inciting them.

00:37:31.000 It's a very different thing.

00:37:32.000 So when Twitter steps in and says, okay, enough is enough...

00:37:35.000 They're essentially stepping in because he, in their mind, he inspired action.

00:37:44.000 Yes, well, incitement is the hardest, it's the right test, but it's the hardest test for the First Amendment.

00:37:55.000 I'll tell you why.

00:37:57.000 The 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,

00:38:14.000 1918. And there were people who distributed leaflets opposing the draft.

00:38:23.000 That's all the leaflets did.

00:38:25.000 They didn't threaten anybody.

00:38:28.000 They didn't incite anybody to violent conduct.

00:38:33.000 They just spoke out against the draft and tried to get other people to oppose the draft.

00:38:42.000 They 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,

00:39:06.000 just for their license.

00:39:09.000 Case went up to the Supreme Court.

00:39:11.000 The Supreme Court agreed.

00:39:13.000 And some people went to jail to do that.

00:39:17.000 And that was called incitement.

00:39:21.000 In 1960s, 65, 68, some high school students went As part of a national demonstration that day,

00:39:38.000 it was called National Moratorium Day.

00:39:40.000 It was an anti-Vietnam War demonstration.

00:39:44.000 They didn't say anything.

00:39:45.000 They didn't do anything.

00:39:47.000 They just wore black armbands and went to classes.

00:39:52.000 The principal suspended them from school on the grounds that the black armbands were an incitement to violence.

00:40:00.000 That case was overturned by the Supreme Court.

00:40:05.000 So the word incitement has not had a great history.

00:40:08.000 But eventually, also in 1969, in a case called Brandenburg, the Supreme Court said that incitement has to be imminent, it has to be explicit,

00:40:25.000 it has to be part and parcel of igniting conduct.

00:40:32.000 It can't be speculative.

00:40:34.000 You can't say, oh my god, this speech is so bad, it might incite some people to do something illegal.

00:40:42.000 It has to be connected in an explicit way.

00:40:47.000 And the example that I always used to use is, if somebody is standing outside a jail with a crowd, a large crowd,

00:41:03.000 Of people with clubs and guns.

00:41:06.000 And saying they want to get the guy who is inside that jail and lynch him.

00:41:14.000 And, you know, the sheriff is standing on the steps and saying, no, you know, he's awaiting a trial.

00:41:22.000 If he's tried and convicted and sentenced, that's one thing, but you can't, the crowd, no, you can't come in. 0.99

00:41:29.000 And the guy who's at the head of the crowd has a torch in his hand and he says, let's lynch the bastard, go! 0.99

00:41:39.000 And the crowd goes forward and they break into the jail, et cetera, et cetera, et cetera. 1.00

00:41:47.000 He can't claim that his words, let's lynch the bastard, go, were protected by the First Amendment. 0.98

00:41:56.000 Because that speech was an incitement in an imminent way. 0.99

00:42:02.000 It was part and parcel of the prohibited conduct.

00:42:06.000 So the question, that's what the law is now.

00:42:10.000 It wasn't always what the law was.

00:42:12.000 The issue of incitement has a long sorry history of being used against speech which everybody would think is protected by the First Amendment now.

00:42:26.000 Even this more conservative Supreme Court would unanimously support the right of people to distribute leaflets being against the draft.

00:42:38.000 That didn't happen in 1918, but it would happen now.

00:42:42.000 So the question of incitement now is really defined by that 1969 Supreme Court case.

00:42:50.000 It has to be imminent, it has to be Really kind of explicitly tied to the conduct.

00:42:56.000 Now, the question then under that standard is, do Trump's words satisfy that?

00:43:05.000 Well, arguably they do.

00:43:07.000 I mean, he got up there.

00:43:09.000 He spoke to this angry crowd.

00:43:12.000 He riled them up.

00:43:14.000 He said, you have to fight.

00:43:17.000 You have to take this into your own hands.

00:43:22.000 You're gonna lose our country if you're not strong.

00:43:27.000 Congress has to be stopped from certifying this fraudulent election.

00:43:31.000 Go get him! 0.99

00:43:33.000 I mean, that's basically what he said.

00:43:34.000 And then they turned around and they broke into the Capitol building.

00:43:39.000 So 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,

00:43:56.000 whose words kind of triggered their action?

00:44:01.000 If it's that, then he can be indicted for criminal incitement.

00:44:11.000 That's what they're trying to impeach him about.

00:44:13.000 That's what the impeachment article accused him of that they just passed yesterday.

00:44:19.000 So that's really the question.

00:44:22.000 And from what I've seen, I think that what he said was incitement.

00:44:29.000 And it was an incitement that's not protected by the First Amendment.

00:44:33.000 Does that make him criminally liable?

00:44:35.000 So do you think he could be criminally liable for the attack?

00:44:40.000 He could.

00:44:46.000 With 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.

00:44:56.000 It 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.

00:45:25.000 It is.

00:45:38.000 It is.

00:45:40.000 And 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.

00:45:58.000 So anxious to make sure he can never again occupy a position like this.

00:46:05.000 That 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.

00:46:18.000 It 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,

00:46:46.000 no matter how inflammatory that speech could be.

00:46:49.000 It took us a long time to get to that standard that is speech protective.

00:46:57.000 I 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.

00:47:18.000 And I hope that that doesn't happen.

00:47:20.000 As far as I'm concerned, I think he should be convicted under this impeachment article.

00:47:31.000 And 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.

00:47:40.000 But I myself would not be in favor of indicting him for the crime of incitement if he is convicted under the impeachment clause.

00:47:50.000 I think that would probably be protective enough.

00:47:54.000 So you think that even though you could argue that he incited those people, you don't think he should be convicted for that?

00:48:00.000 I think he should be convicted under the impeachment process.

00:48:05.000 I don't think it's necessary that he be indicted criminally afterwards.

00:48:11.000 He could be.

