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

Nico Perrino: Okay. 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 conversations.

I am as always, your host Nico Perino. And this week we’re taking a look at an August 27th broadcast from On the Media, which if you’re not familiar with the program, is a popular syndicated radio show from New York City’s WNYC. If you hear some clanking in the background that’s my dog. Does not want me to close the door, he will keep pawing at it if I do.

But anyway, that WNYC podcast has a segment that was called Constitutionally Speaking. And it questions some of our values under guarding free speech in our modern world. But in doing so, they did not interview a single defender of free speech. Instead, they interview Andrew Marantz who is the author of the 2019 article Free Speech is Killing Us. PE Moskowitz who was the author of The Case Against Free Speech. And Susan Benesch, she is the director of the Dangerous Speech Project. They also interviewed John Powell who’s a Berkeley professor, very critical of John Stuart Mill’s free speech arguments in his seminal 1859 book On Liberty.

So, the whole segment is framed as a challenged to so called free speech absolutism which speaking for myself here, I don’t know actually exists in the real world. But it does make for a convenient scapegoat for all of us on, and On the Media’s perceived problem with free speech. Problems for which they can’t conjure up any good solutions and therefore end up right back where the free speech absolutists stand.

Journalist and author Matt Taibbi wrote a brief response to beyond the media segment which he called absurd, beyond, bizarre, and shockingly dishonest. So, on today’s episode we’re going to correct the record and we’re going to respond to the arguments in the On the Media segment. And to do so we are joined by Taibbi himself as well as former ACLU president and New York law school professor Nadine Strossen and Carlton College history professor Amna Khalid. Matt, Nadine, Amna, welcome onto the show.

Nadine Strossen: Great to be here.

Nico: Nadine this was your idea. Right? You read Matt’s article. Got incensed at it. Matt was probably incensed when he started writing the article. So, you must be just jonesing for a fight here.

Nadine: Well, the answer to speech you disagree with is more speech, right? And I’m sure I have been accused of being a free speech absolutist. So, I am here to agree with you Nico. That there is no such thing as defined by Marantz and other participants in the On the Media show. They caricatured somebody who supposedly elevates free speech and only free speech above all other values. Supposedly maintaining that speech may never be limited. Supposedly maintaining that speech does not harm at all. Nothing could be further from the truth. In fact, those of us who strongly defend free speech do so precisely because we understand and respect it’s great power. Power to do enormous good, as well as enormous harm. What we are afraid of is the power of government, or tech giants, other powerful entities, to decide which speech should be protected and which should not.

Nico: Matt, in reading your article it sounded like you have a bone to pick with NPR in general. Is that true? You didn’t like their music choices, the harpsicord playing at the beginning of the episode?

Matt Taibbi: I thought that was a little bit of a low blow. I mean, it’s a clever trick by the producer. I think what they were trying to do is show how antiquated John Stuart Mill’s arguments were. But I want to agree first of all with Nadine.

There’s no such thing as a free speech absolutist. And no practicing journalist first, will just speaking for people from my profession, is one. In fact, that’s one of the reasons why most of the people who I know in this job who are so passionate about free speech feel that way is because we have always had to work under a whole variety of restrictions and guidelines about speech. Most of them falling under the general rubric of libel law. But there’s also laws like incitement that we have to worry about.

Every single article that you know if you wrote a major feature article, most of what you’re doing for days beforehand is working through all of those restrictions. Did I say something false about something? Did I defame somebody? Did I commit libel per se? Did I harm somebody’s profession? There’s a whole galaxy of stuff that we have to work through and we’re happy to do it because the public has confidence in us if they know that we’re adhering in all of these rules.

This idea that we’re free speech absolutists is something that’s been invented by people who are against, who want to regular speech in a way that is new and very repressive. And so, they’re mischaracterizing the positions of people like all of us.

Nico: The way we’re gonna do this episode is I’ve gotten eleven clips from the episode queued up here. So, we’re gonna respond to them point by point. I’m gonna pitch it off to one of you. If one of you wants to say a few words, we can have the others chime in afterwards. So, let’s listen to as Matt said, NPR mischaracterize free speech advocates.

Broadcast Clip Begins

Male Speaker: Whenever you write about free speech, obviously the free speech absolutists are gonna come out of the woodwork. And there are a lot of absolutists on the internet.

Broadcast Clip Ends

Nico: So, I guess that’s us. Right? We’re coming out of the woodwork. Amna are you a free speech absolutist?

Amna Khalid: Absolutely not. I’m a big proponent of free speech. I think actually one of the problems I have is that so many of these conversations about the value of free speech take place within the American context when there is so much to learn from what is happening outside the U.S. which actually might help flush out what the benefits of free speech are within the U.S. and beyond.

And many of these conversations portray free speech as the right for everyone to speak everywhere. That is not the case. The first amendment is very clear. Nadine can talk about this far better than I can. But this is about controlling the speech or the control of the state over speech. So, I wouldn’t characterize myself as a free speech absolutist. It’s a strawman argument really. But I do think I am a proponent of free speech.

Nadine: And if I can chime in taking Amna’s invitation to, just you know if a thumbnail sums up in not only what U.S. free speech law holds but also international free speech principles which are widely supported by countries around the world.

That government may restrict speech if, but only if it can satisfy and appropriate heavy burden of proof. If it can show that the particular restriction is necessary and the least speech restrictive alternative in order to promote some countervailing goal of compelling importance. Whether that goal be public safety for example or individual safety. And when you think about it, that just makes common sense.

Of course, most of us would be willing to trade off free speech for public safety or even national security. But it’s a fool’s choice to give up free speech if we’re not gaining safety in return. Or worse yet as is often the case, if the censorship, no matter how well-intended, does more harm than good, which is typically the case.

Nico: Well, is what they’re getting at here essentially that we have a very expansive view of the first amendment or first speech principles at large? A view that wasn’t shared by the founders? Or a view that up until the last half century didn’t really exist in American law either. And we’re continuing to whittle away at previous speech restrictions in order to get to this utopia where there are no free speech restrictions. Or is that given, being too charitable to their argument?

Matt: If I could chime in there. I think where a lot of this criticism comes from is anxiety about what the new speech environment on the internet means. Because before the internet, again, most of what we saw on television or in the newspapers had, was, pretty rigorously fact checked, had already gone through some kind of legal review in many cases. Although that wasn’t true with live tv, but by tradition you tended to avoid anything that was gonna invite a lawsuit.

