WEBVTT - FREEDOM OF SPEECH: Eugene Volokh 0:00:15.356 --> 0:00:24.116 Pushkin from Pushkin Industries. This is Deep Background, the show 0:00:24.156 --> 0:00:27.276 where we explore the stories behind the stories in the news. 0:00:27.716 --> 0:00:32.636 I'm Noah Feldman. Today we're continuing our Freedom of Speech series, 0:00:32.796 --> 0:00:35.116 and I'm going to share with you a conversation I 0:00:35.236 --> 0:00:38.516 had with an expert whom I admire greatly and with 0:00:38.516 --> 0:00:42.996 whom I very frequently disagree. Eugene Valak teaches First Amendment 0:00:43.076 --> 0:00:46.516 law at the UCLA School of Law. He's the author 0:00:46.556 --> 0:00:48.836 of a casebook about freedom of speech called the First 0:00:48.876 --> 0:00:52.516 Amendment and Related Statutes. His law few articles and his 0:00:52.556 --> 0:00:55.196 friend of the Court briefs have been cited in numerous 0:00:55.236 --> 0:00:58.556 Supreme Court cases. He's also the founder and co author 0:00:58.596 --> 0:01:02.836 of The Volak Conspiracy, a leading legal blog which, sometimes, 0:01:02.876 --> 0:01:06.716 depending on the issue, tends towards the conservative or libertarian. 0:01:07.356 --> 0:01:09.596 In the world of legal academia, where I have my 0:01:09.676 --> 0:01:13.436 day job, Eugene is universally recognized across the range of 0:01:13.476 --> 0:01:16.476 political opinions as one of the most significant and influential 0:01:16.556 --> 0:01:20.196 voices about the freedom of speech. I spoke to Eugene 0:01:20.396 --> 0:01:27.356 back in March. Eugene, I wonder if you would start 0:01:27.356 --> 0:01:31.116 by telling our listeners how you got interested in the 0:01:31.236 --> 0:01:35.196 freedom of speech, because your profile up until the time 0:01:35.236 --> 0:01:37.836 when you did fancy a pelletchord in Supreme court clerkships 0:01:37.836 --> 0:01:41.196 and became a law professor was extremely unusual. So how 0:01:41.236 --> 0:01:42.996 did you get interested in this issue in the first place. 0:01:43.316 --> 0:01:46.636 I've been interested in a constitutional law, and in particular 0:01:46.636 --> 0:01:49.636 free speech laws, since I was in my mid teens. 0:01:50.356 --> 0:01:53.236 I actually went to law school planning and becoming a prosecutor. 0:01:53.956 --> 0:01:56.276 And then I realized in law school two things. One 0:01:56.356 --> 0:01:59.356 is that prosecutors generally didn't do much with law like 0:01:59.476 --> 0:02:02.356 most lawyers. They did things with facts, as is right. 0:02:02.436 --> 0:02:05.396 That's what prosecutors should be mostly focused on, is figuring 0:02:05.396 --> 0:02:07.596 out the facts and proving the fact. But I was 0:02:07.636 --> 0:02:10.236 interested in law, so that meant I'd either be an 0:02:10.236 --> 0:02:12.396 appellate lawyer or a professor. And then I saw how 0:02:12.476 --> 0:02:14.516 much fun my professors were having, so I thought, oh, 0:02:14.516 --> 0:02:18.156 I'll be a law professor, and turned out that there 0:02:18.156 --> 0:02:20.436 were interesting things to say about free speech laws. I 0:02:20.476 --> 0:02:23.516 was delighted. Now, Gene, you say that you were interested 0:02:23.516 --> 0:02:25.036 in this from the time you were a teenager, but 0:02:25.436 --> 0:02:28.876 you were not, by any ordinary standard, a normal teenager. 0:02:28.996 --> 0:02:31.676 So you came to the US when you were seven 0:02:31.956 --> 0:02:35.276 from the then Soviet Union, and then you graduated from 0:02:35.356 --> 0:02:38.356 college at UCLA with a degree in computer science and 0:02:38.476 --> 0:02:41.516 math when you were fifteen. What were you doing when 0:02:41.516 --> 0:02:43.116 you were starting to think about this as a teenager? 