Free speech champion and icon Nadine Strossen joins Erik Jaffe for a virtual “fireside” chat spanning a variety of free speech topics, including: the perpetual and inevitable conflict between process- and outcome-oriented approaches to free speech cases (i.e., whether to defend the speech or speaker you hate); how does a lawyer or public interest group decide whether to take a case raising such a conflict; does more speech always solve the problems of bad speech; how much risk or harm should be tolerated before it is acceptable to restrict speech; the prospective conflict between freedom and equality if speech is claimed to create a hostile environment on campus or in the workplace; balancing private versus public power questions in the free speech and other contexts; how the ACLU has grappled with such issues; and are there areas of or approaches to the First Amendment that might have bipartisan appeal.
Nadine Strossen, John Marshall Harlan II Professor of Law, Emerita, New York Law School
Moderator: Erik Jaffe, Partner, Schaerr Jaffe LLP
To join, click the link above.
As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
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Evelyn Hildebrand: Welcome to The Federalist Society's virtual event. This afternoon, January 28, we welcome Erik Jaffe and Nadine Strossen for a fireside chat to discuss the First Amendment, culture, and many other issues besides. My name is Evelyn Hildebrand and I'm an Associate Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today's call.
I will introduce Erik very, very briefly. Erik is a partner at Schaerr Jaffe LLP. He is the chairman emeritus at The Federalist Society's Free Speech and Election Law Practice Group, and he is a very active First Amendment litigator and thinker. Erik will introduce Nadine shortly.
After our speakers give opening remarks, we'll turn to audience questions towards the end of this afternoon's program. If you have questions, please enter them in the Q&A feature at the bottom of your screen. And you can enter those questions at any time. So please do enter questions in the Q&A tab at the bottom of your screen, and we'll handle questions as we can towards the end of the program.
With that, thank you for being with us today. Erik, the floor is yours.
Erik Jaffe: Thank you, Evelyn. And, thank you, obviously, to The Federalist Society for sponsoring this and letting us have this fireside chat with the actual fire. Obviously, for those of you who have sort of not paid attention to civil rights law at all in the last 30 years, my guest today is Professor Nadine Strossen. While she is currently a professor emeritus at NYU and teaches all over the place, she is perhaps best known for her relationship with the ACLU as president for, I believe it was 16 or 17 years, from '91 to --
Nadine Strossen: [Inaudible 00:01:56].
Erik Jaffe: Yes, and also as a member of the advisory board. And in many, many, other roles.
You can read about the detailed background of Professor Strossen on the website, where you hopefully clinked into the link for this. And I would say that the one thing to mention is she is a frequent, and one of the favorite Federalist Society panelists every single year at national conventions, at local chapter meetings. And I think she provides both challenging and interesting stuff from the perspective of civil liberties, which is always an interesting debate between the libertarian wing and the conservative wing of The Federalist Society, let's say, and brings perspectives that we all greatly, greatly appreciate. So, thank you, and welcome, Professor Strossen.
Nadine Strossen: Thank you so much for having me, Erik. And I'm so sorry I wasn't able to participate in the National Convention this year because of Covid concerns. And, then, when I had to cancel my in-person appearance, you very kindly invited me to this Fireside Chat. And I was so surprised because I associate that with Franklin Delano Roosevelt. But I didn't know there was a Rooseveltian wing of The Federalist Society, in addition to the conservative and libertarian.
Erik Jaffe: Well, you know, we like his style, if not necessarily his policies. So there you go. So, one of the things we had chatted about, and in the introduction, we said we would talk about, and I'd like to start with, is this notion of process versus outcome. So, many portions of the Constitution, particularly the Bill of Rights, deal with process — what, to my mind, is process — whether it's due process, quite literally; whether it's things like the Fourth Amendment; whether it's things like the Free Speech Clause, which, to my mind, is about the process of coming to political decisions and guaranteeing that that process operates in a certain way.
And a perpetual conflict is how much do you commit to a process of allowing people to speak, of not searching without a warrant, whatever the process is, versus the potentially bad outcome of that. So, in the speech context, you could imagine things like libel. Or you could imagine something that incites a riot, with the classic Brandenburg case. Or, in the Fourth Amendment context, you can imagine not searching and then a criminal goes free.
But, given that we're the Free Speech and Election Law Practice Group, we'll talk about speech. Where do you think the line is? Justice Black was an absolutist. You can't restrict free speech, come hell or high water. Pardon my French. Others use a balancing test — whether it's intermediate scrutiny or strict scrutiny — that, at the end of the day, take outcome into account.
I'd like to hear what you think maybe the proper balance, in a big picture sense, ought to be.
Nadine Strossen: Well, that's a really challenging cluster of interrelated questions, Erik. So let me start with the first piece of it, which is process versus outcome. I think it's very clear that the Constitution itself, whether you're a textualist, or whether you're an originalist, or whether you're attuned to evolving constitutionalism, to me, all three methods of interpretation lead to the conclusion that the Constitution is — to use your formulation — process-oriented, making sure that government officials act in certain ways and do not act in other certain ways, regardless of whose ox is gored, whose political agenda, whose personal fate is advanced or retarded in the particular factual circumstances. And I really focus on the Constitution as a restraint on government. I think we really have to keep that perspective in mind.