That’s not true on the internet. I mean the internet is and has been much more of a free for all that than that previous media environment. And I think there are people who are struggling over what to do about that, but in so doing they are mischaracterizing what free speech is and has been and why we value it. They’re rewriting history to sort of suggest that it was never valuable and that it’s not worth protecting now. And that’s not the case. The case is we have a new technological challenge.

Nico: Yeah, and one of the things that they’re doing and criticizing the current free speech environment is they’re dismissing the slippery slope argument that a lot of free speech advocates make, which his essentially bringing up the consequences of new laws regulating speech. And this is the clip that I want to turn to next, so I’ll play it here.

Broadcast Clip Begins

Male Speaker: I mean, whenever speech is restricted in any way the first thing you hear from a free speech absolutist is a slippery slope argument. If you restrain Nazis from speaking in Charlottesville, how do we defend against a slippery slope into more and more government restrictions. I’m fine with that slippery slope argument. I just don’t know why. If you’re worried about the slippery slope that comes from restricting Nazis’ speech, why aren’t you worried about the slippery slope that comes from letting Nazis speak.

Broadcast Clip Ends

Nico: Nadine I’ll hand this off to you as the former president of the ACLU. I think they’re making a, a point of bringing up the Skokie case from the late 1970s.

Nadine: In which the ACLU proudly defended freedom of speech even for and here I’m paraphrasing Justice Oliver Holmes even for the thought that we hate. That is directly antithetical to our own civil liberties values. Why? Not because of a slippery slope, but because the very same principle and argument that is asserted to justify, in an attempt to justify suppressing the Nazis is what led to suppressing Martin Luther King and civil rights demonstrators and anti-Nazi’s pro civil rights crusaders.

Mainly the fact that the majority of the particular community where the speech is taking place abhors the idea or the viewpoint. That’s exactly what happened. Not only throughout the south, but as the ACLU pointed out in our brief in the Skokie case itself. By the way Skokie is in Illinois. Just less than a decade earlier in Cicero, Illinois in another part of the state, the ACLU relied on the very same so called viewpoint neutrality principle to defend the speech of Martin Luther King whose viewpoints were viewed to be dangerous and offensive and insulting to the majority of the residents in Cicero, Illinois.

So, that’s not even a slope. It’s a level playing field except it’s an un-evil, unequal level playing field. Those who support minority viewpoints who are challenging the government, who are advocating for rights for people who are disempowered, disenfranchised, always bear the brunt of censorship. And that was certainly true for the civil rights movement and all other human rights movements to this day.

Nico: So Amna, is it not the case that there is some slope to letting the Nazis speak? Like some risk to letting them speak? It’s just, it’s not as slippery as allowing for speech restrictions to Nadine’s point?

Amna: Right. So, here is my problem with this argument in addition to what Nadine has said. Which is it’s not that we don’t recognize that there may be consequences of certain kind of speech. There is no speech that doesn’t have consequences. That is well known. It’s what the alternative could be. Right?

So, in this case if we stop Nazis from speaking then that also means that we will stop people like Martin Luther King from speaking. Coming from a country that has had a serious of dictatorships where we have speech laws both on political and religious counts, it is absolutely imperative, if you want to protect the rights of minorities and of those who do not believe in the reigning orthodoxy, you have to have their rights protected by protecting free speech.

So, it’s not about a slippery slope of what will happen. It’s about what will, we recognize that things can happen when there is free speech, but also what will happen once that speech is quelled, is that those kinds of things are likely to go underground and fester in other ways. And in addition to that, the principle of it is, if you suppress that kind of speech, you’re also going to suppress the speech of minorities who do not agree with the dominant discourse.

Nico: Yeah. The trick thing with this On the Media segment is that they make this criticism, but they offer no solutions. It’s almost as if they are suggesting that there is some sort of speech restriction that should be in place to which we would argue no slippery slope, slippery slope. But that’s never actually presented, so you can’t really, can’t really falsify the claim. Right?

So, one of the things that they do, and it’s a very NPR way of doing it, is they frame this around a philosopher who I had never heard of before. He was a very obscure philosopher, or many very prominent in the philosophy world. But I’m just a lowly free speech advocate, what do I know? Who gave a speech at Harvard at some point on what’s called the contingency model. And I’m quoting from the NPR synopsis of the episode here.

Back in the 1980s analytic philosopher Richard Rorty described the concept of contingency which argues that there’s no predetermined arc to our system and processes. The arc Rorty said is made by people. So, the idea that our society will move every more towards enlightenment and rationality? According to Rorty, that idea is flawed because it’s people who ultimately determine what will become of our ideas and our institutions.

And this is Andrew Moran talking about that philosopher.

Broadcast Clip Begins

Andrew: The correct model is a contingent model. The way free speech plays into that is that if you just take care of making sure that the government doesn’t get in people’s way and that it lets them say whatever they want, you can’t just sit back and automatically wait for the arc of history to carry you to where you want to go.

Female Speaker: You can’t adhere to the notion that it can’t happen here.

Andrew: Right, talk about myths of American identity. One of the core parts of that is that phrase. It can’t happen here. The it referring to fascism, totalitarianism.

Broadcast Clip Ends

Nico: So, Matt, maybe you can help me here. One of the things that I’m having a hard time understanding is that they argue that you can’t just sit back and wait for the arc of history to bend toward justice. So, you have to do something about it. You have to, I’m assuming organize and speak out for the direction you want the country to go to. That seems like an argument for free speech to me, not against it. But maybe I’m just misinterpreting the philosophy. Again, I’m just a lowly free speech advocate.

Matt: Yeah. First of all, I’m not an expert on Rorty but from what I understand, I think he would have actually deeply objected to a lot of the characterizations in this episode. But yeah, what they’re essentially saying is free speech is great and all, but we can’t just use, we can’t afford the luxury of just waiting for the marketplace of ideas to establish a utopia of perfect justice or whatever it is they’re after.

We have to, we now have to act more aggressively and more affirmatively in making sure that the things that we want to happen in society, happen. And this is a very popular belief among younger people and people that I talk to coming out of college. But I think they’re talking about two different things at once. And also, this idea of, that in creating a more just and more perfect society, we have to abandon free speech. It seems like a complete contradiction in terms. Like, the cure is worse than the disease in this case.

It’s very strange to me and I can see Nadine that you have a lot of thoughts on this matter, so I want to pass it to you. But that segment was particularly troubling to me for sure.

Nadine: Ironically that the way that we fight fascism is by instituting censorship which is the essence and prerequisite for fascism. I don’t get it. And also, this other straw person argument that supposedly those of us who advocate counter speech as a very important response and strategy for promoting values of justice. That somehow we’re saying speech is enough, we shouldn’t do anything else. It’s as if the ACLU did nothing but defend free speech and did not lobby for antidiscrimination laws. Did not lobby for laws against hate crime or discriminatory violence. So, it’s really ridiculous to suggest that by defending free speech you’re suddenly abdicating any responsibility for any other activism for other tools to advance equality, justice, and human rights.

