Speaker 1: Pushkin from Pushkin Industries. This is Deep Background, the show
Speaker 1: where we explore the stories behind the stories in the news.
Speaker 1: I'm Noah Feldman. Today we're continuing our Freedom of Speech series,
Speaker 1: and I'm going to share with you a conversation I
Speaker 1: had with an expert whom I admire greatly and with
Speaker 1: whom I very frequently disagree. Eugene Valak teaches First Amendment
Speaker 1: law at the UCLA School of Law. He's the author
Speaker 1: of a casebook about freedom of speech called the First
Speaker 1: Amendment and Related Statutes. His law few articles and his
Speaker 1: friend of the Court briefs have been cited in numerous
Speaker 1: Supreme Court cases. He's also the founder and co author
Speaker 1: of The Volak Conspiracy, a leading legal blog which, sometimes,
Speaker 1: depending on the issue, tends towards the conservative or libertarian.
Speaker 1: In the world of legal academia, where I have my
Speaker 1: day job, Eugene is universally recognized across the range of
Speaker 1: political opinions as one of the most significant and influential
Speaker 1: voices about the freedom of speech. I spoke to Eugene
Speaker 1: back in March. Eugene, I wonder if you would start
Speaker 1: by telling our listeners how you got interested in the
Speaker 1: freedom of speech, because your profile up until the time
Speaker 1: when you did fancy a pelletchord in Supreme court clerkships
Speaker 1: and became a law professor was extremely unusual. So how
Speaker 1: did you get interested in this issue in the first place.
Speaker 1: I've been interested in a constitutional law, and in particular
Speaker 1: free speech laws, since I was in my mid teens.
Speaker 1: I actually went to law school planning and becoming a prosecutor.
Speaker 1: And then I realized in law school two things. One
Speaker 1: is that prosecutors generally didn't do much with law like
Speaker 1: most lawyers. They did things with facts, as is right.
Speaker 1: That's what prosecutors should be mostly focused on, is figuring
Speaker 1: out the facts and proving the fact. But I was
Speaker 1: interested in law, so that meant I'd either be an
Speaker 1: appellate lawyer or a professor. And then I saw how
Speaker 1: much fun my professors were having, so I thought, oh,
Speaker 1: I'll be a law professor, and turned out that there
Speaker 1: were interesting things to say about free speech laws. I
Speaker 1: was delighted. Now, Gene, you say that you were interested
Speaker 1: in this from the time you were a teenager, but
Speaker 1: you were not, by any ordinary standard, a normal teenager.
Speaker 1: So you came to the US when you were seven
Speaker 1: from the then Soviet Union, and then you graduated from
Speaker 1: college at UCLA with a degree in computer science and
Speaker 1: math when you were fifteen. What were you doing when
Speaker 1: you were starting to think about this as a teenager?
Speaker 1: Was that when you were actively doing the job of
Speaker 1: a computer programmer. Yeah. I'd worked as a computer programer
Speaker 1: actually ever since I was twelve, and I was happy
Speaker 1: to be a programmer, and I was excited about my
Speaker 1: programming career. But at the same time, I was interested
Speaker 1: in this in the side, as I think so many
Speaker 1: people are. Right. My guess is a lot of your
Speaker 1: listeners who are interested in free speech law or law
Speaker 1: aren't lawyers. They're just people who think that this is
Speaker 1: an import part of their civic lives and their intellectual
Speaker 1: lives is getting a better sense of the rules of
Speaker 1: governor society. So I was interested in it then, kind
Speaker 1: of on the side, and then I realized it's something
Speaker 1: I might want to turn into a career. Much as
Speaker 1: I enjoyed being a computer programmer, I wanted to be
Speaker 1: more directly involved in these big picture illegal and public
Speaker 1: policy issues. And I got exactly what I wanted. Knock Wood,
Speaker 1: do you think that having come from the Soviet Union,
Speaker 1: even as a young kid, was relevant to your eventual
Speaker 1: formation of views in the First Amendment space. I sometimes
Speaker 1: hear some of my students whose families came from the
Speaker 1: former Soviet Union talking about how they're stronger pro rights viewpoint,
Speaker 1: and in some cases even strongly libertarian perspectives come as
Speaker 1: a reaction against seeing what communism could do in practice. Yeah,
Speaker 1: you know, it's so hard to say, in part because
Speaker 1: actually lots of positions on free speech issues are very,
Speaker 1: very far from the communist position. So, you know, I
Speaker 1: hesitate to ascribe that much to my background, in part
Speaker 1: because I can't step out of my background. I can't say, well,
Speaker 1: what if I had been born in the US, what
Speaker 1: would I have thought? I don't know what wouldn't be me.
