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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 conversations. I am, as always, your host, Nico Perrino. For this week’s episode, we originally planned to revisit Section 230 with the legislation’s coauthor, former Congressman and SEC chairman Christopher Cox, but given this past weekend’s assassination attempt on former President Donald Trump, we decided to hold that episode for a future date and instead discuss the topic of political violence, its history, and its relationship with speech.

We are recording this conversation during the morning of Tuesday, July 16th, so our knowledge of the facts surrounding the assassination attempt is still developing, and the Republican National Convention in Milwaukee is still ongoing. So, hopefully we don’t get too overtaken by events by the time this podcast is released later in the week, but in any case, I do hope that we have a higher-level discussion of political violence.

What is its history, what are its causes, what is its relationship with radical, heated, and extremist speech, what are the legal standards for responding to threats, what is it like to be the target of political violence, and what are the risks to free speech and liberty in the wake of political violence? Joining us for the discussion is a panel that should be familiar to regular So to Speak listeners. Nadine Strossen is a professor emerita at New York Law School, a former president of the ACLU, and a senior fellow at ��֭����. Nadine, welcome back onto the show.

Nadine Strossen: So great to be here, Nico.

Nico Perrino: Jacob Mchangama is the founder and executive director of The Future of Free Speech, he is a research professor at Vanderbilt University, and a senior fellow at ��֭����. Jacob, welcome back as well.

Jacob Mchangama: Thank you, Nico.

Nico Perrino: And also joining us, just coming into the stream, is Flemming Rose. He is a senior fellow at the Cato Institute. He previously served as foreign affairs editor and culture editor at the Danish newspaper Jyllands-Posten, and Rose himself has been the target of political – or in his case, religious – violence. In 2005, he was principally responsible for publishing the cartoons that initiated the Mohammad cartoons controversy. Flemming, welcome back onto the show. I think it’s been a while. I think 2017 is when you were last with us.

Flemming Rose: Good to be with you, Nico, and good to see Nadine and Jacob –

Nadine Strossen: Likewise.

Flemming Rose: – to be in good company.

Nico Perrino: So, let’s just start by getting some initial reactions to what happened over the weekend. Nadine, what were your first thoughts when you heard the news?

Nadine Strossen: Well, I was incredibly relieved that the assassination attempt did not succeed. Obviously, deeply sorrowful that it took place and that lives were lost. It took only a second, though, after that episode to start to hear complaints that heated rhetoric should bear some of the responsibility, if not a major share of the responsibility, for this violent act, a pattern that has been familiar to me throughout my lifetime as a response to every violent attack, attempted assassination, and terrorist attack, so I thought, “Oh my goodness, we’re gonna have to defend free speech again.”

Nico Perrino: Yeah, in difficult circumstances, and I do wanna turn to that next after we get Jacob and Flemming’s reactions. Jacob, what was the response from the middle of the country? You’re in Tennessee.

Jacob Mchangama: Yeah. I was shocked, of course, as everyone else. It’s not something that you would expect or hope to see, so, again, of course, I was also relieved that, ultimately, Trump was not assassinated, but lives were lost. That’s important to keep in mind. So, that’s a huge strategy, and a shock, I think, to the American system at a time where that was not what was needed. I will say that I think some of the rhetoric that you see on Twitter, on cable news, is not necessarily representative of the sentiment throughout the population.

I think that when you log off, and you go outside, and you meet your fellow citizens, people are more reasonable than the hot takes and the immediate partisan filtering of blame and explanations of what’s going on, which I think is reassuring in many ways.

But I think it’s inevitable that, as Nadine alluded to, there will be those who insist that this has to do with the rhetoric of one side in the same way that, if it had been Biden, Democrats would very likely have said, “Well, this is the demonization of Biden and Democrats by Republicans,” and now it’s the other way around, and that’s an unhealthy instinct to turn to, I think, especially as we – I don’t know that there’s any evidence at this point that suggests that this person was deeply ideologically motivated, and sometimes, that’s not the case in these assassination attempts.

Nico Perrino: Flemming, what is the response overseas, and what is your personal response as someone who has been targeted by threats of violence? I think the first time I met you – it was in Massachusetts – you had bodyguards protecting you.

Flemming Rose: I don’t think that’s important in this context for my reaction, my individual personal story, but I was shocked – as I suppose most people were – but I was not surprised.

Nico Perrino: And why not?

Flemming Rose: Well, if you’ve been following US politics from a distance for years and if you knew a little bit about the history of the country, this is not the first time that a President or a former President has been assassinated or an attempt on his life. We have seen attempts on Supreme Court justice, a member of Congress, and I lived in the US for some years, and it is an extremely violent society. Look at the incarceration rate, look at the murder rate, and compare it to other democracies. It is an outlier in this sense.

So, shock, yes, but no surprise, especially in light of the polarization. Not has so much to do with the rhetoric, I think, but more to do with the tribal divisions within US society that I find far more important than people using one word or another.