00:48:13.000 I mean, your question to me is, do I think that the Brandenburg standard would permit a constitutional...

00:48:47.000 Yeah, that's the slippery slope, and that's one of the problems with a guy like Trump, because he's so...

00:48:52.000 He's so polarizing.

00:48:54.000 He's so problematic that people want to do anything they can.

00:48:58.000 They'll cut off their own nose to spite their face. 0.99

00:49:00.000 And if we really do tighten our grips on what's incitement and what's protected and what's not, it could eventually bite everyone's ass. 0.99

00:49:11.000 Yes, that's exactly right. 0.98

00:49:13.000 I mean, you know, the lesson that...

00:49:19.000 That 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.

00:49:33.000 That 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.

00:49:53.000 And there's an old saying among lawyers that bad cases make bad law.

00:49:58.000 And that's what we're talking about.

00:50:01.000 Because 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.

00:50:15.000 And 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.

00:50:33.000 Sometime 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.

00:51:01.000 There was no question of them being violent at that time.

00:51:04.000 They were just marching, having a demonstration in Atlanta against school integration.

00:51:14.000 And a lot of us who had fought for school integration and had opposed segregation hated everything that they said.

00:51:22.000 So why did we defend their rights to say it?

00:51:26.000 And 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.

00:51:37.000 Because 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.

00:51:51.000 And so I was on the Donoghue show to argue this, and Phil invited A man named Hosea Williams onto the show,

00:52:07.000 thinking that he would be the one who would argue with me about it.

00:52:12.000 He was a lieutenant of Martin Luther King Jr.'s and a prominent civil rights advocate of the time.

00:52:21.000 And 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. 0.85

00:52:40.000 And everybody was sort of startled.

00:52:45.000 And he said, and I'll tell you why.

00:52:48.000 He says, because I know the government in Georgia.

00:52:51.000 I know the police in Georgia.

00:52:53.000 I work there all the time.

00:52:56.000 And 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. 0.50

00:53:15.000 And I would rather allow the Klan to say their hateful things than to give the government the discretion over my speech.

00:53:27.000 And that's the argument.

00:53:30.000 That is the argument.

00:53:31.000 You 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.

00:53:40.000 And you're seeing a lot of people on social media that disagree with certain folks that want them censored or want them deplatformed.

00:53:50.000 Does 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?

00:54:05.000 Is with clear arguments.

00:54:10.000 But there's so many people today that want the quick fix.

00:54:15.000 Like with everything in life.

00:54:16.000 They want a pill to make you lose weight.

00:54:18.000 And they want deplatforming to silence their critics or silence the people that they disagree with.

00:54:24.000 Silence their opponents.

00:54:25.000 Well, you know, there's a tremendous human instinct to believe that if you don't like something...

00:54:33.000 The best thing to do is to pass a law prohibiting it.

00:54:38.000 And it doesn't work that way.

00:54:42.000 I mean, it didn't work that way with alcohol in the 20s and 30s.

00:54:46.000 It didn't work that way with drugs in the last 40, 50 years.

00:54:53.000 And it doesn't work that way with bad opinions.

00:54:57.000 Because 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.

00:55:06.000 You 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,

00:55:23.000 don't agree with you.

00:55:24.000 And my response always was, no, no, no, no, no.

00:55:27.000 I think everybody's in favor of free speech.

00:55:31.000 So long as it's theirs or people that they agree with.

00:55:36.000 The only speech that people don't want to hear is speech that they don't like.

00:55:42.000 But the lifeblood of the country depends on listening to what you don't like.

00:55:52.000 Because if you don't listen to what you don't like, then pretty soon you're going to be the one who's barred from speaking.

00:56:02.000 Restrictions on speech, you know, are like poison gas. 0.99

00:56:06.000 It seems like, wow, this is a great weapon I have when I have that son of a bitch in my sights and I have the gas and I can stop him. 0.99

00:56:19.000 So you shoot the gas out and then the wind shifts. 1.00

00:56:24.000 And the political winds always shift.

00:56:27.000 And pretty soon the gas is blown back on you.

00:56:31.000 And that's the nature of speech restrictions.

00:56:34.000 And that's true no matter who's doing the restricting.

00:56:39.000 Now, would I rather have those restrictions carried out by the private sector than the government?

00:56:49.000 Yes, I think that's less dangerous.

00:56:53.000 Can 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.

00:57:08.000 Yes, that's always been the case, though.

00:57:11.000 You know, I say again what I said before.

00:57:15.000 When 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.

00:57:27.000 The internet changed all of that.

00:57:30.000 But when more people have the right to speak, more people who say ugly things are going to get to speak.

00:57:36.000 And they're going to get bigger audiences, which is what happened.

00:57:41.000 And then everybody is going to say, oh, this is terrible.

00:57:44.000 This is terrible.

00:57:45.000 We have to stop that.

00:57:46.000 But who's the we who has to stop that?

00:57:49.000 And how do you stop it?

00:57:52.000 And I think that that's the ongoing dilemma.

00:57:56.000 People have always confused the right to speak with the support for the content of what people say.

00:58:05.000 The biggest problem I always had at the ACLU is if we defended the rights of communists to speak, people thought we were communists.

00:58:14.000 If we defended the rights of racists to speak, people thought we were racists.

00:58:23.000 And that's not the same thing.

00:58:25.000 Somehow, sometime, the people of this country have to understand.

00:58:32.000 It's not an easy thing to learn, because as I said, it's not intuitive.

00:58:37.000 People 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.

00:58:51.000 When they support restrictions against their enemies.

00:58:54.000 Because you can't limit those restrictions and you can't trust who's going to be in power to enforce them.

00:59:01.000 And so the price of our free speech is to be insulted by the ugliness of speech we hate.

00:59:11.000 And there is no way out of that dilemma.

00:59:15.000 And if anything good comes out of this Horrendous period that we've just lived through and are still living through.

00:59:25.000 I hope it's that people come to understand that.