And, that's, I would think, something that both the libertarian and, I would hope, the conservative wing of The Federalist Society would agree on -- to reduce government power to interfere with fundamental freedoms and privacy of individuals, no matter how lofty the aim might be, no matter how much good it's hoped that government might achieve by tweaking a little bit here or invading just a little bit of privacy or compromising just a little bit of due process, that we cannot lose our vigilance in restraining government. Even if, as a partisan matter, you happen to have great faith in a particular government official, we know that that person can be out of office the next day.
I'm constantly imploring people who say, "Oh, but I trust Joe Biden," or "I trust Donald Trump." Fill in the blank any way you want. My answer is always the same, "Yes, but would you entrust that same power to," and then name somebody of opposite political persuasion. I think there are hydraulic pressures. And it's very, very difficult, once government power has expanded, to cut back on that power.
So it really is true that if we don't -- and I keep thinking up statements from the founders. I think — I'm so sorry — especially James Madison, speaking to The Federalist Society. And forgive me for not remembering his exact words, but it was something to the effect of, "We must take alarm at the first infraction of our liberties." Right? That, once you give any latitude at all, then there is an inevitable slippery slope. And I'd say it's not even a slope. It's a precipitous decline.
Let me give one example that came up recently. I was having a conversation with some folks about the Cold War era. And there were so many repressive laws that were put into effect in order to fight global communism. And then the United States won the Cold War. Right? It ended. The Berlin Wall came down. The Soviet Empire crumbled. And Senator Daniel Patrick Moynihan had put together, with bipartisan support, a bill called Ending the Cold War at Home. It was the first piece of congressional legislation that I testified on, shortly after I had been elected ACLU president.
And it was simply taking out all of the provisions in federal statutory law that cut back on individual freedom, that cut back on individual privacy, that expanded government surveillance power and so forth, that were rationalized, "We need this, because of the Soviet threat, because of the Cold War." The threat ends and disappears. And we could not get rid of the statute. Once it's there, it's almost impossible to get rid of it. The same thing happened -- I was shocked to learn that the espionage and sedition acts from the World War I era are still on the books. So I guess I'm only answering the first part of your question so far. I could not feel more strongly about it.
Erik Jaffe: It's a good segue, though, you're reference to the Cold War. Obviously, now we have the Patriot Act and the War on Terror.
Nadine Strossen: And, remember, The Patriot Act was supposed to be sunsetted -- the overreaching provisions that both conservatives and libertarians objected to very, very strongly. So they negotiated sunset provisions. And those sunsets keep being extended and extended and extended, and never expire.
Erik Jaffe: Yeah. See, now, I work with other groups that deal with exactly the issues that you've just described: privacy and surveillance; Protect the First, which deals with all kinds of First Amendment issues. And these are exactly the issues we grapple with every day, still.
But your reference to the Cold War is interesting. I agree with you that this sort of process is important because you may not always be in power. It's sort of the way of defending the folks not in power. But I feel like — a la the nuclear war era — there's this notion that if I can just get the first strike in, I will win such a decisive victory that my opponent won't get back into power any time soon. And so let me take advantage of speech restrictions or privacy or what have you, and then I'll win the war. And I think it's mistaken.
And I think it's empirically delusional. But I think we're seeing more and more of that. You see it in congress. If I just take the first shots and win it — whether it's the filibuster, whether it's this, whether it's that — if I just get rid of the process and take the victory now, I'll worry about what comes later.
Nadine Strossen: I think that's understandable for -- I'm not saying morally defensible, but, from a strategic perspective, it's understandable that somebody who is running for electoral office and depends on votes and getting elected to be able to do what they want to do in that capacity, that they would have a very short timeline. Am I going to be elected? Am I going to be reelected? I can't do anything unless that happens, so I'll make the compromises that are necessary in order to get elected. It's one reason I've never been attracted to that form of activism myself. And I think it's a reason.
And I have many friends who have been involved in electoral politics who have been elected to office who will say — sometimes publicly, even more often privately — thank you for doing what you're doing, for critiquing us, from staying outside mainstream politics and trying to keep us honest by reminding us of what the neutral principles are and what the long-term — not even that long-term, but certainly not short-term — adverse consequences of these policies that are so tempting for us.
We really need the watchdogs, including, I have to say, I keep rereading the founding principles of The Federalist Society. And they sound like straight out of the ACLU playbook, that the purpose of the government is to maintain individual liberty and a very strong defense of separation of powers and limited government power. I think we share those deep important principles from the big overarching perspective, Erik.
Erik Jaffe: I absolutely agree. It's exactly what attracted me to The Federalist Society, originally, particularly the free speech portion of it. Because it did seem like a slightly conservative analog to the ACLU, and neutral principles. Try to not look to the policy, but look to the principle. Look to the process. So I agree. It's a great analogy. And I think it's why I think people like hearing from you at FedSoc events, is because there is a shared core of principle there.
So now that we have sort of this notion of process as important, it's important to remember, look ahead, not just to tomorrow. There is, of course, in most First Amendment jurisprudence, most constitutional jurisprudence, a backstop of sorts for serious harm. And the easiest is, again, from the post-World War II era, the Brandenburg — the fear of global communism, Brandenburg v. Ohio — that you can't restrict speech unless there is a clear and present danger of some terrible thing happening.
