��֭����

Note: This is an unedited rush transcript. Please check any quotations against the audio recording.

Nico Perrino: Welcome back to, So to Speak: The Free Speech Podcast, where every other week, we take an uncensored look at the world of free expression through personal stories and candid conversation. I am, as always, your host, Nico Perrino. If you care about free speech, as I'm sure you do, if you're listening to this podcast, you've probably heard the name of the English philosopher John Stuart Mill. You may have even read his famous 1859 treatise, On Liberty, which is regarded by many free speech advocates as the single best philosophical defense of free speech values ever written.

On Liberty gave birth to free speech bangers like, “He who only knows his side of the case, knows little of that,” “Both teachers and learners go to sleep at their posts as soon as there is no enemy in the field”, and “To refuse a hearing to an opinion because you are sure that it is false is to assume that your certainty is the same thing as absolute certainty.” Near the end of his life, Mill wrote that he regarded On Liberty as his greatest work. Noting that, “It is likely to survive longer than anything else that I have written.”

Our guests on today's show contend that Mill’s arguments for free speech have indeed persevered, and have greatly influenced the United States Supreme Court's thinking about the First Amendment. The book, The Supreme Court and the Philosopher: How John Stuart Mill Shaped US Free Speech Protections, looks at how the Supreme Court has increasingly aligned its interpretation of freedom of expression with Mill’s philosophy. Co-authors Eric Kasper and Troy Kozma chart the history of the Supreme Court's First Amendment jurisprudence to track how the court has slowly shifted its approach from a Blackstonian common law understanding of free speech to a more Millian one.

Eric Kasper is professor of political science at the University of Wisconsin - Eau Claire, where he serves as the director of the Minard Center for Constitutional Studies. Eric, welcome on to the show.

Eric Kasper: Thank you for having me.

Nico Perrino: And Troy Kozma is a professor of philosophy and the academic chair at the University of Wisconsin - Eau Claire, Barron County. Troy, welcome on to the show.

Troy Kozma: Thanks.

Nico Perrino: All right. So, let's get started by asking the origin of this book. Eric and Troy, how’d you come to the topic? Let's start with you, Eric.

Eric Kasper: Yeah. Well, part of it is kind of a puzzle. The language of the First Amendment, “Congress shall make no law abridging the freedom of speech, or of the press.” It is rather short and compact in terms of what the actual constitutional text says. There are very few records from the debates in the first congress that would shed a lot of light into the meaning of the freedom of speech there. And so, it kind of raises this question, in actual concrete cases, how do we know what this protects?

And really, it started of as Troy and I were working on some of these various projects. It comes to a conference papers, which eventually turned into articles, eventually turned into a book. One of the things that we noticed is that there seemed to be this kind of line, this thread, in terms of some of the things that were in John Stuart Mill’s On Liberty, and some of the same sorts of sentiments and phrases that show up in US Supreme Court opinions. And so, that created a bit of a puzzle for us to kind of dig into a little bit more to see, okay, what are those connections? And why are they there?

Nico Perrino: And Troy, had you been familiar with those connections before you started working on the project? As a, I'm assuming, a professor of philosophy, you're pretty familiar with Mill’s work. But are you familiar with the writings of the Supreme Court?

Troy Kozma: No. So, I came in as a philosopher, and Eric came in as a lawyer. He knows the court decisions like nobody's business. What I was interested in was trying to figure out, not only, are there linkages between the decisions, and the language of the decisions, and Mill. But also to sort of look at the parts of On Liberty that people – just the lesser known parts. Which justify and sort of explain why Mill thinks that liberty is so important. And truth is the sort of thing that people glom onto. But it's only the first step. Right?

And what Mill is really concerned about is this idea of a flourishing person and how you can become one. And so, the first step is having access to ideas. Including ideas that you've never thought of before. And ideas that you might have originally thought were offensive or ridiculous, but come to see to be perhaps applicable to you.

So, that's where I was interested in. I think you can see that the Supreme Court initially takes a very sort of minimalist view of Mill, and it then sort of grows. Right? You'll see that initially, the speech that is protected is political. It's explicitly designed to sort of protect people who disagree with what the state is saying. But then it starts to move away from that. Right? And it starts to defend commercial speech. And then it also starts to defend sort of depictions that people would find offensive. Right? Restrictions against pornography.

And all of that, I think, is an idea that the court is seeing that the reason that free speech is so important is the Millian sort of notion. That unless you give people the kind of basis to sort of make their own decisions, and make informed decisions, you're not going to actually have an informed and flourishing populace. So, that's what really got me, was this sort of evolution of the court to, in my mind, a far more Millian substantive view than merely sort of taking the – some of the texts from the first couple chapters.

Nico Perrino: It would probably be helpful for our listeners here to maybe take a step back. And Troy, I'll ask you this since you're the philosopher. Who is John Stuart Mill?

Troy Kozma: So, John Stuart Mill is one of those renaissance men. He is an active politician. He is the father – the sort of modern father, I would say, or at least maybe, I don’t know, stepson of utilitarianism. Which is an exceedingly interesting philosophical moral position. Mill is very much a progressive for his time. He argues for the rights of women to vote. He is very much a move –

It's interesting, in On Liberty, he does this interesting rhetorical trick where he uses Christianity as the sort of target. Right? So, he'll go back into Roman times and say, “Well, look, at this point, Christ was considered to be a danger to the state. And the ideas of Christianity were suppressed. And at the time, they thought this was perfectly justified, that this was the right thing to do. And now, in 1860, we see that they're wrong.” Right? And so, part of it is going on this idea of trying to use the ideas at the time. Right? This notion that Christianity has got to be right, in a way which is kind of interestingly subversive. Right? Because he's actually arguing that ideas which are opposed to Christianity also have to be protected.

