WEBVTT - Were Macklemore’s First Amendment Rights Violated? 0:00:06.760 --> 0:00:09.340 Welcome to It Could Happen Here, I'm Kevin Foster, and 0:00:09.360 --> 0:00:13.149 today we're separating the art from the artist, specifically taking 0:00:13.230 --> 0:00:17.550 Macklemore's solid political takes and isolating them from his, let's 0:00:17.610 --> 0:00:20.669 just say, iconic bars like What Up, I Got a 0:00:20.690 --> 0:00:24.040 Big Cock. For those who aren't caught up, Macklemore was 0:00:24.140 --> 0:00:27.130 touring with Ed Sheeran not long ago before he was 0:00:27.210 --> 0:00:31.710 removed from the tour for espousing pro-Palestine statements on stage 0:00:31.830 --> 0:00:36.290 at MetLife Stadium in New Jersey. Specifically, he said Free 0:00:36.350 --> 0:00:40.180 Palestine a few times and thanked students at Columbia University 0:00:40.320 --> 0:00:43.419 for kicking off the encampments movement in spring of 2024. 0:00:43.420 --> 0:00:48.099 Those students inspired his song Hins Hall, the title student 0:00:48.140 --> 0:00:52.440 protesters gave Columbia's Hamilton Hall, named after Hind Rajab, a 0:00:52.500 --> 0:00:55.760 five-year-old who was brutally murdered by the Israeli Defense Forces 0:00:55.880 --> 0:01:00.580 in Gaza in January of 2024. In a beautiful case 0:01:00.680 --> 0:01:04.399 of leopards eating faces, Ed Sheeran's entire lineup of opening 0:01:04.560 --> 0:01:07.699 acts and his backing band withdrew from the tour in 0:01:07.760 --> 0:01:12.060 solidarity with Macklemore. In his next performance, Sheeran gave a 0:01:12.170 --> 0:01:14.990 sort of apology speech to the crowd, reading off a 0:01:15.050 --> 0:01:18.470 teleprompter in which he did not use the words genocide 0:01:18.590 --> 0:01:22.390 or Palestinian. Rather than focusing on that, due to the 0:01:22.530 --> 0:01:27.350 outstanding negative response to McLemore's statements from Zionist billionaires, I 0:01:27.370 --> 0:01:29.790 think it's worth listening to some of what he actually 0:01:29.870 --> 0:01:33.130 said on stage. Here's a clip from his Instagram. 0:01:33.490 --> 0:01:39.490 To all of my Jewish brothers and sisters, criticism of Israel, 0:01:40.370 --> 0:01:45.630 criticism of apartheid, being against genocide in no way is 0:01:45.670 --> 0:01:52.270 a criticism of you. My message is for peace, love, 0:01:52.330 --> 0:01:56.310 for all human beings to be treated with dignity, respect, 0:01:56.750 --> 0:02:02.060 and equality. So I say free Palestine. I say free Lebanon. 0:02:02.280 --> 0:02:06.340 I say free Cuba. I say free Congo, free Sudan, 0:02:06.780 --> 0:02:10.780 free all people in America living in fear over this 0:02:10.860 --> 0:02:20.060 terrorist organization ICE. None of us will be free until 0:02:20.100 --> 0:02:23.500 we are all free. This song is called Hen's Hall. 0:02:24.660 --> 0:02:27.810 Some deeply frightening stuff in there, at least for Robert Kraft, 0:02:27.889 --> 0:02:32.070 the pro-Israel billionaire owner of the New England Patriots football team, 0:02:32.330 --> 0:02:36.970 and Gillette Stadium in Foxborough, Massachusetts, near Boston, where McLemore 0:02:37.060 --> 0:02:40.529 was set to appear on tour with Sheeran. Kraft was 0:02:40.610 --> 0:02:44.630 not happy with McLemore's support of Palestinian equal rights on stage, 0:02:44.750 --> 0:02:47.660 and he confirmed to Rolling Stone that he barred McLemore 0:02:47.690 --> 0:02:51.700 from appearing at the Boston shows over, quote, recent actions, 0:02:51.919 --> 0:02:55.220 material shared from the stage during Ed Sheeran's shows in 0:02:55.320 --> 0:02:59.540 New Jersey, and a broader history of anti-Semitic rhetoric and 0:02:59.680 --> 0:03:02.859 imagery that we believe has been deeply offensive and hurtful 0:03:02.919 --> 0:03:07.480 to the Jewish community, unquote. Despite McLemore's clear calls for 0:03:07.540 --> 0:03:11.309 equality and peace, Kraft felt his presence at Gillette Stadium 0:03:11.350 --> 0:03:14.870 would stymie the supposed goal of providing a, quote, welcoming 0:03:14.930 --> 0:03:18.130 environment for all guests and ensuring that all events held 0:03:18.210 --> 0:03:22.180 at our venue do not provide a platform for hate speech, unquote. 