But I feel like, today, people are pushing that line, and are willing to restrict speech, or asking to restrict speech where the danger may not be so present. It may not be so clear. It may not be so big. It's not that there's going to be a revolution, but maybe there's going to be some harm. Or maybe even some people will die. It's not that those are trivial consequences, but I assume rights exist because people will want to restrict them to solve some other problem. Where do you think, conceptually, that line should be? Do you think the Brandenburg line is as far as we should go? Do you think that Justice Black, "no means no and whatever happens, happens" is the better answer, or something else?
Nadine Strossen: Let me just say, Brandenburg, I'm very proud, was an ACLU case, the immediate beneficiary. Because this goes back to your first question, Erik. Our question, on a small scale, was should we defend a member of the Ku Klux Klan who's holding a rally at which he uses racist language against African Americans and against Jews, and calls for violent action against them? Should the ACLU defend the First Amendment rights of these people? It wasn't even a close question.
And our counsel of record was somebody whose name will be very well-known to folks on this webinar, Eleanor Holmes Norton, who, for many years has been the DC representative, non-voting — which is a whole other topic we can get into in your election law section, here — member of congress. She was the first black woman appointed to head the Equal Employment Opportunity Commission. But she began her illustrious career as an ACLU staff lawyer. And, in that capacity, she not only represented Clarence Brandenburg, she also represented Alabama governor George Wallace and other arch-segregationists in speaking up for their free speech rights.
And, very recently, I think about three years ago, she gave the commencement address at Georgetown Law School, where she has been on the faculty. And she addressed this issue, the pressure from not only the public in general, not only the students in particular, but even law students, including at places like Georgetown, putting pressure to roll back free speech protections, including, especially, for racist speakers, such as Clarence Brandenburg and George Wallace, for people who are advocating violence and perhaps instigating violence, which was certainly a factual situation in Brandenburg as well.
And Eleanor could not have been more firm and more confident in her vision that not only had the ACLU and she done the right thing in defending those clients, more importantly, the Supreme Court had done the right thing in upholding their free speech rights. And she harkened back to her activism in the civil rights movement, that the civil rights movement could never have succeeded by simply suppressing or trying to suppress voices of those that had different views. It was a matter of persuasion and education and information.
And, also, when government did have more censorial power, it was predictably used to suppress exactly the voices of those who were challenging the status quo, including Martin Luther King himself. Why did he write his famous "Letter from the Birmingham Jail?" Because he was imprisoned for trying to exercise what we would now consider to be core First Amendment rights.
Now, there are many myths and misconceptions about free speech, which I think lead to some of the pressures to change it. I think, I find in my constant speaking, on point, that when people learn what the actual law is, they're pleasantly surprised, and say, "Well, that actually does make a great deal of sense." So I don't even really have to distinguish between what the law holds and what my own personal views are of what it should be in an ideal situation, whether or not we had a First Amendment. And that is that government power to restrict speech should not be complete. There should be some power to restrict any freedom, including freedom of speech, if — but only if — that speech directly, imminently, causes certain specific serious harm, and there's no other way to avert the harm, other than through suppressing the speech or curtailing the liberty.
And the lawyers here will recognize that this is essentially the strict scrutiny test that we use for protecting all fundamental rights, including freedom of speech, free exercise of religion, and so forth. In the First Amendment context, it's often summarized as the emergency concept that the speech directly and imminently instigates some specific harm. And this is in contrast to the much more lenient standard we had before the 1960s.
And let me put in a parenthetical here, Erik. The First Amendment, of course, has existed since 1791. But it was essentially a dead letter until the 1960s. Why? Because the Supreme Court was enforcing a much more lenient concept of a sufficient connection between speech and harm to justify censorship. It's usually referred to as the bad tendency test, that speech might indirectly, at some point in the future, contribute to harm. And it was under that more lenient test that folks such as King, other civil rights demonstrators, were imprisoned or silenced. That is exactly what happened to abolitionists, to labor activists, to socialists, to communists, to anti-war demonstrators. Basically, dissidents of all stripes were consistently silenced.
And many people say it wasn't a coincidence that it was the Supreme Court in the 1960s, under the leadership of Chief Justice Earl Warren, who first started really strictly enforcing the free speech guarantee at the same time that they were very supportive of the civil rights movement in other ways. They're probably not accusing the Court of being result-oriented. But it is true that censorship was a major tool for trying to suppress that movement, not only by trying to and successfully censoring demonstrators themselves, but through the libel actions that were deliberately brought in an effort to bankrupt the New York Times and other national media, seeking to stifle the national press coverage that was really an essential engine for garnering attention to and support of the civil rights movement.
Erik Jaffe: I agree with you on all this history. And, of course, like I said, there's a -- my motivation for coming to FedSoc — and, in particular, the free speech part — parallels this in many, many ways. Because I agree that power once given will be abused, even against you. You should never give it. But, at some point, people will say, "Well, certain harms that we didn't think were serious before, we have come to view as serious now."