0:02:43.196 --> 0:02:44.956 Was that when you were actively doing the job of 0:02:44.996 --> 0:02:48.196 a computer programmer. Yeah. I'd worked as a computer programer 0:02:48.196 --> 0:02:51.036 actually ever since I was twelve, and I was happy 0:02:51.076 --> 0:02:53.716 to be a programmer, and I was excited about my 0:02:53.796 --> 0:02:56.996 programming career. But at the same time, I was interested 0:02:56.996 --> 0:02:58.676 in this in the side, as I think so many 0:02:58.716 --> 0:03:01.076 people are. Right. My guess is a lot of your 0:03:01.076 --> 0:03:03.796 listeners who are interested in free speech law or law 0:03:04.156 --> 0:03:08.556 aren't lawyers. They're just people who think that this is 0:03:08.516 --> 0:03:12.516 an import part of their civic lives and their intellectual 0:03:12.516 --> 0:03:15.516 lives is getting a better sense of the rules of 0:03:15.596 --> 0:03:18.716 governor society. So I was interested in it then, kind 0:03:18.716 --> 0:03:21.236 of on the side, and then I realized it's something 0:03:21.276 --> 0:03:24.396 I might want to turn into a career. Much as 0:03:24.396 --> 0:03:26.516 I enjoyed being a computer programmer, I wanted to be 0:03:26.556 --> 0:03:29.836 more directly involved in these big picture illegal and public 0:03:29.876 --> 0:03:33.476 policy issues. And I got exactly what I wanted. Knock Wood, 0:03:34.196 --> 0:03:36.836 do you think that having come from the Soviet Union, 0:03:36.916 --> 0:03:41.116 even as a young kid, was relevant to your eventual 0:03:41.196 --> 0:03:44.036 formation of views in the First Amendment space. I sometimes 0:03:44.356 --> 0:03:46.436 hear some of my students whose families came from the 0:03:46.476 --> 0:03:50.836 former Soviet Union talking about how they're stronger pro rights viewpoint, 0:03:50.836 --> 0:03:54.716 and in some cases even strongly libertarian perspectives come as 0:03:54.756 --> 0:03:58.796 a reaction against seeing what communism could do in practice. Yeah, 0:03:58.836 --> 0:04:01.356 you know, it's so hard to say, in part because 0:04:01.396 --> 0:04:05.356 actually lots of positions on free speech issues are very, 0:04:05.476 --> 0:04:08.836 very far from the communist position. So, you know, I 0:04:09.196 --> 0:04:12.516 hesitate to ascribe that much to my background, in part 0:04:12.556 --> 0:04:14.876 because I can't step out of my background. I can't say, well, 0:04:15.476 --> 0:04:17.356 what if I had been born in the US, what 0:04:17.436 --> 0:04:19.236 would I have thought? I don't know what wouldn't be me. 0:04:19.956 --> 0:04:22.956 I will say that earlier in my life I actually 0:04:22.956 --> 0:04:25.716 took a less speech protective view. I think my views 0:04:25.716 --> 0:04:30.076 were perhaps somewhat more open to what people would say 0:04:30.276 --> 0:04:34.236 reasonable moderate regulations of free speech. And then over time 0:04:34.316 --> 0:04:36.596 I came to the view that the government really can 0:04:36.636 --> 0:04:40.836 to be trusted with even these supposedly reasonable and moderate regulations. 0:04:41.116 --> 0:04:42.876 But I'm not sure that that was because of my 0:04:42.956 --> 0:04:46.636 background and my parents background and communist Russia. You know, 0:04:46.676 --> 0:04:49.716 it's interesting you mention the question of trusting the government, 0:04:49.716 --> 0:04:51.956 and I do think that for a lot of people 0:04:52.196 --> 0:04:56.396 that comes down to how they form their views about 0:04:56.556 --> 0:04:59.356 free speech. It's how much do they trust the government 0:04:59.716 --> 0:05:03.436 to be able to engage in certain forms of reasonable regulation. 0:05:03.756 --> 0:05:06.516 Obviously that's not the only way to think about it, 0:05:06.716 --> 0:05:08.756 but do you think that that is the way that 0:05:08.796 --> 0:05:10.996 one form views on free expression? Sort of? You know, 0:05:11.356 --> 0:05:13.796 the more you distrust the government, the more pro free 0:05:13.836 --> 0:05:16.716 speech you should be. I think that's right. I think 0:05:16.716 --> 0:05:19.116 you've hit the nail on the head there, at least 0:05:19.156 --> 0:05:21.316 as a practical matter for most people, and I think 0:05:21.316 --> 0:05:23.276 for not just how most people think about about how 0:05:23.316 --> 0:05:25.556 they should think about it. Let's take an example. People 0:05:25.596 --> 0:05:30.436 talk about fake news, and isn't fake news bad? Well, yes, certainly, 0:05:30.436 --> 0:05:34.516 outright hoaxes are bad. Lies are bad. Even honest mistakes, 0:05:34.596 --> 0:05:39.596 especially about important subjects such as vaccination or the coronavirus, 0:05:39.756 --> 0:05:42.636 or foreign policy or a wide range of other things, 0:05:42.716 --> 0:05:46.276 