So, he's this interesting fellow. He's not all progressive, as we discuss sort of briefly in the book, and in more in articles. He has some disturbingly racist and ethnocentric views. Right? But comparatively speaking, he is a really forward thinking fellow.

Nico Perrino: He had some influence from his father as well. Right? He wrote in his autobiography that he and his father held in common an almost unbounded confidence in the efficacy of two things, representative government and complete freedom of discussion. And you write in your book that about a third of On Liberty is devoted to freedom of expression. And Troy, I think you had mentioned earlier that he saw freedom of expression as necessary to this broader project that he was concerned with, that is human flourishing. So, let's talk a little bit now about his conception of free speech, before we move on to its application to the First Amendment and the US Supreme Court. I think it's important that our listeners understand what his framework for freedom of expression is.

And Eric, I'll turn to you here. The harm principle is something that's really important to Mill. He writes, “The sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number is self protection. That the only purpose for which power can rightfully be exercised over any member of a civilized community against his will is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.” What is he saying there?

Eric Kasper: Well, he’s saying that for government to exercise power over the individual, it has to be for the explicit purpose of preventing someone from engaging in it in a direct harm to someone else. Right? So, the notion, for instance, that it would be immoral to do something. For Mill, that's not enough for the government to actually use its power to stop someone from doing it. I mean, what Mill has in mind here with the harm principle is if someone is going to engage in some sort of direct physical harm against someone else, some sort of property harm against someone else, under those circumstances, the government has a role in protecting people from those who would do them harm.

But the notion that something would be immoral or that it might be bad for you yourself if you did it, Mill says, “No, that's not something where the government should be able to use its power to stop someone from acting.” That those are instances, really for Mill, where it comes down to, what gets defined by the government as moral or immoral, that there is a lot of subjectivity in that. And Mill is concerned about kind of a majoritarian decision about something being determined to be immoral, and therefore people being prohibited from doing it.

Similarly, the notion that something might be harmful to yourself. If someone else thinks that it wouldn't be good for you to engage in certain action, or even to say certain things, that the government doesn't have a role in that in Mill’s view. Because for him, a lot of this comes down to, you have to make that choice for yourself. And even if it is a mistake to engage in that behavior, or to say those things, that that is something then that an autonomous individual should have the right to do. And ultimately learn from if they do it and later conclude, “Well, that was that was a mistake for me to engage in that behavior.” But in those circumstances, the government doesn't have a role to stop someone from acting. Only if there is that kind of direct harm, did Mill see a role for the government to act.

Nico Perrino: And did he have like a personal interest in this? My understanding is he was a pretty transgressive radical guy in his beliefs. And I think also, in some of his personal relationships – right? – he felt that kind of stultifying conformity that came from his contemporary English culture?

Eric Kasper: Yeah. I mean, and part of this is kind of prevailing moral attitudes of the day that he is fighting against and things that – some of the things that that Troy mentioned earlier. I think about women's rights and kind of prevailing views at the time in that regard. I mean, that was certainly important to him, and you can see that in his writings.

And also, if looking specifically at the freedom of speech, if it is a situation where the government can, for instance, strongly enforce rules of decorum when it comes to how people should speak and the ways that they should express themselves. Part of Mill’s fear there is that then the government will use those types of rules of decorum for speech as a weapon against dissenting views. Right? That it becomes easy for the government to enforce those sorts of rules of decorum against people that the government disagrees with, and then to back off and not enforce those rules if the government agrees with the position being expressed.

And so, that's one of Mill’s big concerns that that comes up in On Liberty as well. Right? That those sorts of kind of rules of decorum when it comes to speech, that might be imposing kind of moral rules about how people should express themselves, that that easily can turn into a kind of viewpoint discrimination when the government enforces those rules.

Nico Perrino: So, am I correct in interpreting this, Troy, to mean that he would give almost universal protection for opinion? He writes in On Liberty, “If all mankind, minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind.” I mean, that seems like a pretty robust, and frankly eloquent, defense of all opinion. The idea being that no opinion can really ever harm anyone.

Troy Kozma: Yeah. I mean, Mill is a maximalist in terms of free speech protections. And one of the things that we don't talk about in the book because we're concerned with the Supreme Court, but these restrictions he has can also move out to society. So, he thinks that social pressures to compel someone to act in a certain way, or to not act in a certain way, are also illegitimate. And so, it's not merely the legal structure that he is concerned with, but also the social structure. And in fact –

Nico Perrino: So, he wouldn't have liked cancel culture, probably.

Troy Kozma: No, no, I don't think he would. In fact, he says that the social pressure actually is probably more dangerous than the legal pressure. Because the legal pressure is sort of there, it can be sort of changed – right? – if you change the laws. But social attitudes are amorphous. And for most people, they're the things which affect how they're going to behave. So, in that way, I think he is a larger or sort of a broader defender of free speech than most people realize.

Nico Perrino: All right. Let's move now then to the Supreme Court. Up until – what? 1931? – the Supreme Court had never struck down a violation of an individual's free speech rights on First Amendment grounds. Prior to that moment, it was largely concerned with prior restraints. But even then, the First Amendment, at least as we conceive of it today, was largely a dead letter. And I think your book kind of explains how it became revitalized and reinvigorated to be the First Amendment that it is today. But Eric, what was the First Amendment for the first 150 or so odd years of its existence?

Eric Kasper: Yeah. I mean, and it is, as you point out, it's kind of amazing. It's not until 1931 that we have a successful challenge of a government restriction on the freedom of speech on First Amendment grounds. And that is not to discount what the popular sentiment was of what the freedom of speech was and what it should protect in terms of the general public. But certainly, when we look at the US Supreme Court, we don't see much movement at all in that regard until 1919. And then really not until 1931, do we see this open up.