00:59:29.000 I'm not very confident of it because I've been tooting that horn and fighting this fight for many decades.

00:59:37.000 And it's the hardest thing for people to understand.

00:59:40.000 You know, in the documentary Mighty Ira that Fire made, it shows...

00:59:50.000 Me 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.

01:00:11.000 And I spent many hours talking to him when we first met.

01:00:16.000 And I can't say that I convinced him of the kinds of arguments I'm making now.

01:00:26.000 But 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.

01:00:40.000 He organized 60,000 people to come and march in opposition to them.

01:00:47.000 And they were so intimidated by that That they never came to Skokie.

01:00:53.000 Now they tried to ban the neo-Nazis from coming to Skokie and they lost in every court that considered the case.

01:01:01.000 Because 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.

01:01:15.000 So the efforts of Skokie to keep the neo-Nazis out failed In terms of the legal prohibition.

01:01:23.000 But when Ben Stern organized 60,000 people to demonstrate an opposition to them, when he counted their bad speech with better speech,

01:01:38.000 they faded away.

01:01:42.000 And they never came. 0.99

01:01:44.000 Because they were cowards. 1.00

01:01:46.000 They were bullies. 0.96

01:01:48.000 And I think what people are afraid of today is that the hate speech does not seem marginal.

01:01:58.000 It does not seem aberrational.

01:02:01.000 It does not seem like 20 or 30 crazies.

01:02:04.000 It seems overwhelming that one of the things that Trump stirred up were millions and millions of people who want to take their country back.

01:02:14.000 And what they mean by their country is they mean white, male, Christian.

01:02:21.000 They're against Muslims. 0.96

01:02:23.000 They're against Jews. 0.99

01:02:24.000 They're against blacks. 0.99

01:02:26.000 Many of them are against women. 0.98

01:02:28.000 They're certainly against gays.

01:02:30.000 And there's lots of them. 0.81

01:02:32.000 And 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.

01:02:40.000 These are millions and millions and millions of people.

01:02:43.000 And we've got to stop them.

01:02:46.000 And there isn't any way to stop what they think.

01:02:51.000 And there isn't any way to prohibit them from speaking.

01:02:55.000 And if you give the government the power to prohibit them, the government will as likely prohibit you as them.

01:03:05.000 And the answer is the election.

01:03:09.000 The answer to people like that It's what Stacey Abrams did in Georgia. 1.00

01:03:16.000 She didn't ban the people who hated her. 0.77

01:03:20.000 She out-organized them.

01:03:22.000 She registered more people to vote.

01:03:24.000 She went door to door and turned those people out.

01:03:28.000 She won elections.

01:03:29.000 I 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.

01:03:43.000 7 million votes!

01:03:46.000 And what that election was, was a referendum on racism.

01:03:53.000 It was a referendum on authoritarianism.

01:03:56.000 It was a referendum on American values.

01:04:00.000 And Trump lost that election.

01:04:03.000 And that should encourage us.

01:04:06.000 Giving people like Trump the power to ban Speech will be used against us.

01:04:14.000 Outvoting 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.

01:04:25.000 Those are all First Amendment rights.

01:04:28.000 And that's the only solution to this problem.

01:04:31.000 Do you think...

01:04:32.000 And it won't...

01:04:33.000 Go ahead.

01:04:34.000 Please go ahead.

01:04:34.000 Go ahead.

01:04:38.000 It's a slow, grinding, unromantic, difficult solution.

01:04:44.000 People always want that quick fix.

01:04:47.000 But the quick fix doesn't work, and it's dangerous.

01:04:54.000 The 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.

01:05:15.000 Do you think there's a danger in generalizing all of Trump's supporters into that group?

01:05:20.000 Because some of them clearly just don't like the Democrats and their ideas.

01:05:26.000 They're not interested in Kamala Harris eventually being president.

01:05:31.000 They don't think that Joe Biden's record is admirable.

01:05:34.000 They look at it economically.

01:05:36.000 They think that Donald Trump is a better candidate for them.

01:05:40.000 I totally agree.

01:05:43.000 74 million people does not mean 74 million bigots.

01:05:49.000 It doesn't.

01:05:50.000 And 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,

01:06:10.000 not mildly, severely disagree with you, who would take the country in a very different direction, in a direction that you regard as dangerous.

01:06:17.000 But those people are not your mortal enemy.

01:06:22.000 I'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.

01:06:39.000 That's right.

01:06:42.000 If you have a mortal enemy, then you can't be civil to him.

01:06:48.000 If you have a mortal enemy, then you have to hit him before he hits you.

01:06:54.000 But if you regard your opponents as mortal enemies all the time, then you can't have a democracy.

01:07:01.000 And so you have to be careful about that.

01:07:05.000 I 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,

01:07:21.000 you know, and in some cases literally think that their opponents are devils.

01:07:28.000 I mean, you just had a newly elected member of Congress from From what is it?

01:07:35.000 South Carolina or North Carolina? 0.95

01:07:38.000 Who basically thinks that Democrats are devil worshippers and pedophiles. 0.96

01:07:45.000 And you have progressive Democrats who think that all 74 million of the people who voted against Trump are racist bigots. 0.97

01:07:57.000 Too many of them are.

01:07:59.000 But not all of them are.

01:08:01.000 And 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?

01:08:19.000 Knowing that this election was a referendum in many ways about racism and bigotry Those are the terms that Trump set.

01:08:38.000 He was the one who turned our politics into a politics of either or.

01:08:47.000 And what I don't understand are people who've been lifetime Republicans, who support different economic Views than I do.

01:08:57.000 Who have a whole lot of different views about politics than I do.

01:09:02.000 But this election was not about that.

01:09:06.000 And 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.

01:09:21.000 I was not a fan of Joe Biden's As I said, I had no doubt that I had to vote for him this time.

01:09:32.000 I 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.

01:09:48.000 Well, four years is a long time.