those are bad. Well, why not allow the government to 0:05:46.476 --> 0:05:49.356 prohibit those things? Once there's a trial, let's say, or 0:05:49.436 --> 0:05:52.636 some hearing in which it's proved that something is false. Well, 0:05:52.676 --> 0:05:54.916 if you trust the government to sort the truth from 0:05:54.956 --> 0:05:57.676 the false, then that could be a big net plus 0:05:57.716 --> 0:06:00.316 to the quality of public debate. On the other hand, 0:06:00.356 --> 0:06:03.516 if you don't trust the government, not because you think 0:06:03.636 --> 0:06:07.796 the government is always awful, no, because government is composed 0:06:07.796 --> 0:06:13.116 of people and aren't always trustworthy, and people have both 0:06:13.356 --> 0:06:17.756 subconscious biases generally and also are pushed in particular directions 0:06:17.796 --> 0:06:21.196 by their own political self interest, then I think you 0:06:21.276 --> 0:06:24.076 might come to the view that it's better to tolerate 0:06:24.236 --> 0:06:26.916 a good deal of falsehood than to give the government 0:06:26.916 --> 0:06:29.596 the power to ban certain things that might be true 0:06:29.956 --> 0:06:33.316 on the grounds that they're false. I think one way 0:06:33.316 --> 0:06:36.876 of thinking about is thinking about history. So let's say 0:06:36.876 --> 0:06:41.876 there's some particular dispute, say over whether the killing of 0:06:41.996 --> 0:06:45.156 Armenians during World War One was a deliberate genocide or 0:06:45.236 --> 0:06:48.396 just the viccissitudes of war. Now I'm not an expert 0:06:48.436 --> 0:06:52.236 on the subject. My understanding is that people who've studied 0:06:52.236 --> 0:06:54.356 it generally do think that this was a genocide. But 0:06:54.396 --> 0:06:56.796 how do I know that to the extent I know it, 0:06:56.916 --> 0:06:58.796 or let's just say to the extent I believe it. 0:06:59.156 --> 0:07:03.036 I believe it because historians seem to have come to 0:07:03.116 --> 0:07:06.596 that consensus, and the best way we can figure out 0:07:06.796 --> 0:07:09.956 what is true about history, about social sideys, and especially 0:07:09.996 --> 0:07:12.636 about philosophy, religion, arts, and the like is based on 0:07:12.716 --> 0:07:16.316 consensus of people who really have studied things closely. But 0:07:16.436 --> 0:07:19.876 I know that only because I know that they could 0:07:20.356 --> 0:07:23.956 study all possible opinions on this and hear all opinions 0:07:24.076 --> 0:07:28.676 and air opinions, even ones that ultimately their colleagueses agree with, 0:07:28.996 --> 0:07:32.876 and through the continued process of hearing all those opinions, 0:07:33.196 --> 0:07:39.716 the consensus emerges and remains broadly accepted by historians. If 0:07:39.756 --> 0:07:44.756 I learned that it's illegal to deny that this was 0:07:44.796 --> 0:07:48.516 a genocide, then I would lose confidence in that very consensus, 0:07:48.956 --> 0:07:52.636 because I would no longer think that this is something 0:07:52.676 --> 0:07:55.836 that historians are coming to after hearing all the arguments, 0:07:55.876 --> 0:07:57.876 because some of the arguments now it's illegal to make 0:07:57.916 --> 0:08:00.716 to them. So it's actually, I think, better for our 0:08:00.796 --> 0:08:04.756 understanding of truth if people can make statements, even false statements, 0:08:04.956 --> 0:08:08.116 because only that way can we be sure that all 0:08:08.196 --> 0:08:10.956 of the arguments have been aired, and the whatever consensus 0:08:10.956 --> 0:08:13.316 there is is as best we can tell an accurate one. 0:08:14.276 --> 0:08:16.796 You know, it's interesting that in this particular instance, the 0:08:16.876 --> 0:08:18.716 law in Turkey actually runs the other way. It's a 0:08:18.716 --> 0:08:21.476 crime to say that it was a genocide. And that 0:08:21.596 --> 0:08:23.916 leads to a question that I really want to ask you, 0:08:23.996 --> 0:08:27.436 which is about how the experiences of different countries might 0:08:27.476 --> 0:08:31.196 be relevant to creating different rules here. It's sometimes said 0:08:31.316 --> 0:08:33.076 that if you look at the example of Germany or 0:08:33.076 --> 0:08:37.956 other European countries