And I guess the one good parallel one could draw, and something I know that you're well familiar with, is both speech on campus or in schools that attacks one group or another based on their race, their ethnicity, their gender, their preferences, their sexual preferences, whatever it will be. And you see this on campuses with calls to silence conservatives. You see this in public schools on calls to silence critical race theory folks because it makes people feel terrible about their race and ethnicity on the other side. So it's not a one-way thing. It's that both sides seem to have a similar urge to stop --
Nadine Strossen: Absolutely. Yeah.
Erik Jaffe: -- folks from feeling bad when they hear things that, admittedly, may very well be painful. It's not that the pain is false. It's just a question of its magnitude.
Nadine Strossen: --I definitely -- it's a two-way street. I have to say, I have faced calls for what I see as impermissible censorship from every end of the political spectrum, left to right. And there's an old saying, "Free speech for me, but not for thee." Most people tend to be result-oriented, or at least they can see the harm in speech that they disagree with. And they can't see the harm in speech that they do agree with.
But, Erik, the Supreme Court has never rested its defense of free speech. And, certainly, I personally — and the ACLU, and other organizations that defend free speech — have never rested it on the completely fallacious assumption that speech can't do harm or it can only do harm in the context of satisfying the emergency test or strict scrutiny.
Of course, speech that doesn't satisfy those exacting standards can and does do harm. But that is not the end of the analysis. Before we can -- as a logical matter, before we can justify suppressing the speech, we would have to ask several questions. Number one, does the restriction materially reduce either the speech itself or the harm that it causes? The answer to that is often, if not always, no. Even the most authoritarian, repressive regime in the world cannot completely succeed in stifling speech. And, because of certain psychological and sociological factors, the forbidden fruits effect, sometimes it's called the Streisand effect.
When Barbra Streisand tried to stifle photographs of her Malibu Beach house, then, suddenly, interest in it escalated. And it was getting more attention than ever. So the most well-intended efforts to silence or mute an undesirable message that is seen as being harmful might actually have exactly the opposite impact, increasing its attention and impact.
And then, the other question we have to ask -- two other questions. Are there any unintended consequences that result from suppressing speech, even if we can assume that certain speech is definitely harmful? If you can't craft a restriction that is sufficiently narrowly tailored, it's going to suppress speech that is not harmful. And that's important. And this is a point that Eleanor Holmes Norton made many, many decades ago, when the movement first started among certain progressive civil rights activists who enact hate-speech codes on college campuses.
Way back then, she was -- she's no longer with the ACLU. But she still was speaking against that. And she used a statement that I've quoted countless times, which is, "Nobody can craft a hate-speech code that does not suppress speech that they think should be protected." It has been tried and tried and tried. I wrote a book about this subject several years ago. I read every hate-speech law in the world, every hate-speech code on campus, every one that's been proposed. And they are irreducibly, inevitably, inherently, overly broad and unduly vague. Why? Because the concept of hate is inherently subjective.
The statutes mostly come up with synonyms. You can't say anything that's dehumanizing or degrading or demeaning. And think about that. And just two days ago, I was doing a FedSoc event on campus, and my counter-speaker was a very prominent Republican lawyer who had been in the Justice Department in the Trump administration. And he was making this very point. He had slides, because he was crusading and he was in favor of hate-crimes laws, but not hate-speech laws. And, to illustrate how inevitably vague the laws are in the many European countries that have them, he had two statements from our last -- no, not our last two, but the 2016 presidential candidates, each of which could have clearly, would clearly have been criminalized in most European countries: Hillary Clinton's infamous statement about the basket of deplorables; Donald Trump, he had an example -- he used the shithole country example there -- but for both of them.
So the point is that the fact that harm can be done by the speech is undeniable. But my conclusion — from looking at all the evidence, including how these broader laws are enforced all over the world — is that much more harm is done by empowering government to go beyond the emergency or strict scrutiny parameters. And then, one final point, what if non-censorial measures are at least as effective and maybe even more effective than speech restrictions in preventing or remediating the harm?
And here, I have to tell you, Erik, that the research that I've done in other countries -- it is so striking to me how many human rights activists in those countries, how many officials from the United Nations and other international agencies oppose censoring hate speech. Not because it's inconsistent with their countries' laws — no, their countries' laws permit it — but because of the track record of those laws, which, at best, are ineffective, and, at worst, are counterproductive. They're predictively, disproportionally used to silence the voices of dissidents, of government critics, of war-reform advocates, and, most ironically, of the very members of minority groups who are hoped to be protected by these laws.
And let me just give one quotation. And it's completely typical. Something called ECRI, the European Commission on Racism and Intolerance, which monitors the European countries' enforcement of their anti-hate speech laws. And in its last major report, it said — this is an exact quote, it's embedded in my memory — "Counterspeech is much more likely to be effective than censorship in dealing with problems of hatred, discrimination, stereotyping, and so forth, much more likely."
Erik Jaffe: So that's actually an excellent segue to the next topic I sort of wanted to chat about a little bit. It's a little bit of a combination of our First Amendment assumptions. Are they matters of faith or matters of empirics? You've talked about, at a minimum, they're matters of empirics, based on your research that is more speech is better, etc. Speech restrictions don't solve. And I want to combine that with this notion that it's government power that we most fear. It's our limitation on government power. But, of course, in today's day and age, where, starting [inaudible 00:29:10] about private power, whether it's the Facebooks or the Twitters, or those folks. And whether we should be equally fearful of their censorship.