Earlier on, it really, for the Supreme Court, it comes down more to this common law understanding. Probably coming from Sir William Blackstone and his commentaries on the laws of England more than anything else. He wrote in the commentaries that the liberty of the press consists in laying no previous restraints upon publication, and not in freedom from censure for criminal matter when published. Right?

And so, this notion that the First Amendment, this legal notion of the First Amendment, protected you against restrictions before the fact from the government seizing publications, for instance, before they went out. But after the fact, there could be all sorts of regulations and restrictions on expression. Including for moral reasons. Right? And we see this as the prevailing view on the US Supreme Court.

Probably the best example in the early 20th Century is in a case called Patterson versus Colorado. This was a contempt case. It was a newspaper publisher who had printed articles and a cartoon critical of a decision of the state Supreme Court. He's held in contempt for doing this. The US Supreme Court upholds that contempt conviction. And there's a line in that Patterson opinion, where the Supreme Court says, “The preliminary freedom extends as well to the false as to the true. The subsequent punishment may extend as well to the true as to the false.” Right?

So, it doesn't matter if it's true or it's false. There can be these types of punishments after the fact if it is deemed within the public welfare. That's the US Supreme Court's position on this when we're in the very early part of the 20th century. Very narrow interpretation of the First Amendment.

Nico Perrino: Yeah. So, this notion of prior restraints was the kind of prevailing notion. And if you look at what Blackstone said in his commentaries, it's pretty striking. Right? He says, “It's immaterial whether the matter of it be true or false since provocation and not falsity is the thing to be punished criminally.” So, even with what – if what you're saying is true, after publication, the government could still be justified under his theory of punishing you for it.

And I think that's kind of some of the stuff that the colonists were grappling with prior to the American Revolution. If you look at the trial of John Peter Zenger, who's a newspaperman who criticized, I think it was like the colonial governor of New York, and said true things about him. It was still, he was still prosecuted under this conception of seditious libel. Which is essentially saying true but mean things about people in government. Which is totally anathema – right? – to our conception of free speech in the First Amendment today. But for the early part of American history, that was largely held to be consistent with the First Amendment.

Until you get to the early part of the 20th century, when you start seeing some Supreme Court justices introduce new notions about freedom of expression. Relating, in large part, as your book argues, to the notions that John Stuart Mill articulated in his book On Liberty. So, one of them with these notions is the marketplace of ideas. And Troy, I was wondering if you could talk to us about that notion and how it started to make its way into the court?

Troy Kozma: There is this notion – right? – that the marketplace idea is – I mean, because it's fairly common now. It was very controversial at the time. It wasn't initially accepted by the court. But it’s that whether or not something is true or false is really not something which can be sort of determined legislatively. Right? What you need to do is to allow people to discuss it, and to debate it, and to hopefully lead to the truth. Mill expressly says that this is not always the case. That in many cases, the truth doesn't win out. But he has this belief that over time, reason will prevail.

And so, the US version of that – right? – well, the very US version, the marketplace of ideas, is that the buyers of the idea are the ones who decide whether it's a good idea or not. It's not the role of the state. And again, presumably, truth will win out. Or hopefully, I should, hopefully truth will win out. And Eric can cite the case that that first pops up in.

Nico Perrino: Yeah. Why don’t you tell us a little bit about Abrams v. United States, 1919.

Eric Kasper: Yeah. Well, I mean, and leading into Abrams, I mean, there's a couple of things to be aware of. I mean, first of all, that Patterson versus Colorado decision, I mean, that was written by Oliver Wendell Holmes. But he was, especially moving into the 19 teens, and toward the end of that decade, he was especially concerned like, was he getting the interpretation of the First Amendment Free Speech Clause correct?

His friend Harold Laski, who was a lecturer at Harvard, suggests that John Stuart Mill might be a way to kind of ground your thinking about this. And there's a letter then, as these two are corresponding with each other, Holmes and Laski. There's a letter that Holmes writes to Harold Laski late February 1919, where at one point in the letter he says, “Well, I reread Mill On Liberty. Fine old sportsman.” Right? He’s saying these positive things about Mill. He clearly just reread it.

And then just a few days later, the Supreme Court releases the opinion of the court in Schenck versus United States. Holmes writes the opinion, this uses a clear and present danger test. Which in and of itself doesn't get into the marketplace of ideas, but it is the stronger protection for the freedom of speech than had been the case before 1919.

Nico Perrino: And the facts of this case, this Schenk case, are pretty incredible. These are socialists – right? – handing out anti war pamphlets opposing the draft.

Eric Kasper: Yes, and it's –

Nico Perrino: And it's from this that they suggest that doing so presents a clear and present danger, akin to falsely shouting fire in a crowded theater and starting to panic.

Eric Kasper: Right. And I mean, these leaflets are – I mean, they're critical of the government. And literally one of the things on the leaflet is a quote of the 13th Amendment. Right? And the claim of Schenck is that the military draft, it violates the 13th Amendment. It's a type of slavery or involuntary servitude. And so, this is what he's ultimately charged and convicted of, in terms of trying to convince those who are draft eligible not to go, and that therefore, doing that would have a negative effect on the war effort.

The Supreme Court unanimously upholds that conviction. But it is a test that's more protective. But it's not protective enough in the eyes of Holmes's friend, Harold Laski, or in the eyes of Zechariah Chafee, who is a professor at Harvard Law School. He writes a article in the Harvard Law Review about free speech in wartime. And he says some good things about what Holmes has done. He says the Schenck opinion doesn't go far enough. Zechariah Chafee also cites Mill’s On Liberty as a better understanding of what the First Amendment should protect.