Speaker 1: I will say that earlier in my life I actually
Speaker 1: took a less speech protective view. I think my views
Speaker 1: were perhaps somewhat more open to what people would say
Speaker 1: reasonable moderate regulations of free speech. And then over time
Speaker 1: I came to the view that the government really can
Speaker 1: to be trusted with even these supposedly reasonable and moderate regulations.
Speaker 1: But I'm not sure that that was because of my
Speaker 1: background and my parents background and communist Russia. You know,
Speaker 1: it's interesting you mention the question of trusting the government,
Speaker 1: and I do think that for a lot of people
Speaker 1: that comes down to how they form their views about
Speaker 1: free speech. It's how much do they trust the government
Speaker 1: to be able to engage in certain forms of reasonable regulation.
Speaker 1: Obviously that's not the only way to think about it,
Speaker 1: but do you think that that is the way that
Speaker 1: one form views on free expression? Sort of? You know,
Speaker 1: the more you distrust the government, the more pro free
Speaker 1: speech you should be. I think that's right. I think
Speaker 1: you've hit the nail on the head there, at least
Speaker 1: as a practical matter for most people, and I think
Speaker 1: for not just how most people think about about how
Speaker 1: they should think about it. Let's take an example. People
Speaker 1: talk about fake news, and isn't fake news bad? Well, yes, certainly,
Speaker 1: outright hoaxes are bad. Lies are bad. Even honest mistakes,
Speaker 1: especially about important subjects such as vaccination or the coronavirus,
Speaker 1: or foreign policy or a wide range of other things,
Speaker 1: those are bad. Well, why not allow the government to
Speaker 1: prohibit those things? Once there's a trial, let's say, or
Speaker 1: some hearing in which it's proved that something is false. Well,
Speaker 1: if you trust the government to sort the truth from
Speaker 1: the false, then that could be a big net plus
Speaker 1: to the quality of public debate. On the other hand,
Speaker 1: if you don't trust the government, not because you think
Speaker 1: the government is always awful, no, because government is composed
Speaker 1: of people and aren't always trustworthy, and people have both
Speaker 1: subconscious biases generally and also are pushed in particular directions
Speaker 1: by their own political self interest, then I think you
Speaker 1: might come to the view that it's better to tolerate
Speaker 1: a good deal of falsehood than to give the government
Speaker 1: the power to ban certain things that might be true
Speaker 1: on the grounds that they're false. I think one way
Speaker 1: of thinking about is thinking about history. So let's say
Speaker 1: there's some particular dispute, say over whether the killing of
Speaker 1: Armenians during World War One was a deliberate genocide or
Speaker 1: just the viccissitudes of war. Now I'm not an expert
Speaker 1: on the subject. My understanding is that people who've studied
Speaker 1: it generally do think that this was a genocide. But
Speaker 1: how do I know that to the extent I know it,
Speaker 1: or let's just say to the extent I believe it.
Speaker 1: I believe it because historians seem to have come to
Speaker 1: that consensus, and the best way we can figure out
Speaker 1: what is true about history, about social sideys, and especially
Speaker 1: about philosophy, religion, arts, and the like is based on
Speaker 1: consensus of people who really have studied things closely. But
Speaker 1: I know that only because I know that they could
Speaker 1: study all possible opinions on this and hear all opinions
Speaker 1: and air opinions, even ones that ultimately their colleagueses agree with,
Speaker 1: and through the continued process of hearing all those opinions,
Speaker 1: the consensus emerges and remains broadly accepted by historians. If
Speaker 1: I learned that it's illegal to deny that this was
Speaker 1: a genocide, then I would lose confidence in that very consensus,
Speaker 1: because I would no longer think that this is something
Speaker 1: that historians are coming to after hearing all the arguments,
Speaker 1: because some of the arguments now it's illegal to make
Speaker 1: to them. So it's actually, I think, better for our
Speaker 1: understanding of truth if people can make statements, even false statements,
Speaker 1: because only that way can we be sure that all
Speaker 1: of the arguments have been aired, and the whatever consensus
Speaker 1: there is is as best we can tell an accurate one.