0:03:22.850 --> 0:03:26.440 Funnily enough, those shows ended up getting cancelled anyway due 0:03:26.500 --> 0:03:30.800 to severe weather warnings. But Kraft allegedly did not stop there. 0:03:31.280 --> 0:03:34.340 According to a post by Macklemore following his removal from 0:03:34.380 --> 0:03:37.790 the tour, Sheeran apparently said that Kraft had rallied other 0:03:37.840 --> 0:03:41.760 stadium owners with an ultimatum, quoting from that post, if 0:03:41.880 --> 0:03:44.800 Macklemore stays on the tour, you will not be allowed 0:03:44.860 --> 0:03:49.060 to play in our venues, unquote. Messina Touring Group, the 0:03:49.120 --> 0:03:52.420 promoter of the U.S. portion of Sheeran's tour, said in 0:03:52.460 --> 0:03:54.840 a statement that they were notified by venues from the 0:03:54.940 --> 0:03:57.510 upcoming U.S. tour dates that they would not allow a 0:03:57.550 --> 0:04:01.420 concert to take place with Macklemore in the lineup. Obviously, 0:04:01.500 --> 0:04:05.200 this represents a serious affront to freedom of speech, something 0:04:05.220 --> 0:04:07.720 that is far from new on the matter of Palestine. 0:04:08.220 --> 0:04:11.000 As of yet, Kraft has not discussed or denied the 0:04:11.080 --> 0:04:15.270 allegations of mounting this pressure campaign against the rapper. In 0:04:15.310 --> 0:04:19.130 response to the controversy, basically everyone and their mother chimed in, 0:04:19.410 --> 0:04:24.410 including Representative Alexandria Ocasio-Cortez, who pretty well lays out the 0:04:24.450 --> 0:04:26.210 real focus of this episode. 0:04:26.240 --> 0:04:31.880 This is about how just a handful... of stadium owners 0:04:32.180 --> 0:04:36.600 and the elite can prevent an entire massive issue, in 0:04:36.640 --> 0:04:40.320 this case the genocide in Gaza, but it doesn't stop there. 0:04:40.820 --> 0:04:42.940 It could be speaking out about AI. 0:04:42.960 --> 0:04:45.600 It could be speaking out about any issue. 0:04:47.020 --> 0:04:50.760 Here's where things get interesting. Rolling Stone lists seven stadium 0:04:50.800 --> 0:04:54.550 venues that allegedly objected to McLemore's inclusion in the tour 0:04:54.560 --> 0:04:57.620 and and of those seven, five are publicly owned by 0:04:57.700 --> 0:05:00.900 either the city, county, or state in which they reside. 0:05:01.460 --> 0:05:03.550 I could spend quite a lot of time talking about 0:05:03.589 --> 0:05:05.970 how I think Ed Sheeran is a coward, how it 0:05:06.190 --> 0:05:09.830 is a political statement to fold in favor of genocide deniers, 0:05:10.290 --> 0:05:12.589 but what I'm far more interested in is the First 0:05:12.650 --> 0:05:16.380 Amendment implications of Kraft's alleged actions and the ways in 0:05:16.420 --> 0:05:19.440 which billionaires are able to wield authority over our right 0:05:21.740 --> 0:05:25.240 and capital. To discuss this in depth, I've interviewed friend 0:05:25.279 --> 0:05:28.850 of the pod Mo Meltzer-Cohen, a law professor at CUNY 0:05:28.890 --> 0:05:32.169 School of Law, experienced in defense of people targeted on 0:05:32.190 --> 0:05:36.310 the basis of First Amendment protected beliefs, identities, and association. 0:05:36.910 --> 0:05:41.849 Let's dive right into that. I'm kind of wondering if 0:05:41.870 --> 0:05:44.870 you can just tell me from what you know about 0:05:44.910 --> 0:05:49.370 this case, what do you make of a billionaire kind 0:05:49.390 --> 0:05:53.690 of organizing a censorship campaign like this? Have you seen 0:05:54.120 --> 0:05:57.779 similar things in different contexts around free speech? 0:05:58.300 --> 0:06:01.400 Well, certainly. And there are all manner of ways in 0:06:01.460 --> 0:06:05.320 which coercive social or economic pressure is brought to bear 0:06:05.339 --> 0:06:12.060 on different people or different events or forums in order 0:06:12.160 --> 0:06:18.669 to constrain the expressive conduct of different people. or different groups, 0:06:19.390 --> 0:06:22.950 there's certainly nothing at all that is unique or unusual 0:06:23.010 --> 0:06:27.770 about that. I think what's important to recognize before we 0:06:27.830 --> 0:06:31.029 really get too deep into this is when we're talking 0:06:31.089 --> 0:06:35.849 about free speech principles, we can talk about free speech 0:06:35.970 --> 0:06:40.990 or free expression as a shared cultural value, but the 0:06:41.130 --> 0:06:45.839 First Amendment only applies to the government. 