And the way I find this comes together a little bit is this question of does the marketplace of ideas really provide the better solution, once we've moved into a very siloed set of news consumption. So, the FOX folks watch FOX. The NBC folks watch NBC, or CNN, or whatever you think the other side of that thing is. Or everybody has the folks that make them feel good about what they're hearing, and don't necessarily listen to the counterspeech. Or certainly not with a fully attentive ear, perhaps.
And so I'm sort of curious, do we take the assumption of more speech solves as a given? Do we take it as an empirical question that may or may not be provable? And what do we do about the notion of private restrictions on sort of the egalitarian notion of "let everybody have their say"?
Nadine Strossen: Well, in all candor, Erik, I think it would be very, very difficult, if not impossible to rigorously, empirically, test out the impact of a speech restriction versus the absence of it, because there are so many different factors you would have to account for. So, for example, I often point out that in European countries, despite the strict anti-hate speech laws that are strictly enforced, there is absolutely no correlation between that and decreasing levels of discriminatory actions, including discriminatory violence.
So, take Germany, for example, which probably has the strictest such laws in the entire world, and they are strictly enforced. And there have just been really tragic increases in antisemitic violence, including murders and violence against immigrants and refugees and other minority groups, including Roma, that the violence and the discriminatory and antisemitic attitudes are pervading the military and law enforcement.
But, what I can't say is, well, maybe it would have been even worse without hate-speech laws. I don't know how one can prove that. And I don't think it's necessary. I think it's what -- it should be very persuasive that we clearly can -- so, let me be a little bit of a devil's advocate. But to me it's a little bit like the argument that used to be made about liberals. Oh, you throw money at a problem, at a social problem, and it doesn't have any impact. So you just want to throw more money at it.
And that, to me, is a little bit analogous to the response I get when I make this kind of point about, well, the censorship clearly hasn't been ending the hatred. And my conclusion from that is, therefore, we should have less censorship. But other people could say, "No. That just proves that we need more censorship."
So I think it's a combination of rigorous analysis of the information that does exist, including not only across cultures, but also across time. So, in the United States, to me, the correlational patterns are really striking, that the increase in legal protection for equality rights for various groups that had historically been repressed and subjugated and marginalized, that the enormous increase in legal protection and actual gains that are documented, coincided with reduction in censorship, including removing censorial power over hate speech. Now, that's kind of interesting, isn't it, that the censorship was traditionally used to silence the voices of those who were advocating for equality.
Now, in terms of your foundational question, let me tell you, I keep coming back to the answer. It's an answer with another question. How can we show that censorship is not going to be effective or is going to be effective? And my counterpart question is how can we show that entrusting government and empowering government is going to be the better option? There, I think, it's not only a matter of faith. There, it's a matter of not only historical observation, but also analysis of what the dynamics of power, in terms of individual psyche and group dynamics -- isn't it indisputable that the power is going to be used to entrench itself, to entrench those who wield it, who entrench those who support the status quo?
It seems to me that it's not just a coincidence that we see the historic patterns here, that this is what should be expected. And perhaps it's laudable that in a democracy that power is exercised to benefit majority groups. And that's exactly why we need the Bill of Rights, including the First Amendment, to impose some fixed limits on what is otherwise just uncabined majoritarian power.
I'd love to hear your answer, Erik. Because we're obviously both asking ourselves these tough questions all the time, and I love hearing other people's answers.
Erik Jaffe: So my answer to it -- look, so my ethnic background and my libertarian tendencies, in general, make me absolutely horrified by the notion of unchecked government power. I don't trust governments. They've done terrible things to my predecessors and my ancestors over the centuries. I'm Jewish, for those of you out there who don't know. My family's from Poland and from the Ukraine. So government is not a force for good in my book. It's a force for threats. So I'm, of course, very inclined towards saying, "Well, if I can't prove it one way or the other, my natural inclination would be to not give government the benefit of the doubt, but to give liberty the benefit of the doubt." Because, at the end of the day, when liberty goes away, minority groups of all stripes -- religious minorities, ethnic minorities — generally lose out. Because that's the nature of majoritarianism. You're not the majority.
So, yes, I'm incredibly sympathetic. But I recognize that at some level it's a matter of faith. I think I have empirics on my side. But it's also just a matter of faith. And, for me, at least, the Constitution says X. We may not agree with the assumptions anymore. And if we don't agree, we should either amend it and limit the protections in one way or another, or have a revolution if we really don't agree with it. That's what we did the last time we didn't agree with a governing structure. I don't think either of those things are the right answer right now. I think, actually, the First Amendment is doing a good job, and balance is good. And I would actually be more protective of speech than much of our current jurisprudence. I'm extremely aggressive on that side of things.
Nadine Strossen: I think you and I come out very much the same. It's a little bit of a curveball to me. But I recognize now that when you talk about faith, it's what -- I describe the same concept, but I use the word "trust." And I usually put it in negative terms, recognizing that there's no perfect solution here. To me, the question is whom do I distrust more, the government or my comembers of this political community? Of course they're going to make mistakes and some people are going to be led down blind alleys or into echo chambers.