01:09:51.000 Things can change.

01:09:52.000 If you want to oppose Kamala Harris, In four years, then you oppose Kamala Harris in four years.

01:09:59.000 But you don't vote for Donald Trump now.

01:10:03.000 Because a vote for Donald Trump, whether you intend it or not, was a vote for white nationalism.

01:10:10.000 And a vote for bigotry. 0.77

01:10:11.000 And a vote for authoritarianism.

01:10:13.000 But don't you think that there's plenty of other people that don't share that perspective?

01:10:18.000 And there's a lot of people that don't think of it that way.

01:10:20.000 They thought, for whatever reason, they thought that Donald Trump has America's best interests in mind.

01:10:27.000 And that what Joe Biden represents is politics as usual.

01:10:30.000 And 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.

01:10:39.000 And 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.

01:10:49.000 They felt like he was making the right steps in the right directions to strengthen the country.

01:10:55.000 To frame it all entirely as bigotry and white nationalism, I just don't think the people that voted for him see it that way.

01:11:04.000 Well, they don't.

01:11:05.000 No, I agree that they don't.

01:11:07.000 And I think that a lot of them are quite honest about that.

01:11:11.000 And they're not just making up those arguments.

01:11:14.000 They really, truly believe that.

01:11:16.000 But I just think, as a matter of fact, this election was a referendum on white nationalism and bigotry and authoritarianism.

01:11:30.000 I just think that Those were the terms that Trump said.

01:11:36.000 And you can tell yourself that you're voting for him for other reasons.

01:11:42.000 But I think as a matter of fact, that wasn't the case.

01:11:47.000 Now, you know, that itself is a legit, I mean, I've had that argument with many people.

01:11:53.000 And, you know, I have one view, they have another view.

01:11:56.000 Okay, we'll go on arguing.

01:12:02.000 But I think what happened in the Capitol building on January 6th was predictable, was inevitable, was a consequence of who Trump is and what,

01:12:20.000 given the opportunity, he would become.

01:12:23.000 And I know a lot of people who voted for him don't see it that way.

01:12:28.000 But that's the way I see it.

01:12:29.000 Well, 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.

01:12:38.000 And then I think my concern is not just those people, but what's next.

01:12:45.000 Trump is still president for the next six days.

01:12:48.000 And what can happen between now and then?

01:12:51.000 Well, a lot.

01:12:52.000 I mean, there's some talk about some sort of an organized protest, armed organized protest on the 17th. 0.97

01:12:59.000 And frankly, that scares the shit out of me. 0.92

01:13:04.000 Absolutely.

01:13:07.000 You know, I was saying to one of my sons the other day...

01:13:13.000 That Trump losing the election does not end the problem.

01:13:18.000 That the furies that have been let loose are still out there.

01:13:23.000 And they're not going away like you turned off a light switch.

01:13:27.000 And 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,

01:13:53.000 still believe that the election was a fraud, still believe...

01:13:58.000 I 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.

01:14:11.000 I don't know on what grounds.

01:14:13.000 So this stuff is not going away.

01:14:15.000 And we are still going to have to argue it out and fight it out.

01:14:19.000 And you can only hope that instincts of decency and respect for other people's opinions prevails.

01:14:31.000 But you know, when you have people breaking the glass of your Door down and coming in with zip ties.

01:14:44.000 You can't talk to those people.

01:14:48.000 You have to stop them.

01:14:50.000 And that's what's dangerous.

01:14:52.000 I mean, these are people who tried to kidnap the governor of Michigan because they didn't like her politically.

01:14:57.000 They're still out there.

01:14:58.000 Yeah, not just kidnap.

01:14:59.000 They wanted to murder her, right?

01:15:00.000 Yeah.

01:15:01.000 And you're right. 0.99

01:15:02.000 That is scary as shit. 0.98

01:15:04.000 Do you have a thought as to what you think could pull us back from the brink? 0.99

01:15:09.000 I mean, how does the country move forward and reconcile?

01:15:13.000 How do people heal from this?

01:15:18.000 Do you think it helps getting him out of office?

01:15:20.000 I do think it helps getting him out of office.

01:15:23.000 Well, because he's the instigator in chief.

01:15:27.000 And 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.

01:15:41.000 Because Mitch McConnell was the accomplice in chief.

01:15:45.000 Mitch McConnell knew better.

01:15:50.000 Not instigating violence.

01:15:53.000 But he wanted two things.

01:15:56.000 Three things, actually.

01:15:57.000 He wanted to repeal the Affordable Care Act.

01:16:00.000 He wanted to change the tax law to move more money up into the hands of the very wealthy.

01:16:09.000 And he wanted to get the Supreme Court appointments on his side.

01:16:15.000 And he was willing to use Trump And he got, he achieved two of those three ends.

01:16:23.000 And in order to use Trump for those ends, he was willing to look aside at all the things about Trump he didn't like. 1.00

01:16:37.000 And now it's jumped up and kicked him in the ass. 0.99

01:16:43.000 And now he is talking a different tune. 1.00

01:16:46.000 But it's a little bit too late.

01:16:49.000 I 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.

01:17:03.000 And I don't know how you get those people back to where they were.

01:17:08.000 My concern is also that they don't feel like they have a platform for expression.

01:17:12.000 They feel like if they express themselves on Facebook or Twitter or YouTube or anywhere, they're going to be censored.

01:17:20.000 Well, I don't think that's their main grievance.

01:17:22.000 I think the kind of people who broke into the Capitol building were people who felt betrayed by life in more general ways.

01:17:33.000 I don't think that there was a lot of normality there.

01:17:37.000 But 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.

01:18:05.000 You know, the people who only know how to mine coal at a time when there is no more coal to mine.

01:18:11.000 The people who worked in the steel industry when the steel industry isn't there anymore.

01:18:18.000 Those are the people that the New Deal Raised up from terrible depression.

01:18:24.000 I knew those people.

01:18:25.000 My father was one of those people.