Amna: Can I just comment over here? I agree with everything that’s been said and I think, I’m just going to pick up on something that Matt was saying which is that there is a conflation happening and a slippage happening over here. In so far as their critique of the you know, view of history as progress, which we as historians call the whiggish view of history. Yes, I critique that too. There is no predetermined view toward progress. There is an arrogance in that kind of view. The ways in which American exceptionalism has manifested in creating this understanding that things can never happen in the U.S. All of that I agree with.

Where I fail to see the connection is, how is free speech part of that problem? Right? Like how is free speech proposing that we believe in a progress-oriented view of time and history? And the other problem with this view is that the idea is that any kind of speech has this kind of infective power. Right? Like it’s going to infect you, there is contagion, the mere saying of words is going to change the course of history. And therefore, we need to contain it.

Whereas I would argue, well, once set of words is said and then you have the opposing argument and then people are thinking human agents who can weigh them, and they will weigh them either for good or for bad. We can’t predetermine that, but the fact of the matter is that speech in its own right is not the problem. It can be countered with more speech.

Nico: It just seems like the sort of program or at least the leigh way that they are looking to give to the government here is essentially the leigh way that tyrannical governments such as China, for example, goes about its work. You don’t like religious liberty exercised by the Weagers, just throw them into camps, you don’t like protests against the new rule in Hong Kong, just eliminate the protests and jail all the dissenters.

All this is done, and it is much more extreme than anything being proposed here in the United States. But all of it’s being done under the same umbrella. The umbrella of the need for public order, the need for peace and tranquility. But I did just bring up the tyranny argument right there so I’m gonna turn to the next clip which seeks to belittle that argument.

Broadcast Clip Begins

Make Speaker: Just before a change in how we think about or regulate speech, right up until the moment that happens, we take for granted that it can’t possibly change. No new restrictions could possibly come into effect. That would be tyranny. That would be North Korea. And then right after it changes, we kind of get used to it.

Broadcast Clip Ends

Nico: Yeah, I mean the question I had, Nadine maybe you can speak to this because you’ve been doing this work for quite some time, and you’ve been on the forefront of the legal challenges to free speech. You know, the last hundred years has essentially been an opening up of free speech rights in America. Not the opposite. Although there have been proposals — I mean I’m just kind of curious what proposals they’re talking about. I know they bring up you know, workplace discrimination for example, sexual harassment laws, but I don’t know. If you could lend any context Nadine.

Nadine: Well, the devil is in the details. United States law consistent with universal internationally accepted human rights principles, do allow restrictions if you can show in a particular situation that the restriction is actually necessary and warranted. Matt gave us one example which is very common and that is a certain subcategory of false speech which is injures somebody’s reputation and which is either knowingly or recklessly false, if it’s a matter about public concern that constitutes punishable defamation.

But if we go beyond that and in fact return to the battle days before the landmark 1964 decision of New York Times versus Sullivan. So, any false statement even if it was about a matter of public concern, even if it was negligent, even if it was trivial, could result in ruinous damages. That was a deliberate strategy that was used by southern officials to try to bankrupt not only civil rights leaders and civil rights organizations but also the national media that were covering that. And without that national media attention we would not have been able to pass the 1964 Civil Rights Act.

So, the devil really is in the details. You have to look at each proposed regulation on its merits and again this goes back to that initial sin of using that categorical term absolutists. No. We support certain free speech restrictions, but we do not support all free speech restrictions just as we do not oppose all free speech restrictions.

Nico: Matt, is what they are really arguing against here in a certain sense just the civil libertarian instinct you know? To really worry about the unintended consequences, restrictions, or laws that limit our liberty?

Matt: Yeah. I think they argue against that on multiple grounds. But a very popular argument that you see made all the time on social media and from people like this, and this goes back to the old issue of the arc of history too, is this idea that the marketplace of ideas doesn’t work. That if you just let everybody say whatever they want that the best arguments don’t win. And this is an argument that became very popular after Donald Trump won the election.

Like, see what happens, if you just let everybody talk, this is the result of that kind of discourse. I happen to disagree. I happen to think better, better arguments win over time. And that the worse arguments actually do lose over time. But that’s not even the point. There, it’s not about the effectiveness of the speech. It’s about the choices that we make.

Do we want a society that doesn’t have speech freedoms? Do we want that versus how much are we worried about other kinds of threats that might had been made from free speech? And this is why we’ve had these fiercely fought battles over free speech over the last centuries that have always results, that typically have resulted in judges trying to air on the side of protecting as many freedoms as they can. Because it’s so important to our conception of what our society is all about. This idea of being able to express ourselves.

That is preferable to the alternative and the alternative is that somebody would have to regulate the speech, and that’s the problem. Once we get into who’s doing that regulating, that’s where we get to the scary part. And they don’t address any of that. All they want to do is in a very narrow way say oh this libertarian hands off approach to speech regulation doesn’t work. And it’s so much more complicated than that.

Nico: On that Matt made a couple allusions to history there. As a history professor, as the resident history professor on this podcast. I mean, what do you make of that? I mean do you agree that the marketplace of ideas while in the short term might find some deficiencies, in the long term it can win out?

Amna: So here I might differ with Matt a little bit in that it really depends on the timeframe you’re going to put on that. And you know, I’m comfortable with bad ideas winning out. I don’t think, I don’t have this faith that always the best ideas will win out. But I really think it is more often than not, we have seen that it, free speech has been absolutely central to the kinds of gains for justice made for minorities.

And that’s the piece that I really want to stick with. It’s not so much the idea of what will eventually happen. But historically if you cast your eyes back, you’ll see that every time there has been a gain for minority rights, its come because there has been a space for those people to speak up. And every time you shut that down it’s put that kind of movement towards justice, years behind.

We, again, I would say you know there is the historical context, and I don’t need to go very far within the U.S. and the civil rights itself is the biggest example, I think. But even within, in our current moment, if you cast your eyes beyond the pond and look at the rest of the world you will see so many examples of how limitations and free speech are a way of shutting down the rights of minorities.

I mean, we’re sitting in a moment, this to me, there’s such a lot of cognitive dissidence because we’re talking about, here we are wondering, scratching our heads in the U.S. like oh is free speech good or not. While simultaneously the Taliban are taking over Afghanistan and it’s such a disconnect to my mind that they’re one of the biggest critiques of regimes like that is that they limit people’s freedoms by limiting their speech fundamentally.

