1 00:00:15,396 --> 00:00:23,676 Speaker 1: Pushkin from Pushkin Industries. This is Deep Background, the show 2 00:00:23,716 --> 00:00:27,116 Speaker 1: where we explore the stories behind the stories in the news. 3 00:00:27,436 --> 00:00:31,476 Speaker 1: I'm Noah Felder. Welcome to the latest installment and the 4 00:00:31,556 --> 00:00:35,836 Speaker 1: last of our Freedom of Speech miniseries. Just yesterday we 5 00:00:35,916 --> 00:00:39,596 Speaker 1: heard from Eugene Valak, a professor at UCLA School of Law. Today, 6 00:00:39,676 --> 00:00:42,356 Speaker 1: we're going to hear from another staunch defender of freedom 7 00:00:42,356 --> 00:00:44,836 Speaker 1: of speech, but one who is coming at the issue 8 00:00:45,076 --> 00:00:49,356 Speaker 1: from almost the opposite place on the political spectrum. Nadine 9 00:00:49,356 --> 00:00:52,516 Speaker 1: Strawson was the president of the American Civil Liberties Union 10 00:00:52,636 --> 00:00:55,916 Speaker 1: for almost two decades up until two thousand and eight. 11 00:00:56,356 --> 00:00:59,076 Speaker 1: She was the first woman and the youngest person ever 12 00:00:59,116 --> 00:01:02,036 Speaker 1: to lead the organization. She's now a professor at New 13 00:01:02,076 --> 00:01:05,196 Speaker 1: York Law School. I spoke to Nadine back in October, 14 00:01:05,556 --> 00:01:07,916 Speaker 1: when the world was very different, and yet we were 15 00:01:07,956 --> 00:01:11,516 Speaker 1: wrestling with a lot of the same issues. Needin, I 16 00:01:11,556 --> 00:01:16,116 Speaker 1: want to start with hate speech, because after a long 17 00:01:16,196 --> 00:01:20,196 Speaker 1: career of focusing on all aspects of freedom of expression, 18 00:01:20,796 --> 00:01:23,676 Speaker 1: you wrote a book recently called hate Why we Should 19 00:01:23,676 --> 00:01:26,796 Speaker 1: Resist It with free speech not censorship, which is I 20 00:01:26,836 --> 00:01:30,796 Speaker 1: think appropriately provocative and controversial title. So what do you 21 00:01:30,836 --> 00:01:32,436 Speaker 1: mean when you say hate speech, there are lots of 22 00:01:32,476 --> 00:01:36,236 Speaker 1: different definitions out there. The core of the concept is 23 00:01:36,316 --> 00:01:43,916 Speaker 1: speech that conveys hateful, discriminatory, stereotyped ideas, particularly on basies 24 00:01:44,036 --> 00:01:49,876 Speaker 1: such as race, religion, ethnicity, sexual orientation, groups that have 25 00:01:50,036 --> 00:01:54,316 Speaker 1: traditionally been marginalized or excluded. But if you look at 26 00:01:54,316 --> 00:01:57,236 Speaker 1: how we use the term in everyday parlance in the 27 00:01:57,316 --> 00:02:00,756 Speaker 1: United States, you will see that people are using that 28 00:02:00,916 --> 00:02:08,356 Speaker 1: term absolutely profligately to describe and decry and often try 29 00:02:08,476 --> 00:02:14,116 Speaker 1: to sense or any speech that conveys any idea that 30 00:02:14,196 --> 00:02:17,916 Speaker 1: they hate. And some of this has been well publicized. 31 00:02:17,916 --> 00:02:22,476 Speaker 1: For example, on some college campuses, t r U m 32 00:02:22,636 --> 00:02:26,276 Speaker 1: P chalked on sidewalks or worn on T shirts or 33 00:02:26,316 --> 00:02:30,876 Speaker 1: caps has been attacked as hate speech. Some politicians have 34 00:02:31,236 --> 00:02:36,996 Speaker 1: denounced Black Lives Matter activism and protests as hate speech. 35 00:02:37,476 --> 00:02:41,676 Speaker 1: Most chillingly to me, although I understand where it's coming from, 36 00:02:42,076 --> 00:02:46,916 Speaker 1: on some campuses and other venues, the phrase free speech 37 00:02:47,196 --> 00:02:51,076 Speaker 1: has been attacked as hate speech. And the reason why 38 00:02:51,076 --> 00:02:53,836 Speaker 1: I say I know where that's coming from, sad ly, Noah, 39 00:02:53,996 --> 00:02:58,996 Speaker 1: is that so often white supremacists and white nationalists and 40 00:02:59,236 --> 00:03:03,316 Speaker 1: other hate mongers have had the right to express their 41 00:03:03,316 --> 00:03:08,836 Speaker 1: repulsive ideas because of free speech principles, and unfortunately that 42 00:03:08,956 --> 00:03:13,116 Speaker 1: means in the minds of too many people, racist speech 43 00:03:13,276 --> 00:03:18,196 Speaker 1: and other hate mongering speech has become equated with free speech. 44 00:03:18,236 --> 00:03:21,836 Speaker 1: So I really had to write. I felt absolutely compelled 45 00:03:21,876 --> 00:03:24,596 Speaker 1: to write the book because I have been a proud 46 00:03:25,036 --> 00:03:29,276 Speaker 1: social justice warrior my entire life. I consider that a compliment, 47 00:03:29,716 --> 00:03:32,716 Speaker 1: not an insult, as some people use the term. And 48 00:03:33,076 --> 00:03:37,996 Speaker 1: I am absolutely committed to freedom of speech, and I 49 00:03:38,076 --> 00:03:43,756 Speaker 1: am absolutely convinced that both goals are inextricable. That we 50 00:03:43,876 --> 00:03:50,316 Speaker 1: cannot advance equality, dignity, diversity, inclusivity, especially for groups that 51 00:03:50,356 --> 00:03:56,596 Speaker 1: have traditionally been discriminated against, without having really robust free speech, 52 00:03:57,116 --> 00:04:00,916 Speaker 1: robust enough to extend even to so called hate speech. 