0:06:46.510 --> 0:06:46.789 Right? 0:06:46.910 --> 0:06:50.330 So when we're talking about censorship, we need to be 0:06:50.390 --> 0:06:56.330 clear about whether we're talking about a private individual or 0:06:56.490 --> 0:07:05.000 company refusing to platform particular speech, which is certainly censorship, 0:07:05.460 --> 0:07:09.740 but it isn't government censorship of the kind that the 0:07:09.800 --> 0:07:15.740 First Amendment is concerned with. Right? Yeah. The First Amendment... 0:07:16.000 --> 0:07:20.000 as a legal principle, a set of legal principles, is 0:07:20.040 --> 0:07:26.000 a constraint on the power of the government to censor 0:07:26.300 --> 0:07:30.450 political speech or to censor free expression, right? It's a 0:07:30.490 --> 0:07:37.090 constraint on the power of the state to restrict people's 0:07:37.350 --> 0:07:42.920 ability to speak, to associate with each other, to believe freely. 0:07:44.990 --> 0:07:48.930 And so I think what's interesting about this particular situation 0:07:48.950 --> 0:07:55.490 that you've raised is that an event planning company or 0:07:55.530 --> 0:08:00.120 a private theater or Robert Kraft himself as an individual 0:08:01.100 --> 0:08:07.840 are certainly at liberty to decline to give a platform 0:08:08.420 --> 0:08:13.610 to any speech that they find offensive. Robert Kraft takes umbrage. 0:08:14.220 --> 0:08:20.100 at somebody's music, he is under no obligation to subsidize it, 0:08:20.130 --> 0:08:23.690 to support it, to give it a platform. But you've 0:08:23.790 --> 0:08:28.590 pointed out that some of these stadiums at which these 0:08:29.330 --> 0:08:34.270 performances were scheduled to occur are owned by cities, are 0:08:34.320 --> 0:08:37.199 municipally owned, or are owned by the state. 0:08:37.260 --> 0:08:43.170 I Yeah, so I can dive into a little bit 0:08:43.210 --> 0:08:47.530 of the details on that. There's specifically the stadiums that 0:08:47.570 --> 0:08:53.140 are in Philadelphia, Atlanta, Tampa, Indianapolis, and Arlington, Texas. They're 0:08:53.179 --> 0:08:56.420 not all operated by public entities, but they are all 0:08:56.640 --> 0:09:01.320 owned by public entities between city, county, and state. But 0:09:01.500 --> 0:09:04.829 in the examples where they are privately operated, it's like 0:09:04.870 --> 0:09:09.309 the Atlanta Falcons or the Philadelphia Eagles. But I reached 0:09:09.410 --> 0:09:11.730 out to these different groups, and in some cases, they 0:09:11.770 --> 0:09:15.429 tried to push it on to the operators. Like in Philadelphia, 0:09:15.500 --> 0:09:17.560 they told me to reach out to the Eagles for 0:09:17.600 --> 0:09:20.839 Lincoln Financial Stadium. They did not respond to my emails. 0:09:21.059 --> 0:09:23.340 And then I had this in, I think it was 0:09:23.420 --> 0:09:27.150 Lucas Oil Stadium in Indianapolis. They did actually respond, but 0:09:27.190 --> 0:09:30.750 that was from the Capital Improvement Board for Marion County, Indiana. 0:09:30.770 --> 0:09:35.420 And They said, quote, we can confirm Messina Touring's announcement 0:09:35.480 --> 0:09:38.400 that Macklemore will not be performing at the upcoming show. 0:09:38.800 --> 0:09:40.949 And then they said Lucas Oil Stadium is a public 0:09:40.970 --> 0:09:44.470 facility and as such is content neutral, which, you know, 0:09:44.510 --> 0:09:46.950 I had to follow up and ask about that. And 0:09:47.070 --> 0:09:49.550 they didn't respond to that. But it's a bit silly 0:09:49.590 --> 0:09:52.710 when they're sort of barring a performer. But like you said, 0:09:52.750 --> 0:09:55.910 where I feel like this was especially sort of troubling 0:09:55.970 --> 0:10:01.260 was in Tampa. They're both owned publicly. and it's operated 0:10:01.300 --> 0:10:04.079 by the Tampa Sports Authority, who did not respond to 0:10:04.100 --> 0:10:08.070 my request for comment. And that seems to create this 0:10:08.110 --> 0:10:11.410 sort of complex situation. I don't know exactly what all 0:10:11.450 --> 0:10:15.410 the contracts are behind the scenes and who gets to 0:10:15.450 --> 0:10:17.510 control these things. But if it's a publicly owned and 0:10:17.570 --> 0:10:20.850 operated facility, I mean, does that raise some concerns? 