where fascism or national socialism or other 0:08:37.996 --> 0:08:43.756 ideologies actually managed to swamp liberalism and then led to 0:08:43.756 --> 0:08:48.156 the emergence of totalitarianism, that in those countries there might 0:08:48.196 --> 0:08:52.396 be a strong pragmatic reason to outlaw some things that 0:08:52.436 --> 0:08:56.196 are ideas or opinions that the United States permits, for example, 0:08:56.396 --> 0:09:02.876 prohibiting racism or prohibiting statements that dehumanize people on the 0:09:02.916 --> 0:09:06.236 basis of their membership in a group. The argument is 0:09:06.276 --> 0:09:09.716 something like, those countries have learned through hard experience that 0:09:09.796 --> 0:09:13.956 they cannot trust the free marketplace of ideas to actually 0:09:13.996 --> 0:09:17.236 clear and get people not to believe in these terrible viewpoints. 0:09:17.236 --> 0:09:20.356 To the contrary, when these views were expressed under relatively 0:09:20.356 --> 0:09:23.716 free circumstances, they actually led to people adopting them. And 0:09:23.756 --> 0:09:26.636 then sometimes the conclusion is drawn from that that depending 0:09:26.636 --> 0:09:28.956 on your national experience, you should be able as a 0:09:28.996 --> 0:09:33.436 state to outlaw hate speech and to outlaw other forms 0:09:33.436 --> 0:09:36.556 of racism, or to outlaw political organizations that rely on 0:09:36.636 --> 0:09:39.636 these points of view. Do you find yourself sympathetic to 0:09:39.636 --> 0:09:41.876 that at all? Do you think to yourself, well, maybe 0:09:41.876 --> 0:09:43.396 in the United States we shouldn't do this, but in 0:09:43.436 --> 0:09:46.596 Germany it's actually appropriate for them to have a law 0:09:46.636 --> 0:09:50.316 that prohibits the Nazi Party and its symbols. No, I don't. 0:09:50.476 --> 0:09:53.516 I should say I specialize in American free speech law. 0:09:53.876 --> 0:09:55.436 I know a lot about it. I don't know a 0:09:55.476 --> 0:09:58.836 lot about foreign rules. So I've got to acknowledge that 0:09:58.956 --> 0:10:03.636 I have limited expertise in foreign law matters. But if 0:10:03.676 --> 0:10:06.276 you ask me the question, I think the answer is 0:10:06.356 --> 0:10:10.876 that the same reasons that justify skepticism of the government 0:10:10.916 --> 0:10:14.476 here justify skepticism in the government there. And that's true 0:10:14.516 --> 0:10:18.196 if it's the Germans trying to ban Nazi advocacy or 0:10:18.236 --> 0:10:22.996 more broadly, racist advocacy or of racism is potentially very 0:10:23.036 --> 0:10:27.916 broad and ill defined category or supposedly dehumanizing advocacy, or 0:10:27.956 --> 0:10:31.436 for that matter, if Polls or Ukrainians want to ban 0:10:31.556 --> 0:10:35.316 communist advocacy, communism is of course caused as much misery 0:10:35.316 --> 0:10:39.796 in those countries as Nazism caused in Germany, possibly more so. 0:10:40.196 --> 0:10:43.036 You say, well, those countries have concluded, based in the 0:10:43.076 --> 0:10:45.996 judgment of history, that they can't trust the marketplace of ideas. 0:10:46.516 --> 0:10:48.556 But I should think that the judgment of history has 0:10:48.596 --> 0:10:51.276 made it even clearer that they can't trust the government 0:10:51.716 --> 0:10:55.076 policing the marketplace of ideas. That in fact, as I 0:10:55.156 --> 0:10:58.596 understand it from our Germany did try to suppress the 0:10:58.676 --> 0:11:00.556 Nazi Party, which of course was engaged not just an 0:11:00.596 --> 0:11:03.396 advocacy of it in outright crimes, didn't do a great 0:11:03.476 --> 0:11:06.036 job of it. And then of course Nazi Germany and 0:11:06.076 --> 0:11:09.836 then in Eastern Germany, Communist Germany, they tried to regulate 0:11:09.836 --> 0:11:12.596 what they thought was in badly working marketplace of ideas 0:11:12.636 --> 0:11:18.236 by suppressing liberal democratic advocacy. So the question is always comparative, 0:11:18.356 --> 0:11:21.076 is it not? Is the marketplace of ideas perfect? Where 0:11:21.156 --> 0:11:24.596 is it even very good? The question is whether we're 0:11:24.716 --> 0:11:29.076 likely to get better results by allowing people to say things, 0:11:29.436 --> 0:11:33.756 even