The entire supposed rhetoric for going to war, was to stand for liberty, to be for the rights of those who are minorities like women who don’t get their rights. And one of the fundamental ways those rights are constrained is by limiting their speech and limiting their access to the public square.

So, to my mind I’m just really honestly confused by this episode and I’m wondering was this produced in a different time period when we weren’t facing this kind of situation when it’s rich large and you don’t have to do very much more than perhaps turn NPR on itself and listen to what is happening in the world.

Nadine: And listen to what is happening in the United States because when we had all the Black Lives Matter protests and other social justice protests. The ACLU and other organizations free speech organizations and human rights organizations were forced to bring lawsuit after lawsuit after lawsuit because police and other government officials were stifling peaceful protests, right? And also silencing and punishing and even arresting journalists who were seeking merely to cover the protest or legal observers who were trying to protect the demonstrators’ rights. So we don’t have to look as far as Afghanistan sadly. Now fortunately we have been able to win those lawsuits because fortunately the Supreme Court has a robust but not absolute view of free speech.

Nico: It crosses partisan lines, right? It is one of the few issues in which the Supreme Court can find agreement. Now will the court always be that way? You know the court is a consequence of, will change hands and one day the young people of today will be on that court so we’ll see the direction it is going. Amna, did you want to say something? I saw a hand almost go up there.

Amna: I just wanted to say that it really goes down to who is going to make the judgment of which speech is allowed and which isn’t. And frankly, even the people who might claim to have the most moral sound judgment on these issues are not infallible. And that is the issue over here is that you cannot entrust, especially the state, to make those kinds of choices because the state will always make the choices that support its presence that support its power. And for that reason, I am also a little amazed that these people who usually are all for the rights of the people and over here there is an argument that is being made which is laying the base for more authoritarianism. So again, there is that disconnect between what their intentions are, and I will give them the benefit of the doubt over there, but actually what they are saying is not thought through but the implications of what they are saying are.

Nadine: If I can be devil’s advocate here, I want to return to a point that Nico made at the beginning. Which is when you listen carefully again, I mean it’s important, it’s easy to overlook the first time because you hear this drum beat of anti-free speech.

Nico: It’s not a drum beat. It’s a harpsichord, Nadine.

Nadine: Right, sorry, a harpsichord beat. But then I listed very carefully again, and I heard every single person who was interviewed expressly said, I am not advocating censorship. Andrew Marantz said that. PE Moskowitz despite the title of his book said that. Susan Benesch said that and defended the maligned so-called Brandenburg test. So, you had to read very carefully through this avalanche of anti-free speech rhetoric to understand that they weren’t coming up with a better solution.

Matt: Or expressing it. I think that was part of the strategy of this show is that there was an implied there was some implied solutions that they didn’t want to talk about because that would have given specifics that could be responded to and that didn’t happen so.

Nico: Amna to your point about like this not being well thought out you know what speech restrictions look like in practice and who you would trust to actually make the decisions as to which speech gets censored and which doesn’t. Which as Bob Corn-Revere, the great lawyer who often appears on this show, would almost necessarily entail like the development of some Ministry of Truth which we don’t want. But I think Christopher Hitchens made the point best and at least the one that resonated with me the most.

[Broadcast Clip Begins, 00:32:48]

[Broadcast Clip Ends, 00:33:09]

Nico: I think that is one of the most, if not the most, compelling arguments for free speech that I have ever heard because it actually puts the question to the listener to determine and to actually work through that problem there that you identified Amna as to how this would actually work in practice. But we’ve referenced a couple of times within this show the balancing of different rights and that comes up actually a little bit in the NPR episodes, so I want to play a clip on that front.

Broadcast Clip Begins

Male Speaker: I think speech can cause individual harm and it can cause societal harm. And so of course we need to take speech rights into account, but we need to take other things into account too.

Broadcast Clip Ends

Nico: You heard some of the harpsichord music there at the end. Matt, I mean we have kind of beat a dead horse on this point, but the free speech jurisprudence and just free speech values does anticipate the harms outside of speech, right? When we look at incitement to imminent lawless action for example or defamation. Those are balancing very carefully other harms but in almost every case to the extent the government introduces speech restrictions they need to be very narrowly tailored to meet that significant government interest.

Matt: Right, and it’s not like there setting those laws without knowing exactly what those damages could be. That’s the whole point of all of these cases is that these are judges who are painfully aware of the negative consequences of speech, and they are wrestling with that when they make these decisions. But again, the thing that they are leaving out is the flipside is the consequence.

If we have some kind of a Ministry of Truth if we have some kind of a higher authority because you would need to, there would need to be some kind of a body that would be responsible for dealing with all of this. You know, who would those people be? Would there be any oversight of those people? How transparent would that process be? Would it be more harmful than the harm that we are dealing with in this present instance?

That’s what these justices are weighing, and they are leaving out that complete other side of the argument when they talk about this which is so frustrating and that’s why I called it dishonest because they know exactly what the actual issue is here, but they are only presenting this one side of it and it is very, very frustrating.

Nadine: There is another piece of the analysis that’s also equally frustrating in its omission, well two actually Matt. One Amna alluded to which is the censorship actually going to eliminate the speech? The answer throughout history and around the world is no. It drives it underground where it becomes more dangerous it’s harder to respond to.

And the other part of the analysis is what else could we do to address the underlying problem that might be even more effective than censorship such as education or anti-discrimination laws or teaching people critical media skills to deal with disinformation and so forth. Too often censorship is this politically cheap quick fix. You don’t have to raise any taxes to impose a censorship law, right. That gives politicians and others this sense of satisfaction that we are doing something, but they are actually not dealing with the actual underlying problems. For example, discriminatory attitudes or hateful discriminatory conduct.

Matt: If I could just jump in there really quickly because there is something very specific to the media business that is perfectly apropos to what Nadine you were just talking about. Often its now argued oh we need censorship because there is so much fake news out there and people believe it and they are not believing the —

Nadine: Us.

Matt: Us, the trusted mainstream media. Well, the flaw in that argument is there is something you can do about that loss of trust. That loss of trust didn’t happen in a vacuum. It happened because you continually made mistakes you continually did things like report on the nonexistent WMDs in Iraq that led millions of people to not be sure that you are telling the truth when they turn on those news programs. So again, they are jumping to well let’s censor rather than let’s fix the problem with our own business, which is just one of a hundred things I think Nadine of that sort that you are talking about.