0:10:21.350 --> 0:10:25.650 It sure does. And so it's interesting that they reached 0:10:25.690 --> 0:10:28.339 back out to you that Lucas Oil Stadium said, we 0:10:28.410 --> 0:10:32.260 are content neutral. So that's a legal term of art. 0:10:32.360 --> 0:10:34.280 So let's keep them out a little bit. 0:10:34.760 --> 0:10:34.960 Yeah. 0:10:35.600 --> 0:10:39.080 So as I said, the First Amendment is a constraint 0:10:39.179 --> 0:10:45.900 on the power of the government to dictate It says 0:10:45.940 --> 0:10:51.800 the government cannot be the arbiter of expression. And so 0:10:52.940 --> 0:10:57.090 if you have a stadium that is owned by the government, 0:10:57.870 --> 0:11:03.930 presumably that forum is a public forum in the same 0:11:04.050 --> 0:11:09.849 way that a public park would be considered a public forum. 0:11:09.990 --> 0:11:12.110 And that's legally significant. 0:11:12.130 --> 0:11:12.510 Hmm. 0:11:13.220 --> 0:11:17.630 Why is that legally significant? Because in what's called a 0:11:17.679 --> 0:11:22.809 traditional public forum, land, an area that is owned by 0:11:22.850 --> 0:11:29.910 the government, well, the government is permitted to impose constraints 0:11:30.710 --> 0:11:37.630 on the time, place, and manner of expression. Those constraints, 0:11:37.750 --> 0:11:40.270 first of all, they have to be reasonable constraints, right? 0:11:40.770 --> 0:11:44.640 And those constraints may not be imposed on the basis 0:11:44.940 --> 0:11:49.900 of content or viewpoint discrimination, right? So that's what they're 0:11:49.960 --> 0:11:54.320 saying when Lucas Oil Stadium says, Lucas Oil Stadium is 0:11:54.400 --> 0:11:58.070 content neutral. It's a very inelegant way of saying we 0:11:58.160 --> 0:12:03.750 aren't discriminating on the basis of viewpoint. So constraints may 0:12:03.790 --> 0:12:06.370 be imposed, but they have to be content neutral. They 0:12:06.410 --> 0:12:11.450 can't be based on viewpoint discrimination, right? They have to 0:12:11.510 --> 0:12:17.830 be narrowly tailored to serve a significant government purpose or 0:12:17.870 --> 0:12:21.589 a significant government interest. And there are a range of 0:12:21.670 --> 0:12:27.500 things that are understood to be legitimate or valid significant 0:12:27.559 --> 0:12:33.340 government interests, right? They are things like public safety, making 0:12:33.420 --> 0:12:39.290 sure that school children's educational activities are not disrupted, right? 0:12:39.370 --> 0:12:46.820 Making sure that people have access to and from public buildings, right? 0:12:46.880 --> 0:12:53.240 These would be considered valid government interests. Now that issue 0:12:53.320 --> 0:12:57.760 sort of points up the fact that with respect to 0:12:57.820 --> 0:13:04.090 stadiums in particular, there are frequently events held at stadiums 0:13:04.920 --> 0:13:09.470 where in the wake of those events, typically sporting events, 0:13:10.309 --> 0:13:15.550 There are threats to public safety. There are very often 0:13:15.790 --> 0:13:26.580 extremely foreseeable incidences of boisterousness, shall we say, after, you know, 0:13:26.600 --> 0:13:31.100 the Super Bowl or the Stanley Cup. You know, publicly 0:13:31.179 --> 0:13:34.730 owned stadiums are not exercising their right to impose reasonable 0:13:34.790 --> 0:13:39.250 constraints on the time, place, and manner of expression by... 0:13:39.620 --> 0:13:45.240 shutting down the Super Bowl, right, in anticipation of what 0:13:45.300 --> 0:13:49.670 they could reasonably expect to be rowdiness. 0:13:50.410 --> 0:13:53.150 I think Mamdani would be recalled if he tried to 0:13:53.190 --> 0:13:56.910 stop the Knicks games over public safety concerns. 0:13:57.170 --> 0:13:59.630 I don't think Mamdani would ever do such a thing. 