evil things, even wrongheaded things, or by allowing the 0:11:33.876 --> 0:11:36.876 government to control what it is that people say. And 0:11:37.076 --> 0:11:39.756 I'm pretty skeptical that giving the government that kind of 0:11:39.796 --> 0:11:42.636 power is going to be terribly helpful. We'll be right back. 0:11:52.756 --> 0:11:55.116 Let me ask you about a concrete case where this 0:11:55.396 --> 0:11:58.836 issue is actually put very directly into play on which 0:11:58.916 --> 0:12:01.556 you and I disagreed. Now, some years ago, this case 0:12:01.756 --> 0:12:05.596 took place at the University of Oklahoma, and to summarize it, 0:12:05.996 --> 0:12:10.636 there was a fraternity where two fraternity brothers were taking 0:12:10.636 --> 0:12:13.276 a group of pledges on a bus ride and then 0:12:13.316 --> 0:12:18.436 they had them sing a song that basically said, first 0:12:18.476 --> 0:12:20.476 of all, there will never be an African American. They 0:12:20.476 --> 0:12:23.516 did not use that term in our fraternity. And then 0:12:23.716 --> 0:12:26.836 it went on to say you could hang an African 0:12:26.836 --> 0:12:29.156 American from a tree, but they would not join the 0:12:29.196 --> 0:12:31.836 fraternity with me, namely with a member of the fraternity. 0:12:31.916 --> 0:12:35.916 So the song effectively insisted that there would be no 0:12:35.996 --> 0:12:39.796 blacks in their fraternity. It also threatened violence in at 0:12:39.876 --> 0:12:43.716 least in some way by invoking lynching. And when this 0:12:43.796 --> 0:12:46.076 story got out, David Bourne, who was then the president 0:12:46.076 --> 0:12:49.796 of the University of Oklahoma, acted very quickly and sanctioned 0:12:49.796 --> 0:12:52.756 the students. I believe they were actually expelled. And as 0:12:52.796 --> 0:12:56.036 I recall it, your view was that since the University 0:12:56.036 --> 0:12:59.596 of Oklahoma is bound by the First Amendment the president 0:12:59.636 --> 0:13:02.516 had actually infringed on the free speech rights of the 0:13:02.556 --> 0:13:04.596 fraternity brothers? Was that in fact your view? And if so, 0:13:04.636 --> 0:13:07.436 do you want to say a few words about why? Yeah? 0:13:07.436 --> 0:13:09.436 That it was my view. It continues to be my view. 0:13:09.476 --> 0:13:12.396 I think it was a clear First Amendment violation. I 0:13:12.436 --> 0:13:15.356 obviously have no sympathy for the particular speech they engaged in, 0:13:15.436 --> 0:13:18.116 but we should ask ourselves what would be the rule 0:13:18.316 --> 0:13:21.796 under which the university is allowed to expel students for 0:13:21.836 --> 0:13:24.676 that kind of speech. Note it's not even to like 0:13:24.756 --> 0:13:28.076 traditional speech codes, which were limited to speech on campus. 0:13:28.076 --> 0:13:32.116 This is speech off campus. This was a speech being 0:13:32.116 --> 0:13:35.396 restricted precisely because of the viewpoints that it was expressing. 0:13:36.196 --> 0:13:40.436 And if the argument is well, off campus speech expressing 0:13:40.476 --> 0:13:43.316 certain views is going to have on campus effects, Well, 0:13:43.356 --> 0:13:45.556 that's true of a vast range of off campus speech. 0:13:45.876 --> 0:13:48.396 That means that if I take it to a student 0:13:48.516 --> 0:13:52.556 were to go to a rally for a racist organization 0:13:52.636 --> 0:13:56.796 or an organization that's perceived as racist, then presumably there'd 0:13:56.796 --> 0:14:00.156 be a similar outcry and it would be similarly justified 0:14:00.156 --> 0:14:02.036 for them to be expelled for that. Well, may I 0:14:02.076 --> 0:14:05.036 try out the alternative view? Well, so, tell me, Noah, 0:14:05.076 --> 0:14:09.476 what rule you would propose under which this speech would 0:14:09.476 --> 0:14:12.596 be restrictable but other speech would not be. And why 0:14:12.676 --> 0:14:16.556 you think that rule sound but also is politically defensible. 0:14:16.636 --> 0:14:19.716 Is something that's going to actually be maintained as opposed 0:14:19.756 --> 0:14:23.236 to just leading to more and more calls for restriction. 