Amna: And it’s not just problems with the business of journalism which are quite right to point out. It’s also where the failings are as a society. As an educator I am talking about the school systems. Why are people so willing to believe disinformation? Is another issue. Why are people unable to critically analyze what is sound information and what might be more questionable? That speaks to a wider problem in our society of how information is being consumed or how uncritically information is being consumed. So, I think there are many, many ways in which this problem can be fixed and addressed, and this is the most immediate knee jerk response let’s just censor the speech.

Nadine: We are all putting our money where our mouth is right? Because we heard this NPR broadcast an hour long that was filled with misinformation and disinformation, and we are not advocating censorship we are responding to it.

Nico: To be clear they weren’t advocating censorship either they were just raising questions, of course. I want to turn next to a clip that kind of raises some questions I’ve been increasingly hearing from those critical of modern free speech values so let’s listen.

Broadcast Clip Begins

Male Speaker: I mean in the early 1900s two hardcore union supporter brothers conspired to try to blow up the LA Times which was a virulently anti-union newspaper. They didn’t want to hurt anyone. The point was to call attention to the anti-union behavior of the paper. They ended up hurting people. They ended up getting caught and the ACLU defended them. You know they were saying well we don’t condone blowing things up, but you have to agree that it makes sense that people are this angry because no one is listening to them. Does someone who works sixty hours a week and therefore has no time to attend that council meeting where you could exercise your free speech, do they have a right to free speech? Technically they do but in reality, in materialist reality they do not.

Broadcast Clip Ends

Nico: So that’s the argument I have been hearing more often lately. We will just put the ACLU/LA Times issue aside because Nadine, I asked you before the show were you familiar with this case when the ACLU represented some pro-union bombers of the LA Times you said you weren’t familiar with it. I asked Ira Glasser if he was familiar with this case, he said he was not and he was on a lot of television appearances in the ‘70s and ‘80s where a lot of people were digging up old stuff about the ACLU to criticize them about. He wasn’t familiar with it.

I bet PE to the extent that they are right about that case existing is wrong about what the ACLU represented those bombers for. It might have been representing their criminal trial or something. I don’t know that they would argue that the bombing was a free speech protection. In any case the point being made in that segment is essentially that okay we have the right to free speech, right? But not everyone has the equal right to it.

It presumes some sort of level playing field. But you don’t have a level playing field because the Murdoch family the owners of News Corp have a greater right to free speech than Joe the plumber on the corner for example. This is an argument that I am increasingly hearing. I don’t know what it essentially means. Like what the downstream consequences of that or the policy position might be to rectify that. Amna have you been hearing this argument or am I alone in this?

Amna: I actually have heard it a lot and I have heard it from students. So, it is interesting that this is a new way of thinking if you will.

Nico: So, I will just say here I pulled this up because I recalled that David Cole who is the legal director at the ACLU wrote a great op-ed back in 2017 responding to the Charlottesville stuff, in which he took on this argument. He said virtually all rights, speech included, are enjoyed unequally, and can reinforce inequality. The right to property most obviously protects the billionaire more than it does the poor. Homeowners have greater privacy rights than apartment dwellers who in turn have more privacy than the homeless.

The fundamental right to choose how to educate one’s children means little to parents who cannot afford private schools and contributes to the resilience of segregated schools and the reproduction of privilege. Criminal defendants’ rights are enjoyed much more robustly by those who can afford to hire an expensive lawyer than by those dependent on the meager resources that states dedicate to the defense of the indigent. Thereby contributing to the endemic disparities that plague our criminal justice system. Matt, I think this gets to the point that you were making. It’s like as if they are arguing for some sort of blue state utopia, right?

Nadine: Well, the solution is not that we, oh criminal defendants rights are more greatly enjoyed by people who have resources, so let’s get rid of those rights – no. The most logical consequence is we work very hard as FIREcertainly does as the ACLU certainly does to do everything to equalize the actual enjoyment and exercise of all rights including freedom of speech by all people. In a number of ways number one through education and information because you can’t exercise your rights if you are unaware of them. By providing free legal services without charge if your rights are violated.

It is crucially one of the reasons why the ACLU was an early defender of freedom of speech. Online I am so thrilled that the historic Supreme Court decision goes down in history as Reno versus ACLU because the internet has done you know it’s so popular now to just look at the potential downsides of online speech and taking for granted its enormous equalizing power. Making real freedom of speech a meaningful possibility even for people who do not have many resources including educational resources. And that is one of the reasons why I am so strongly opposed to increasing censorship online because that is often the only platform that can be afforded by grassroots and under resourced individuals and organizations.

Nico: Yeah, this inequality has almost gotten better hasn’t it Matt with the rise of the internet? This argument has almost lost some of its potency.

Matt: Yeah, I mean first of all the argument as Nadine points out is completely absurd like we have an unequal amount of speech rights in the United States so what eliminate them? That doesn’t make any sense. That is absurd to begin with. But I hear this very frequently from people saying we don’t really have true free speech in America because people who have massive platforms who own networks, they have much more power. Their speech has much more power than people who don’t.

I totally disagree with this. My views on speech were very much shaped by living for over a decade in the Soviet Union and the former Soviet Union where I met reporters who were literally barred from writing whatever they wanted when they worked under the Soviet Union. Then I met people in the Yeltsin period who risked getting shot every time they wrote anything. That was a real risk that people had to take.

That is very different from what we experience, and we I think as Americans take for granted what a beautiful and powerful thing speech rights are. They are so cherished by people who live in societies like Russia where they know what can disappear in a heartbeat. The difference between having the right to even toil in private with no expected audience and not have that right is enormous.

The Russians point out a lot that back in the day the author Mikhail Bulgakov well he couldn’t get published but he sat in his room, and he wrote The Master and Margarita. A book that changed the whole world. It was many decades later, but it actually happened. Having that right and everybody has it is, so it is such an important thing, and we just don’t value it in this country. We don’t value and think about what an extraordinarily powerful thing we all have and that is very disappointing.

Amna: Can I just come in here to say something? You know one of the things that was really bothering about this NPR conversation is how the idea of what is a right is only framed around the speaker’s right. So much of censoring of free speech or censoring of speech is also about the disservice you do to the hearer’s right.

I have every goddam right to hear no matter how controversial it is. If it is being said I have a right to it. And then I’m a free agent. I do with that what I want to do. But I think the conversation gets a little bit lopsided if we only think about the right of a person to speak. It’s also the right of people to listen and this is where I think there was a fundamental misunderstanding of Mill in this program and Mill was being critiqued.

And there were several misunderstandings of Mill, but this was one of them. It’s not about the right of the speaker. That’s actually the less important right. It’s about the right of people to listen. To a point of view and precisely the right to listen to a point of view that is contrary to theirs.