Nico Perrino: So, yeah, we do live in polarized times, and in the wake of violent attacks, it’s common to try and pin the blame on our political opponents and blame rhetoric, as Nadine and Jacob were speaking to. For example, Ohio Senator and now Vice Presidential candidate JD Vance wrote on X in the wake of the assassination attempt that the central premise of the Biden campaign is that President Donald Trump is an authoritarian fascist who must be stopped at all costs. That rhetoric led directly to President Trump’s attempted assassination, he wrote.

And then, you also saw some people on social media and elsewhere point to the New Republic’s – that’s a left-leaning political magazine – their June issue, which featured a cover story called “American Fascism” that included an image mashup of Donald Trump looking like Hitler. And then, we’ll also recall that, back in 2011, when Arizona representative Gabby Giffords was shot – and there were a number of other victims of that shooting – some blamed Sarah Palin’s political action committee, which had included a map using crosshairs to target challenged congressional seats.

So, I know we have to take the facts of every incident on a case-by-case basis, but how often can we say expression is the cause of political violence? There were some references to past assassination attempts. Of course, Ronald Reagan in 1981, you had John Hinckley, Jr., who seemed to me to be mentally unwell, you had JFK with Lee Harvey Oswald, Lee Harvey Oswald was killed, so we can speculate on his motives, and you had Teddy Roosevelt, who was shot by a man named John Schrank, who had hallucinations and claimed that the ghost of the assassinated US President William McKinley told him to go after Roosevelt.

And then, of course, you have William McKinley, whose assassin does seemed to be motivated more than the others by politics rather than maybe mental unwellness, because William McKinley’s assassination was motivated by a speech – or at least, so he claimed – that the anarchist Emma Goldman gave in Cleveland. So, I just wanna get the group’s perspective here. Is it ever fair to blame rhetoric on political violence – or, political violence on rhetoric, excuse me?

Nadine Strossen: No. And Nico, your question was is speech ever the cause. I don’t know if you meant that literally, but certainly, in none of the situations that you recite was speech the cause. That said, in every situation, speech is, no doubt, and ideas are, no doubt, and political philosophy is, no doubt, one of the myriad contributing factors to this action. As with every action, causes of human behavior are so complex and include such different internal and external factors that to try to single out speech or a particular expression as bearing the blame would result in just unbelievable censorship because, as Oliver Wendell Holmes famously said, every idea is an incitement.

Virtually anything that anybody says could potentially instigate some person in the appropriate circumstances, including that person’s own psychological situation, to commit a violent act. How many violent acts throughout history have been blamed on the Bible or, with Flemming here, should I say, the Quran? “Allah made me do it,” or “God made me do it,” or “Their teachings made me do it.” Of course, the person who commits the violent act is culpable act, but we should almost never hold a third party accountable except in the extremely limited circumstances that the United States Supreme Court laid out unanimously, with never a dissenting justice since then, in 1969: Intentional incitement of imminent violent action that is likely to happen imminently.

Nico Perrino: Flemming, I saw you nodding your head vigorously there as Nadine got started talking.

Flemming Rose: No, I can subscribe to everything Nadine just said, and I really think it’s important to keep in mind that the reasoning behind all the causes for human actions are, in fact, very, very complex, but speech somehow turns out to be the usual suspect every time because it’s so easy, and it’s quite effective. But I think we have to keep in mind that this is, in fact, what distinguishes human beings from other species, that we do have a mind, we do have an ability to reason, and judge, and evaluate so that there’s no automatic causal relationship between somebody saying something and reaction.

There always is a mind in between where every individual, in principle, has agency. I’m a writer myself, so I don’t wanna play down the importance of words. Words can cause harm, of course, but I just think that it’s important to keep things in perspective and stress that every individual has agency and is, in principle, responsible for his or her action.

Nico Perrino: Jacob, you wrote a book about the history of free speech. I want you to respond to this question, but also, the response I get from students and other members of the public is like, “Well, wasn’t Hitler’s condemnation and blame-putting on Jews responsible for the Holocaust and the Third Reich?”

Jacob Mchangama: Yeah. I actually think that speech and ideas probably are more than just one contributing factor to someone choosing to wanting to kill people. I think it’s probably one of the more important factors, but I think it’s important to stress, as Flemming did, that there’s no automatic…

So, let’s say that I am a committed Marxist. I believe that capitalism exploits the working classes, and that is an evil system that is oppressive. Now, no one has told me that capitalists should be killed, but my mind, my worldview is that capitalist society is so exploitative, so oppressive, that I think violence is the only way to respond to it, and then I choose to target CEOs of major companies.

Now, is Marx – is Marxism – to blame for that? I don’t think so. Marxism may have been part of the worldview that made me do what I did, but there’s no direct incitement that should lead us to ban Marxist ideas. So, in that sense, I just don’t want us to completely downplay the importance of speech and ideas. Outside of the people who are mentally unstable, I think they probably are quite important to people who assassinate.

Then, you have some extreme cases where speech is very important and where you do crash into that threshold that Nadine mentioned. So, if you take the Weimar Republic in Germany, from 1918 to 1922, there were some 376 political assassinations, most of them carried out by extreme right-wing organizations, and these were quite clearly organized violence, they were carried out by these militant organizations that challenged the legitimacy of the state, tried to undermine or even overthrow the state, and that’s obviously a different category.