0:14:01.070 --> 0:14:01.630 No, I know. 0:14:01.670 --> 0:14:02.770 They won. Yeah. 0:14:02.830 --> 0:14:03.110 Yeah. 0:14:14.370 --> 0:14:17.880 In any event, it is really important to understand that 0:14:18.270 --> 0:14:22.460 it is permissible for the government to impose constraints on expression. 0:14:23.100 --> 0:14:25.840 They have to be reasonable constraints. They have to be 0:14:26.280 --> 0:14:29.840 content neutral, right? Not discriminating on the basis of viewpoint. 0:14:30.500 --> 0:14:35.480 They have to be narrowly tailored, meaning they can't just be, okay, 0:14:35.500 --> 0:14:39.970 we're going to shut down everything because we have some concern, 0:14:40.000 --> 0:14:43.490 some speculative concern that like maybe there's going to be 0:14:44.040 --> 0:14:49.820 some rowdy behavior. And finally, and critically, those constraints have 0:14:49.860 --> 0:14:55.360 to leave open what are called ample alternative channels of communication, right? 0:14:55.800 --> 0:15:02.060 So absolutely canceling a performance would not leave open ample 0:15:02.100 --> 0:15:04.790 alternative channels of communication, right? 0:15:04.990 --> 0:15:05.170 Yeah. 0:15:05.550 --> 0:15:08.510 And it's not clear what the public interest is in 0:15:08.550 --> 0:15:13.270 this case because... you know, there are exceptions. There are 0:15:13.370 --> 0:15:18.130 things that fall outside the zone of First Amendment protections. 0:15:18.200 --> 0:15:22.040 And there are things like fighting words, you know, hate speech, 0:15:22.560 --> 0:15:28.420 true threats. But it's very clear that criticism of Israel, 0:15:28.960 --> 0:15:33.960 support for Palestine, solidarity with Palestine, those things are not 0:15:34.160 --> 0:15:38.190 hate speech, right? Criticism of the political ideology of Zionism. 0:15:38.890 --> 0:15:44.110 These are not instances of anti-Semitic hate speech, right? Yeah. 0:15:44.410 --> 0:15:49.320 And so it's, you know, however offensive Robert Kraft or 0:15:49.380 --> 0:15:53.980 anyone else might find solidarity with Palestine to be, it 0:15:54.840 --> 0:16:00.440 is not speech of a kind that is exempted from 0:16:00.500 --> 0:16:05.450 the protections of the First Amendment. So, you know, if Again, 0:16:05.530 --> 0:16:09.670 if there's a private event company or a privately owned 0:16:10.030 --> 0:16:14.710 stadium that says, we don't want to have Macklemore play, 0:16:14.830 --> 0:16:16.890 they're at liberty to do that, right? They can make 0:16:16.930 --> 0:16:17.570 that decision. 0:16:18.010 --> 0:16:18.250 Yeah. 0:16:18.430 --> 0:16:22.720 What we can't have, or at least what deserves interrogation, 0:16:22.760 --> 0:16:28.540 what deserves a serious inquiry, is a publicly owned, government-run 0:16:29.120 --> 0:16:34.440 entity shutting down speech at the behest of a wealthy 0:16:34.460 --> 0:16:41.120 individual powerful individual, not on the basis of needing to 0:16:41.200 --> 0:16:45.670 impose a reasonable constraint or a reasonable restriction on the time, place, 0:16:45.770 --> 0:16:53.109 or manner of expression based on a content-neutral analysis that 0:16:53.190 --> 0:16:57.670 is narrowly tailored to serve some significant government interest while 0:16:57.830 --> 0:17:03.670 also leaving open ample alternative channels of communication, right? I 0:17:03.730 --> 0:17:10.180 am concerned about a public stadium bowing to that kind 0:17:10.220 --> 0:17:14.800 of pressure, particularly in light of the fact that Kanye 0:17:14.859 --> 0:17:23.240 West can perform freely. And Kanye West is pretty openly anti-Semitic. 0:17:23.680 --> 0:17:25.940 This is a sort of a, not even really a 0:17:25.980 --> 0:17:29.730 side note, but Kanye West performed multiple times at Raymond 0:17:29.750 --> 0:17:33.080 James Stadium in Tampa at the end of June. And, 0:17:33.359 --> 0:17:37.120 you know, while the setlist FM doesn't say that he 0:17:37.200 --> 0:17:40.330 performed his song, Heil Hitler, that I guess came out 0:17:40.730 --> 0:17:43.210 in 2025. It's hard to believe where we're at sometimes, 0:17:43.290 --> 0:17:46.710 but it's the the the open hypocrisy of that is 0:17:46.770 --> 0:17:48.230 just astounding. 0:17:48.490 --> 0:17:51.889 But well, it's never been about anti-Semitism. 