Nico: Yeah, we just posted on twitter a Friar Frederick Douglass quote. To suppress free speech is a double wrong. It violates the rights of the hearer as well as those of the speaker. And Matt’s talking about the Soviet Union, when I was in college a video that I and my friends liked to share was this singer because of the censorship of music in the Soviet Union, he would just go Tralala Lalala Lalala.

But it was just like this absurd music that just because you couldn’t get an lyrics past the censors, they had to sing it this way. We enjoy a lot better music today. Although we could argue about that, I guess.

Amna, you made the point about John Stuart Mill. That’s actually my next clip so let’s play that right now. This is from John Powell who is the Berkeley professor.

Broadcast Clip Begins

John: The speech absolutists try to say, you can’t regular speech.

Male Speaker: Berkeley law professor John Powell.

John: ?Why? Well because it would harm the speaker. It would somehow truncate their expression and their self-determination. And so, okay, what’s the harm? The harm is a psychological harm. Wait a minute I thought you said psychological harms didn’t account? Make a choice they don’t count, or they do count. They can’t count for the speaker but not the listener.

Broadcast Clip Ends

Nico: Honest. I don’t follow. But you know I’ve never argued that the reason we don’t censor is because it, to censor would create some sort of psychological harm. But maybe there are free speech arguments that make that sort of argument.

Nadine: I think in fairness to John Powell, who I know and like and admire. He is adverting to one of the multiple rationales for free speech. We’ve already talked about the marketplace of ideas and he’s referring to the idea of self-determination or autonomy, freedom of the individual to express himself or herself.

Well, there are many problems with John’s argument. Respect John as I do, I disagree with his argument strongly. One of them is that there are so many additional rationales for freedom of speech. Amna referred to one, they right of the audience to choose what it’s going to hear or not hear. And that plays into an incredibly important rationale in our democratic republic. Which is where we the people wield sovereign power. How can we possibly do that in a real and meaningful way if we don’t have access to the most robust exchange of ideas?

The supreme court put this very well when it said that speech about public affairs is more than a matter of self-expression. It is the essence of self-government. So, I think John is really trivializing the importance of free speech but reducing it only to psychological interest of the speaker.

It's also true that there are certain kinds of psychic harm that certain kind of speech cause which are what does allow to be punished. So, we do allow punishment of targeted bullying and harassment and threats for example. Because of the anxiety and fear that they cause. So, you know both generalizations aren’t true: 1). That the only damage of censorship is psychic, 2). That we never allow psychic harm to justify censorship.

Nico: But in all fairness to him right, there’s a lot of speech that will cause psychic harm that fall short of the restrictions that the supreme court has allowed for with regard to censorship, right? I mean like, so, I made the documentary Might Ira and Ben Stern who survived like nine concentration camps and half a dozen death marches. You know I truly believe that he was devastated that he was psychologically harmed so to speak by the prospect of the Nazis with their Nazis swastikas marching through his town again.

But at the same time, we recognize, or we say that okay, but we live in a free society. We live in a state where we punish every instance of violence right? While allowing the greatest latitude for speakers to speaker and that’s just kind of the cost, recognizing that’s just kind of the cost sometimes of living in a free society is that you’re going to hear obnoxious speech. That’s why on college campuses we had fire half of what we call the strong student model. The idea being that students are not too weak to live in freedom now.

That model has kind of come under attack in the last seven years where you have students actually arguing in fact that their too weak to live in freedom. And we’re old school liberals right and we believe that no, the old adage sticks, and stones may break my bones, but words will never harm me. I mean, words do harm. That’s not why you have that idiom to kind of buildup people’s resilience to what it takes to live in a democratic society. And now I see Amna a lot of reaction to what I was saying.

Amna: I, It’s, again, even if we take the resilience part out, right? Which I’m very much in favor of. I think the purpose of education is to empower students. I don’t like this mollycoddling that is now becoming more and more prominent, even students are.

Anyway, even if we put that aside, I think the way to evaluate it is to think about what will happen if we do this. And what are the costs, like what are the costs of banning the speech? You have to think it through all the way. Okay in this one instance you might be really happy with the outcome that Nazis weren’t talking and marching through your town. But the same principle is going to apply tomorrow when you have Black Lives Matter protestors and do you want that.

So, it’s not about if you ban it there’s going to be no other consequences. Think about the consequences of the principle and the precedent that you’re laying down. And is that what you want to really be pushing for? So, I feel like it’s a very truncated vision of what the outcomes will be. It’s not fully considering what the kind of opportunity cost is.

Nico: Yeah, I kind of want to actually play another clip right here cause it kind of pairs well with a clip that we just heard. It’s about psychological harms being indistinguishable from physical harms with regard to their effect on the body.

Amna: I have a lot to say there.

Nico: Yeah, I know. Johnathan Haidt and my boss Greg Lukianoff wrote a whole Atlantic piece responding to one of these arguments that was made in The New York Times. But let’s play this and then we can respond.

Broadcast Clip Begins

Male Speaker: What we’ve learned over the last forty years on the mind science is that many psychological harms from the brain’s perspective are almost indistinguishable from what we think of as physical harm. And in fact, the body is not neatly divided so when you have a psychological shock you have a physical reaction.

Broadcast Clip Ends

Nico: Alright. Thoughts on that? I mean, can it be simultaneously true and not justify censorship? Amna, you said you had a lot of thoughts on that.

Amna: Even in the extreme case where I grant that there is psychological harm. And yes, like we said there are certain parameters even around that, but even around those parameters, if we grant, yes, this kind of harm is real harm and it is taking place, the question is who is to make that decision. And how do we really lay out the parameters of it? I think in the cases Nadine was alluding to like in the cases of harassment, workplace harassment where that has been laid out, there are very, very strict guidelines to assess what constitutes harm. Now the trouble with what we’re seeing right now is this extreme conflation between offense and harm. And we’re seeing this across our society. And that is becoming a reason to shut speech down. That to me is extremely dangerous.

I also, I’m no expert in mind science but it does make me wonder what the methods of this science are. I’m not questioning that it’s poorly done, but what I am wondering is how far are we taking people who are say survivors in war zones and testing their brain signals. How does human resilience, the mind is a very flexible plastic thing, our thresholds change over time?

And the trouble is we can’t just latch on to anything that seems to be scientific as the reason to go down — Science itself is highly contested as a historian of medicine I would like to say we need to be very, very cautious with this kind of research and wait and see what the results are over at least decades before we jump onto the bandwagon and stop using offense as a way and a rationale for banning speech.