But, by the way, there are empirics that weigh against those concerns too, Erik. As you well know as a media lawyer, there tends to be so much demonization and oversimplification in terms of what media are contributing to various social, cultural, and political problems. And yet, in fact -- and here I am going to blame the media, but, in turn, blaming human psyche. We all know the old saying, "If it bleeds, it leads." And so, understandably, the media disproportionately cover negative aspects, including of the media themselves.
And I've read so many serious studies that have been done of the so-called echo chamber and filter-bubble effect that are completely dismissive, saying that these are so exaggerated that the vast majority of people who get their information online, for example — because it's usually the traditional media blaming the online media — the vast majority of people who get their information online get it from far more sources than those who get their information offline, are exposed to far more different perspectives, take advantage of the opportunities to do their own fact-checking and looking at original sources.
And then I read surveys that are constantly done that show that the supposed polarization of this country is really also exaggerated, in the sense that the vast majority of us are quite moderate and very interested in talking to each other and hearing different perspectives and really wishing that our elected leaders would do likewise. And the numbers I consistently see are that about eight percent on either end of the political spectrum are really the ones that are getting all of attention and are taking extremist positions.
So, what is the answer to that? It's certainly not censorship. It's more speech by all the rest of us, what used to be called, in another political context, the silent majority, or the too-silent majority.
Erik Jaffe: So I'd like to circle back to one question that I think you sort of lead with, a little bit, and I just want to come full circle on. And then I'll start reading out some questions from our audience. I'll say to our audience, thank you for all your questions. I'm aware of them. I'm following them. And I think I'll leave maybe five or ten or fifteen minutes for us to talk about some of those. So your efforts have not been in vain.
But the question I want to circle back with -- you had sort of talked about Eleanor Holmes Norton. You had talked about representing the clan. And this is an issue I think practicing lawyers, myself included, struggle with constantly. At some point, somebody comes to you and says, "I'd like you to represent me." But you sort of find that person distasteful, heinous, whatever it is. But you think they might have a decent legal argument. But you really just don't want to represent them because they're so unpleasant or what they're doing would be so harmful, you think, even in just the short term. And it's a struggle that I think many lawyers have of do you say yes to the client you hate or the client you might hate.
And I know the ACLU, obviously, historically, has had a very clean answer on this. Though, of course, I think the ACLU of today has some internal debates on these things that may not be so wholeheartedly, yes, let's represent the clan. And I know I struggle with this. So I'd be curious to hear what you think of the modern version of that debate. I suspect I know the answer. But, given that it is a debate, even within the ACLU, I'd be curious to think if there are any limitations, even for private lawyers, perhaps, on how one should think about this.
Nadine Strossen: And I have been following the pressures that have been brought to bear on private law firms — or private law firms on lawyers within the firms — about not taking certain clients for various reasons including environmental concerns, economic concerns, and disagreements, not only about politics, in the sense that we're talking about, but other issues, aside from is there a meritorious legal case.
And I don't -- since I have not been in private practice for such a long time, Erik, with due respect, I'm not going to purport to answer that. Because, with respect to private lawyers, I recognize that the considerations there are different, or should be different from what they are for a cause-oriented organization, such as the ACLU or FIRE, the Foundation for Individual Rights and Education, which I'm also very involved with.
Erik Jaffe: Another of my favorite organizations, by the way. Absolutely.
Nadine Strossen: Oh, it's definitely one of my as well. And FIRE, along with the ACLU, never would take into account as a criterion do we agree or disagree with the political position, the message that this speech is conveying. And, also, neither organization would take into account any potential harm that the speech might do, short of satisfying the emergency test or strict scrutiny. And there, I want to say, Oliver Wendell Holmes said, "Every idea is an incitement." He meant by that every idea can possibly do harm. And that's not a justification for censoring it.
And so, very recently, the ACLU — well, recently, in comparison to its history of more than a hundred years at this point — after we successfully defended the free speech rights of the Unite the Right demonstrators in Charlottesville in 2017, came under an enormous amount of pressure because of the tragic, catastrophic killing and injury of Heather Heyer and other demonstrators as well as the deaths of law enforcement officials. And people made a kind of wrong-headed post hoc, propter hoc, oh, the ACLU defended the free speech rights of these protestors to peaceful exercise their First Amendment right to peaceably assemble. Right? That qualifying adjective is in the First Amendment itself. And there was violence and there was death and injury. Therefore, they shouldn't have had First Amendment rights. That's a complete non sequitur.
The tragedy there was ineffective law enforcement at every level. And here I'm quoting a non-partisan report that was commissioned by the Charlottesville city council, after the fact. What went wrong? How can we correct it in the future? And the problem was lack of training, lack of preparation, lack of communications at every level of law enforcement. So the area where Heather Heyer was mowed down and other people were mowed down by the car, there was literally not a single law enforcement present in the whole wide area.
And I -- believe me, I have enormous sympathy for the police. I mean, they get it both ways. They're critiqued so often for doing too much. And here they're being critiqued for doing so little. It's a delicate balance. But nobody would defend the right to plan or conspire to engage in violence and to carry out the violence.