There, the ideas, the incitement, is very real, but that also distinguishes Weimar Germany from the current situation. Right now, I don’t think – and maybe that won’t be true going forward, but we don’t have these thugs in the streets in the US that challenge the legitimacy and the authority of the state and can do so in the same intimidating manner as was the case in the Weimar Republic, and that is the segue into to your question about Hitler, because we have to remember that Hitler came to power through democratic means, but it was a very unstable democracy. The Weimar Republic came after World War I, the Versailles Treaty, later on, you had the Wall Street crash.

But one of the things that I think is important to note is that the Weimar Republic adopted increasingly drastic measures – emergency measures – to try and curb political violence, to try and curb both communists, and Nazis, and other groups that challenged democracy through speech and violence. So, it was not the case that the Weimar Republic was committed to free speech absolutism, and very often, frequently, the Nazis themselves were actually subjected to censorship, so Hitler had a speaking ban in many German states. Nazi newspapers were confiscated for spreading false views, for attacking Jews, and so on.

Ultimately – and this is, of course, not getting into all the weeds – the details here – but the Nazis, when they came into power, used the emergency laws, including emergency provisions in the Weimar constitution, to shut down civil liberties, including free speech, so you could say that the provisions that were meant to safeguard democracy ended up being used to abolish democracy and cement a totalitarian, one-party state.

Nico Perrino: And Flemming, in your excellent book, The Tyranny of Silence, you sort of talk about this Weimar/Third Reich question, right?

Flemming Rose: Yes, and Jacob just laid it out very well, because at the height of the cartoon crisis, I was attacked by people saying, “You have to be careful because you’re repeating what the Nazis did in Germany,” and people were establishing this causal connection between evil words and evil deeds, implying that if there had not been unlimited free speech in Weimar Germany, then Hitler would not have come to power, and World War II would not have broken out, and the Holocaust would not have happened.

But there is no empirical evidence, as Jacob pointed out, to making that logical construction. There were laws against what we today would call hate speech in Weimar Germany, and as Jacob said, right after Hitler came to power, he turned these same laws against Social Democrats.

I think one of the problems in Weimar Germany, as Jacob also alluded to, was that there were so many political murders being committed, there was so much political violence, and they were never brought to justice, people who were involved in this political violence, while maybe people saying something offensive against faith communities or on a class basis, they were being prosecuted, so it was a very inconsequential state. I suppose Weimar Germany would be what you today would call illiberal democracy.

Nico Perrino: Yeah, Nadine, I just wanted to provide context here. If I’m not mistaken, you’re the daughter of a Holocaust survivor, right? And Jews are often scapegoated for society’s ills throughout millennia, so –

Nadine Strossen: I could not have more hatred or loathing for Nazis as an individual, and in light of my family history, and suffering that my father endured. He did survive – just barely – but many members of his extended family were murdered by Nazis. And I will say nonetheless, but therefore I completely subscribe to everything that Jacob and Flemming have said.

I’ve studied the history myself, and I’m convinced with the consensus of historians that – and, importantly, the consensus of the leading Jewish organizations in the Weimar Republic – that these anti-hate-speech laws were, by and large, quite fairly and strongly enforced, including against antisemitic speech, that it wasn’t as if the laws were just on the books, unenforced, but that they probably had a net positive impact in amplifying the Nazis, gaining them attention and sympathy that they otherwise would never have received. And I think this illustrates one of the dangers of, in effect, what we’re talking about is scapegoating speech.

Of course, speech is an important contributing factor to all behavior. That’s why all of us spend so much of our time discussing our own free speech rights and advocating those rights for others, but to disproportionately or solely pin the blame on free speech not only is unjustifiably suppressing a lot of speech that should be constitutionally protected – again, let’s not forget, every idea can be an incitement. Somebody can be angered by a Black Lives Matter protest, which is intending to protest racial injustice; somebody can be angered and commit a murder against a Black Lives Matter protestor. Who knows what the causal effect might be?

But the second part of that problem is that it deflects society’s attention, and resources, and energy from the actual causes of the problematic conduct. Now, I’m gonna raise another really controversial topic. Flemming started by talking about what a violent society the United States is. I’ve read studies that indicate that when you talk about crimes, including violent crimes, that do not involve the use of guns, the United States is pretty comparable to other countries – other democratic, advanced countries – but when it comes to guns added to the equation, that is when the United States jumps off the charts.

So, I’m not here to advocate for or against various gun control measures, but it seems to me odd that we would first focus on expression that might have contributed to a gunman shooting the presidential candidate and not on the ready availability of those guns.

I’m gonna give you a very specific example. I remember, after the very first school shooting in the United States – yes, now, sadly, they’ve become so common that it’s hard to remember there was a first, but there was a first. It was in the early 1990s, or maybe even the late 1990s, and Congress actually convened a special session – it had gone out of session, but it convened a special session to consider action that we should undertake to counter this problem of gun violence in the schools. There was widespread panic, understandably.

And what legislation did Congress come out with? It was a proposal to outlaw violent videos because there was evidence that the school shooters had looked at violent videos, and that had widespread support on both sides of the aisle. It ultimately failed, but it had strong support. There was absolutely no strong support for gun control measures that were proposed at the time.