0:17:52.090 --> 0:17:52.350 Right. 0:17:52.830 --> 0:17:55.780 I mean, just as a as a side side note. 0:17:56.320 --> 0:17:59.980 There are more Christian Zionists in the United States than 0:18:00.000 --> 0:18:02.179 there are Jews in the entire world, and they are 0:18:02.300 --> 0:18:08.540 explicitly motivated by explicitly anti-Semitic goals, right? One of which 0:18:08.680 --> 0:18:12.859 is to create a mass exodus of Jewish people from 0:18:13.140 --> 0:18:18.159 the so-called global north. Oh, God. And the other of 0:18:18.270 --> 0:18:24.010 which is to hasten the apocalypse, at which point, according 0:18:24.090 --> 0:18:30.179 to the Christian Zionist eschatology, some Jews will become Christian 0:18:30.680 --> 0:18:35.909 and remaining Jews will go to hell. So this is 0:18:35.950 --> 0:18:40.389 not and has never been about anti-Semitism. It is about 0:18:40.490 --> 0:18:44.210 criticism of Israel. It is about solidarity with Palestine. Now, 0:18:45.369 --> 0:18:49.389 you know, we're looking at this very sort of niche 0:18:49.730 --> 0:18:53.960 and narrow issue of what are the implications for the 0:18:54.000 --> 0:18:58.940 First Amendment in when we have a municipally owned or 0:18:59.040 --> 0:19:07.100 a government owned event space and a performer is prevented 0:19:07.200 --> 0:19:12.639 from or forbidden from performing in that space, clearly on 0:19:12.680 --> 0:19:17.080 the basis of what would typically be understood to be 0:19:17.119 --> 0:19:22.109 protected speech. Why does it matter? I mean, just to clarify, 0:19:22.350 --> 0:19:25.960 I am not an expert certainly in whatever kinds of 0:19:26.140 --> 0:19:32.359 leases or contract arrangements there are between these cities or 0:19:32.480 --> 0:19:39.200 states and, you know, third-party event planning companies, which, you know, 0:19:39.310 --> 0:19:44.169 if there's enough space in between, you know, the stadium 0:19:44.790 --> 0:19:49.970 and the decision being made potentially by a private third party, 0:19:50.900 --> 0:19:54.340 that might vitiate some of those First Amendment protections. 0:19:54.680 --> 0:19:54.880 Yeah. 0:19:55.020 --> 0:19:55.220 Right. 0:19:55.760 --> 0:19:58.080 I don't know because I don't know enough of the 0:19:58.160 --> 0:20:02.270 facts on the ground there. And nevertheless, I think it 0:20:02.350 --> 0:20:06.970 is really important for us to address ourselves to this question. 0:20:06.990 --> 0:20:12.600 Am I a Macklemore fan? I, you know, not particularly. 0:20:13.380 --> 0:20:16.790 I mean, he's fine. But my concern is not with 0:20:17.570 --> 0:20:24.410 a wealthy and powerful recording artist. My concern is that 0:20:25.190 --> 0:20:29.470 we look at this situation with Macklemore, and I think 0:20:29.550 --> 0:20:36.890 it is obscuring a whole range of threats to free 0:20:36.970 --> 0:20:40.110 expression for the rest of us, right? Because, you know, 0:20:40.410 --> 0:20:44.780 is anyone going to be real worried about Macklemore's welfare? No, 0:20:46.380 --> 0:20:49.680 he's fine to his credit by his own admission. He's 0:20:49.740 --> 0:20:55.900 not suffering. My concern is not with Macklemore not being 0:20:55.940 --> 0:20:59.419 allowed to play a show. My concern is with the 0:20:59.619 --> 0:21:04.680 implications for the rest of us when we're allowing these 0:21:04.740 --> 0:21:10.460 kinds of incursions into First Amendment protections. And I think 0:21:10.520 --> 0:21:15.970 this is such an interesting case because the fact that 0:21:16.030 --> 0:21:20.610 it's Macklemore is actually functioning, I think, to camouflage what 0:21:20.650 --> 0:21:24.409 those threats are, right? Because we're also focused on the 0:21:24.450 --> 0:21:29.570 fact that it's this wealthy, powerful guy that we're missing 0:21:29.810 --> 0:21:34.209 the fact that the First Amendment protections can't be mobilized 0:21:34.270 --> 0:21:40.209 to protect his free expression, how else might we see 0:21:40.570 --> 0:21:45.600 these end runs around constitutional protections for the rest of us? 0:21:46.340 --> 0:21:48.940 I think there are a lot of things that are 0:21:49.020 --> 0:21:54.139 protected by the First Amendment that aren't necessarily legible to 0:21:54.380 --> 0:22:00.330 us as First Amendment protected beliefs, associations, or activities. 