Nadine: And I think that this, one of the other problems with this line of argument is the paternalism and the denial of individual human agency and responsibility. Sticks and stones are distinguishable from words. Sticks and stones by their mere force do demonstrably cause harm. Words can only cause harm through the intermediating process of the human mind. And that, and I have read a lot of scientists and social scientists of all kinds. And our own experience shows to us that you cannot predict you know in a simplistic monkey see, monkey do reaction. That a particular word or expression is necessarily going to have a certain impact. It depends on myriad factors about the individual, about the speaker, about the context, about the history.

Yes, it’s true, it is false that words never hurt us. But it’s equally false that words always hurt us. It depends and we should focus where there is no way we can protect or would want to protect everybody from all speech that is traumatizing and upsetting. I have friends who are deeply traumatized every time Donald Trump opened his mouth to give a speech. I have other friends who are traumatized by Elizabeth Warren opening her mouth.

There is a lot of political speech that is deeply upsetting. Is that, and I’m sure brain scientists could show some action in the brain that has a physical manifestation. That’s not a justification for censoring it. It’s a justification for doing everything we can as education and as a society to build up self-confidence to build up a sense of empowerment. That we do not have to be, give words that power over us.

Nico: Yeah. The two other points on this. Nadine, I think the point you make about the mind being an intermediary here and it can kind of determine how we respond to speech is an important one. I think Shakespeare said there is no good or bad but thinking makes it so. Which is, I think, would be very important for a lot of us and it’s actually helped me kind of think some of the problems in my life. But in thinking through some of these free speech questions, especially for those who find offense and are deeply hurt by it.

The other point is you know what’s the limiting principle here. Right? If expression can be a form of harm, the idea being that it makes, expression offends you, it stresses you out, it gives you anxiety and it, prolonged exposure to stress and anxiety can have physical manifestations. Well, what does that do for the boss then who’s critical of your work performance over the course of time. Stress-inducing, anxiety-inducing. What about the friend who’s in a dispute with you because you allegedly did something wrong? You know? Is that a form of expression that produces stress and anxiety over time that can have physical manifestations? There are things that happen in our life, right. The slings and arrows.

Nadine: Somebody breaks up with you.

Nico: Yeah. Is breaking off a relationship now a form of psychological harm that can manifest itself in physical ways? I just, talk about slippery slope, they criticize us for the slippery slope argument, but I don’t see where it ends.

We’ve got one or two more clips here before we sign off. I want to turn next to dangerous speech.

Broadcast Clip Begins

Female Speaker: Could it be that there is what I call dangerous speech. The category here of language that does something to people, such that it’s at least a precursor if not also a prerequisite for mass-intergroup violence.

Broadcast Clip Ends

Nico: Dangerous speech? A new category of prohibited speech or just the same sort of arguments for censorship with a new label?

Nadine: Here I have to come to the defense of Susan Benesch and her dangerous speech project. Both of which I’m very familiar with. And I think we’re kind of misleadingly portrayed in this segment because it does create the implication that there is a new category of speech that’s gonna be targeted for censorship. In fact, if you do listen carefully to what Susan said particularly toward the end of the NPR episode. She is very strongly advocating counter speech and education and she said, although she’s worried by a lot of dangerous speech that’s going on, she’s very encouraged by how many people are raising their own voices to respond to it. And that is actually the methodology that her project is advocating.

Nico: Yeah. I did, I did, you’re right Nadine when you listen to the full episode and context, she doesn’t seem to be arguing so much in favor of censorship or at least suggesting censorship in the same way that maybe some of the other guests do. I want to close now with a question of the enlightenment.

Broadcast Clip Begins

Male Speaker: Part of what he thought was broken about the enlightenment framework was that you can’t just throw more speech into the mix. If the conversational framework is broken, you can’t just compete with more and more noise. You have to change the framework itself. And it is a chicken and egg think I should acknowledge you know. In order to change the society, you have to change the vocabulary. In order to change the vocabulary, you have to change the society.

Broadcast Clip Ends

Nico: The thing he’s leaving out there is that in order to change the society you need speech, right?

Nadine: How do you change the vocabulary in particular without it?

Nico: Yeah, it’s um. Amna, I want you to speak to this because you actually addressed, I guess some of the concerns related to the enlightenment. The enlightenment gets a bad rep these days despite Steven Pinker’s book Enlightenment Now. It’s the framework for a lot of the systems that we have here in America, but it comes under critique because a lot of the Enlightenment treatises were written by old dead white men, which, who aren’t in fashion. And you did, you have a great new podcast called banished, I believe is the name of it. And you kind of took on the question as whether the can in these great books some of which reside within these enlightenment treatises are still valid in today’s increasingly skeptical society.

Amna: Right. So, this conversation is going on a slightly, or, on a different track but I’m happy to go there. And one of my points is that what we consider as text produced by old dead white men are actually the product if you have a historical lens and look at the influences that are forming the basis of those text. They’re not coming from European societies as we think of them, and from white people.

Much of what we think about as the cradle of knowledge that formed enlightenment ideas was coming from an interaction with north Africa, was coming from an interaction from ideas around the Mediterranean. Many of the people who were writing about these things were Arabic writers and were people who were black.

So, to think about the enlightenment, this really gets my goat. As something that is western or white only is doing such a huge disservice to the rest of the world. There are certain things which are values which I would contend are universal. And I would say are born out of strong debate and discussion between different cultures, between different societies, and we’ve come to them for a reason. There is a reason why the cannon is a cannon. You know I’m all in favor of expanding it. I’m all in favor of like looking at the enlightenment and expanding concerts, but to reject it purely because it is seen as white or male is really, really just very myopic in terms of how we see the origins of these ideas.

So, I really resent this notion that ideas of equality are somehow only western as if the rest of the societies that we’re born in are all for inequality. You know this is the kind of thinking that promotes the kind of foreign policy action that we’ve seen go wrong very badly over the last few years.

So, I would say the enlightenment has a lot to teach us. We can critique it, there’s plenty, it’s a dialogue. To think of these things as fixed in time, space, and associated with particular genders is very problematic. It’s not truly reflective of the rich history and the rich conversation that has gone into informing them. So, someone like Mill and what he has to say On Liberty is actually something that speaks to a lot of values across the world, across races, across societies, and is something to be cherished, not just rejected out of hand because Mill wrote it.

Nico: Yeah. And points well taken there Amna. It’s not the arguments that Marantz is making, but this critique of the enlightenment, I’m just seeing it more and often. And often it falls under the banner of this is like an old dead ideology which has no place in our modern societies.