Speaker 1: You know, it's interesting that in this particular instance, the
Speaker 1: law in Turkey actually runs the other way. It's a
Speaker 1: crime to say that it was a genocide. And that
Speaker 1: leads to a question that I really want to ask you,
Speaker 1: which is about how the experiences of different countries might
Speaker 1: be relevant to creating different rules here. It's sometimes said
Speaker 1: that if you look at the example of Germany or
Speaker 1: other European countries where fascism or national socialism or other
Speaker 1: ideologies actually managed to swamp liberalism and then led to
Speaker 1: the emergence of totalitarianism, that in those countries there might
Speaker 1: be a strong pragmatic reason to outlaw some things that
Speaker 1: are ideas or opinions that the United States permits, for example,
Speaker 1: prohibiting racism or prohibiting statements that dehumanize people on the
Speaker 1: basis of their membership in a group. The argument is
Speaker 1: something like, those countries have learned through hard experience that
Speaker 1: they cannot trust the free marketplace of ideas to actually
Speaker 1: clear and get people not to believe in these terrible viewpoints.
Speaker 1: To the contrary, when these views were expressed under relatively
Speaker 1: free circumstances, they actually led to people adopting them. And
Speaker 1: then sometimes the conclusion is drawn from that that depending
Speaker 1: on your national experience, you should be able as a
Speaker 1: state to outlaw hate speech and to outlaw other forms
Speaker 1: of racism, or to outlaw political organizations that rely on
Speaker 1: these points of view. Do you find yourself sympathetic to
Speaker 1: that at all? Do you think to yourself, well, maybe
Speaker 1: in the United States we shouldn't do this, but in
Speaker 1: Germany it's actually appropriate for them to have a law
Speaker 1: that prohibits the Nazi Party and its symbols. No, I don't.
Speaker 1: I should say I specialize in American free speech law.
Speaker 1: I know a lot about it. I don't know a
Speaker 1: lot about foreign rules. So I've got to acknowledge that
Speaker 1: I have limited expertise in foreign law matters. But if
Speaker 1: you ask me the question, I think the answer is
Speaker 1: that the same reasons that justify skepticism of the government
Speaker 1: here justify skepticism in the government there. And that's true
Speaker 1: if it's the Germans trying to ban Nazi advocacy or
Speaker 1: more broadly, racist advocacy or of racism is potentially very
Speaker 1: broad and ill defined category or supposedly dehumanizing advocacy, or
Speaker 1: for that matter, if Polls or Ukrainians want to ban
Speaker 1: communist advocacy, communism is of course caused as much misery
Speaker 1: in those countries as Nazism caused in Germany, possibly more so.
Speaker 1: You say, well, those countries have concluded, based in the
Speaker 1: judgment of history, that they can't trust the marketplace of ideas.
Speaker 1: But I should think that the judgment of history has
Speaker 1: made it even clearer that they can't trust the government
Speaker 1: policing the marketplace of ideas. That in fact, as I
Speaker 1: understand it from our Germany did try to suppress the
Speaker 1: Nazi Party, which of course was engaged not just an
Speaker 1: advocacy of it in outright crimes, didn't do a great
Speaker 1: job of it. And then of course Nazi Germany and
Speaker 1: then in Eastern Germany, Communist Germany, they tried to regulate
Speaker 1: what they thought was in badly working marketplace of ideas
Speaker 1: by suppressing liberal democratic advocacy. So the question is always comparative,
Speaker 1: is it not? Is the marketplace of ideas perfect? Where
Speaker 1: is it even very good? The question is whether we're
Speaker 1: likely to get better results by allowing people to say things,
Speaker 1: even evil things, even wrongheaded things, or by allowing the
Speaker 1: government to control what it is that people say. And
Speaker 1: I'm pretty skeptical that giving the government that kind of
Speaker 1: power is going to be terribly helpful. We'll be right back.