Nico Perrino: I remember they also tried to scapegoat Marilyn Manson, who’s kind of this goth metal musical artist. They were trying to look for all these different excuses for the tragedy that unfolded, and it seemed like they placed their target on protected speech – in this case, music and video games. Flemming had mentioned the power of words, he’s a writer, and Nadine, you also brought this up. I have two Supreme Court quotes here that I wanna read that kind of illustrate the tradeoff or bargains that the United States made in support of free speech.

So, in the seminal Supreme Court case Snyder v. Phelps, which was from 2011 and involved the Westboro Baptist Church, who would picket outside the funeral of dead soldiers, essentially blaming America’s depravity on these deaths. Chief Justice Roberts wrote, “Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and, as it did here, inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a nation, we have chosen a different course, to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

And you go back to 1949, in the case Terminiello v. City of Chicago, where the court ruled that “the function of free speech under our system of government is to invite dispute. It may indeed best serve its highest purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” So, it’s not as though the Supreme Court of the United States has failed to recognize the power of words. In fact, it recognizes the power of words and says that we are gonna place liberty over the security that might come from policing this overheated rhetoric. I see Jacob wants to get in.

Jacob Mchangama: Yeah. I think the Terminiello case is really interesting because one of the justices on that case was Robert H. Jackson, and Robert H. Jackson had been the US chief prosecutor in the Nuremberg trials, so he had tried Nazis, some of them for speech, like Julius Streicher, who was the editor of Der Stürmer, a Nazi propaganda newspaper, and in Der Stürmer, after the Nazis came to power, he explicitly advocated genocide that I think everyone agreed far exceeded the limits of free speech, and he was convicted to death, but others, like some people who had worked on radio propaganda, were acquitted.

But Robert H. Jackson came out of the Nuremberg trials deeply worried about the potential for totalitarian movements to destabilize and overthrow democracy, including through speech, and so, in Terminiello, he dissented.

So, Terminiello was basically this fascist-friendly priest who was antisemitic and racist, and he gave an inflammatory speech, and a hostile crowd used violence, tried to get into him, and the priest was fined for breach of the peace or something like that, and the Supreme Court found that this was a violation of the First Amendment, but Jackson dissented, and he comes up with this oft-quoted passage where he basically says that you have to temper the First Amendment with considerations of public order, or the Constitution will turn into a suicide pact.

So, he basically thinks that the experience of Nazi Germany, of the totalitarian takeover of democracy, means that America has to give more emphasis to clamp down on these totalitarian movements that have brought death and destruction to Europe, but the interesting thing is, if you go to 1963, in the case of Edwards v. South Carolina, it’s a case where I think 187 African-American students peacefully protest outside the capitol in South Carolina against segregation. They are arrested for breach of the peace or similar charge on the basis that the police and the city administrator thinks that there’s a chance that White onlookers might be so provoked by these protests that it might devolve into violence or an action, and what does the Supreme Court do?

Well, the Supreme Court relies on Terminiello to protect the rights of these African-American students. So, rather than the First Amendment being a suicide pact empowering totalitarian movements, the very decision that Robert H. Jackson dissented in was actually used to empower a persecuted minority in the Deep South whose peaceful protest for equality had basically been restricted, and I think that’s a powerful sense of what free speech can do, and the dangers of adopting a too-cautious approach.

It’s also interesting to note that Robert H. Jackson wrote a concurring opinion in Dennis v. United States, so, basically, this case where the Supreme Court upheld, I think, convictions for members of the Communist Party, and Jackson writes something along the lines – and I’m just paraphrasing here from my faulty memory – that the clear and present danger test, which had not been sufficiently reversed to prevent the conviction of anarchists during the World War I era, was too expansive, too protective, and the dangers of communism were such that you couldn’t wait for the conspiracy to materialize itself, and you had to give the government powers to restrict and even imprison and convict communists because they were engaged in this vast conspiracy around the world.

And he was looking to eastern Europe, and he was right in the sense that communists had infiltrated societies, they had been using various covert methods to subvert democracy in central and eastern Europe, and that danger he deemed sufficiently grave that America should imprison people for the mere membership of a communist party.

And I think from the standpoint of today, when you look back at that dissent and that concurring opinion from a very thoughtful, intelligent guy, whose commitment to democracy I don’t think anyone can fault, nor his commitment to free speech basically – he was very much in favor of free speech – but he just thought that free speech was too dangerous to be extended to those who had antidemocratic sentiments. And I think from the vantage of today, I think everyone who celebrates democracy and free speech thinks he got it wrong, and I think that’s an incredibly powerful lesson for us today.

Nadine Strossen: Can I make a point to tie together things that all of you have said?

Nico Perrino: Go ahead, Nadine?

Nadine Strossen: Which is I think that when we try to oversimplify the causal role that certain expression may play in contributing to a violent act, I wanna give a couple examples that illustrate how wrongheaded that is. One flows from the kind of case that Jacob referred to. I say “kind of” because there were a couple such cases that arose out of the Civil Rights Movement of the 1960s.