01:18:27.000 His whole family.

01:18:29.000 They were people without high school educations, much less college degrees, who worked with their hands. 0.83

01:18:38.000 And they were dying in 1935. And the New Deal saved their asses. 0.99

01:18:48.000 And they worshiped Roosevelt. 0.99

01:18:51.000 Because of that.

01:18:54.000 And the Democrats walked away from those people, beginning with Bill Clinton.

01:19:03.000 They walked away from labor unions.

01:19:05.000 They walked away from healthcare.

01:19:08.000 They walked away, they went for global economy, you know?

01:19:15.000 And those people We're never progressive in their politics.

01:19:22.000 My father's whole family were racists.

01:19:26.000 They were.

01:19:28.000 But they voted for Roosevelt four times. 0.98

01:19:32.000 Because he saved their asses economically.

01:19:36.000 And when Bill Clinton started his march away from those people and undercut the New Deal, he left them wide open. 0.97

01:19:50.000 For appeals by people who were bigots.

01:20:00.000 And, you know, that was George Wallace's strategy in 1968. It was Richard Nixon's Southern strategy, as he called it later.

01:20:10.000 It was certainly Reagan's strategy.

01:20:13.000 Those people became, we called Reagan Democrats.

01:20:17.000 And what happened is the Democrats stopped appealing to them.

01:20:22.000 And they stayed hunkered down, you know, in their two blue fortresses in California and New York.

01:20:29.000 And they appealed to all, you know, the identity politics of women's rights and gay rights and Rights for blacks and immigrants and Muslims.

01:20:44.000 Now those are all issues that I feel very strongly about.

01:20:49.000 But 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. 0.94

01:21:01.000 And that's what I think has happened.

01:21:03.000 So I think, you know, the politics of people like Bernie Sanders, you know, everybody calls Bernie Sanders a socialist.

01:21:11.000 He calls himself a socialist.

01:21:13.000 But he has never advocated anything that wasn't advocated during the New Deal days of the Roosevelt's administrations.

01:21:24.000 That isn't socialism.

01:21:26.000 Social Security was once called socialism.

01:21:29.000 Medicare was once called socialism.

01:21:33.000 Minimum wage for autoworkers was once called socialism.

01:21:38.000 Nobody thinks of that socialism now.

01:21:41.000 But 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.

01:22:27.000 We're good to go.

01:22:45.000 I 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.

01:23:02.000 I don't know if you've seen the documentary The Social Dilemma.

01:23:04.000 Have you seen that?

01:23:05.000 Yes.

01:23:06.000 It's a fantastic documentary, right?

01:23:08.000 And it shows how this genie's out of the bottle and it's not going to go back in.

01:23:15.000 And 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.

01:23:25.000 They're picking a team and they look at the other folks as the enemy.

01:23:27.000 And it seems like it's far worse than it's ever been before and getting worse every day.

01:23:34.000 Yeah, well, that's true.

01:23:37.000 The 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.

01:23:55.000 But it's not as different as it used to be.

01:24:01.000 I 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.

01:24:15.000 No, New York used to be considered an integrated city, and it was, if you looked at the population of New York City, all told.

01:24:26.000 But in fact, New York was a collection of ethnic enclaves.

01:24:31.000 There were Jewish neighborhoods, There were Italian neighborhoods, there were Irish neighborhoods, there were Czech neighborhoods, there were German neighborhoods, and they were completely separate.

01:24:44.000 They were silos.

01:24:46.000 The only time that there was violence was on the border lines, where one of those silos merged with the other.

01:24:55.000 But where I lived in Brooklyn, I mean, it's People get astonished when I say this.

01:25:01.000 I grew up in Brooklyn in the mid-40s, right?

01:25:05.000 Where 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.

01:25:26.000 Not only would I never see a black person, I would never see a Christian person.

01:25:33.000 Not 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.

01:25:48.000 And the same thing was true in Italian neighborhoods, and it was true in Irish neighborhoods. 0.90

01:25:55.000 If you lived on the borderline where an Irish Catholic neighborhood bordered on a Jewish neighborhood, there would be issues along the borderline. 0.96

01:26:09.000 But they were usually issues of violence.

01:26:13.000 They were not friendly.

01:26:16.000 But most people grew up in New York City in those days in rigidly segregated areas.

01:26:27.000 When 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,

01:26:46.000 not 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.

01:26:58.000 Never.

01:27:00.000 And the first black person I saw was the one sitting next to me at Ebbets Field after Jackie Robinson broke in.

01:27:09.000 And so this silo culture that everybody is attributing to the internet Well before the internet.

01:27:23.000 It's not a new problem.

01:27:24.000 It maybe has been accelerated.

01:27:27.000 It's maybe been exaggerated.

01:27:29.000 Maybe it's been made worse.

01:27:32.000 But it's not a new problem.

01:27:34.000 And the real problem of integrating this country across the many lines that divide it is a problem we have always had.

01:27:47.000 We are a nation of immigrants.

01:27:53.000 And we have always tended to be antagonistic toward those differences.

01:27:59.000 And I don't think that that has been created by the internet and by social media.

01:28:07.000 I think it's been accelerated, but it hasn't been created.

01:28:11.000 It's not a new problem.

01:28:13.000 And it's a problem that we've been struggling with as a country for a very long time.

01:28:18.000 And I think in many ways we've made progress.

01:28:25.000 Less fragmented community, this country, in many ways than it was when I was 15 years old.

01:28:35.000 So I'm not pessimistic about it, but I do think it's an ongoing struggle.

01:28:43.000 It's a struggle we continue to have to fight over, and it's a marathon.

01:28:49.000 It isn't a sprint.

01:28:51.000 It isn't gonna go away in a fast, quick way.

01:28:56.000 Finding a way to live together across different differences is the problem of humanity.

01:29:10.000 I 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.

01:29:34.000 And 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.

01:29:48.000 I was once asked as a kid, Whether I hated antisemitism.