0:22:01.100 --> 0:22:01.280 Right. 0:22:01.320 --> 0:22:03.780 Because we often will think about things that are First 0:22:03.840 --> 0:22:07.160 Amendment protected as being like the right to go to 0:22:07.180 --> 0:22:12.320 a particular kind of religious institution or the right to 0:22:12.380 --> 0:22:17.220 go to a protest. Right. But a lot of the 0:22:17.280 --> 0:22:22.419 most important First Amendment case law deals with things like 0:22:23.310 --> 0:22:28.690 are multiple adolescents allowed to hang out on the public 0:22:28.810 --> 0:22:34.859 sidewalk together? without getting arrested, right? Does it constitute probable 0:22:34.980 --> 0:22:39.600 cause of unlawful conduct for there to be more than 0:22:39.720 --> 0:22:44.720 two Black children hanging out together on the stoop? Yeah. Right? 0:22:45.020 --> 0:22:48.560 That's not the kind of First Amendment protected activity that 0:22:48.619 --> 0:22:51.680 most people think about. It's not the top of mind 0:22:51.740 --> 0:22:55.310 when you say First Amendment, right? I think people are 0:22:55.350 --> 0:22:58.950 thinking about, you know, people like marching against the war 0:22:59.010 --> 0:22:59.730 in Vietnam. 0:22:59.910 --> 0:23:00.050 Yeah. 0:23:00.640 --> 0:23:04.870 But we do many things every day that are protected 0:23:04.910 --> 0:23:07.689 by the First Amendment, not just, you know, posting on 0:23:07.990 --> 0:23:13.879 the internet, not just, you know, having privacy with respect 0:23:13.910 --> 0:23:17.320 to who we're calling, right, being permitted to make phone 0:23:17.359 --> 0:23:22.659 calls to anyone we want. Like a birthday party is 0:23:22.720 --> 0:23:27.590 a First Amendment protected gathering, right? Our right to assemble. 0:23:28.210 --> 0:23:34.040 our right to free association, right? And so having an 0:23:34.280 --> 0:23:43.659 incursion into those protections, any incursion into those protections has 0:23:44.080 --> 0:23:48.960 implications for all of those other things. And if we 0:23:49.119 --> 0:23:51.680 stop paying attention and we say, oh, this is sort 0:23:51.720 --> 0:23:56.219 of a punchline, right? Oh, Macklemore's being canceled by the 0:23:56.280 --> 0:24:01.169 rich right-wing, stadium owners, and we don't look at the 0:24:01.210 --> 0:24:04.490 fact that there is a public performance that is being 0:24:04.580 --> 0:24:12.060 canceled by potentially the government, we're missing a whole range 0:24:12.840 --> 0:24:18.949 of risks. Because what's at stake is not Macklemore's career. 0:24:19.730 --> 0:24:26.510 What's at stake is the ability of all of the 0:24:26.570 --> 0:24:35.100 rest of us to freely associate, to petition the government, 0:24:35.119 --> 0:24:41.490 to believe the things that we believe without being censored, 0:24:42.490 --> 0:24:57.149 without being punished for doing so. So one of the 0:24:57.290 --> 0:25:01.909 other things that deserves to be said here is one 0:25:01.950 --> 0:25:04.760 of the reasons that this is a little bit confusing 0:25:04.800 --> 0:25:08.540 and that the waters are so muddied is this issue 0:25:08.580 --> 0:25:11.379 that I referred to a minute ago with respect to 0:25:12.140 --> 0:25:19.420 these publicly owned stadiums, leasing out digital authority to these 0:25:19.500 --> 0:25:23.740 third party companies, right? Yeah. Or private and which are, 0:25:24.380 --> 0:25:29.070 as non-government entities are not subject to the constraints of 0:25:29.109 --> 0:25:33.810 the First Amendment. That's not a problem with the First Amendment. 