Then, in the summer of 1919, Chafee, Laski, and Holmes, they all have a get together. We don't have a record of what they talked about, but you can probably guess what was on the agenda with these three getting together that summer. And it's later that year, in November, Supreme Court decides this case, Abrams versus the United States, upholding convictions of protesters for leafleting, for advocating for a general strike to try and have an impact on the war effort.

And it's in that case with Holmes dissenting, thinking that the conviction should not have been upheld. Where he uses this understanding that eventually we kind of have packaged into the marketplace ideas. Where Holmes says that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.

Nico Perrino: Yeah. So, to just recap here. Right? You have the Schenck case, in which Justice Oliver Wendell Holmes writes the majority opinion, essentially thumbs upping the jailing of leafleters opposing the draft. But he, in so doing, he nevertheless sets out a more speech protective standard. This is the clear and present danger standard. As opposed to what had come before it, which was this bad tendency doctrine. If speech had this tendency to do something bad, then it could be punished.

Here, we now have clear and present danger, which moves us closer to Mill. Right? Because Mills's idea is this harm principle. That if what you are doing creates an imminent or substantial harm to someone else, then it could be limited by government involvement. But anything short of that, folks should be free to speak. But then you get this Abrams decision. Right? Which seems to me to be a very similar case.

But you have Justice Oliver Wendell Holmes in the dissent, saying, as you noted, the best test of truth is the power of the thought to get itself accepted into the competition of the market. This marketplace of ideas principle. He also famously writes, “Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition.”

This makes me think back to what John Stuart Mill wrote in On Liberty, “To refuse a hearing to an opinion, because they are sure that it is false, is to assume that their certainty is the same thing as absolute certainty.” This idea that censorship is this presumption of infallibility. And if you're infallible, and you know it's right, and there's no question about that, of course you'd be justified in censoring that idiot. Right? But here we have Justice Oliver Wendell Holmes saying no. No. That we need to protect free speech because, as he writes, “Men have realized that time has upset many fighting faiths.”

So, what comes after that? Does everyone say, “Kumbaya. Free speech is protected. Thank goodness for Justice Oliver Wendell Holmes and John Stuart Mill”? And we should note, Justice Oliver Wendell Holmes had traveled to Europe and met John Stuart Mill a number of times prior to this. But it was only when we get to Abrams that he starts introducing his ideas.

Eric Kasper: Yeah. He had met him when – Holmes met Mill when he was younger, decades earlier. And now he's kind of, I guess, circling back to this later in life. Again, at the behest of his friend Harold Laski, as well as with the urging of Zechariah Chafee. But yeah, it's, in 1919, in Schenck, that's not a majority opinion. Right? That's just Holmes dissenting. And he's dissenting with his colleague Louis Brandeis. And the two of them basically spend the next little more than a decade in dissent in these cases, where the Supreme Court is upholding restrictions on expression and taking a very narrow view of what the First Amendment protects. And it's basically Holmes and Brandeis in dissent again, and again, and again. But things start to open up in 1931. And they opened up a little bit in –

[Crosstalk]

Nico Perrino: Wait, wait. Before we get there, Brandeis. How does Brandeis get introduced into this story? Like, does Holmes just kind of convince him?

Eric Kasper: Well, that's an interesting question. There isn't kind of the smoking gun with Brandeis as there is with Holmes. Right? Where it's literally he's got this in this letter. I mean, it's in writing that he's saying, “I just reread Mill, and he’s saying some good things.” With Brandeis, there isn't that sort of thing in the record. But I think, as is going to be the case moving forward with a number of Supreme Court justices later on, the influence has to be kind of picked out of what they are writing in their opinions.

And for Brandeis, I mean, part of this is Whitney versus California, and his opinion there. Where he says that, “No danger flowing from speech can be deemed clear and present unless the incidence of evil apprehended is so imminent that it may befall before there is opportunity for full discussion.” And in a lot of ways, whether that's directly from Mill, or it's kind of Mill as seen through the lens of Holmes, it ties back to an example that Mill talks about in On Liberty, the famous corn dealer example. Where Mill says that, “An opinion that corn-dealers are starvers of the poor, or that private property is robbery, ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn-dealer.”

And so, Mill’s point –

[Crosstalk]

Nico Perrino: Okay.

Eric Kasper: Yeah. Mill’s point here is that even if you think that this is a dangerous idea, that this is completely wrong headed in terms of what someone is advocating, the opinion itself needs to be protected. Unless there is going to be that direct harm in the moment. Right? And that's one of the things that Brandeis seizes upon here. That if there is imminent danger, that that is a case where the speech would no longer be protected. But the opinion itself, as Mill would put it, when it's being circulated through the press, it should have absolute protection in Mill’s mind.

Nico Perrino: You have this interesting descent from Holmes in the Gitlow v. New York case in 1925. This is a case where Benjamin Gitlow was prosecuted for violating the state's criminal anarchy law, I’m reading here from your book. Which prohibited speaking, writing, printing and publishing anything “advocating, advising, or teaching the doctrine that organized government should be overthrown by force, violence, or any unlawful means.” Essentially criminalizing anything that advocated for and anarchy.

In Holmes's dissent, again eloquent, he writes, “Every idea is an incitement. It offers itself for belief. And if believed, is acted on, unless some other belief outweighs it or some failure of energy stifles the movement at its birth.” So, there, you have this kind of mixing of the marketplace of ideas with this idea of incitement.

I want to talk about how we get the First Amendment finally being applied to strike down a speech restriction in 1931. And then I want to take the rest of the time here to kind of go through all the different categories of speech that are protected under the First Amendment, and how Mill might have influenced the court’s approach to those. So, let's talk about 1931. What happened there of significance?