01:29:57.000 And of course, you know, I was Jewish.

01:29:58.000 I grew up during World War II. I knew what was happening in Germany.

01:30:02.000 How could you not hate antisemitism?

01:30:04.000 But for me, antisemitism was not special.

01:30:10.000 My passion for dealing with the problems of racial justice in this country came from the fact that I was Jewish.

01:30:19.000 I believe that anti-Semitism and racism against blacks or bigotry against Muslims were all different flavors of the same poison.

01:30:32.000 And that's why I loved working at the ACLU. Because that's where it all came together.

01:30:41.000 That's what I think the film Mighty Ira, that fire made, that's what they captured.

01:30:48.000 That 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.

01:31:08.000 We'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.

01:31:30.000 I'm hopeful it is as well.

01:31:31.000 I love that expression, different flavors of the same poison, because that really is what it is.

01:31:37.000 That is, yes.

01:31:38.000 What 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?

01:31:53.000 It seems like more staunch tribalism than ever.

01:31:59.000 Yes, it does.

01:32:01.000 That's the scariest part to me.

01:32:07.000 Take Congress for an example.

01:32:12.000 I think in Congress there has to be some attempt to separate out the lunatics from the people with sharply different views.

01:32:24.000 You can't be having votes All the time.

01:32:31.000 That are unanimous Democrats for one thing and unanimous Republicans for the other.

01:32:37.000 I was cheered by the fact that in the impeachment vote yesterday, 10 Republicans voted to impeach.

01:32:45.000 Not because I was in favor of impeachment.

01:32:47.000 I was, but that isn't the reason I was cheered.

01:32:51.000 I 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.

01:33:06.000 Then there's going to be no end to the paralysis and to the anger.

01:33:11.000 And if you can't do it in Congress, where can you do it?

01:33:16.000 You know, I know people who say, I can't talk anymore to anybody who supported Trump.

01:33:21.000 I just can't talk to them.

01:33:23.000 And my response is, well, you've got to talk to them.

01:33:26.000 Now, 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.

01:33:43.000 And you've got to at least reach across, in a human way, across those differences in opinion.

01:33:51.000 And those differences may be wide.

01:33:53.000 I mean, I have very different economic policy views from a lot of Republicans who voted for Trump for economic reasons.

01:34:01.000 But you gotta argue about that.

01:34:03.000 You gotta sit down in a room and talk about that.

01:34:06.000 You gotta do with people like that what you and I are doing now.

01:34:11.000 Because the very contact, the very discussion is humanizing.

01:34:17.000 You know, one of the reasons that Buckley and I became friends Was that we were in combat so often.

01:34:26.000 I 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,

01:34:48.000 you 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.

01:34:57.000 And once I took him to a ballgame, as the documentary shows.

01:35:03.000 And 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.

01:35:18.000 I mean, we never Very much.

01:35:22.000 Sometimes we agreed.

01:35:23.000 We agreed on the insanity of the drug war.

01:35:28.000 But I can't remember too much else that we ever agreed on.

01:35:31.000 We were usually on opposite sides on those debate shows of his.

01:35:36.000 But we were also able to reach across those divisions in personal ways.

01:35:43.000 And what that meant was that we were less likely to see each other as the devil.

01:35:50.000 And given how severe our disagreements were, that was good.

01:35:56.000 It was humanizing.

01:35:58.000 It made it possible for us to be civil.

01:36:04.000 And I think that that's what you have to do.

01:36:07.000 The first time I met Ben Stern, here's a guy in his mid-90s.

01:36:14.000 He survived six or seven concentration camps.

01:36:17.000 He lost his entire family.

01:36:21.000 And I was the guy who was defending the rights of people with swastikas on their arms to demonstrate in the town where he lived. 0.96

01:36:32.000 Now, I'm not going to lecture that guy about the First Amendment.

01:36:38.000 I'm not going to tell him he should not feel the pain and the anger that he feels.

01:36:46.000 Because I know that, had I been in his position I would feel the same way.

01:36:54.000 But 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.

01:37:23.000 And I think people have to start doing more of that.

01:37:28.000 I think part of the function of free speech is you want to invite people to disagree, and then you want to disagree with them.

01:37:38.000 And what speech is, is a ritualized form of combat.

01:37:45.000 That substitutes words for guns and clubs.

01:37:49.000 It's a long, long human evolution.

01:37:53.000 But speech is a sign of progress.

01:37:56.000 And civility is a sign of progress.

01:37:59.000 And 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.

01:38:15.000 I couldn't agree more.

01:38:16.000 I just don't know what the path forward is.

01:38:18.000 I 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.

01:38:31.000 They don't even think you should talk to them.

01:38:33.000 And I always think that's so ridiculous.

01:38:35.000 Or 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. 0.70

01:38:42.000 They'll miscategorize you.

01:38:44.000 No, that's exactly, and that's a problem.

01:38:47.000 I 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,

01:39:03.000 I 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.

01:39:17.000 I mean, these were three young men who had never made a film before.

01:39:21.000 And I never imagined that the film would be as moving as it was.

01:39:27.000 But one of the ways that it was moving is it demonstrated exactly what you just said.

01:39:33.000 That it's possible for people with very severe disagreements Not only to be civil to each other, but to be affectionate with each other.

01:39:46.000 And that even though it didn't change the nature of the disagreements on public policy, it didn't demonize each other.

01:40:00.000 That it was possible to do that.

01:40:02.000 And that's what I think is the lesson that a lot of people got.

01:40:07.000 When they saw the film.

01:40:09.000 Now that wasn't a message that I think we started out to portray in the film, but it was the message that came through.

01:40:18.000 And a lot of people who liked the film liked it for that reason.

01:40:23.000 And I think people are hungry for that.

01:40:26.000 I think people are tired of the demonization.

01:40:29.000 Now there's always going to be some people who thrive on the demonization.