53 00:04:01,396 --> 00:04:04,476 Speaker 1: So let's focus then, nating if we can, on what 54 00:04:04,516 --> 00:04:06,956 Speaker 1: I would consider the hard case, the kind of speech 55 00:04:07,356 --> 00:04:12,996 Speaker 1: that almost every country that considers itself roughly being civilized 56 00:04:13,036 --> 00:04:16,156 Speaker 1: in the world does sanction or outlaw to some degree. 57 00:04:16,676 --> 00:04:20,956 Speaker 1: Let's call it dehumanizing speech that is directed at traditionally 58 00:04:21,036 --> 00:04:24,956 Speaker 1: marginalized groups. And I want to ask you, in that, 59 00:04:25,116 --> 00:04:29,276 Speaker 1: to my mind, somewhat hard case of hate speech, what 60 00:04:29,396 --> 00:04:32,436 Speaker 1: you think about the main rationales that are usually used 61 00:04:32,436 --> 00:04:37,076 Speaker 1: to justify regulations. So the first is that such speech 62 00:04:37,196 --> 00:04:41,996 Speaker 1: has a tendency to lead to real world, concrete physical 63 00:04:42,076 --> 00:04:46,156 Speaker 1: harm against people from marginalized groups. That it's not enough 64 00:04:46,196 --> 00:04:51,716 Speaker 1: to only prohibit speech that immediately threatens imminent violence, but 65 00:04:52,316 --> 00:04:55,796 Speaker 1: that ultimately we need to also think about the downstream effect. 66 00:04:55,876 --> 00:04:58,796 Speaker 1: You know, when Hitler starts talking, he's not got crowds 67 00:04:58,796 --> 00:05:02,436 Speaker 1: in front of him immediately about to lynch people, but 68 00:05:02,876 --> 00:05:05,956 Speaker 1: over time he builds up support through a steady diet 69 00:05:05,956 --> 00:05:08,396 Speaker 1: of hate. And so goes the argument, we need to 70 00:05:08,516 --> 00:05:11,076 Speaker 1: nip that the bud. It'll be too late if we 71 00:05:11,076 --> 00:05:13,596 Speaker 1: wait until the point that there's an angry crowd. We 72 00:05:13,716 --> 00:05:19,316 Speaker 1: have to worry about the structural development of dehumanization because 73 00:05:19,316 --> 00:05:22,036 Speaker 1: we know, having lived after the terrible twentieth century, and 74 00:05:22,036 --> 00:05:25,076 Speaker 1: we know in the twenty first century we're still encountering genocide, 75 00:05:25,316 --> 00:05:27,716 Speaker 1: and so the argument goes, we need to limit hate 76 00:05:27,716 --> 00:05:31,556 Speaker 1: speech to prevent that kind of disaster. What's your primary 77 00:05:31,556 --> 00:05:35,196 Speaker 1: answer to that charge? Before I answer the question, Noah, 78 00:05:35,276 --> 00:05:39,836 Speaker 1: I have distressed because you asked about dehumanizing speech that's 79 00:05:39,916 --> 00:05:44,036 Speaker 1: targeted at particular groups, and as you adverted to later, 80 00:05:44,076 --> 00:05:49,996 Speaker 1: in your excellent question, certain speech that meets that criterion 81 00:05:50,436 --> 00:05:54,676 Speaker 1: can and should be punished consistent with First Amendment principles. 82 00:05:54,756 --> 00:05:59,516 Speaker 1: So if the speech is targeting an individual or small 83 00:05:59,556 --> 00:06:04,236 Speaker 1: group of individuals, and if it constitutes intentional incitement of 84 00:06:04,356 --> 00:06:08,556 Speaker 1: imminent violence that's likely to happen, that cannon should be punished. 85 00:06:08,716 --> 00:06:12,316 Speaker 1: If it's targeted harassment or bullying, that can and should 86 00:06:12,316 --> 00:06:16,356 Speaker 1: be punished. If it means to instill a reasonable fear 87 00:06:16,516 --> 00:06:19,836 Speaker 1: that the audience that's targeted is going to be subject 88 00:06:19,916 --> 00:06:23,916 Speaker 1: to harm, that is a punishable so called true threat. 89 00:06:24,716 --> 00:06:29,276 Speaker 1: So in general, I and others summarize this principle under 90 00:06:29,596 --> 00:06:33,276 Speaker 1: US law and by the way, also under international human 91 00:06:33,356 --> 00:06:37,356 Speaker 1: rights law as the emergency principle. When the speech presents 92 00:06:37,516 --> 00:06:42,556 Speaker 1: a direct threat of serious, imminent, specific harm, then it 93 00:06:42,636 --> 00:06:45,996 Speaker 1: can and should be punished. But I completely agree with 94 00:06:46,036 --> 00:06:50,556 Speaker 1: you that speech does cause harm even if it does 95 00:06:50,636 --> 00:06:55,276 Speaker 1: not satisfy that strict definition, or at least it certainly 96 00:06:55,396 --> 00:07:01,796 Speaker 1: can potentially cause harm more indirectly and remotely, as you 97 00:07:02,116 --> 00:07:06,916 Speaker 1: ask in your question, And my reason for opposing censorship 98 00:07:07,156 --> 00:07:11,676 Speaker 1: is not because I just ute the potential harmful impact 99 00:07:11,796 --> 00:07:16,116 Speaker 1: of non punishable hate speech, but rather because I think 100 00:07:16,156 --> 00:07:21,796 Speaker 1: that censorship is at best and ineffective way to counter 101 00:07:22,196 --> 00:07:26,796 Speaker 1: the potential harm, and at worst a counter productive one. 102 00:07:26,956 --> 00:07:29,756 Speaker 1: So let's push on that Indian So you know, let's 103 00:07:29,756 --> 00:07:32,676 Speaker 1: talk about mitigation. We're not talking about curing the harm. 104 00:07:33,116 --> 00:07:35,436 Speaker 1: So imagine you have a country. We have a lot 105 00:07:35,476 --> 00:07:38,196 Speaker 1: of European countries that fit this description today, where they're 106 00:07:38,276 --> 00:07:41,196 Speaker 1: far right politicians who are getting more and more votes 107 00:07:41,196 --> 00:07:43,756 