Speaker 1: Let me ask you about a concrete case where this
Speaker 1: issue is actually put very directly into play on which
Speaker 1: you and I disagreed. Now, some years ago, this case
Speaker 1: took place at the University of Oklahoma, and to summarize it,
Speaker 1: there was a fraternity where two fraternity brothers were taking
Speaker 1: a group of pledges on a bus ride and then
Speaker 1: they had them sing a song that basically said, first
Speaker 1: of all, there will never be an African American. They
Speaker 1: did not use that term in our fraternity. And then
Speaker 1: it went on to say you could hang an African
Speaker 1: American from a tree, but they would not join the
Speaker 1: fraternity with me, namely with a member of the fraternity.
Speaker 1: So the song effectively insisted that there would be no
Speaker 1: blacks in their fraternity. It also threatened violence in at
Speaker 1: least in some way by invoking lynching. And when this
Speaker 1: story got out, David Bourne, who was then the president
Speaker 1: of the University of Oklahoma, acted very quickly and sanctioned
Speaker 1: the students. I believe they were actually expelled. And as
Speaker 1: I recall it, your view was that since the University
Speaker 1: of Oklahoma is bound by the First Amendment the president
Speaker 1: had actually infringed on the free speech rights of the
Speaker 1: fraternity brothers? Was that in fact your view? And if so,
Speaker 1: do you want to say a few words about why? Yeah?
Speaker 1: That it was my view. It continues to be my view.
Speaker 1: I think it was a clear First Amendment violation. I
Speaker 1: obviously have no sympathy for the particular speech they engaged in,
Speaker 1: but we should ask ourselves what would be the rule
Speaker 1: under which the university is allowed to expel students for
Speaker 1: that kind of speech. Note it's not even to like
Speaker 1: traditional speech codes, which were limited to speech on campus.
Speaker 1: This is speech off campus. This was a speech being
Speaker 1: restricted precisely because of the viewpoints that it was expressing.
Speaker 1: And if the argument is well, off campus speech expressing
Speaker 1: certain views is going to have on campus effects, Well,
Speaker 1: that's true of a vast range of off campus speech.
Speaker 1: That means that if I take it to a student
Speaker 1: were to go to a rally for a racist organization
Speaker 1: or an organization that's perceived as racist, then presumably there'd
Speaker 1: be a similar outcry and it would be similarly justified
Speaker 1: for them to be expelled for that. Well, may I
Speaker 1: try out the alternative view? Well, so, tell me, Noah,
Speaker 1: what rule you would propose under which this speech would
Speaker 1: be restrictable but other speech would not be. And why
Speaker 1: you think that rule sound but also is politically defensible.
Speaker 1: Is something that's going to actually be maintained as opposed
Speaker 1: to just leading to more and more calls for restriction.
Speaker 1: My view would be that A on a university campus,
Speaker 1: B there should be rules, as indeed are required by
Speaker 1: federal law that protect against racial discrimination. That C A
Speaker 1: fraternity is a university sanctioned organization. That D What was
Speaker 1: wrong here was conduct. The conduct was discrimination discrimination in
Speaker 1: association with the membership in this particular fraternity. They weren't
Speaker 1: making a decision on membership in that moment, but through
Speaker 1: the song, they were making it extremely clear that their fraternity,
Speaker 1: a campus organization, was a racially discriminatory one. I would
Speaker 1: add to this that there was also a threat of violence.
Speaker 1: I don't know how serious it was, but nevertheless there
Speaker 1: was a threat of violence associated with this. And then
Speaker 1: under these circumstances where what's being punished is the conduct,
Speaker 1: even if that conduct is achieved via words, via singing something,
Speaker 1: that this was a form of discriminatory conduct that was
Speaker 1: justifiable to regulate under these circumstances. And then the analogy
Speaker 1: that I would draw here is to the regulation of
Speaker 1: workplace sexual harassment, which, as we know, can be rendered
Speaker 1: civilly unlawful even when it's achieved just by talking. You
Speaker 1: know someone who says to his coworker every day, you're unqualified.