0:14:23.996 --> 0:14:27.036 My view would be that A on a university campus, 0:14:27.716 --> 0:14:30.956 B there should be rules, as indeed are required by 0:14:30.956 --> 0:14:36.596 federal law that protect against racial discrimination. That C A 0:14:36.636 --> 0:14:42.556 fraternity is a university sanctioned organization. That D What was 0:14:42.596 --> 0:14:47.796 wrong here was conduct. The conduct was discrimination discrimination in 0:14:48.036 --> 0:14:52.276 association with the membership in this particular fraternity. They weren't 0:14:52.316 --> 0:14:54.676 making a decision on membership in that moment, but through 0:14:54.676 --> 0:14:57.836 the song, they were making it extremely clear that their fraternity, 0:14:57.876 --> 0:15:02.276 a campus organization, was a racially discriminatory one. I would 0:15:02.316 --> 0:15:04.596 add to this that there was also a threat of violence. 0:15:04.636 --> 0:15:06.956 I don't know how serious it was, but nevertheless there 0:15:06.996 --> 0:15:09.476 was a threat of violence associated with this. And then 0:15:09.556 --> 0:15:14.036 under these circumstances where what's being punished is the conduct, 0:15:14.596 --> 0:15:18.596 even if that conduct is achieved via words, via singing something, 0:15:18.996 --> 0:15:23.156 that this was a form of discriminatory conduct that was 0:15:23.276 --> 0:15:26.796 justifiable to regulate under these circumstances. And then the analogy 0:15:26.836 --> 0:15:30.636 that I would draw here is to the regulation of 0:15:30.836 --> 0:15:36.156 workplace sexual harassment, which, as we know, can be rendered 0:15:36.436 --> 0:15:41.316 civilly unlawful even when it's achieved just by talking. You 0:15:41.356 --> 0:15:45.596 know someone who says to his coworker every day, you're unqualified. 0:15:45.796 --> 0:15:47.396 You know, because you're a woman, you can't do this 0:15:47.476 --> 0:15:51.076 job well a range of other discriminatory things. We recognize 0:15:51.156 --> 0:15:54.356 that the government can sanction that conduct because it's in 0:15:54.396 --> 0:15:57.356 the workplace, which is a environment. It's a little different 0:15:57.356 --> 0:15:59.556 than being on the street. And even though it's done 0:15:59.556 --> 0:16:02.116 by words, what we're doing is we're punishing the conduct, 0:16:02.116 --> 0:16:05.396 the conduct of discrimination, rather than the words themselves. That 0:16:05.396 --> 0:16:07.516 would be the argument that I would mount. Free speech 0:16:07.516 --> 0:16:10.116 supporters actually support us all sorts of rights. Abortion rights, 0:16:10.116 --> 0:16:13.676 gun rights, and others. Often worry about slippery slopes, and 0:16:13.716 --> 0:16:17.676 I think that that worry is very justified in a 0:16:17.756 --> 0:16:21.156 legal system such as ours that's built on precedent and analogy. 0:16:21.476 --> 0:16:23.876 Let's look at in particular the kind of argument that 0:16:23.916 --> 0:16:26.476 you're making. So first, as it happens, I have long 0:16:26.516 --> 0:16:30.076 criticized workplace harassment law. I think while private employers are 0:16:30.196 --> 0:16:33.076 entitled under the First Amendment to try to control what 0:16:33.156 --> 0:16:34.996 goes on in the workplace and the interest of morale. 0:16:35.436 --> 0:16:38.236 I think that at least certain aspects of workplace harassment 0:16:38.316 --> 0:16:41.476 law go too far in coercing employers to do that. 0:16:42.036 --> 0:16:45.396 But note some of the defenses of workplace harassment law, 0:16:45.476 --> 0:16:47.876 in fact, including in your own argument. So it's in 0:16:47.916 --> 0:16:51.076 the workplace, but this isn't in the workplace. It isn't 0:16:51.076 --> 0:16:53.556 even on campus. It was on a bus, and you 0:16:53.596 --> 0:16:57.756 were saying, well, somebody telling a female coworker every day 0:16:57.756 --> 0:17:01.436 that she is unqualified. They weren't saying that to prospective 0:17:01.436 --> 0:17:06.156 black applicants to the fraternity. Indeed, my understanding is that 0:17:06.196 --> 0:17:08.516 they did not expect it to leak out. They did 0:17:08.556 --> 0:17:10.876 not want it to leak out. It's just that somebody 0:17:10.956 --> 0:17:13.796 recorded it and that's what alerted the rest of the 0:17:13.796 --> 0:17:16.636 public to it. So already you're taking one thing which 0:17:16.676 --> 0:17:19.596 