Speaker 1: in each election and their rhetoric is getting more and 108 00:07:43,796 --> 00:07:46,116 Speaker 1: more radical. And this time it's not Jews that they 109 00:07:46,156 --> 00:07:49,636 Speaker 1: are primarily biased against. Now it's Muslims, still an immigrant group, 110 00:07:49,636 --> 00:07:51,396 Speaker 1: it's on the group that's being labeled criminal and an 111 00:07:51,436 --> 00:07:55,076 Speaker 1: other parallels to you know, Europe in the nineteen twenties 112 00:07:55,156 --> 00:07:58,476 Speaker 1: and thirties are obvious. Let's say we want to say, 113 00:07:58,956 --> 00:08:01,276 Speaker 1: you know, maybe we won't ban all of that speech, 114 00:08:01,556 --> 00:08:03,676 Speaker 1: but we're not going to let you be elected to 115 00:08:03,716 --> 00:08:08,956 Speaker 1: the parliament as a party if you advocate expressly racist views. 116 00:08:09,196 --> 00:08:12,036 Speaker 1: Some European countries have rules like that. And again this 117 00:08:12,116 --> 00:08:15,396 Speaker 1: isn't meant to eliminate all racism. It's meant to mitigate 118 00:08:15,476 --> 00:08:20,636 Speaker 1: the real world effects, especially when organized political parties realize 119 00:08:20,636 --> 00:08:23,396 Speaker 1: that they can gain more votes by using forms of 120 00:08:23,436 --> 00:08:25,956 Speaker 1: hate speech. I'm assuming that's not okay with you either, 121 00:08:26,036 --> 00:08:29,356 Speaker 1: even though that's something short of a pure ben because 122 00:08:29,396 --> 00:08:32,756 Speaker 1: it is a fifth technique of mitigation. Though the facts 123 00:08:32,756 --> 00:08:36,236 Speaker 1: that you cite now actually support my point, because the 124 00:08:36,276 --> 00:08:42,316 Speaker 1: fact is that those European countries have extremely strict anti 125 00:08:42,556 --> 00:08:47,396 Speaker 1: hate speech laws that are very strictly enforced, and they 126 00:08:47,476 --> 00:08:52,956 Speaker 1: have not prevented the rise of hateful expression by hateful 127 00:08:53,036 --> 00:08:57,436 Speaker 1: parties that are gaining support among the people. Germany is 128 00:08:57,476 --> 00:09:01,796 Speaker 1: an excellent case in point. It has the strictest anti 129 00:09:01,836 --> 00:09:05,996 Speaker 1: hate speech laws in the world, with a possible exception 130 00:09:06,236 --> 00:09:11,316 Speaker 1: of some Middle Eastern countries. The law are extremely strictly enforced. 131 00:09:11,356 --> 00:09:15,596 Speaker 1: They are enforced against politicians as well as candidates, as 132 00:09:15,596 --> 00:09:19,636 Speaker 1: well as elected officials, and as you well know, despite 133 00:09:19,756 --> 00:09:25,316 Speaker 1: and would some German commentators say because of those laws 134 00:09:25,356 --> 00:09:29,396 Speaker 1: that they have spurred the frustration and the anger and 135 00:09:29,436 --> 00:09:34,276 Speaker 1: the backlash that has fueled the frightening rise of the AfD, 136 00:09:35,116 --> 00:09:38,996 Speaker 1: the Alternative for Germany, which is an expressly racist party. 137 00:09:39,636 --> 00:09:42,596 Speaker 1: It got thirteen percent of the vote in the last 138 00:09:42,676 --> 00:09:46,516 Speaker 1: national election a couple of years ago. And Germany also 139 00:09:46,636 --> 00:09:52,276 Speaker 1: has had distressing levels of violence against Jews, against Roma, 140 00:09:52,316 --> 00:09:56,556 Speaker 1: against refugees, to the point that Angelo Michael, for the 141 00:09:56,796 --> 00:10:02,156 Speaker 1: very first time in German history, actually appointed a cabinet 142 00:10:02,236 --> 00:10:07,476 Speaker 1: level minister for anti Semitism, and the head of the 143 00:10:07,596 --> 00:10:13,916 Speaker 1: largest council Jewish organizations in Germany warned Jews that they 144 00:10:13,996 --> 00:10:18,036 Speaker 1: should not feel safe wearing the yamuka, the skull cap 145 00:10:18,116 --> 00:10:21,956 Speaker 1: that some observant male Jews feel a religious obligation to 146 00:10:21,996 --> 00:10:25,476 Speaker 1: wear in public. Now, I know you can't prove a counterfactual. 147 00:10:25,676 --> 00:10:29,676 Speaker 1: Maybe the situation would be even worse if Germany wasn't 148 00:10:29,836 --> 00:10:34,796 Speaker 1: enforcing I mean, I unless you can help me on this, 149 00:10:34,916 --> 00:10:37,356 Speaker 1: I don't think there's any way I could ever prove that. 150 00:10:37,756 --> 00:10:43,076 Speaker 1: But it's clearly the case that even very strictly enforced 151 00:10:43,156 --> 00:10:47,476 Speaker 1: laws have not been enough to sufficiently quell the rise 152 00:10:47,556 --> 00:10:52,036 Speaker 1: of hateful expression and conduct. And the same thing happened 153 00:10:52,076 --> 00:10:55,196 Speaker 1: in the Weimar Republic, during which Hitler rose to power, 154 00:10:55,716 --> 00:11:00,236 Speaker 1: you know, and that's often cited as epitomizing this situation. Now, 155 00:11:00,316 --> 00:11:03,276 Speaker 1: and I agree, as the daughter of a Holocaust survivor, 156 00:11:03,396 --> 00:11:06,636 Speaker 1: My goodness, you know, if anything could have prevented Hitler 157 00:11:06,676 --> 00:11:09,356 Speaker 1: from rising to power, I certainly would have been in 158 00:11:09,436 --> 00:11:12,876 Speaker 1: favor of it. But back then Germany also already had 159 00:11:13,436 --> 00:11:16,996 Speaker 1: very strict anti hate speech laws that were enforced against 