Eric Kasper: Well, I mean, first we, I think, we have to talk about 1930. Because we get to the appointment of Charles Evans Hughes to the Supreme Court. And Hughes, becomes an important figure because he has an outlook about what freedom means that has a lot of overlap with John Stuart Mill. Interesting tidbit about Hughes is that in his home office, he had portraits of two historical figures hanging on the wall. One was Edward White, who was the chief justice when Charles Evans Hughes was an associate justice on the Supreme Court. The other portrait was of John Stuart Mill.

And so, you see the influence right away. Where now it's Holmes, Brandeis, and Hughes. The three of them are joining together. And that very quickly helps to materialize the majority on the Supreme Court in the 1930s to start striking down some of these more restrictive policies when it comes to the freedom of speech.

And we see this right away in 1931, that kind of toward the end of that first full term for Hughes as chief justice. Stromberg versus California, overturning a conviction for a flying a communist flag. You have Near versus Minnesota, for the first time the Supreme Court finding this very explicit protection for the freedom of the press. And it becomes a very different outlook in the – throughout the 1930s into the mid 1940s, where the Supreme Court starts even characterizing First Amendment rights like the freedom of speech as what they call a preferred freedom.

Nico Perrino: So, let's talk about some of the rights. And then I think in the course of doing so, we can chart the arc and the history of the First Amendments development in the United States, kind of as a through line. Because that's really what your book is. I mean, it takes you through the 20th century and the early part of the 21st century, as this court is issuing its First Amendment opinions, and laying out how Mill may or may not have played a role in the thinkings of the court during those periods. And you get ebbs and flows in support of John Stuart Mill’s ideas.

Loyalty oaths. What would Mill think about loyalty oaths? One of the things that's striking to me, and I'm someone who spends a lot of time in the free speech world, was just how many thumbs up the Supreme Court gave to states implementing loyalty oaths for folks, for a while there. Right? Like, they thought that this sort of compelled speech was perfectly okay. But would Mill have thought it was okay? Troy?

Troy Kozma: No. Right? Yeah. I mean, part of the ebbs and flows, you can trace a lot of it to this notion of external fear. Right? So, the Cold War, the kind of progress that had been made before, it sort of slips away. And there's a real sense that the ideas of communism are so dangerous that the state, again, can and should protect the free world from them. So, loyalty oaths come from this idea that you want to be able to make sure that people who are in positions of power support what you want them to support. Right? And reject what you want them to reject.

And that's exactly the opposite of what Mill would want. Right? I mean, this is an explicit attempt to control the way people look at their government and at their relationship to their government. So, yeah, Mill is going to – that's an easy one. Some of them are harder, but loyal oaths are pretty easy.

Nico Perrino: Yeah. You have the 1950 case, American Communications Association v. Dowds, in which – and I’m reading from your book here – the justices, by a vote of five to one, upheld a federal law requiring labor representatives to file affidavits declaring that they were not members of the Communist Party. I mean, our current First Amendment conceptions like totally break during the first and second Red Scares. They weren't really in place during the first Red Scare. They started to be in place during the second Red Scare, which you can think of as like the late 40s through the 50s.

But like, this communist idea, this idea that there's this external threat that wants to overthrow and subvert the government just has a lot of justices scared and fearful of ruling on First Amendment grounds. You also, I think, have some justices like Justice Jackson – right? – who's worried that these authoritarian tendencies might result in this idea of a suicide pact if you allow First Amendment protections for subversive thought, Eric. And this has always been one of – an argument that's been prevalent throughout history against small L liberal democracies. It’s that this idea of toleration taken to its extreme can result in the destruction of toleration because it allow people to believe and advocate for things that would destroy the toleration.

Eric Kasper: Yeah. And a lot of that, for Jackson in particular, I think reflects his experience of being a prosecutor at Nuremberg. Because I mean, Jackson is the author in 1943 of the West Virginia versus Barnett decision. Which has a lot of what I think we could characterize as Millian sentiment or Millian themes in terms of protecting the expression of an idea, even if it cuts at the very kind of core and fabric of who we are as a people.

But when he comes back from Nuremberg in the later 1950s – the later 1940s, early 1950s, he's much more guarded about concerns, Jackson is, in terms of the ability of the Nazis to rise to power through these types of inflammatory speeches. How the Soviets at Nuremberg were very tightly controlling their representatives there. And so this, for him, overrides those types of concerns. And you see that thinking in some of the other justices as well during that time period.

Although Justice Hugo Black and Justice William Douglas, they become like Holmes and Brandeis were in decades earlier. Black and Douglas become kind of the new voices of dissent on the court. And they become, at least jurisprudentially, the dissenting opinions that carry through that period some of the sentiment, some of the jurisprudence, in the earlier decisions. Either dissents in Holmes and Brandeis or the majority opinions of the court in the 1930s and in the early 1940s.

Nico Perrino: Yeah, let me flag. You have this excellent excerpt from an interview with Justice Hugo Black in 1962 that he did. And this is what Hugo Black says. “The beginning of the First Amendment is that “Congress shall make no law.” I understand that it is a rather old fashioned idea and shows a slight naivete to say that “no law” means no law. It is one of the most amazing things about the ingeniousness of the times that strong arguments are made, which almost convinced me that it is very foolish of me to think that “no law” means no law. But what it says is “Congress shall make no law.” I believe the First Amendment means what it says.”

So, this is Hugo Black saying like, “All right, I'm a strict textualist. It says, “Congress shall make no law.” So, to the extent we're making any laws about free speech, to the extent they're incorporated via the 14th Amendment, what do we got going on here?” Right? Now, of course, Hugo Black is kind of like John Stuart Mill in that he has some caveats to that, even if he doesn't want to admit it in that interview, particularly with minors. Will turn there next.