I think is already at the boundary or perhaps beyond 0:17:19.676 --> 0:17:22.236 the boundary of what is acceptable under the First Amendment, 0:17:22.236 --> 0:17:25.316 which is workplace harassment law. And now see the slippage 0:17:25.476 --> 0:17:28.556 goes from the university, where the theory is university is 0:17:28.596 --> 0:17:31.676 for working, it's not for public discourse like college. Well 0:17:31.756 --> 0:17:34.556 now it's getting to college, it's not even on campus, 0:17:34.636 --> 0:17:38.996 it's off campus, and it's not speech to a person 0:17:39.396 --> 0:17:41.756 that is offensive to them at speech about a person. 0:17:42.076 --> 0:17:45.076 So what this comes down to the conduct argument is 0:17:45.076 --> 0:17:46.716 also it seems to me a way of taking things 0:17:46.716 --> 0:17:50.156 that clearly speech. What they're expelled for is what they said, 0:17:50.236 --> 0:17:53.276 and trying to redefine it as conduct. The strongest argument 0:17:53.276 --> 0:17:55.716 that I can see is, and I think you pointed 0:17:55.716 --> 0:17:59.396 to in some measure, is that well, the university could 0:17:59.516 --> 0:18:04.836 ban exclusion based on race from a fraternity, and that 0:18:04.996 --> 0:18:07.236 this was somehow a signal that they would do this. 0:18:07.356 --> 0:18:09.996 It's like you're saying, not even threatening, because again they 0:18:09.996 --> 0:18:12.276 didn't expect anybody to see it, but you're kind of saying, 0:18:12.676 --> 0:18:16.476 I will commit this wrong of discrimination. So maybe we 0:18:16.476 --> 0:18:20.036 can anticipatorially punish you, not for what you've done or 0:18:20.076 --> 0:18:22.556 whether you've been proven to do, but for what we 0:18:22.596 --> 0:18:25.356 are expecting you to do, not something we usually do 0:18:25.716 --> 0:18:28.836 under our legal system. But even if that's so, what's 0:18:28.876 --> 0:18:34.556 the typical penalty for students discriminating based on race or religion, 0:18:34.636 --> 0:18:37.316 or in sex or sexual orientation or whatever else in 0:18:37.396 --> 0:18:41.156 student group? Membership. I can bet you that it's never expulsion. 0:18:41.316 --> 0:18:44.996 Maybe it's suspension of the group sometimes, but never expulsion, 0:18:45.236 --> 0:18:47.316 which makes it clear that they weren't just saying, well, 0:18:47.356 --> 0:18:49.956 this is a and even handed no discrimination in group 0:18:49.956 --> 0:18:52.436 membership law. We're just applying to you regardless of what 0:18:52.476 --> 0:18:54.436 you're saying. They were doing it because of what they 0:18:54.436 --> 0:18:56.716 were saying. And then the last thing is the threat 0:18:56.756 --> 0:18:59.476 of violence. Well, again we have to ask how do 0:18:59.516 --> 0:19:03.436 we deal with threats of violence in songs? Generally speaking? 0:19:03.796 --> 0:19:06.916 Let's say somebody is singing cop killer, and let's say 0:19:06.916 --> 0:19:11.316 the university says, ooh, well, because we employ police officers 0:19:11.316 --> 0:19:13.316 and we heard that you were singing cop killer at 0:19:13.316 --> 0:19:16.876 a party we think praising the killing of cops. Then 0:19:16.956 --> 0:19:19.596 in that case, we're going to expel you because you're 0:19:19.636 --> 0:19:22.916 creating an unsafe environment for our police officers. I take 0:19:22.956 --> 0:19:25.756 it we'd say, no, that's not restriction on conduct. That's 0:19:25.756 --> 0:19:28.916 obvious restriction on speech. It's restriction on speech that may 0:19:28.916 --> 0:19:31.516 be quite offensive, may even be vile, but it's not 0:19:31.596 --> 0:19:34.836 something the university should be doing. That's the consequence, it 0:19:34.876 --> 0:19:38.076 seems to me, of accepting the rationale that the University 0:19:38.076 --> 0:19:40.836 of Oklahoma used here that all of these kinds of 0:19:40.836 --> 0:19:44.636 speech could equally be restricted using exactly the same arguments. 