Speaker 1: You know, because you're a woman, you can't do this
Speaker 1: job well a range of other discriminatory things. We recognize
Speaker 1: that the government can sanction that conduct because it's in
Speaker 1: the workplace, which is a environment. It's a little different
Speaker 1: than being on the street. And even though it's done
Speaker 1: by words, what we're doing is we're punishing the conduct,
Speaker 1: the conduct of discrimination, rather than the words themselves. That
Speaker 1: would be the argument that I would mount. Free speech
Speaker 1: supporters actually support us all sorts of rights. Abortion rights,
Speaker 1: gun rights, and others. Often worry about slippery slopes, and
Speaker 1: I think that that worry is very justified in a
Speaker 1: legal system such as ours that's built on precedent and analogy.
Speaker 1: Let's look at in particular the kind of argument that
Speaker 1: you're making. So first, as it happens, I have long
Speaker 1: criticized workplace harassment law. I think while private employers are
Speaker 1: entitled under the First Amendment to try to control what
Speaker 1: goes on in the workplace and the interest of morale.
Speaker 1: I think that at least certain aspects of workplace harassment
Speaker 1: law go too far in coercing employers to do that.
Speaker 1: But note some of the defenses of workplace harassment law,
Speaker 1: in fact, including in your own argument. So it's in
Speaker 1: the workplace, but this isn't in the workplace. It isn't
Speaker 1: even on campus. It was on a bus, and you
Speaker 1: were saying, well, somebody telling a female coworker every day
Speaker 1: that she is unqualified. They weren't saying that to prospective
Speaker 1: black applicants to the fraternity. Indeed, my understanding is that
Speaker 1: they did not expect it to leak out. They did
Speaker 1: not want it to leak out. It's just that somebody
Speaker 1: recorded it and that's what alerted the rest of the
Speaker 1: public to it. So already you're taking one thing which
Speaker 1: I think is already at the boundary or perhaps beyond
Speaker 1: the boundary of what is acceptable under the First Amendment,
Speaker 1: which is workplace harassment law. And now see the slippage
Speaker 1: goes from the university, where the theory is university is
Speaker 1: for working, it's not for public discourse like college. Well
Speaker 1: now it's getting to college, it's not even on campus,
Speaker 1: it's off campus, and it's not speech to a person
Speaker 1: that is offensive to them at speech about a person.
Speaker 1: So what this comes down to the conduct argument is
Speaker 1: also it seems to me a way of taking things
Speaker 1: that clearly speech. What they're expelled for is what they said,
Speaker 1: and trying to redefine it as conduct. The strongest argument
Speaker 1: that I can see is, and I think you pointed
Speaker 1: to in some measure, is that well, the university could
Speaker 1: ban exclusion based on race from a fraternity, and that
Speaker 1: this was somehow a signal that they would do this.
Speaker 1: It's like you're saying, not even threatening, because again they
Speaker 1: didn't expect anybody to see it, but you're kind of saying,
Speaker 1: I will commit this wrong of discrimination. So maybe we
Speaker 1: can anticipatorially punish you, not for what you've done or
Speaker 1: whether you've been proven to do, but for what we
Speaker 1: are expecting you to do, not something we usually do
Speaker 1: under our legal system. But even if that's so, what's
Speaker 1: the typical penalty for students discriminating based on race or religion,
Speaker 1: or in sex or sexual orientation or whatever else in
Speaker 1: student group? Membership. I can bet you that it's never expulsion.
Speaker 1: Maybe it's suspension of the group sometimes, but never expulsion,
Speaker 1: which makes it clear that they weren't just saying, well,
Speaker 1: this is a and even handed no discrimination in group
Speaker 1: membership law. We're just applying to you regardless of what
Speaker 1: you're saying. They were doing it because of what they
Speaker 1: were saying. And then the last thing is the threat
Speaker 1: of violence. Well, again we have to ask how do
Speaker 1: we deal with threats of violence in songs? Generally speaking?
Speaker 1: Let's say somebody is singing cop killer, and let's say
Speaker 1: the university says, ooh, well, because we employ police officers
Speaker 1: and we heard that you were singing cop killer at
Speaker 1: a party we think praising the killing of cops. Then
Speaker 1: in that case, we're going to expel you because you're
Speaker 1: creating an unsafe environment for our police officers. I take
Speaker 1: it we'd say, no, that's not restriction on conduct. That's
Speaker 1: obvious restriction on speech. It's restriction on speech that may
Speaker 1: be quite offensive, may even be vile, but it's not
Speaker 1: something the university should be doing. That's the consequence, it
Speaker 1: seems to me, of accepting the rationale that the University
Speaker 1: of Oklahoma used here that all of these kinds of
Speaker 1: speech could equally be restricted using exactly the same arguments.