160 00:11:17,156 --> 00:11:21,356 Speaker 1: Nazis repeatedly, and they loved it. It was a propaganda 161 00:11:21,396 --> 00:11:25,036 Speaker 1: platform for them, an opportunity for them to gain attention 162 00:11:25,076 --> 00:11:28,236 Speaker 1: that they otherwise never would have and sympathy they otherwise 163 00:11:28,316 --> 00:11:31,316 Speaker 1: never would have. And that is the same strategy that's 164 00:11:31,436 --> 00:11:34,356 Speaker 1: used by hate mongers in this country. Noah, and I 165 00:11:34,436 --> 00:11:37,316 Speaker 1: don't at all mean to compare them to the Nazis, 166 00:11:37,356 --> 00:11:40,956 Speaker 1: thank goodness, they're certainly not advocating genocide, but you know, 167 00:11:41,076 --> 00:11:45,596 Speaker 1: the Miloanopolises and the Richard Spencers of this world, other 168 00:11:45,676 --> 00:11:50,596 Speaker 1: provocateurs revel. Oh, and in the online context, Alex Jones, 169 00:11:50,836 --> 00:11:54,116 Speaker 1: you know, they celebrate when they're subject to attempts to 170 00:11:54,156 --> 00:11:56,636 Speaker 1: ban or punish them, because they know that that gains 171 00:11:56,676 --> 00:12:01,236 Speaker 1: them attention that they otherwise would not have received. Organizations 172 00:12:01,276 --> 00:12:05,916 Speaker 1: whose work I generally very much admire, the Anti Defamation 173 00:12:06,036 --> 00:12:09,596 Speaker 1: League and the Southern Poverty Law Center, whose mission is 174 00:12:09,636 --> 00:12:15,676 Speaker 1: focused on countering actual discrimination. They've actually urged college students 175 00:12:15,676 --> 00:12:20,436 Speaker 1: and others please resist the temptation to try to deep 176 00:12:20,516 --> 00:12:24,636 Speaker 1: platform or shout down or shutdown or otherwise suppress the 177 00:12:24,716 --> 00:12:29,356 Speaker 1: voices of those that are conveying trying to convey hateful messages. 178 00:12:29,396 --> 00:12:32,796 Speaker 1: It may feel very morally satisfying, but it is actually 179 00:12:32,836 --> 00:12:35,796 Speaker 1: going to do more harm than good. We'll be right back. 180 00:12:45,676 --> 00:12:48,916 Speaker 1: So let me turn out, then, Nadine, to the question 181 00:12:48,916 --> 00:12:51,596 Speaker 1: of social media, and let me try out an argument 182 00:12:51,676 --> 00:12:54,516 Speaker 1: that you know, I know is not yours, but that 183 00:12:54,636 --> 00:12:56,676 Speaker 1: I believe as a person who is very deeply committed 184 00:12:56,716 --> 00:12:59,076 Speaker 1: to free speech principles, and it runs something like this. 185 00:12:59,636 --> 00:13:02,196 Speaker 1: It says, you know, Nadine, and you and your work 186 00:13:02,196 --> 00:13:06,116 Speaker 1: with the ACL you have convinced us and the forefathers 187 00:13:06,116 --> 00:13:08,516 Speaker 1: and foremothers are free speech doctrine, have convinced us that 188 00:13:08,556 --> 00:13:13,756 Speaker 1: the government shouldn't be trusted to engage in regulation of speech. 189 00:13:14,316 --> 00:13:17,436 Speaker 1: But when we turn to the context of social media, 190 00:13:17,596 --> 00:13:20,396 Speaker 1: the very same First Amendment principles that tell us the 191 00:13:20,436 --> 00:13:24,636 Speaker 1: government can't regulate also tell us that a private publisher 192 00:13:25,076 --> 00:13:29,316 Speaker 1: or a private platform is protected by the First Amendment 193 00:13:29,676 --> 00:13:32,836 Speaker 1: in possessing its own right and authority to make its 194 00:13:32,836 --> 00:13:36,036 Speaker 1: own decisions about what content it does or doesn't want 195 00:13:36,036 --> 00:13:38,676 Speaker 1: to allow on its platform, or it does or doesn't 196 00:13:38,676 --> 00:13:41,796 Speaker 1: want to promote to varying degrees. From this premise, the 197 00:13:41,876 --> 00:13:46,556 Speaker 1: argument goes on to say that if a company doesn't 198 00:13:46,556 --> 00:13:48,756 Speaker 1: want to allow hate speech on its platform, it should 199 00:13:48,756 --> 00:13:51,996 Speaker 1: be allowed to prohibit it, and that it's also desirable 200 00:13:52,396 --> 00:13:55,996 Speaker 1: for platforms that have the capacity to reduce the amount 201 00:13:55,996 --> 00:13:59,596 Speaker 1: of hate it's in circulation to use their own tools 202 00:13:59,596 --> 00:14:04,316 Speaker 1: and techniques for engaging in that form of regulation. Full disclosure, 203 00:14:04,596 --> 00:14:08,596 Speaker 1: I've been advising Facebook on the creation of an oversight board. 204 00:14:09,156 --> 00:14:14,076 Speaker 1: Facebook itself, like all the other major platforms, does limit 205 00:14:14,356 --> 00:14:17,436 Speaker 1: hate speech on its platform if that's allowed by the 206 00:14:17,476 --> 00:14:20,836 Speaker 1: First Amendment, if it doesn't threaten at its core the 207 00:14:20,996 --> 00:14:23,516 Speaker 1: idea of a free speech because after all, the platforms 208 00:14:23,596 --> 00:14:27,076 Speaker 1: also have free speech rights. Why shouldn't those private actors 209 00:14:27,836 --> 00:14:30,276 Speaker 1: take a different stance than the government does? Or should 210 00:14:30,676 --> 00:14:34,956 Speaker 1: I completely agree with everything you said until you got 211 00:14:34,996 --> 00:14:40,276 Speaker 1: to the desirable so called content moderation by the social 212 00:14:40,276 --> 00:14:45,236 Speaker 1: media giants, including Facebook, I couldn't agree with you more. Noah, 213 00:14:45,316 --> 00:14:49,436 Speaker 1: that we have no free speech rightspees v. Private sector actors. 