If I can quote another one, Cox v. Louisiana, again, students engaging in peaceful protest, and the police officer’s testimony, which was accepted by the lower court, the students were, again, convicted for breach of the peace, again, violence, and the dispositive testimony was the students were violent because they do things that disrupt our way of living down here. And it’s true, there was a violent reaction, and I think predictably a violent reaction. I think we all agree that that is not enough to justify suppressing the speech, although the Southern courts did not agree with that proposition.

But conversely, going to some points that Flemming was making, in the Nazi period, I’ve read many accounts that even the most – so, Flemming’s point also backed human autonomy and agency – that even the most direct command, when you would think that human agency is at its minimum in the circumstances, a soldier who is commanded by a superior officer to shoot a civilian, there are documented accounts of their refusing to do so. So, that, to me, is the beauty of human agency, and therefore, I suppose, the ugliness of reducing it by putting so much power on words.

Nico Perrino: But it takes a lot of courage to do something like that, to ignore a commanding officer. I imagine some folks who did do that paid for it with their lives.

Nadine Strossen: I’m sure of that.

Nico Perrino: What is the right balance between human agency and just accepting the realities of any individual’s circumstance? I wish there was more courage –

Nadine Strossen: Well, I go back to I think that the major question that we’ve been talking about in various ways, which has always been a major question in First Amendment and free speech law, is how tight and direct the causal connection has to be between the speech and the potential harm – because we all recognize that speech can, of course, potentially and actually do harm – how tight does the causal connection have to be, what does the intent have to be on the part of the speaker?

And I think that Justice Brandeis got it right way back in 1931 – was that the year? – in his famous concurring opinion in Whitney that the United States Supreme Court unanimously endorsed in Brandenburg in 1969, and not a single justice has dissented from that standard since then. Again, mere advocacy of violence is not enough. The court distinguished advocacy from incitement, and the incitement must be intentional, and it must be likely to actually happen. A very demanding standard, and I think an appropriately demanding standard.

Nico Perrino: Yeah, and we’ll return to that question when we get to some of the calls for censorship that we’re currently seeing in the wake of President Trump’s assassination attempt, but I wanna bring in Flemming here very quickly to respond to the discussion that’s been happening, of course, but then, in a liberal society, how do we strike the right balance between freedom of speech and expression and security?

Flemming Rose: There is this famous tracing by Benjamin Franklin that if you want to choose security instead of freedom, then you don’t deserve neither security nor freedom.

Nadine Strossen: “You deserve neither and lose both.”

Flemming Rose: Exactly. And I think the problem with security restrictions is that you know for sure that you will get less freedom, but you will never know if you in fact get more security. But it’s very often the default mode and the default reaction by politicians and the public because it is the usual suspect. I want, however, to add one point to what Nadine said, and that is that I think you were referring, in fact, to Christopher Browning’s book Ordinary Men –

Nadine Strossen: Yes.

Flemming Rose: – which is a study of a Nazi corps during World War II, and it turns out it is not that easy to commit violence. We quite often think that there is a very easy and direct connection between speech and violence, but it is a very high barrier to cross from speech, and then to commit violence. It’s not that simple. You really have to overcome counterforces within yourself, unless you have this groupthinking, tribalization, divisions, demonization of your enemy, and the other, and so on and so forth. But it’s no easy feat to commit violence.

Nico Perrino: One of the things that unites free speech advocates is this distinction between speech and violence. There’s that quote that’s attributed to Sigmund Freud, but I think has been used by a number of different people throughout history, that civilization was started the day man first cast a word instead of a stone. Civilization, liberal societies, the proposition is that we use our words to solve conflicts rather than violence.

But the question that we need to ask ourselves as free speech advocates who are vehemently opposed to the use of violence to solve our disputes is the question is violence ever justified in any circumstances to achieve a political or ideological end? The American Revolution was a violent response to what the colonists at the time thought were unjust actions by the British crown. You see hypothetical conversations happening in high schools and college – I remember having them myself – if you could go back in time, would you try to assassinate Hitler? And some, actually, during his time, tried to assassinate Hitler and failed.

So, you have people at this moment who say, well, one of the reasons that this Matthew Crooks man tried to assassinate Donald Trump is because of all the rhetoric comparing Donald Trump to Hitler, and if we would go back in history and kill Hitler, why wouldn’t we try and kill Donald Trump? These are difficult questions, and Jacob, you and I were talking on email about this one, and you brought up a Nelson Mandela anecdote that I thought was very apt and very timely.

This is a challenging question, but it’s the retort, it’s the response we’re gonna get as free speech advocates who are constantly trying to draw a distinction between the use of speech and persuasion and discussion to solve our problems and violence, so maybe, Jacob, I’ll start with you here, and then go over to Flemming, who I see might wanna get in.

Jacob Mchangama: So, at his trial in 1964 – so, I guess that’s 60 years ago – so, he’s put on trial for sabotage and terrorism, and he gives a very long speech, very eloquent speech at this famous Rivonia trial, and he explains in detail why the ANC decided to create an armed wing and use violence, and he says that – and I’m quoting here – “All lawful modes of expressing opposition to this principle have been closed by legislation, and we were placed in a position in which we either had to accept a permanent state of inferiority or to defy the government. We chose to defy the law. We first broke the law in a way which avoided any recourse of violence. When this form was legislated against and then the government resorted to show of force to crush opposition to its policies, only then did we decide to answer violence with violence.”