So, that said, I also supported this historic, path-breaking civil conspiracy lawsuit that just was successfully concluded in Charlottesville, which, evidence that came to light long after the permit argument, which was where the ACLU weighed in before the demonstration, as a result of a lot of research after the fact, it did become clear that there were plans to engage in violence, which neither law enforcement nor the ACLU was aware of before that fact.
Anyway, because of all the blowback, the ACLU was responsive in a way that I think is very constructive. And that is, well, let's take a look at what our case consideration criteria are. By the way, to the best of my knowledge, there was no pressure for the ACLU to change our substantive position that even people who were advocating racism, antisemitism, should still have free speech rights to engage in horrific viewpoint expression, as long as they're not posing an emergency.
But the question was, should it be the ACLU, in particular, that represents these folks? And a committee was called together, including the national legal director, David Cole, who is also a professor at Georgetown Law School, and legal directors from our state-based affiliates all over the country. And they issued a document which has been widely publicized. You can easily find it online. And I highly commend it to you, Erik, if you haven't looked at it, or other people who are interested. Because it lays out the considerations that should be taken into account in deciding whether to represent even an avowed racist, especially recognizing that that expression can do harm, even if it's not harm that we think should be, allow the speech, itself, to be punished.
And how do we communicate about it when we do take those cases? I notice I still say, "we." I still feel so completely entwined with the ACLU and identify with it. And I'm completely supportive of this report, which says, at several points, that it will never be a factor for not taking these cases that we disagree with or even despise the perspective that's being aired.
I wrote in the inaugural issue of the new Journal of Free Speech Law that started this summer, my own essay defending that continued position. And it's -- I'm looking at it now — it's called "The Interdependence of Racial Justice and Free Speech for Racists." I truly believe that we cannot effectively advocate against racial discrimination and injustice unless we also have a very robust free speech protection, robust enough to extend to hate speech. So, for me, it's not an either/or, here. And I think that's true for the ACLU's continued position in this area.
Erik Jaffe: So, thank you. I think all of us should probably look at that policy. Because it might have a lot of lessons for how we deal with our own private practices, and what considerations, how much of a cause lawyer you think you are, how much of a not-cause lawyer you think you are in your own private practice. I agree with you, there is a difference between overtly cause-oriented groups. I'm associated with some of them. But I also have a private practice otherwise. But, for all of us listening, I think that's a good place to at least take a look for a starting point.
Nadine Strossen: And if you have anything thoughtful on, from the private sector perspective, I would be very interested in that, Erik.
Erik Jaffe: You know, for me, it's a little bit of a combination of, I am extremely libertarian. I tend to be associated with more cause-oriented litigation. But there's a certain business moment that just sort of says, "I'm not going to shoot myself in the foot — my business, my law firm, in the foot — by taking something that I personally can't stand, but I'm going to defend on principle anyway." I'll defend the same principle with someone else, perhaps. Or I'll do an amicus brief. But I won't necessarily represent the party. And in the amicus brief I can at least say, "Look, I think the subject of this is terrible. But the principle is important." And I often do it that way instead. As a private practice, if I can't quite stomach the underlying client, I'll find a different client, but make the same point, often, in defense.
So, I'd like to get to some of the questions. A number of them we have covered. And I just want to acknowledge the questions were there, things like sort of where is the ACLU on this today? Have they changed? And we've talked about that a little bit, obviously. I know a number of people have the impression that the ACLU leans to the left. But I think there are a lot of good recent examples where they've been on the side of, I think, more rightwing groups.
Nadine Strossen: I think a lot of that impression comes from well-publicized tweets by individual ACLU lawyers who are not speaking for the organization.
Erik Jaffe: Yes.
Nadine Strossen: And we've always defended free speech rights for employees. So we put our money where our mouth is. They're supposed to make it clear that they're not speaking for the organization. And then we allow them to make statements that are even inconsistent with ACLU principles. What I am concerned about --
Erik Jaffe: [Crosstalk 00:50:02] Oh, go ahead. I'm sorry.
Nadine Strossen: What I am concerned, looking to the future is, we see younger generations in all institutions that traditionally have protected free speech, not only the ACLU, but journalism, academia, publishing, cultural institutions, libraries. From all of these sectors, I'm hearing that the younger cadre is not accepting the same free-speech principles that us older folks do.
Erik Jaffe: I agree. I agree. Though I will say, from my own personal experience, I find myself on the same side of the ACLU in campaign finance cases, lots of campaign finance cases, for example, which are traditionally viewed as sort of the conservative side of the free-speech world. And yet, there is ACLU next to me. We may not have exactly the same jurisprudence that we would like. But, to their great credit, they come in on these things, particularly donor privacy things, and things of that sort.
Other questions that I think folks had that I'd like to just sort of at least touch upon, and I think we've talked about, are sort of level of harm. One question was, "What if there's a formula for nerve gas that somebody's going to use?" And that's the old progressive case, in some sense, the A-bomb case. And I think we've talked about Brandenburg v. Ohio, that if it's a true emergency, or there's an eminent use of it, I imagine your answer would be, yes, of course, a clear and immediate danger of somebody dropping nerve gas, if we thought it was effective to somehow suppress that, maybe we could. Though, the notion that it would be effective is laughable.
Nadine Strossen: In the internet age it seems as if it's going to be impossible to suppress, right?
Erik Jaffe: Right.