But Black was the first Supreme Court Justice to favorably cite On Liberty in a First Amendment opinion. And he did that in a split decision, Barenblatt v. United States in 1958. I’m reading from your book here. Where a 5:4 majority sustained the contempt conviction of Lloyd Barenblatt, a Vassar College psychology instructor, after he objected to questions by the House Un-American Activities Committee. That's a HUAC committee that many of our listeners will be familiar with. The committee had asked if he had ever been a member of the Communist Party.

So, let's explore this kind of textureless interpretation of the First Amendment, that it really means what it says. Congress shall make no law. And then the caveats that Hugo Black had for that, that are kind of shared with John Stuart Mill. Right? So, you look at Tinker v. Des Moines, where Hugo Black was in the minority. This case involved school aged children who wore a black armband, memorializing the dead in Vietnam. Black said, “Children are to be seen, not heard. And taxpayers send children to school on the premise that at their age, they need to learn, not teach.” And Troy, Mill kind of felt the same way. Right?

Troy Kozma: Yeah. Actually, Mill has a very dim view of a state sponsored education system anyways. Precisely because he thinks – right? – that that's the whole thing. Right? That you're going to be teaching, and you're not simply going to be teaching two plus two equals four. There's a whole series of ideas which are just implicated in how you approach it. So, –

Nico Perrino: So, he worried it would be an indoctrination to – essentially. And that's what he's concerned about. Which I guess fits with his broader thesis – right? – or concern with Orthodoxy and conformity in society.

Troy Kozma: Right. He thought that that was a real danger because you have children – I mean, the whole idea – right? – is that children don't have the kind of capacity and judgment to be able to discern – right? – “Is this a good idea? Or is it a bad idea?” And so, if you have them in schools for a decade or more, that's going to do a lot of work that shouldn't be done. Or it should be done by private actors or parents.

Nico Perrino: Well, I mean, the crux of it seems to come from On Liberty. Where he says, “Those who are still in a state to require being taken care of by others must be protected against their own actions, as well as against external injury.” And this is generally his carve out for free expression. And it's not just for minors, frankly. He's also a bit of a racist. He writes, “For the same reason, we may leave out of consideration those backward states of society in which the race itself may be considered as in its nonage.” “Despotism …” he writes, “… is a legitimate mode of government in dealing with barbarians, provided the end be their improvement, and the means justified by actually effecting that end.”

So, to that extent, he's very much an English colonialist. The idea that we are a civilizing force for the rest of the world. And that civilizing force requires us to kind of impose our civilizing values on them until they can reach this sort of state of civilization, and maybe then come into the kind of full liberties that Englishmen have. But prior to that, he doesn't think young people deserve freedom of speech, and he doesn't think Barbarians or different races, at least the implication is, deserve freedom of speech.

Troy Kozma: He's not just a little bit racist. He's a lot racist. I mean, this is one of the kind of blind spots that Mill has. So, I just wanted to sort of make it clear that, yeah, he – not all of the stuff in On Liberty is justifiable. And that is one of the sort of glaring sort of exceptions.

Nico Perrino: Man, every great free speech advocate is also a little bit of a hypocrite. Right? You have John Milton. Right? Who's like, “Free speech. Except for Catholics.” And you got John Stuart Mill, “Free speech. Except for young people and anyone who's not of the English race.” Right? So, unfortunate. Right? And why you have to look at people in their times. And also, not accept all of their ideas, but maybe just the ones that have staying power or that stand the test of time. It sounded, Eric, like you wanted to get in there.

Eric Kasper: Yeah. And to the point that, I think for Mill, on the free speech question, there's a bit of a gray area when it comes to students in public schools. Right? I mean, when he talks about the harm principle, he talks about that this is meant to apply to human beings in the maturity of their faculties. Right? And so, there's this question of kind of, do you have to be at the age of majority, particularly when it comes to being able to exercise those First Amendment freedoms? Where I think there's at least an argument in Mill that that would be the type of right, where there could be some application at an earlier age than some of the other freedoms outside of the kind of expressive category of freedoms.

And in that sense, I think that that's a lot of what, between Justice Black and the majority opinion in Tinker, part of what that discussion revolves around. Like, for this particular right, do you have to be of that certain age? And we, as a society, I mean, we do that. I mean, there are certain rights that attach – a lot of rights that attach when one turns 18, but others that don't attach until one is 21. And others, like for instance, the ability to drive a car that would attach earlier. Right?

And so, I think that's part of what the court is trying to grapple with here as well. What type of right is the freedom of expression? Should this apply earlier? And there's at least some argument, I think in Mill, that that would be a right that could attach earlier than some of the other ones, in terms of more direct types of actions and those types of activities. Where Mill is really concerned young people doing things that might cause them that type of harm, and they can't fully understand it yet.

Nico Perrino: Yeah. And you actually see this in First Amendment jurisprudence too. Right? Is that there is like, the First Amendment still applies to young people. It's just to perhaps a different degree. Right? You get the obscenity as to minors standard. You get the case, Brown v. Entertainment Merchants Association, which is either a 2010, 2011 case, involving the sale of violent video games to minors in the state of California. Where you have Justice Scalia in the majority, writing that minors have First Amendment rights. There's no exception to this for violence as there is in sexual expression.

And then you have a footnote, I think either from Roberts in a concurrence or somewhere, that says like, “We might have considered a restriction constitutional if it didn't apply to everyone 17 or younger, and it just applied to younger minors. But here, it's any minor.” And so, there's like, there's this scale of First Amendment protection that the court at least leaves the possibility for fewer rights than would be applied to an adult.