01:40:33.000 There's always going to be fanatics and lunatics on both sides of every question who would rather shoot their opponents than talk to them.

01:40:40.000 There's always going to be that.

01:40:42.000 But as long as those people remain a small minority, it doesn't threaten us.

01:40:49.000 It's when that becomes dominant that it threatens us.

01:40:53.000 And I think it's possible to step back from that.

01:40:57.000 But it starts one person at a time.

01:41:01.000 You know, it starts It starts with you and I on a blog severely disagreeing with something and yet not being at each other's throats.

01:41:18.000 It starts one person at a time.

01:41:20.000 And it also has to be a model of how the government behaves.

01:41:26.000 The government is a great teacher.

01:41:31.000 Everybody gave their kids piano lessons.

01:41:34.000 When Dwight Eisenhower played golf, golf became much more popular.

01:41:41.000 And what worries me is that when Trump lied and created fictional realities to live in, a lot of people joined him.

01:41:52.000 And for a lot of people, those fictions are real now.

01:41:56.000 And they have to somehow be weaned away from that.

01:41:59.000 Not by calling them evil, And finding some way to rid ourselves of them, but by coaxing them back into the real world.

01:42:08.000 And I think you do it institutionally.

01:42:13.000 I think Joe Biden has a big responsibility to try to do that and to model that.

01:42:21.000 I think the congressional leaders on both sides have a responsibility to try to do that and model that.

01:42:26.000 But I think we as individuals Have a responsibility in our own lives to do that one person at a time.

01:42:37.000 I agree with you.

01:42:38.000 I 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.

01:42:47.000 A lot of people dismissed that before because they didn't think of it.

01:42:50.000 We had presidents that were statesmanlike, like Obama.

01:42:55.000 They spoke well, they were very measured and very intelligent, and we never had to worry about them.

01:43:05.000 When 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.

01:43:18.000 It was negative. 1.00

01:43:19.000 He became the king of the assholes, and the assholes roll up. 1.00

01:43:23.000 They rose up. 1.00

01:43:23.000 It's like they realize they have a king now, and there's so many of them. 1.00

01:43:27.000 Yes.

01:43:27.000 No, that's exactly right.

01:43:28.000 And the...

01:43:30.000 The 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.

01:43:51.000 I've been doing a lot of reading in recent years about Germany in the 1930s.

01:44:00.000 And, you know, that's what Hitler did. 0.93

01:44:03.000 You know, just before he was appointed chancellor in 1933 by von Hindenburg, the polity in Germany was split.

01:44:19.000 I mean, the Social Democrats and the communists and the people on the left We're about 50%.

01:44:25.000 And people who were sort of against the Weimar Republic and wanted to restore a kind of authoritarian government were about 50%.

01:44:35.000 And they were at war with each other all the time in the streets.

01:44:41.000 Some of it was violent.

01:44:42.000 Some of it was physical.

01:44:43.000 Some of it, you know, they fought with guns and clubs.

01:44:46.000 But it was pretty much evenly divided.

01:44:50.000 And then When Hitler got power, and you know, he never won an election. 0.94

01:44:56.000 He never, the votes for him were never the majority.

01:45:00.000 He 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.

01:45:16.000 And so Hitler becomes chancellor. 0.81

01:45:20.000 And he changed the country through his leadership.

01:45:23.000 And he arrested his opponents.

01:45:26.000 And suddenly it wasn't 50-50 anymore because the 50 who were against him were in jail.

01:45:32.000 And suddenly the whole country changed and he became the model.

01:45:37.000 And he made these inflammatory speeches and these speeches full of hate and scapegoating.

01:45:46.000 And, you know, the next thing you knew, Jews and homosexuals and others were being carted off to concentration camps, and it became normal. 1.00

01:46:00.000 The 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. 0.76

01:46:12.000 And that's what's dangerous about national leadership.

01:46:16.000 And to a large extent, That's the kind of change that I think Trump is responsible for in this country.

01:46:25.000 And the only thing that can step back from it is national leadership that shows a different kind of normality.

01:46:37.000 And it's not going to happen in four years.

01:46:40.000 It's a long, long trek.

01:46:45.000 And...

01:46:47.000 You know, when I was younger at the ACLU, people used to say to me, you know, this fight for civil liberties is not a sprint.

01:46:56.000 It's a marathon.

01:46:58.000 Well, I came to believe that it was not just a marathon.

01:47:01.000 It was a marathon relay race.

01:47:05.000 And it was a race that no single generation ended.

01:47:09.000 I got on the track decades ago.

01:47:12.000 I ran as hard as I could for as long as I could.

01:47:16.000 I got off the track and handed the baton to other people.

01:47:21.000 And this November, I had six grandchildren and four children and their spouses.

01:47:28.000 That's 14 people who voted in this election.

01:47:36.000 None of whom were able to vote 30, 40 years ago.

01:47:50.000 And you run with the faith that there's a particular place you want to end up in, but you never get to see that place.

01:47:58.000 You get to imagine that place.

01:48:01.000 You get to visualize that place.

01:48:04.000 And you keep making progress toward that place.

01:48:07.000 But you know that in your own lifetime, you're probably not going to ever see that place.

01:48:12.000 Because the span of a lifetime is pretty short in terms of social and political change.

01:48:20.000 I 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.

01:48:31.000 Well, we came out of a history of 300 years of slavery and another 100 years of Jim Crow.

01:48:39.000 And you don't turn that 400 years around in the space of 30 or 40 or 50 years of remedial legislation.

01:48:48.000 It takes longer than that.

01:48:52.000 And, 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.

01:49:03.000 Well, it does, but it doesn't bend evenly, it doesn't bend fast, and it doesn't bend by itself.

01:49:13.000 It 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,

01:49:31.000 liberty and freedom and individual rights and equal justice will get better, not worse.

01:49:42.000 And my faith in that is not rooted in illusion.

01:49:48.000 There are more rights protected today.