214 00:14:49,716 --> 00:14:53,956 Speaker 1: I for one, would balk at government trying to reign 215 00:14:54,076 --> 00:14:56,756 Speaker 1: in what I do believe to be the free speech 216 00:14:56,956 --> 00:15:01,396 Speaker 1: editorial rights of social media companies, just as I would 217 00:15:01,436 --> 00:15:06,716 Speaker 1: balk at that power being used for traditional media. Where 218 00:15:06,756 --> 00:15:11,716 Speaker 1: I part company with you is on the desirability of 219 00:15:11,956 --> 00:15:16,516 Speaker 1: Facebook using its enormous power. And we'll just use Facebook 220 00:15:16,516 --> 00:15:19,716 Speaker 1: as an example. But the points I'd make I would 221 00:15:19,756 --> 00:15:24,676 Speaker 1: apply to the companies that have dominant power. As the 222 00:15:24,716 --> 00:15:27,676 Speaker 1: Supreme Court set in decision a couple of years ago, 223 00:15:27,916 --> 00:15:33,476 Speaker 1: they really constitute the major platform now in our society 224 00:15:33,716 --> 00:15:38,076 Speaker 1: and in our political sphere, not only for discussions between 225 00:15:38,316 --> 00:15:40,956 Speaker 1: you and me and our friends and our colleagues, but 226 00:15:41,076 --> 00:15:44,956 Speaker 1: also between we, the people, to quote the opening words 227 00:15:44,956 --> 00:15:48,076 Speaker 1: of the Constitution, who wield sovereign power in this country 228 00:15:48,196 --> 00:15:51,756 Speaker 1: and those we elect to represent us. So the major 229 00:15:51,916 --> 00:15:55,996 Speaker 1: power in terms of not only individual free expression but 230 00:15:56,116 --> 00:16:00,116 Speaker 1: also democratic self government is now in the hands of 231 00:16:00,156 --> 00:16:04,756 Speaker 1: these powerful private sector actors. And I have to say 232 00:16:05,036 --> 00:16:08,836 Speaker 1: that worries me as a similar retariant. The question is 233 00:16:09,276 --> 00:16:12,956 Speaker 1: whom do I distrust more? The government, which I traditionally 234 00:16:13,036 --> 00:16:19,836 Speaker 1: instinctively distrust for good reason based on history, but also 235 00:16:20,436 --> 00:16:25,036 Speaker 1: it's hard to trust a powerful private sector entity, no 236 00:16:25,076 --> 00:16:29,676 Speaker 1: matter how good spirited the individuals associated with it may be, 237 00:16:29,916 --> 00:16:33,796 Speaker 1: and no matter how brilliant and you know people that 238 00:16:33,916 --> 00:16:37,476 Speaker 1: they are working with such as you knowah, and with 239 00:16:37,516 --> 00:16:42,796 Speaker 1: your commitment to free speech. Ultimately they're not accountable to 240 00:16:42,956 --> 00:16:47,796 Speaker 1: we the people, but ultimately accountable to shareholders. I guess 241 00:16:47,836 --> 00:16:50,756 Speaker 1: in the case of Facebook, that means to Mark Zuckerberg, right, 242 00:16:51,196 --> 00:16:55,396 Speaker 1: and that's worrisome. But that said, I don't think that 243 00:16:55,436 --> 00:17:00,316 Speaker 1: there is a legal solution of government imposing limits on 244 00:17:00,356 --> 00:17:05,516 Speaker 1: how Facebook exercises its editorial power trying to remain open minded. 245 00:17:05,716 --> 00:17:09,396 Speaker 1: So for me, now, the question is, practically speaking, is 246 00:17:09,436 --> 00:17:13,116 Speaker 1: it in fact desirable for Facebook to try to define 247 00:17:13,236 --> 00:17:16,836 Speaker 1: and to try to enforce standards against hate speech? And 248 00:17:16,916 --> 00:17:20,836 Speaker 1: my reason for concluding no, Although I will, to the 249 00:17:20,836 --> 00:17:23,076 Speaker 1: best of my ability try to be open minded as 250 00:17:23,236 --> 00:17:26,836 Speaker 1: new evidence comes in, but I think it is as 251 00:17:27,196 --> 00:17:33,156 Speaker 1: doomed to be arbitrary at best and discriminatory at worst 252 00:17:33,156 --> 00:17:37,316 Speaker 1: as all so called hate speech so called standards have 253 00:17:37,516 --> 00:17:41,636 Speaker 1: been when enforced by government around the world throughout history. 254 00:17:41,796 --> 00:17:44,436 Speaker 1: So let me let me make then a different version 255 00:17:44,476 --> 00:17:46,556 Speaker 1: of the argument on the other side. So I'm going 256 00:17:46,596 --> 00:17:49,716 Speaker 1: to begin by conceding to you I completely agree that 257 00:17:49,756 --> 00:17:52,076 Speaker 1: if we don't trust government, there's no reason we should 258 00:17:52,076 --> 00:17:56,316 Speaker 1: trust private corporations. And it doesn't matter how well intentioned 259 00:17:56,396 --> 00:17:59,636 Speaker 1: or ill intentioned they or their leading shareholders might be. 260 00:17:59,716 --> 00:18:02,076 Speaker 1: I agree, there's no reason we should trust them. The 261 00:18:02,236 --> 00:18:05,476 Speaker 1: argument though, for restricting hate speech on social media, I 262 00:18:05,516 --> 00:18:10,316 Speaker 1: think takes seriously your point that increasingly social media is 263 00:18:10,316 --> 00:18:13,876 Speaker 1: where we go to engage in the civic republican conversation 264 00:18:14,196 --> 00:18:17,516 Speaker 1: that we need to run our country. And the argument 265 00:18:17,516 --> 00:18:19,836 Speaker 1: would be something like this, in order for us to 266 00:18:19,876 --> 00:18:24,116 Speaker 1: have a collective