So, he basically says – this is sort of like a pressure-cooker theory – he says that as long as you have free speech, the ability to protest, you must use nonviolent means, peaceful means, and we did that, but the Apartheid regime was extremely oppressive. It had layers after layers of censorship policies, from an index of banned books, to hate speech laws that protected the White minority, to communist laws and banning orders that said that you couldn’t leave your house, you couldn’t meet with people, and, of course, into torturing and killing public protest.

And so, basically, Nelson Mandela here says, well, okay, at the point where any form of protest or dissent was forcibly closed off, then we decided now violence is legitimate, but he also stresses “We didn’t use terrorism,” so it would have been sabotage against buildings or infrastructure. I don’t have the exact data, but I think that the number of innocent civilians who were killed as part of the struggle was relatively low, so it was a very far cry from al-Qaeda/ISIS types of violence. Then, of course, you have Gandhi, who I think would say that nonviolence is the key principle, you shouldn’t deviate from it at all.

I think Mandela’s speech is a really interesting one from a free speech perspective, and it also sort of chimes with some research that we have, which says that actually, you’re more likely – at least, in democracies – to experience extremist violence, particularly right-wing violence, if you restrict free speech. When you restrict free speech, even if it’s extreme speech, people are maybe more likely to say, “Well, I have no other way of protesting. If my ideas are banned, well, then it’s more legitimate for me to use violence.”

And so, if Mandela can arrive at this point, we should probably expect that others who are less principled would also arrive at that, and even before being subjected to as much censorship and suppression as Mandela.

Nico Perrino: And the research you were citing there, I think, comes from a paper that you coauthored, entitled “Freedom of Expression in Social Conflict,” and the findings there suggest that, to the extent, at least, within liberal democracies, as you say, that you have freedom of speech, it lessens the social conflict that you would see in those societies.

This is often referred to as the safety valve justification for free speech, that free speech is a safety valve for people to air their grievance, petition the government, and not have to resort to political violence. But Flemming, I want to turn to you now on this broader question of whether political violence can ever be justified. What do you think?

Flemming Rose: Well, a couple of points. I think here, it might be relevant to bring in my own personal experience because one of the big surprises for me during the debate about the Mohammad cartoons and the uproar and reaction was, in fact, how few people in liberal democracies registered that a principal line has been crossed when you call for violence in order to fight speech that you don’t like. In that situation, you cross a line where, no matter how much you deplore the other side, you just have to support the right to say it.

Of course, Nadine and Jacob, there are exceptions, and a lot of other people are, but to me, that was really a shock, that intellectuals, editors, and others were not that clear on that pivotal moment when you cross that line and you accept that violence, in fact, is an argument when I or the newspaper used to work received death threats and have to go into hiding and live with bodyguards. A lot of people didn’t recognize that this was a principal different situation compared to the one where you fight with words, and that was a cause for concern and some reflection in the aftermath.

The other point is that, following up on what Jacob said about Nelson Mandela, of course, you can have a situation where you see no other way of reacting, but a while ago, I spoke to a British professor who wrote a book titled Does Terrorism Work?, asking the question whether political violence works, and he analyzed six big political and religious movements that had used violence in order to achieve their goals, and he concluded that, in most cases, political violence does not achieve its goals, for two reasons.

One is that not that many people want to engage in violence. It’s far easier to mobilize people to march, to demonstrate, to protest, to engage in political movements than to go underground and commit yourselves to violence, and the other thing is that political violence reinforces and strengthens polarization in society, and that, in and by itself, makes it more difficult to achieve sustainable political compromises and solutions that both sides in a civil conflict can accept and live with.

Nico Perrino: Yeah, and I think that finding has been fairly well replicated across the social sciences as well, and I did see, during the George Floyd protests of 2020, there are a couple of people who pointed out that finding to argue against looting, for example. They lost their jobs for merely pointing that out. Nadine, I wanna get your perspective on this and pivot to another series of questions. I’ll lay that question out first, and you can respond to both points if you want, but I assume we’re going to see censorship of those engaged in the sort of heated, offensive rhetoric in response to the assassination attempt.

I think there was a comment by a member of the comedy band Tenacious D about how – one of the members of that band had hoped that the bullet had actually hit Trump or would hit Trump the next time. We’re already starting to see calls for censorship on campus. You see the popular X, formerly Twitter, account LibsOfTikTok, it seems like the past three days, it seems like it has done nothing but search private citizens’ social media accounts for them saying things like they wish the bullet was closer to Trump’s head or hit him, or “I hope the assassin gets him next time.”

In fact, Greg Lukianoff, ��֭����’s president and CEO, wrote in the immediate aftermath, he said, “We’re gonna have a difficult job as free speech advocates here” because we’ve seen, after previous tragedies, the calls and efforts to censor those who make light of those tragedies. In fact, after 9/11, we came to the defense of University of Colorado at Boulder professor Ward Churchill, who referred to the civilians who died in the World Trade Center as “little Eichmanns.” We also came to the defense of the University of New Mexico professor Richard Berthold who said, “Anyone who can blow up the Pentagon has my vote.”