0:25:34.730 --> 0:25:39.100 That's a problem with the privatization of public life. 0:25:39.119 --> 0:25:39.959 Yeah. 0:25:40.560 --> 0:25:42.520 And I think we're seeing that in a lot of 0:25:42.660 --> 0:25:46.760 other realms as well. So for example, as we see 0:25:47.140 --> 0:25:55.010 traditional government functions being more and more assumed by private utilities, 0:25:55.570 --> 0:25:59.129 we have a situation where what, you know, 40 years 0:25:59.210 --> 0:26:04.360 ago might have been people petitioning the government not to 0:26:04.400 --> 0:26:08.040 build a pipeline, right? That would have been a First 0:26:08.140 --> 0:26:12.959 Amendment protected gathering, right? We might have a protest at 0:26:12.980 --> 0:26:17.830 a government building. That would be protected by the First Amendment. Now, 0:26:18.070 --> 0:26:20.750 if you have a group of people who want to protest, 0:26:21.010 --> 0:26:26.790 for example— a pipeline, that whole process beginning to end 0:26:27.250 --> 0:26:34.109 may be so controlled by a private corporation that there's 0:26:34.170 --> 0:26:38.610 no government building to protest that anymore, right? And so 0:26:38.650 --> 0:26:42.340 what would have otherwise been a First Amendment protected protest 0:26:42.400 --> 0:26:45.200 is now a bunch of trespassing charges. Yeah. 0:26:45.820 --> 0:26:46.040 Right. 0:26:46.100 --> 0:26:48.900 Because the place that people are going to do that 0:26:48.960 --> 0:26:53.820 protest to carry out that protest may be private property. Right. 0:26:54.119 --> 0:26:54.379 Yeah. 0:26:54.880 --> 0:26:58.040 You know, we're no longer petitioning the government. Now we're petitioning, 0:26:58.640 --> 0:27:00.859 you know, energy transfer partners. 0:27:01.580 --> 0:27:03.899 This sort of, you know, raises this question. On the 0:27:04.000 --> 0:27:06.320 one hand, I'm like, oh, I'm not as worried about, 0:27:06.380 --> 0:27:09.350 you know, Robert Kraft getting to say, oh, Macklemore is 0:27:09.400 --> 0:27:13.470 not welcome at Gillette Stadium. I'm thinking about the ways 0:27:13.550 --> 0:27:17.220 in which he's able to use his wealth and capital 0:27:17.340 --> 0:27:21.340 to sort of manipulate the situation with government entities or 0:27:21.400 --> 0:27:24.340 call on his NFL buddies to kick them out in 0:27:24.480 --> 0:27:28.770 other places. But there is also a consideration around the 0:27:28.790 --> 0:27:33.010 concentration of wealth and the ways in which privatization is 0:27:33.090 --> 0:27:38.170 rapidly happening in various different instances across the country. And 0:27:38.869 --> 0:27:41.010 at what point do you see the shrinking of the 0:27:41.070 --> 0:27:44.879 public square just generally across the board? And the ways 0:27:44.900 --> 0:27:48.270 in which billionaires are then able to control the narrative 0:27:48.530 --> 0:27:49.590 through that ownership. 0:27:50.330 --> 0:27:50.530 Yeah. 0:27:51.510 --> 0:27:54.050 I think one of the other things that is worth 0:27:54.609 --> 0:27:57.490 pointing out is a lot of times when we're talking 0:27:57.570 --> 0:28:04.820 about First Amendment retaliation or, you know, what we're seeing here, right, 0:28:04.859 --> 0:28:10.460 where you see an organization, public or private, engage in 0:28:10.500 --> 0:28:14.570 this kind of really obvious way censorship on the basis 0:28:14.770 --> 0:28:20.330 of viewpoint, we usually do not see the kind of 0:28:20.550 --> 0:28:23.550 smoking gun, but you know, the putting it in an 0:28:23.630 --> 0:28:28.120 email and saying, I don't want to see this individual 0:28:28.640 --> 0:28:32.219 being allowed to perform for the following reason, which is 0:28:32.280 --> 0:28:36.260 that he expressed solidarity with Palestine, right? we usually see 0:28:36.340 --> 0:28:39.980 at least a little bit more, well, usually we don't 0:28:40.020 --> 0:28:41.240 have a smoking gun email. 0:28:41.560 --> 0:28:44.290 Yeah, or talking to the press about it. 0:28:45.620 --> 0:28:47.960 And I think that one of the things that's actually 0:28:48.040 --> 0:28:53.120 unusual about this situation is that maybe just due to 0:28:53.420 --> 0:28:57.250 wealth and power, Robert Kraft didn't have any compunction or 0:28:57.550 --> 0:29:01.190 concern about very publicly saying, I don't want this to 0:29:01.230 --> 0:29:06.630 happen because I am offended personally by... the political content 0:29:06.890 --> 0:29:10.690 of his speech. Yeah. And I would say, you know, 0:29:10.810 --> 0:29:14.390 typically people who are at least in government who have 0:29:14.430 --> 0:29:17.120 the kind of power know better than to say the 0:29:18.080 --> 0:29:20.940 quiet part out loud. Yeah. And I think it's sort 0:29:20.960 --> 0:29:25.340