Nadine Strossen: Once the cat's out of the bag, that's the end of it.
Erik Jaffe: Well, this is apropos of another area of law that I practice in, of sort of 3D printed guns. Good luck suppressing that. It's like, yeah, sure. You can ban it all you want, like that's going to stop anyone who's already willing to commit a crime.
But, it's to the same question, the programming for how do you print a 3D gun is, in some sense, like the formula for how do you make an A-bomb, or the formula for how do you make nerve gas. Good luck suppressing it once it's out there.
One question that I really enjoyed from the audience asked about the Covid stuff. So, in the Covid crisis, there has been a lot of so-called misinformation about Covid, some misinformation, some just prescient but not necessarily supported yet, whatever it is. But the government has sort of pressed upon private sector, particularly folks like Twitter and Facebook, to police misinformation a little more. So it's not a fully private choice. And it's not a fully public choice. But it is suppressing debate — whatever you think about the other sides of these debates — on Covid issues. And what do you think about some of those current events?
Nadine Strossen: Well, the problem with suppressing so-called disinformation is completely analogous to the problems I discussed about suppressing so-called hate speech. It is an inherently nebulous, overly broad, unduly vague concept. One person's disinformation is somebody else's cherished truth. And, in this rapidly evolving area, with constant availability of new information and analysis, even the very same scientists may say, "Yesterday's disinformation is today's truth." We've seen many examples of that throughout the pandemic.
So even from -- especially from a public safety point of view, I feel very strongly that the least dangerous approach is to let all of the information and analysis and studies and perspectives out there. And let's duke it out through debate and analysis. If people are conspiracy theorists, they're not going to be dissuaded through censorship. In fact, they're more likely to believe in their unfounded conspiracy theories. Because then they say, "Oh. Why is the government going to the trouble of suppressing it? It must be very dangerous."
So, there, I don't really see a tradeoff between public health and freedom of information. It's the scientific method, after all, that everything has to be subject to falsifiability and verifiability.
The other point that is raised in that excellent question is such an interesting one. And it's only started to surface within the last year. And that is a serious argument that government officials have been putting so much pressure on these ostensibly private companies to take allegedly voluntary actions to suppress certain disinformation, hate speech, other unpopular speech, that we should, in fact, look at this as a delegation of government power or sufficient government coercion, that this is not really voluntary private sector conduct. And, therefore, it should be subject to constitutional constraints, including the First Amendment.
These arguments have been made, only within the last year or so, by an ideologically very diverse spectrum of academic experts. And now the allegations are being made in lawsuits, including Donald Trump's two lawsuits against Twitter and Facebook, which are class-actions, everybody who's been kicked off. And the number -- there have been a number of motions to dismiss for lack of state action that a couple of courts have not dismissed. They've said, there's enough, there are plausible allegations here. Let's take the evidence. Now, other courts have said no, it doesn't rise to the high level of proof that you need to show that there was actual government coercion. But I think this is a very, very, serious concern.
We're talking -- government itself clearly would violate the First Amendment if it purported to censor Covid-related disinformation. There are very narrow categories of false speech, intentionally false, that cause demonstrable harm that can be punished, such as defamation and perjury. But that would never extend to disinformation. So the government should not be able to do an end-run around its constitutional limitations by, in effect, coopting the private sector entities to do the government's dirty work for it.
Erik Jaffe: So, as a last question -- we're winding down. But this is one of the questions from the audience. And I'll give you the option to answer or not. It's maybe too soon. Justice Breyer just announced his retirement. I think, over the years, he has been generally supportive of the First Amendment, but a mixed bag. In some cases, not entirely as pro-First Amendment as I would perhaps be, or you perhaps would be. What do you think of his departure and his potential replacement, from a First Amendment law perspective? What do you think we can expect?
Nadine Strossen: My good friend, Bob Corn-Revere, whom some of you may know — an outstanding First Amendment and media lawyer and big supporter of FIRE, and does a lot of FIRE litigation, as well — he once said, "The five scariest words to a First Amendment lawyer are, 'decision issued by Justice Breyer.'" And it is true. He did write a great dissent, a great First Amendment dissent in the Holder v. Humanitarian material support lawsuit, wanting to narrowly construe terrorist justification for censorship. But, on the whole, he was pretty much pro-regulation, including in the free speech area.
Erik Jaffe: All right. Well, hopefully, we have answered as many of the written questions as we can. Some of them, we had touched on without directly answering them. But for those of you I have missed or didn't adequately say your question, my apologies. But we'll do more of these. So you'll have another chance. And, hopefully, we'll have Professor Strossen back for some other topics at some future date. Thank you very much, and I appreciate your time.
Nadine Strossen: Thanks so much to all of you, and Erik.
Evelyn Hildebrand: Thank you both. I'll just add the thanks of The Federalist Society to our distinguished speakers. To Nadine Strossen and Erik Jaffe, thank you so much for joining us this afternoon. Thank you to our audience for participating and sending in your questions. This has been a very interesting hour, and I wish we could longer. But here we are.
If you have any questions or comments, please feel free to send those in to our email address. If you have any feedback or comments, please send those in to [email protected] And we welcome your comments. And, without further ado, we are adjourned. Thank you very much.
Dean Reuter: Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.