Speaker 1: Something you said, Eugene, will I imagine get the attention
Speaker 1: of some listeners as it got my attention, and that
Speaker 1: was that you were on the edge. It sounded like
Speaker 1: of saying that workplace sex harassment law as it's currently constituted,
Speaker 1: where it's possible to hold someone liable for harassment just
Speaker 1: based on things they've said, you know, without any physical
Speaker 1: touchings or other harms, is of questionable constitutionality. Not only
Speaker 1: did I say it now, I said in nineteen ninety
Speaker 1: two in what was my student note? It was my
Speaker 1: job talk. Eventually, so you've consistently held this view for
Speaker 1: more than twenty five years, Oh right, I've written literally
Speaker 1: half a dozen articles on the subject. So, in light
Speaker 1: of the Me too movement and the raising of consciousness
Speaker 1: around forms of workplaced discrimination, has any of that had
Speaker 1: any effect on your view? I mean, I understand the
Speaker 1: constitutional or legal basis for it, as you just expressed,
Speaker 1: But what about the sort of real world consequential part
Speaker 1: of the picture. Has that changed or affected your mind
Speaker 1: at all? No, I've been against sexual assault I'm happy
Speaker 1: to say all my life I have been against people,
Speaker 1: for example, engaging in sexual extortion. I made that clear
Speaker 1: in my original article. That is indeed a threat of
Speaker 1: illegal conduct, and that is generally so called quid pro
Speaker 1: quo sexual harassment. Sleep with me or you're fired, and
Speaker 1: that is communicated directly and deliberately to that person. I
Speaker 1: also actually argued in my icle that indeed unwanted speech
Speaker 1: to a person, sort of one to one speech where
Speaker 1: you're approaching somebody and insulting them, or for that matter,
Speaker 1: persistently asking the how for dates where you're not trying
Speaker 1: to insult them a love speech rather than a hate speech.
Speaker 1: But unwanted love speech, as it were, that could indeed
Speaker 1: be restricted. But speech that's merely overheard, or in the
Speaker 1: Oklahoma situation, speech that was never expected to be overheard,
Speaker 1: but that somebody records and then is revealed, No, I
Speaker 1: don't think that can be properly restricted by the government
Speaker 1: using workplace harassment law. Let me give you an example.
Speaker 1: Imagine that somebody is talking at a party. A guy
Speaker 1: is talking to other guys saying, you know, I think
Speaker 1: women just don't do a really good job here. I
Speaker 1: think that things were better when we only had men.
Speaker 1: And then somebody records that that is revealed to women
Speaker 1: of the workplace. Remember this is all set outside the workplace,
Speaker 1: and then the company is sued under Title seven for
Speaker 1: not hiring somebody for his off the job sexist statements.
Speaker 1: I think that would be outrageous to have such a
Speaker 1: lawsuit proceed and I should say, to the credit of
Speaker 1: hustle environment harassment law, I don't know of any cases
Speaker 1: that actually do involve a lawsuit proceeding based on this
Speaker 1: person's off the job speech, right, because it's workplace harassment
Speaker 1: and the fact that it's in the workplace is supposed
Speaker 1: to matter. But could you explain in your mind, what's
Speaker 1: the magic difference between discriminatory harassment that takes place directed
Speaker 1: at a person and discrimination that takes place behind their backs.
Speaker 1: I mean it's in the nature of discrimination that it
Speaker 1: can take place either directly or indirectly. I mean, you
Speaker 1: and I can set around and discriminate against the third person,
Speaker 1: even if the third person doesn't know we're discriminating against her. Surely,
Speaker 1: so you say discrimination, But we're talking about his speech.