series of conversations that we need to 267 00:18:24,156 --> 00:18:27,836 Speaker 1: be a functioning democracy, we need to have some basic 268 00:18:27,916 --> 00:18:32,716 Speaker 1: guidelines of civility and of not speaking in a way 269 00:18:32,756 --> 00:18:36,036 Speaker 1: that shuts up other people. And you know, again I 270 00:18:36,076 --> 00:18:37,916 Speaker 1: am with you that we don't trust the government to 271 00:18:37,956 --> 00:18:40,436 Speaker 1: come up with those standards, but we could be a 272 00:18:40,436 --> 00:18:43,436 Speaker 1: little more experimental in the social media context, partly because 273 00:18:43,436 --> 00:18:46,036 Speaker 1: the social media companies can change their minds, they can 274 00:18:46,076 --> 00:18:49,516 Speaker 1: alter their standards, They can do real world experiments. They 275 00:18:49,516 --> 00:18:52,436 Speaker 1: can see if certain kinds of speech are leading vulnerable 276 00:18:52,436 --> 00:18:55,076 Speaker 1: people to get off the service or to shut down 277 00:18:55,196 --> 00:18:58,836 Speaker 1: or not speak. There's some better tools available here than 278 00:18:58,876 --> 00:19:01,116 Speaker 1: there would be available to a government. Why not run 279 00:19:01,156 --> 00:19:04,356 Speaker 1: the experiment? Why begin a priori with the view that 280 00:19:04,716 --> 00:19:07,716 Speaker 1: all regulations of speech are going to go awry. I 281 00:19:07,876 --> 00:19:11,876 Speaker 1: certainly am open to experiment, and as I said earlier, Noah, 282 00:19:12,196 --> 00:19:17,076 Speaker 1: I am open to considering evidence, and my starting premise 283 00:19:17,516 --> 00:19:22,076 Speaker 1: is I'm only looking for what is the least bad 284 00:19:22,156 --> 00:19:26,876 Speaker 1: solution because I see problems with all of the options. 285 00:19:26,916 --> 00:19:30,396 Speaker 1: I see the problem that you're talking about. I associate 286 00:19:30,476 --> 00:19:33,836 Speaker 1: myself very much with a number of reports that have 287 00:19:33,956 --> 00:19:38,356 Speaker 1: been done on these issues by PEN America, the organization 288 00:19:38,476 --> 00:19:43,716 Speaker 1: that represents writers including journalists and very much advocates free speech, 289 00:19:43,756 --> 00:19:47,796 Speaker 1: and a couple of years ago, PENN did a handbook 290 00:19:48,316 --> 00:19:53,836 Speaker 1: for writers and bloggers and journalists about the hazards of 291 00:19:53,916 --> 00:19:58,836 Speaker 1: being on social media, trolling and dosing and harassment, and 292 00:19:58,996 --> 00:20:03,276 Speaker 1: they did a survey of their members which showed that 293 00:20:03,676 --> 00:20:08,396 Speaker 1: people were being driven off and see saying journalists were 294 00:20:08,476 --> 00:20:14,396 Speaker 1: sobbing they're ending their social media commentary, especially women and 295 00:20:14,556 --> 00:20:17,356 Speaker 1: members of minority groups. So I couldn't agree with you more. 296 00:20:17,676 --> 00:20:21,316 Speaker 1: I had earlier said there are free speech concerns here 297 00:20:21,396 --> 00:20:27,636 Speaker 1: on both sides, right, nonregulated and regulated. But PAN America's 298 00:20:27,876 --> 00:20:35,156 Speaker 1: proposed response is not regulation beyond and forcing legal standards 299 00:20:35,236 --> 00:20:40,356 Speaker 1: that exist already. As we talked about against targeted harassment 300 00:20:40,476 --> 00:20:44,116 Speaker 1: and bullying, and so forth. But beyond that, Pan America 301 00:20:44,236 --> 00:20:50,636 Speaker 1: was advocating a series of free speech type responses, including 302 00:20:50,836 --> 00:20:57,916 Speaker 1: by publishers, by editors, by friends and colleagues, and in 303 00:20:57,996 --> 00:21:03,676 Speaker 1: addition to experimenting with content moderation. And you know, you 304 00:21:03,756 --> 00:21:07,796 Speaker 1: know better than I do that Facebook wasn't always trying 305 00:21:07,836 --> 00:21:11,876 Speaker 1: to restrict hate speech. So it also wasn't an a 306 00:21:11,996 --> 00:21:16,556 Speaker 1: priori assumption that there would be content regulation, including a 307 00:21:16,636 --> 00:21:19,476 Speaker 1: hate speech on these social media companies. And I know 308 00:21:19,556 --> 00:21:24,156 Speaker 1: that Facebook and the others are experimenting with different definitions 309 00:21:24,276 --> 00:21:28,036 Speaker 1: and different ways of enforcing the definitions and so forth, 310 00:21:28,076 --> 00:21:32,276 Speaker 1: So I do appreciate that open mindedness and experimentation. But 311 00:21:32,436 --> 00:21:35,956 Speaker 1: also in the spirit of experimentation, I have read with 312 00:21:36,076 --> 00:21:42,676 Speaker 1: great hopefulness about efforts that have been funded by Facebook 313 00:21:42,676 --> 00:21:47,556 Speaker 1: and other social media giants for how can we harness 314 00:21:47,796 --> 00:21:52,356 Speaker 1: the power of social media to promote counter speech of 315 00:21:52,676 --> 00:21:56,876 Speaker 1: various types. That will be another way of countering the 316 00:21:56,876 --> 00:22:03,636 Speaker 1: potential adverse impact of hate speech, Rooting people toward affirmative 317 00:22:03,716 --> 00:22:07,396 Speaker 1: information that will counter the statements that are being made 318 00:22:07,396 --> 00:22:11,876 Speaker 1: by hate mongers, providing support for people who are disparaged 319 