We have Supreme Court cases – precedent – on these questions. Of course, you have the famous Watts decision from 1966, in which you had 18-year-old Robert Watts, who stated, “I have already received my draft classification as a 1A” – that means he essentially is gonna get drafted – “and I have got to report for my physical this coming Monday. I am not going,” he said. “If they ever make me carry a rifle, the first man I wanna get my sights on is LBJ,” and this is in reference, of course, to being drafted to Vietnam.

But you also have perhaps a more apt Supreme Court decision in the case Rankin v. McPherson from 1987 where you had a deputy constable, working in Texas’s Harris County Constables Office, who was hearing on the radio – kind of in the lunchroom – about the assassination attempt on President Ronald Reagan, and she remarked to a colleague, “Shoot, if they go for him again, I hope they get him,” and this constable was terminated.

And the Supreme Court, in a 5-4 decision, essentially said that the lower courts didn’t properly balance the employee’s interest in commenting on matters of public concern against the real safety threats that need to be assessed on a factual contextual basis, and in both the Watts case and the Rankin case, they essentially found that this was political hyperbole, that there was no actual intention to assassinate the President or encourage assassination of the President.

Nadine, so, this kind of speaks to what you were talking before. We have a history – at least, here in America – of trying to walk this fine line while encouraging vehement, heated, hyperbolic speech on matters of public concern, even making light of the assassination attempts on presidents, and balancing that with the real-life security threats that presidents sometimes face.

Nadine Strossen: I wanna comment on those cases, Nico, which are very speech-protective, and I am very encouraged to believe that the Supreme Court will continue to enforce them, but I think we have a tougher job in the court of public opinion. We’re all drawing distinctions between speech and violence, but ��֭����’s surveys of campus continue to show that there are disturbingly high percentages of college students who are arguing that violence is, at least sometimes, justified in response to speakers they disagree with.

Nico Perrino: Nadine, can I just pause you there? Because I have the data in front of me, and I wanna just add color to what you’re saying.

Nadine Strossen: Well, thank you. That will be great.

Nico Perrino: So, our latest 2024 College Free Speech Ranking, which is a survey – the largest ever survey – conducted of college students’ attitudes on free speech – this is over 50,000 college students across America – we asked about the acceptability of different forms of destructive action in response to speakers, and as Nadine points out, more than a quarter of students – 27% – said that using violence to stop a campus speech is acceptable to some degree, and that’s up from 20% in our 2023 survey.

We find that also, more than 2 in 5 students – 45% of students – said that students blocking other students from attending a speech is acceptable to some degree, up from 37% the year before. So, it’s not trending in a great direction, and there seems to be a considerable support from college students to use coercive or violent action in response to speakers they dislike, and it doesn’t seem to be getting any better; it seems to be getting worse, in fact.

Nadine Strossen: If I can give one other data point, even among law students, FIREdid a very chilling survey in April of this year, just a few months ago, of Stanford law students on the one-year anniversary of the disruptive deplatforming of 5th Circuit judge Kyle Duncan, and more than one third of Stanford law students said that violence is sometimes justified to deplatform a speaker whose ideas they disagree with, so that’s where the tough job of persuasion will be.

But I think the Supreme Court’s holdings – and let me throw one other into the hopper, Nico, in addition to the two important cases you cited, is NAACP v. Claiborne County. This was a decision in 1982, but it arose out of boycotts of White merchants that started in Alabama in 1966, and Charles Evers, the leader of the NAACP, gave very vehement speeches with very incendiary language, including saying, “If we catch any of you breaking that boycott, we’re gonna break your goddamn necks,” and there was, in fact, some violence against people who broke the boycott, but again, the Supreme Court held that that speech is protected.

And I’d like to read just some of the language that the Supreme Court has uttered, first in the Watts case, and I think the Robert Watts case should be so telling to college students today. Here was a Black 18-year-old who was participating in a demonstration in Washington, DC against police brutality – it should sound very familiar, right? – and in that context, he makes this statement about the President of the United States, expressing his contempt for the President’s policies in Vietnam and elsewhere, and the Supreme Court said – in addition to concluding that was political hyperbole – “the language used in the political arena is often vituperative, abusive, and inexact,” and in the NAACP case, the court said “strong and effective extemporaneous rhetoric cannot be nicely channeled in purely dulcet phrases. An advocate must be free to stimulate his audience with emotional appeals.”

One other example is the Black Lives Matter protest case that’s gone up and down to the Supreme Court two times, in which Louisiana has tried to hold culpable DeRay Mckesson, a major leader in the Black Lives Matter movement, for incendiary language against police officers who had committed abuse, and then, somebody at one of the protests, who has not yet been identified, hurled a rock and injured a police officer. Of course, that person should be held culpable, but there is an ongoing effort – so far succeeding in Louisiana – to hold Mckesson culpable.

So, I wish that partisans on all sides of the current debates would remember that this is a standard that can be used against Donald Trump, who has used pretty violent rhetoric against some of his political opponents, against all manner of Democratic speakers, speakers for racial justice, against racial justice, speakers on all sides of all these contested issues would be subject to suppression.