Speaker 1: It's like people used to say, well, this isn't speech
Speaker 1: this is sedition or this is communist conspiracy. Workplace harassment
Speaker 1: law is based on a statute that outlaws discrimination. It's
Speaker 1: not a statute of outlaw speech, so that's right. But
Speaker 1: when it is applied to speech because of what the
Speaker 1: speech communicates, then it becomes a speech restriction. So the
Speaker 1: difference you asked, what's the difference between one to one
Speaker 1: speech and speech that's overheard, speech that may be talked
Speaker 1: about in the lunch room and such. I think this
Speaker 1: is a broader point that isn't at all limited to
Speaker 1: hostile environment harassment law, and it has to do with
Speaker 1: the value of the speech that talking to a particular
Speaker 1: person when the person has told you stop talking to me,
Speaker 1: or when it's perfectly clear that a person does not
Speaker 1: want to hear this because these are insults. That's something
Speaker 1: that has very limited First Amendment value because it's not
Speaker 1: likely to persuade or enlighten. It's just likely to offend.
Speaker 1: Whereas speech that's said to the public that is overheard
Speaker 1: by some people who are offended, that could have a
Speaker 1: great deal of First Amendment value. Here's an example from
Speaker 1: a non hostile environment harassment non discrimination law context. There's
Speaker 1: a case called Drowan the Post Office Department that upheld
Speaker 1: the statute under which any of us could say to
Speaker 1: any mailer, at least any commercial mailer, stop sending the
Speaker 1: unwanted mail, and then they have to stop. And the
Speaker 1: court said, look, there's no right to press even a
Speaker 1: good idea on an unwilling listener. And I think that's
Speaker 1: quite right, because if something's coming into my house and
Speaker 1: coming to me, I should be entitled to say stop
Speaker 1: talking to me. But let's say there was a similar
Speaker 1: statue that allowed anybody who's offended by a billboard or
Speaker 1: by a demonstration, or there was a famous case involving
Speaker 1: nudity on a drive in theater screen, that they could
Speaker 1: demand that that'd be taken down. That is a much greater,
Speaker 1: and I think unconstitutional restriction on speech because that interferes
Speaker 1: even with speech to willing listeners. So if a company
Speaker 1: could be suited under titled seven because and actually unfortunately
Speaker 1: it can be, I think this is the situation where
Speaker 1: hostile roman harassment law is impermissible because somebody is wearing
Speaker 1: a cap with a Confederate flag on it, or because
Speaker 1: some people are talking about gender roles and who are saying,
Speaker 1: you know, I think that these jobs should be for
Speaker 1: men and not for women. Saying the lung Truman they're overheard.
Speaker 1: That I think is unconstitutional because that interferes with speech
Speaker 1: among willing listeners just because somebody who hears it is
Speaker 1: going to be offended by it, and that I think
Speaker 1: is impermissible. And I think that that tracks dividing lines
Speaker 1: in a lot of first ammendent cases. Fighting words is
Speaker 1: another example. There are various rationales for restricting fighting words,
Speaker 1: but one of them is that they're not just likely
Speaker 1: to cause a fight, but there said to a person
Speaker 1: who is being directly personally insulted, as opposed to burning
Speaker 1: a flag which might cause a fight, where the court
Speaker 1: says that's protected. They're the important thing is that that
Speaker 1: message may reach willing viewers as well as unwillingness. Do
Speaker 1: you think of yourself as a free speech absolutist And
Speaker 1: I'll ask you that because it seems in terms of
Speaker 1: the continuum of where people come down that thinking that
Speaker 1: sex arrassement workplace sex arrasma as it currently exists is
Speaker 1: unconstitutional would put you towards one end of the continuum
Speaker 1: at least. Well, I don't think there's ever been a
Speaker 1: free speech absolutist. Some people have called themselves free speech
Speaker 1: absolute just as Black as an example, but even he
Speaker 1: was willing to uphold restrictions on threats on fighting words.
Speaker 1: So I don't think it's possible to be an absolutist.
Speaker 1: I don't think that threats of violence should be protected.
Speaker 1: I don't think that if somebody wants to speak very
Speaker 1: loudly in a residential area in the middle of the
Speaker 1: night that that should be protected. But if no one
Speaker 1: thinks those things, then maybe absolutes is the wrong word.
Speaker 1: But do you think you're at one end of the continent.
Speaker 1: I don't even I do think there are people who
Speaker 1: are free speech maximalist, but I'm not even sure I'm
Speaker 1: a free speech maximalist. I believe in strong protection for
Speaker 1: free speech, especially when the government is restricting it based
Speaker 1: on the content of the speech. I do think there
Speaker 1: are exceptions to free speech protection. I think they're well
Speaker 1: established and they're part of our law, but that they
Speaker 1: should be read narrowly and kept within their boundaries, and
Speaker 1: the slippery slope should be resisted. So in that respect,
Speaker 1: you know, in a sense, I'm kind of a free
Speaker 1: speech doctrinalist. I've read the cases, I've written about the cases.