But I wanna take the flip side of this. Right? So, we're talking about minors. We're talking about students and Tinker v. Des Moines. Teachers. Mill writes, “If teachers of mankind are to be cognizant of all that they ought to know, everything must be free to be written and published without restraint.” He doesn't touch on this, at least to my recollection, too much. But it does raise interesting questions in our First Amendment jurisprudence as to how we treat teachers perhaps in a K through 12 environment versus in higher education. Because the First Amendment rights that are at play there are interpreted very differently by the courts. Right, Eric?

Eric Kasper: Yeah. And I mean, for Mill, there is the harm principle is kind of the general rule. And then there are these caveats to it. One being particularly for children, that there can be additional restrictions there in terms of what they may be able to do because they can't fully realize what the outcomes of their actions might be. But another one is if you are engaged in some sort of public service. That if you are working for the government, you are acting on behalf of the government. And there could be some additional restrictions in Mill’s mind that could be placed on public employees more generally.

And so, we see some of that, I think, reflected in some of these tests the Supreme Court has for public employee speech. I think there is a separate kind of line of questions that are relevant when it comes to academic freedom. And Mill certainly would not have supported completely closing off free expression rights for public employees, including those who are in the teaching profession. But it's, for Mill, there is a different set of considerations there. Because you're dealing with an autonomous individual in their private life, who should have these different rights. But when they're on the clock, so to speak, they are acting on behalf of the state.

And so, it is a different set of considerations that needs to be taken into account there. That's something reflected in Mill, and I think we see that reflected in Supreme Court decisions. Although even in cases like Garcetti versus Sabios, there is a disagreement between the majority opinion and the dissent in terms of how much of that personal autonomy should still attach to the government employee in terms of, in particular, their freedom of expression.

Nico Perrino: Yeah. So, you guys write in your book, Mill was aware of the tension between private belief and public service. Understanding that there are legitimate reasons to restrict expression for government employees. And then you cite this excellent line from Mill, where he writes, “No person ought to be punished simply for being drunk, but a soldier or policeman should be punished for being drunk on duty.”

The last issue here, before we ask some closing questions, is about commercial speech. You write, “As Mill was right to defend individual autonomy, he had little to say about commercial speech. And what he does say suggests that as a matter of commerce, it might not be subject to the same level of protection as other speech.” For Mill, this is quoting him here, “The principle of individual liberty is not involved in the doctrine of free trade.”

That's kind of more or less the Supreme Court's approach to commercial speech, right? Is that it receives, in some cases, this intermediate level of scrutiny, not strict scrutiny. You talk a little bit about the different tiers of scrutiny at the beginning of your book. But that that's more or less the Millian approach that the Supreme Court has adopted. Right, Eric?

Eric Kasper: Yeah. Although it's not an approach that the Supreme Court starts to adopt until, I mean, it really develops in the 1970s and kind of coalesces in the early 1980s. Right? So, earlier on in the Supreme Court's history, they were not finding any protection for commercial speech. You go back to the 1940s, and they do not view this as a First Amendment question.

But yeah, for Mill, I mean, there is this tension for him. Right? That this is a different form of expression that can be directly tied to the actual marketplace. Not the marketplace of ideas, but the actual commercial marketplace. And Mill is not talking about that type of exchange of goods and services as within the different types of freedoms that he's discussing in On Liberty. right? And he thinks that there is more ability there for government regulation. Now, he's not a socialist or anything like that. But he is looking at a market with some sort of, at least, minimum regulations in it as being not only good – a preferable public policy, but there may be needs to do that.

And so, for him, yeah, it's where you get this intersection of expression, and the market, and the economy. Where he treads carefully, I think. And he doesn't speak as explicitly about that as he might about protections for political speech for instance. But to your point, yeah, exactly. That's the same sort of position I think we see reflected in Supreme Court jurisprudence today. Right? That there is some protection there.

And it could be a very dangerous proposition to say that there's no protection for commercial advertising under the First Amendment. Because even at the very least, there are political themes that can come up in commercial advertising. Right? That there are multiple purposes that we sometimes see in commercial advertising. Something beyond just the selling of goods and services.

And so, the Supreme Court also reflects what Mill is saying, that there has to be some protection there. The degree of that protection though, that becomes the thing that we see the justices sometimes arguing over in the majority opinion versus a concurrence or a dissent.

Nico Perrino: Where are we today for Millian approach to free speech?

Eric Kasper: Well, by the time you get to the mid 1960s, you see a majority of the Supreme Court solidly behind this position. Largely with the leadership of William Brennan. Right? Brennan wrote the opinion of the court, New York Times versus Sullivan in 1964. He's actually citing and quoting On Liberty multiple times in that opinion. Keyishian v. Board of Regents in 1967. Brennan is using the marketplace of ideas analogy very directly. Brandenburg versus Ohio in 1969, where you have the test for incitement in a procurement opinion that was started by Justice Fortas. But when he had to resign, Brendan kind of put the finishing touches on it. Very much reflective of the corn dealer example of when speech should be protected, and when it would go beyond that.

Nico Perrino: Yeah. Incitement of speech, that it would incite imminent lawless action, and is likely to do so. Right?

Eric Kasper: Right. And that bears a lot of similarities to the corn dealer example. Right? Where it's saying these things in general should be protected unless you're saying them to an excited mob assembled outside of the house of the corn dealer. Right? Sounds very much like Brandenburg – the Brandenburg test for incitement.

And moving forward, I mean, it's cases like Texas versus Johnson in 1989, finding protection for the burning of the US flag. The Supreme Court saying that just because it's offensive speech, that doesn't mean it's outside of personal protection. United States versus Alvarez, striking down what was, at the time, the Stolen Valor Act. Which Congress rewrote after the decision to reflect the court’s decision, where the court says that the remedy for speech that is false, is speech that is true. Right? That this is the ordinary course in a free society. And even more recently, just in the last few years, the [inaudible - crosstalk] [00:57:42].