01:49:52.000 There's more liberty protected today.

01:49:56.000 There's more free speech today.

01:49:59.000 There's more racial justice today.

01:50:02.000 As 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.

01:50:17.000 I 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.

01:50:40.000 We tend to be over impressed by what's happened in the last four years.

01:50:47.000 But you have to have the longer view.

01:50:52.000 And you have to proceed in two ways.

01:50:55.000 One, that the progress that we have made encourages us to believe that we can make more progress.

01:51:03.000 And that the progress we have made, as significant as it is, is far from sufficient.

01:51:11.000 In 1920, the year that the ACLU was created, was 131 years after the Bill of Rights was passed.

01:51:23.000 131 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.

01:51:42.000 Never.

01:51:44.000 So if you would have asked the people who started the ACLU in 1920, there were only like 40 of them, what their goal was.

01:51:53.000 And they would have said, we're here to protect the Bill of Rights for everyone in the whole country. 0.85

01:52:02.000 And I think most of us would have said, are you crazy?

01:52:06.000 40 of you are going to do that?

01:52:08.000 You'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?

01:52:18.000 How are 40 of you going to do that?

01:52:21.000 It was delusional.

01:52:25.000 But 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.

01:52:38.000 He 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.

01:52:58.000 And 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.

01:53:09.000 All of that happened.

01:53:10.000 But you know, it's a little bit like a football game.

01:53:13.000 You start out in the shadow of your old goal line.

01:53:17.000 You call a few plays.

01:53:19.000 You get a pass that's successful.

01:53:21.000 You get a run that's successful.

01:53:23.000 Then you get sacked.

01:53:24.000 Then you get hit behind the line.

01:53:27.000 Then you fumble.

01:53:28.000 Then you play defense.

01:53:30.000 Then you get the ball back.

01:53:32.000 And you just keep driving.

01:53:35.000 And 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.

01:53:49.000 And now we're in their red zone.

01:53:52.000 We're almost at their goal line.

01:53:54.000 And getting thrown for a few losses along the way ought not to be discouraging.

01:54:03.000 Vince 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.

01:54:18.000 People's eyes widened and he smiled and he said, once in a while, time ran out.

01:54:25.000 And 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.

01:54:34.000 You just keep playing.

01:54:36.000 You 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.

01:54:55.000 So that's my preaching from the pulpit.

01:55:01.000 Well, thank you for that.

01:55:02.000 And thank you for everything that you've done.

01:55:04.000 And thank you for your unwavering commitment to free speech.

01:55:08.000 It'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.

01:55:21.000 I worry that that complicated and, as you said, non-intuitive process Way of thinking is going to be lost.

01:55:31.000 Well, part of it, you know, Joe, is that a lot of the young progressives today are progressive, but they're young.

01:55:40.000 And they don't know, and certainly haven't lived through, a lot of history.

01:55:46.000 I spoke to University of Chicago audience a few years ago, and I loved the audience when I walked in.

01:55:53.000 They were the kind of thing that I could only dream about 30 years ago.

01:55:57.000 They were men and women, blacks and whites, Muslims, people of all ethnicities.

01:56:06.000 It was a rainbow audience of law school students.

01:56:12.000 And 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.

01:56:27.000 They regarded themselves as advocates of social justice, and they regarded the First Amendment and free speech as antagonists.

01:56:36.000 And why did they regard free speech as antagonists?

01:56:40.000 Because they saw so many people around them speaking hateful, bigoted words.

01:56:46.000 And they wanted that to go away.

01:56:47.000 They saw that as an impediment to social justice.

01:56:52.000 So 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.

01:57:07.000 Free speech is not an antagonist of social justice.

01:57:10.000 Free speech is an accessory to social justice.

01:57:15.000 Look at every social justice movement in America, every one.

01:57:19.000 Look at the labor union movement, which required the right to leaflet, the right to meet, the right to organize, the right to speak.

01:57:28.000 And when those rights were taken away from them, the unions died.

01:57:33.000 Look at the right, the anti-lynching movement in the 1920s in America.

01:57:40.000 People like Ida Wells, who Who organized the anti-lynching movement and made it a popular cause, a relatively popular cause.

01:57:53.000 What was her instrument?

01:57:55.000 Newspaper columns, meetings, speeches.

01:57:59.000 All of this required First Amendment protection.

01:58:02.000 Look at the movement for women's right to use birth control.

01:58:07.000 When 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. 1.00

01:58:26.000 There 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.

01:58:36.000 And look at the Civil Rights Movement in our own time, in our own lives.

01:58:42.000 Where 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?

01:58:54.000 Where 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?

01:59:06.000 Where 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?

01:59:16.000 John 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.

01:59:38.000 Nobody was a better symbol of the fight for social justice, racial justice, than John Lewis.

01:59:48.000 But 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.

02:00:07.000 He knew that.

02:00:08.000 Martin Luther King Jr. knew it.

02:00:11.000 Eugene Debs knew it.

02:00:17.000 The gay rights movement knew it.

02:00:20.000 Margaret Sanger knew it.

02:00:24.000 And 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.

02:00:35.000 A tragic strategic mistake.

02:00:38.000 The First Amendment is the blood life for social justice.

02:00:46.000 And those two are not antagonists.

02:00:49.000 They are inescapably partners.

02:00:55.000 Well said.

02:00:56.000 Thank you.

02:00:57.000 Thank you for being here.

02:00:58.000 Thanks for doing the podcast.

02:01:00.000 Thank you for your life's work.

02:01:02.000 I really appreciate you very, very much.

02:01:04.000 Well, thanks for having me, Joe.

02:01:05.000 I appreciate the opportunity to talk to you.

02:01:08.000 All right, man.

02:01:08.000 Well, take care of yourself.

02:01:10.000 Good talking to you.

02:01:11.000 Bye-bye, everybody.

The Joe Rogan Experience - January 15, 2021

Joe Rogan Experience #1595 - Ira Glasser

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