Speaker 1: I think there's a good deal of wisdom in the
Speaker 1: courts cases, although it's not I agree with everything. I
Speaker 1: think there are particular rules that we have, but I
Speaker 1: don't think we should be moving towards a more speech restrictive,
Speaker 1: generally speaking model than we have today. Eugene, it's a
Speaker 1: huge pleasure to talk to you about these things, and
Speaker 1: it's a huge pleasure to disagree under conditions of rational
Speaker 1: debate of the kind of ideal speech conditions that the
Speaker 1: first amend is, at least in theory designed for it.
Speaker 1: And I suspect we'll keep on disagreeing on lots of issues,
Speaker 1: but I hope we can keep on talking about them
Speaker 1: as we disagree about them going forward. Thank you so
Speaker 1: much for your time. Thank you very much, very kind
Speaker 1: of you to say so to have me on. It
Speaker 1: is always a pleasure to talk to you. And indeed,
Speaker 1: that's I think why we became academics, right so we
Speaker 1: could talk to other people who know the field, and
Speaker 1: we can express our views and sometimes agree, sometimes disagree,
Speaker 1: and we hope learn from each other and come to
Speaker 1: better views ourselves. It definitely wasn't for the faculty meetings,
Speaker 1: Thank you very much, or Jane much is true, thank you.
Speaker 1: My conversation with Eugene raised in my mind one of
Speaker 1: the hardest problems to me, at least in the freedom
Speaker 1: of speech, and that is, should our speech be treated
Speaker 1: with the same degree of freedom in environments like the
Speaker 1: workplace or the university, where our values and goals may
Speaker 1: be potentially a little bit different from the values and
Speaker 1: goals we have in the naked public square. Eugene is
Speaker 1: very concerned about slippery slope problems. He's worried that forms
Speaker 1: of limitation on speech that we design for the workplace,
Speaker 1: or that we design for the university, or for other
Speaker 1: settings where we tend to think, or at least I
Speaker 1: tend to think that speech can rightfully be constrained, might
Speaker 1: in the long run, have the effect of undercutting our
Speaker 1: commitment to free speech. More generally, line drawing is one
Speaker 1: of the hardest tasks that the law faces. It's also
Speaker 1: a task that the law has to engage in every day,
Speaker 1: and of course there is also a slippery slope argument
Speaker 1: the opposite direction. If we insist on nearly absolute free
Speaker 1: speech in every context, what will that mean for our
Speaker 1: society's ability to shape productive, meaningful interactions and conversations in
Speaker 1: places like the workplace and the university. In any case,
Speaker 1: there's nothing like testing out one's ideas about free speech
Speaker 1: against the strongest pro free speech position in order to
Speaker 1: figure out where you believe lines can appropriately be drawn.
Speaker 1: Until the next time I speak to you, be careful,
Speaker 1: be safe, and be well. Deep Background is brought to
Speaker 1: you by Pushkin Industries. Our producer is Lydia Jane Cott,
Speaker 1: with mastering by Jason Gambrell and Martin Gonzalez. Our showrunner
Speaker 1: is Sophie mckibbon. Our theme music is composed by Luis
Speaker 1: gera special thanks to the Pushkin Brass, Malcolm Gladwell, Jacob Weisberg,
Speaker 1: and Mia Lobel. I'm Noah Feldman. I also write a
Speaker 1: regular column for Bloomberg Opinion, which you can find at
Speaker 1: Bloomberg dot com Feldman. To discover Bloomberg's original slate of podcasts,
Speaker 1: go to Bloomberg dot com Slash Podcasts. And one last thing.
Speaker 1: I just wrote a book called The Arab Winter, a Tragedy.
Speaker 1: I would be delighted if you checked it out. If
Speaker 1: you liked what you heard today. Please write a review
Speaker 1: or tell a friend. You can always let me know
Speaker 1: what you think on Twitter. My handle is Noah R Feldman.
Speaker 1: This is deep background