But the point that Marantz is making and he’s quoting the philosopher Richard Rorty there is essentially that you know the marketplace of ideas. And we’ve kind of already addressed this, comes from enlightenment values and the presumption that good ideas are gonna win out over the arc of history, cannot just be presumed.

Matt: There’s such a strange logic at play here, which is I think essentially what they’re saying is well the enlightenment is imperfect and the people who were responsible for a lot of those ideas were in some cases not very good people or very imperfect people. So, let’s throw it all out because clearly, it’s infected or flawed somehow. And because it comes from that, that imperfect place we have to start over with new ideas. Which is a very strange way of looking at things. It makes no sense. It’s not the way human beings have operated. They’ve always looked back for lessons from history.

Especially in the case of the United States, you know, the founders who were very aware of the idea that the system of government that they created was likely to not be a finished product. They created an elastic clause for a reason. And speech was a crucial part of what they I think understood to be a future curative process for whatever ailed the original model. And so, the idea that we have to throw it away in order to fix something it's just, it’s taking two steps backward to maybe go one step forward. It doesn’t make any sense to me. I don’t understand what that think, where that thinking really leads to.

Nadine: I agree with that, and I thought it was also illogical that the featured speakers on this, On the Media segment were saying we have to be humble, we need humility. But to me that’s the essence of defending free speech is saying you know I don’t trust myself or anybody else to be the sole repository of truth. It’s important to listen. Especially those who are challenging me to rethink my ideas. Isn’t that the essence and isn’t it the essence of arrogance to say we do know better. We’re gonna protect everybody else against these bad ideas.

Nico: Yeah, it’s the idea that I think I’m always right, but I don’t always think I’m right. Or I got that opposite. I heard that in a speech one time, I really like that. And Matt to your point in that we can throw these enlightenment values out the door because the people who wrote them were flawed in this or that way. What was it, Mill worked for like the East India Trading Company or something and he was an imperialist to the nth degree? But Frederick Douglass, his whole enterprise, right, was built on the idea that the values in the Declaration of Independence and The Constitution, they’re a promissory note to which the early founders they themselves could not live up to. Right?

So, I think as we kind of venture to live in this greater identarian society, we’re throwing out good ideas based on the identity of those coming up with them. And sometimes those ideas maybe need to go out the door. But there’s a reason why some of the older founders wrote their treatises like Common Sense, and The Federalist and the Anti-Federalist Papers under pseudonyms. Right? Because they wanted to remove those identarian arguments from the actual debate of the substantive issues. Which I think you know some of these conversations surrounding the enlightenment can benefit from.

Matt: Just quickly though to interrupt though, even your own movie Mighty Ira, I thought addressed this when it talked about how you know Dr. King’s, if I remember correctly, one of Dr. King’s central points was that we want to make the Declaration of Independence live up to its promise to all of us. Right? And his critique was not let’s throw that out, let’s, the critique was let’s now make it functional in a way that it was designed to be for everybody. Let’s make those promises real.

And I think that’s two fundamentally different ways of looking at that history. One is that it was flawed from the beginning and let’s throw it out. The other is it was flawed from the beginning but let’s fix it. Let’s get together and make it right. And you know I’m obviously on the side of the latter strategy.

Nico: Yeah. That speech that you’re referring to from Martin Luther King and Aaron if you can cut in some of the audio for me. It says somewhere I read of freedom of speech. Somewhere I read of freedom of press. Somewhere I read you know that we have the right to assemble and petition the government. Essentially for the redress of grievances, was the last speech that Martin Luther King made the night before he was assassinated in Memphis.

Nico: So, it’s a great point and I had forgot about that. It ties in perfectly with the discussion we’re having here. And actually, a portion of that speech just like a split second of it, comes in the intro of this show.

Amna: Can I just say that we are living in times where I find where there is this knee jerk response, if you find any kind of contradiction you just cancel the person or you censor it right? Or you reject it, demean it. The idea of certain values such as the value of free speech. I mean, these are aspirational values and they’re worth aspiring to. The notion that we can actually live in a society where that’s no longer an aspiration and everything is perfect, is bizarre to me.

Anyone who knows anything about human nature know that we are tempted to listen to things we like and shutdown things we don’t like. Which is why you need very strong principles that protect the right of those who you don’t agree with to be heard. Otherwise, we’d all be stuck in our own silos. Which is frankly what we’re doing on Twitter right now. Unless you’re making a concerted effort.

So, we’re not moving towards that utopian society that these people are imagining. To the contrary. We are moving towards these silos where we’re all just talking to each other and creating these echo chambers. And the point is we’re never going to be in a perfect society.

I love the way people talk about how you know on college campuses these days, we’re going to eradicate racism. And I just think well, that is a very lofty aspirational goal. But anyone who thinks that is truly 100 percent possible is diluting themselves because these thing morph and transform over time and end up in other ways. So, these are great goals to aspire to. We should aspire to them. But just because we can’t live up to them at any given point in time, doesn’t denigrate the goal itself.

Nadine: And the aspiration to protect free speech and the aspiration to eradicate racism are absolutely mutually reinforcing. One of the ways that I strongly disagreed with a lot of points that my friend John Powell made was he said a number of times, you have to choose between the fourteenth amendment in its promise of equal protection of the laws and the first amendment. I could not disagree more. The only reason why Dr. King and the civil rights movement were able to make progress on civil rights and to actually put teeth into the fourteenth amendment was because the United States Supreme Court started in that historical context, to put real teeth into the first amendment. King and other civil rights activists were censored over and over and over again, doing damage not only to free speech but also to the cause of equal justice.

Nico: I think that’s a great point to leave it on. I realize I’ve kept you a little bit longer than I had promised. This has been a fascinating conversation. So, Nadine, Matt, Amna, I appreciate you for coming on the show. And I hope to have you all on at some point in the future.

Amna: Thank you Nico. It’s been wonderful.

Nadine: Thank you.

Matt: Thank you.

Nico: Nice to meet you both, all three of you actually.

Nadine: You too.

Amna: You too.

Nico: That was Matt Taibbi, Nadine Strossen and Amna Khalid responding to an August 27th radio segment from WNYC’s On the Media. The segment was called Constitutionally Speaking and it will be linked in the show notes for anyone who wanted to listen to the full episode. This podcast is hosted, produced, and recorded by me, Nico Perino and edited by Aaron Reese.

You can learn more about So to Speak by following us on Twitter.com/freespeechtalk. We also have a Facebook page at Facebook.com/Sotospeakpodcast. If you have email feedback anything we got wrong, anything we got right, please send it to Sotospeak@thefire.org we also take reviews. Applepodcast, Googleplay, wherever you get your podcasts. We’re on Youtube as well. And until next time I thank you all again for listening.