[Crosstalk]

Nico Perrino: Well. The Alvarez case is interesting because you have it in your introduction. Right? This is the case where someone claimed – it seemed like they were a regular liar. They were a public official who claimed that they won the Medal of Honor. They didn't win the Medal of Honor. And the Supreme Court struck down the Stolen Valor Act because it essentially said that you are prosecutable to lie about winning the Medal of Honor. Right?

And that Harkins back. I mean, that's not necessarily a new opinion of the court. Right? Because you have in Gertz v. Robert Welch from 1974, the courts say, “Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries, but on the competition of other ideas.”

Eric Kasper: Yeah. Another opinion that very much reflects that Millian thought. And again, there are some cases where we have these opinions citing and quoting Mill. Most of them do not. But –

Nico Perrino: No, it's weird. Yeah.

Eric Kasper: Yeah. But we do see them using this line of thinking that we can tie back to justices who are more explicitly using those Millian themes. Like, Brennan, or Black, or Douglas, or ultimately, Holmes. That those citing of those opinions, that it's very clear that there is an explicit connection to Mill. That's how, in these more contemporary cases, we're seeing Millian thoughts still move forward.

Nico Perrino: Yeah. So, who's the most Millian Supreme Court judge in United States history? You guys have thoughts on that?

Eric Kasper: I mean, there's probably a group of them. Brennan is definitely one of them. So is Kennedy. You see a lot of that in his opinions, including opinions outside of the First Amendment context. Holmes obviously. Black and Douglas. I mean, so there's that kind of core group of them. Which one might be the most? I guess it would depend on how we want to define that as far as explicit citations to Mill versus how much they use certain phrases. But that group, Holmes, Black, Douglas, Brennan, Kennedy, would definitely be at the top of the list I think.

Nico Perrino: No Roberts.

Eric Kasper: Roberts –

Nico Perrino: Chief Justice John Roberts.

Eric Kasper: I think for, yeah, for Chief Justice John Roberts, interestingly enough, for a number of First Amendment cases, there are Millian lines of thought running through them. For cases outside of the freedom of expression, the cases on other constitutional rights, I mean, he actually, in the Obergefell opinion – I’ll leave Troy to talk about this one too, if you want. But he explicitly says that we don't use John Stuart Mill as our lodestar for what freedom means. But in free speech cases, there's a lot of that line of thinking. And in part because Roberts is writing these decisions building off of earlier Supreme Court precedent that is built off of homes and ultimately, Mill.

Nico Perrino: Is there any other singular philosopher who has influenced the court in the same way Mill has on the First Amendment. I know we have the structure of our government has been influenced by philosophers. You think of John Locke and whatnot. But for a specific issue that has been so transformed throughout American history, like freedom of speech, is there any parallel anywhere else in the court’s work that you guys can think of? Is it fair to say that Mill is the most influential philosopher on the Supreme Court throughout its history?

Eric Kasper: Maybe. I guess it depends on how we're defining philosopher –right? – and who gets into that club. Mill is also a practical politician. So, part of what my mind goes to here is James Madison, Thomas Jefferson. I mean, they had writings in terms of American political thought, and kind of some core American political thought writings. They certainly get cited a lot. Madison in particular.

Nico Perrino: Sure.

Eric Kasper: The First Amendment. More so on the freedom of religion, Free Exercise and Establishment Clause cases. But in the free speech cases –

[Crosstalk]

Nico Perrino: But they were founders. So, it makes sense that they'd be influential. Right? And that the court would look to them with – here, we have an Englishman. We fought a war against these people. Right? So, anyway.

Eric Kasper: Yeah. Although, by the time Mill was writing, we're not –

Nico Perrino: No.

Eric Kasper: – warring nations. Right?

Nico Perrino: No. We're buddies again. Right. Yeah.

Eric Kasper: Yeah.

Troy Kozma: We're fighting a war against ourselves.

Nico Perrino: What do you think, Troy, as the philosopher on the podcast? Any other philosopher who you think have influenced the court in a significant way?

Troy Kozma: So, I'll have to just confess that I'm a Team Mill type of guy. I don't think that there is, in terms of – especially in terms of free speech – and again, this is beyond this discussion. But I think what you're seeing is Millian thought sort of moving away – or not just away from, but sort of expanding from free speech into other sort of ideas of right.

Nico Perrino: If any of our listeners are looking – are interested in John Stuart Mill and, in particular, interested in John Stuart Mill's influence on the Supreme Court. I don't know that I fully appreciate it, how much of an influence Mill had on the Supreme Court until I read this book. So, I thank you both for writing it, and I thank you both for coming on the show.

Eric Kasper: Thank you for having us.

Troy Kozma: Yes.

Eric Kasper: It was a lot of fun.

Nico Perrino: That was Eric Kasper and Troy Kozma. Their book is The Supreme Court and the Philosopher: How John Stuart Mill Shaped US Free Speech Protections. I am Nico Perrino, and this podcast is recorded and edited by a rotating roster of my FIREcolleagues, including Aaron Reese and Chris Maltby.

To learn more about, So to Speak, you can subscribe to our YouTube channel or our Substack page, both of which feature video versions of this conversation. You can also follow us on X by searching for the handle @freespeechtalk. And you can also find us on Facebook. Feedback can be sent to, sotospeak@thefire.org. Again, sotospeak@thefire.org. And if you enjoyed this episode, please consider leaving us a review on Apple Podcasts or Google Play. Reviews help us attract new listeners to the show. And until next time, I thank you all again for listening.