0:19:44.636 --> 0:19:47.756 Something you said, Eugene, will I imagine get the attention 0:19:47.756 --> 0:19:49.876 of some listeners as it got my attention, and that 0:19:49.956 --> 0:19:52.156 was that you were on the edge. It sounded like 0:19:52.356 --> 0:19:57.076 of saying that workplace sex harassment law as it's currently constituted, 0:19:57.396 --> 0:20:00.876 where it's possible to hold someone liable for harassment just 0:20:00.916 --> 0:20:03.116 based on things they've said, you know, without any physical 0:20:03.116 --> 0:20:07.436 touchings or other harms, is of questionable constitutionality. Not only 0:20:07.476 --> 0:20:10.116 did I say it now, I said in nineteen ninety 0:20:10.116 --> 0:20:13.236 two in what was my student note? It was my 0:20:13.356 --> 0:20:16.436 job talk. Eventually, so you've consistently held this view for 0:20:16.676 --> 0:20:18.996 more than twenty five years, Oh right, I've written literally 0:20:19.076 --> 0:20:22.436 half a dozen articles on the subject. So, in light 0:20:22.516 --> 0:20:26.596 of the Me too movement and the raising of consciousness 0:20:26.716 --> 0:20:30.596 around forms of workplaced discrimination, has any of that had 0:20:30.676 --> 0:20:32.956 any effect on your view? I mean, I understand the 0:20:32.996 --> 0:20:36.236 constitutional or legal basis for it, as you just expressed, 0:20:36.476 --> 0:20:39.516 But what about the sort of real world consequential part 0:20:39.516 --> 0:20:42.156 of the picture. Has that changed or affected your mind 0:20:42.156 --> 0:20:47.196 at all? No, I've been against sexual assault I'm happy 0:20:47.196 --> 0:20:51.556 to say all my life I have been against people, 0:20:51.596 --> 0:20:55.356 for example, engaging in sexual extortion. I made that clear 0:20:55.396 --> 0:20:58.116 in my original article. That is indeed a threat of 0:20:58.596 --> 0:21:01.436 illegal conduct, and that is generally so called quid pro 0:21:01.516 --> 0:21:04.276 quo sexual harassment. Sleep with me or you're fired, and 0:21:04.316 --> 0:21:07.636 that is communicated directly and deliberately to that person. I 0:21:07.756 --> 0:21:11.156 also actually argued in my icle that indeed unwanted speech 0:21:11.196 --> 0:21:13.316 to a person, sort of one to one speech where 0:21:13.316 --> 0:21:17.756 you're approaching somebody and insulting them, or for that matter, 0:21:17.916 --> 0:21:20.116 persistently asking the how for dates where you're not trying 0:21:20.156 --> 0:21:22.876 to insult them a love speech rather than a hate speech. 0:21:22.876 --> 0:21:26.796 But unwanted love speech, as it were, that could indeed 0:21:26.836 --> 0:21:30.716 be restricted. But speech that's merely overheard, or in the 0:21:31.036 --> 0:21:34.636 Oklahoma situation, speech that was never expected to be overheard, 0:21:34.676 --> 0:21:38.516 but that somebody records and then is revealed, No, I 0:21:38.556 --> 0:21:41.236 don't think that can be properly restricted by the government 0:21:41.316 --> 0:21:44.116 using workplace harassment law. Let me give you an example. 0:21:44.356 --> 0:21:49.876 Imagine that somebody is talking at a party. A guy 0:21:49.996 --> 0:21:52.716 is talking to other guys saying, you know, I think 0:21:52.756 --> 0:21:54.636 women just don't do a really good job here. I 0:21:54.676 --> 0:21:56.676 think that things were better when we only had men. 0:21:57.676 --> 0:22:01.836 And then somebody records that that is revealed to women 0:22:01.836 --> 0:22:04.396 of the workplace. Remember this is all set outside the workplace, 0:22:04.676 --> 0:22:08.276 and then the company is sued under Title seven for 0:22:08.636 --> 0:22:13.196 not hiring somebody for his off the job sexist statements. 0:22:13.276 --> 0:22:15.556 I think that would be outrageous to have such a 0:22:15.636 --> 0:22:19.396 lawsuit proceed and I should say, to the credit of 0:22:19.596 --> 0:22:22.396 hustle environment harassment law, I don't know of any cases 0:22:22.396 --> 0:22:25.556 that actually do involve a lawsuit proceeding based on this 0:22:25.636 --> 0:22:28.916 person's off the job speech, right, because it's workplace harassment 0:22:28.916 --> 0:22:30.516 and the fact that it's in the workplace is supposed 0:22:30.516 --> 0:22:32.796 to matter. But could you explain in your mind, what's 0:22:32.836 --> 0:22:38.156 the magic difference between discriminatory harassment that takes place directed 0:22:38.516 --> 0:22:42.036 at a person and discrimination that takes place behind their backs. 0:22:42.036 --> 0:22:45.196