Nico Perrino: That Louisiana case is actually pretty good, Nadine, and we did just get a good district court ruling –

Nadine Strossen: Oh, I didn’t know that.

Nico Perrino: – in that case. I’m not sure if you’re familiar – yeah, we did. It’s in a weird procedural posture, it’s gone up and down the courts, even to the Supreme Court, and back down a couple of times, but the district court, in a ruling – I believe last week, I forget on what procedural grounds – ruled for DeRay Mckesson, but it essentially pointed out the connection between DeRay Mckesson and this unlawful action by one of the protestors who participated is very tenuous, and what’s more, DeRay Mckesson can hardly be called the leader of the protest.

For one, he was marching in the middle of the group, and the best piece of evidence that Louisiana officials had for saying that he led the protest is the fact that he retweeted someone else’s tweet with the location and time of the protest. That’s all he did, and for that reason, the officials in Louisiana are going after him as being responsible for the violence that just so happened to occur there.

But we do have to wrap up here, so I wanna get closing thoughts – if we can keep them brief, all the better – from folks, and maybe I’ll turn to you next, Flemming. What is our role as advocates for a small-L liberal society that gives maximum berth to free expression at a time when people seem to be clamoring for increased security? What are we to do, and what are your final thoughts on the broader topic here?

Flemming Rose: Well, my final thought is a kind of comment on what Nadine said and the data you provided that shows that one thing is to have a legal culture and a protection of speech in terms of law and Supreme Court. A different thing is a culture of free speech, and the data you provided, Nico, I think suggests that free speech culture, in fact, is being undermined, and it reminds us that free speech, in many ways, is a very unnatural thing. It is not something that – we don’t have a gene for free speech. We have quite the opposite, that our instinctive reaction when we are exposed to speech that we don’t like is to shut it down.

So, it’s a question, not of nature, but of culture and education, and I think the data you provided stresses that point. So, we have to practice free speech in order for it to provide, and also tolerance, of course, because you don’t have any free speech without its counterpart, the ability to live with things that you hate or don’t like without resorting to violence, or bans, or threats.

Nico Perrino: And Jacob, you run a free speech organization, and we’re often in the difficult position of being the skunk at the garden party, so to speak, of saying no, this very offensive speech you, donor, you, college administrator, you, President of the United States, don’t like – it needs to be protected, and it needs to be protected. So, what are your final thoughts on how we move forward?

Jacob Mchangama: So, I think in this instance, I think it’s really important that the US does not give up its commitment to free speech exceptionalism, and I think if this had happened – let me take an example from Denmark, where Flemming and I are from. Our prime minister – there was a COVID protest – some protestors had a doll, sort of an effigy, with the words “She should be put down” – it was a reference to her unconstitutional decision to cull all minks due to the COVID panic. That effigy was burned.

These people were arrested on basically high treason charges, put in prison on remand for weeks, and then – first, they were acquitted, but then they were convicted for threats and sentenced to several months in prison. So, that’s the kind of political speech that you would criminalize if you relax the standards. The French president, Macron, sued someone who had put up posters of him comparing him to Hitler, and he won that case, so the protestors had to pay a fine of €10,000.00.

In Italy, the president, Meloni, run a case of criminal defamation against an author who had said something about her. In Germany, you see the police coming with dawn raids, more or less kicking in the door early in the morning for people who insult or say things about politicians, arrest them, confiscate their tablets, and so on, and it’s not difficult to imagine how this would be weaponized in the US. One thing is the federal level, so you could imagine that an emergency situation would be exploited at the federal level, but what I would worry more about in the US is at the state level.

So, you can imagine, if First Amendment standards were relaxed, Brandenburg was overturned, and you had much more leeway to go after what could loosely be defined as incitement, you would have laws in California that would target conservatives, you would have laws in Tennessee or Alabama that would target liberals, and I think the polarization that we worry about that someone to restrict free speech in order to prevent would be dialed up a lot louder, and I think that polarization would be weaponized through legal means in a way that would be highly prejudicial to American democracy.

Nico Perrino: Nadine, do you wanna bookend it here for us with your final thought?

Nadine Strossen: Thanks, Jacob, for those contemporary other-country comparisons. I’d like to use some comparisons from history in the United States when government did have power to suppress speech that did not have a tight and direct causal connection to speech, but was merely feared to have a bad tendency to – perhaps indirectly – lead to danger in the future, to harm in the future. What was consistently suppressed, predictably, was speech on behalf of every dissident movement, every social justice, every reform movement, every human rights movement. So, there is absolutely no doubt that freedom of speech is very dangerous, but there is also absolutely no doubt that censorship is far more dangerous.

Nico Perrino: All right, folks, I think we’re gonna leave it there. I appreciate you joining us. That was Nadine Strossen, Jacob Mchangama, and Flemming Rose. I am Nico Perrino, and this podcast is recorded and edited by a rotating roster of my FIREcolleagues, including Aaron Reese and Chris Maltby. You can learn more about So to Speak by subscribing to our YouTube channel or 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 find us on Facebook.

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