00:22:11,916 --> 00:22:15,436 Speaker 1: by hate mongers, and so forth. Yeah, that all seems 320 00:22:15,476 --> 00:22:18,236 Speaker 1: that seems like a potentially promising direction. So let's talk 321 00:22:18,236 --> 00:22:21,316 Speaker 1: then about trends. And here I want to ask you 322 00:22:21,356 --> 00:22:24,396 Speaker 1: a question that's maybe a tiny bit impolite. You're a 323 00:22:24,436 --> 00:22:28,636 Speaker 1: self described social justice warrior, and you also a simultaneously 324 00:22:28,676 --> 00:22:32,716 Speaker 1: are deeply committed to freedom of expression. And doesn't that 325 00:22:32,796 --> 00:22:36,436 Speaker 1: make you and I might include myself in this category too, 326 00:22:36,716 --> 00:22:40,396 Speaker 1: doesn't that make us dinosaurs? Hasn't there been a radical 327 00:22:40,556 --> 00:22:44,476 Speaker 1: change over the last fifteen or twenty years. It happened gradually, 328 00:22:44,516 --> 00:22:46,516 Speaker 1: it didn't happen all in one go. But if you 329 00:22:46,556 --> 00:22:50,796 Speaker 1: look at where broadly speaking, progressive thinkers are today compared 330 00:22:50,836 --> 00:22:53,996 Speaker 1: to where they were twenty years ago, the trends seems 331 00:22:53,996 --> 00:22:56,596 Speaker 1: to be completely against you. The trends seems to be 332 00:22:56,676 --> 00:22:58,636 Speaker 1: And I see this with my students, and I see 333 00:22:58,636 --> 00:23:01,636 Speaker 1: it in the work of my generational contemporaries who are 334 00:23:01,636 --> 00:23:05,116 Speaker 1: intellectuals writing from the progressive perspective. There seems to have 335 00:23:05,196 --> 00:23:08,836 Speaker 1: been a major retreat on the left from the values 336 00:23:09,236 --> 00:23:12,916 Speaker 1: of strong civil libertarian free speech, whereas on the right 337 00:23:13,436 --> 00:23:16,236 Speaker 1: there's been almost a huge rise in support for them 338 00:23:16,236 --> 00:23:18,756 Speaker 1: of freedom of speech. I mean, we see something very 339 00:23:18,756 --> 00:23:21,116 Speaker 1: close to one hundred and eighty degree flip where if 340 00:23:21,156 --> 00:23:24,076 Speaker 1: you think of the classic Supreme Court cases of the sixties, 341 00:23:24,676 --> 00:23:27,236 Speaker 1: there it was the court's greatest liberals who were in 342 00:23:27,276 --> 00:23:29,956 Speaker 1: favor of freedom of expression and the conservatives were in 343 00:23:29,996 --> 00:23:32,956 Speaker 1: favor of censorship. And now, if anything, it's going the 344 00:23:32,996 --> 00:23:35,636 Speaker 1: other way, and conservatives are most strongly in favor of 345 00:23:35,676 --> 00:23:38,076 Speaker 1: freedom of expression. And maybe it's not quite true on 346 00:23:38,076 --> 00:23:41,316 Speaker 1: the Supreme Court, but more broadly in the society, freedom 347 00:23:41,316 --> 00:23:44,996 Speaker 1: of speech is not so favored among progressives. So what's 348 00:23:45,036 --> 00:23:51,356 Speaker 1: going on? And are we dinosaurs? I disagree with the 349 00:23:51,636 --> 00:23:57,196 Speaker 1: factual generalizations to this extent, now that I read every survey, 350 00:23:57,516 --> 00:24:02,796 Speaker 1: and there to me inconclusive and do show that depending 351 00:24:02,796 --> 00:24:06,556 Speaker 1: on what the subject is, you get self described liberals 352 00:24:06,556 --> 00:24:09,636 Speaker 1: and progressives who are against censorship or for and this 353 00:24:09,796 --> 00:24:14,916 Speaker 1: aim is true for self described conservatives. And in fact, 354 00:24:15,036 --> 00:24:18,516 Speaker 1: I think this situation throughout my entire adult lifetime, and 355 00:24:18,556 --> 00:24:21,516 Speaker 1: I'll pull the age rank on you. I've been in 356 00:24:21,556 --> 00:24:24,436 Speaker 1: the trenches probably for a couple more decades. In the 357 00:24:24,556 --> 00:24:28,876 Speaker 1: early nineteen eighties, Nat Hintoff, who was very active with ACLU, 358 00:24:28,996 --> 00:24:31,876 Speaker 1: a journalist, wrote a book whose title I think said 359 00:24:31,956 --> 00:24:34,676 Speaker 1: at all it was freedom of speech for me but 360 00:24:34,876 --> 00:24:38,356 Speaker 1: not for me how the left and right are relentlessly 361 00:24:38,476 --> 00:24:43,436 Speaker 1: censoring each other. But I obviously believe that there are 362 00:24:43,556 --> 00:24:49,956 Speaker 1: too many social justice activists who do not understand how 363 00:24:49,996 --> 00:24:53,276 Speaker 1: important free speech is to advance their causes. That's what 364 00:24:53,476 --> 00:24:57,396 Speaker 1: motivated me to write my book. And as one astute 365 00:24:57,516 --> 00:25:02,596 Speaker 1: reviewer commented, it's very clear that my book is aimed 366 00:25:02,836 --> 00:25:07,356 Speaker 1: at the left. That is the main audience now that 367 00:25:07,476 --> 00:25:11,596 Speaker 1: I believe needs persuading, and I do see a particular 368 00:25:11,756 --> 00:25:16,396 Speaker 1: need to make a case that is rooted specifically in 369 00:25:16,876 --> 00:25:22,796 Speaker 1: the social justice causes as a rationale for supporting free speech. Nadine, 370 00:25:22,876 --> 00:25:26,276 Speaker 1: I want to thank you not just for this terrific conversation, 371 00:25:26,476 --> 00:25:29,316 Speaker 1: but for fighting the good fight in a serious way, 372 00:25:29,396 --> 00:25:31,316 Speaker 1: both in the trenches and in the leadership role for 373 00:25:31,356 --> 00:25:33,356 Speaker 1: so long. I've learned such a huge amount from your 374 00:25:33,756 --> 00:25:36,436 Speaker 1: free speech advocacy, and I learned a lot from this book, 375 00:25:36,796 --> 00:25:38,596 Speaker 1: and I hope we can keep on talking about these 376 00:25:38,596 --> 00:25:40,116 Speaker 1: really important issues. I guess that's the whole point of 377 00:25:40,116 --> 00:25:42,236 Speaker 1: free speech, right to discuss the idea as long as 378 00:25:42,236 --> 00:25:43,636 Speaker 1: we want, in for as much time as we want, 379 00:25:43,636 --> 00:25:45,756 Speaker 1: and hope that we get it right eventually, and right 380 00:25:45,796 --> 00:25:48,236 Speaker 1: back at you. Noah, thank you so much for your work, 381 00:25:48,316 --> 00:25:52,596 Speaker 1: including doing your best to preserve a wonderful free speech 382 00:25:52,676 --> 00:25:56,676 Speaker 1: environment on Facebook. Let's hope, so thanks a lot, Nadine, 383 00:25:56,716 --> 00:26:06,356 Speaker 1: take care. Coming from the left of the political spectrum, 384 00:26:06,396 --> 00:26:09,876 Speaker 1: where the ACLU has mostly been ever since its founding 385 00:26:09,916 --> 00:26:13,756 Speaker 1: in the nineteen twenties, Nadine Strausson offers a vision of 386 00:26:13,756 --> 00:26:18,276 Speaker 1: free speech that's grounded in a deep skepticism and distrust 387 00:26:18,596 --> 00:26:21,636 Speaker 1: of who controls the government and therefore of what will 388 00:26:21,676 --> 00:26:25,996 Speaker 1: happen when speech gets regulated. It's in the dna of 389 00:26:26,116 --> 00:26:29,596 Speaker 1: Nadine's view to believe that the government is not likely 390 00:26:29,636 --> 00:26:33,796 Speaker 1: to serve the interests of the dispossessed, of minorities, or 391 00:26:33,836 --> 00:26:37,036 Speaker 1: of those who lack power in the society. She therefore 392 00:26:37,116 --> 00:26:40,236 Speaker 1: thinks that any time we have limitations on speech from 393 00:26:40,236 --> 00:26:43,036 Speaker 1: the government, and indeed, she goes further and says, any 394 00:26:43,036 --> 00:26:47,156 Speaker 1: time even private entities like social media companies limit freedom 395 00:26:47,196 --> 00:26:51,476 Speaker 1: of speech, the results are likely to be, roughly speaking, statist, 396 00:26:51,876 --> 00:26:55,196 Speaker 1: to serve the interests of power, not to serve the 397 00:26:55,236 --> 00:26:59,636 Speaker 1: interests of the powerless. Nadine's perspective is to some degree 398 00:26:59,636 --> 00:27:03,276 Speaker 1: at odds with the views of many younger left liberals, 399 00:27:03,876 --> 00:27:06,556 Speaker 1: many of whom believe that free speech has ultimately come 400 00:27:06,596 --> 00:27:10,396 Speaker 1: to be used as a tool to help powerful forces, 401 00:27:10,996 --> 00:27:14,476 Speaker 1: rather than functioning as a tool to protect the alternative 402 00:27:14,516 --> 00:27:18,676 Speaker 1: and dissenting views of minorities and the powerless. This is 403 00:27:18,716 --> 00:27:22,476 Speaker 1: a difficult question and a hard problem to solve because 404 00:27:22,476 --> 00:27:26,876 Speaker 1: it depends on different people's predictive assessments of what's actually 405 00:27:26,916 --> 00:27:29,956 Speaker 1: going on in the world and what might go on 406 00:27:30,076 --> 00:27:34,956 Speaker 1: in the world if trends continue. I'm grateful to listeners 407 00:27:34,956 --> 00:27:37,196 Speaker 1: for sticking with us as we've gone deeper and deeper 408 00:27:37,236 --> 00:27:40,116 Speaker 1: into the issue of freedom of speech. No doubt will 409 00:27:40,156 --> 00:27:42,196 Speaker 1: return to the issue in certain ways in the future, 410 00:27:42,516 --> 00:27:45,156 Speaker 1: and will certainly continue to keep a close eye on 411 00:27:45,276 --> 00:27:48,756 Speaker 1: it until I speak to you next time. Be careful, 412 00:27:49,116 --> 00:27:52,636 Speaker 1: be safe, and be well. Deep Background is brought to 413 00:27:52,636 --> 00:27:56,076 Speaker 1: you by Pushkin Industries. Our producer is Lydia Jane Cott, 414 00:27:56,236 --> 00:28:00,396 Speaker 1: with mastering by Jason Gambrell and Martin Gonzalez. Our showrunner 415 00:28:00,436 --> 00:28:03,516 Speaker 1: is Sophima Kibbon. Our theme music is composed by Luis 416 00:28:03,596 --> 00:28:07,476 Speaker 1: GERA special thanks to the Pushkin Brass Malcolm Gladwell, Jacob 417 00:28:07,476 --> 00:28:11,396 Speaker 1: Weisberg and Mia Lobel. I'm Noah Feldman. I also write 418 00:28:11,436 --> 00:28:14,156 Speaker 1: a regular column for Bloomberg Opinion, which you can find 419 00:28:14,196 --> 00:28:18,836 Speaker 1: at bloomberg dot com slash Feldman. To discover Bloomberg's original 420 00:28:18,916 --> 00:28:23,116 Speaker 1: slate of podcasts, go to Bloomberg dot com slash podcasts. 421 00:28:23,796 --> 00:28:26,116 Speaker 1: And one last thing. I just wrote a book called 422 00:28:26,196 --> 00:28:29,036 Speaker 1: The Arab Winter of a Tragedy. I would be delighted 423 00:28:29,036 --> 00:28:31,156 Speaker 1: if you checked it out. If you liked what you 424 00:28:31,276 --> 00:28:34,316 Speaker 1: heard today, please write a review or tell a friend. 425 00:28:34,916 --> 00:28:36,636 Speaker 1: You can always let me know what you think on Twitter. 426 00:28:37,036 --> 00:28:41,116 Speaker 1: My handle is Noah R. Feldman. This is deep background