A Conversation with Louis Michael Seidman: “Can Free Speech Be Progressive?”
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A Conversation with Louis Michael Seidman: “Can Free Speech Be Progressive?”


(inspiring upbeat music) – My name’s Mike Seidman I am, just really delighted to be here, your campus is beautiful,
and I have to say, if I were you I’m not sure I wouldn’t be out at the farmers’
market rather than in here, but it’s really a pleasure to be here, and it’s really a special honor to be invited by Lara Schwartz. She is, as I think people
in this room already know, a really special person and you are just very, very lucky to have her here. So I am mostly interested
in talking about this rather than at you, so I’m gonna try to keep this, my talking part,
to maybe 15 minutes or so I have to tell you, I last said something
spontaneous to somebody in 1983, and that turned out to be a big mistake. Lara doesn’t realize it, but when I said hello to her just now, I had it all written out, and so I do have some stuff in
writing here in front of me, if I’m gonna keep this short, I might as well just really
get to the point in a hurry, so the title of this
presentation or whatever it is was, Can Free Speech be Progressive, and I won’t beat around the bush, the correct answer is, no. Now, that answer, at least I think that’s
the correct answer, now, that answer, comes as a surprise to me, among other people, I was somebody who grew up admiring a Supreme Court that upheld the rights of radicals and discontents,
and who thought that conservatives and reactionaries
were the people trying to stifle full discussion of
ideas, and thought that free speech was an important
part of the left’s program. And I have to say, I mean,
I teach at a university, what we we do for a living
is talk about things, and so I do still think people oughta say what’s on their minds and that a free exchange of
ideas is really important, to have diverse points of views and so on, and I have, even now, a kind of nostalgic attraction to
the law of free speech, but I do think we have to
be realistic about things, and the truth of the matter is, if you at what free speech
has turned into now, in the hands of the modern Supreme Court, what freedom of speech means is the right of
corporations and rich people to distort our electoral process, by spending unlimited amounts of money, it’s the right of cigarette companies to encourage potential customers to kill themselves with tobacco, it’s the right of sadists to market movies that show animals being tortured, it’s the right of abortion providers to mislead people seeking abortions about the kind of help they’re gonna get at the establishment that they’re in, it’s the right of the Boy Scouts to discriminate against
the LBGTQ community, that’s, all those are rights, that’s what the Supreme Court has
said the First Amendment means, and there’s just nothing progressive about any of that. Now, there is a natural reaction to that, and that is to say,
well, that’s just because we have a terrible Supreme Court, it’s a Supreme Court that misunderstands what free speech is about,
if we had a court that was really devoted to an authentic
principle of free speech, then, free speech would be progressive. I think that’s wrong. but it will take some work to explain why, at least I think it’s wrong, but before I start doing that work, it’s important, I think,
just to make clear some things that I’m not saying. So first, by freedom of speech, I’m referring here only to the American free speech tradition, I’m not talking about
some conceivable version of the tradition that
might exist elsewhere, in some other country, in
some other time and place. Second, to say that a free
speech right is not progressive is not the same thing as saying it’s evil, so there are lots of things that aren’t especially progressive
that I think are good, chocolate ice cream and
baseball come to mind. Those are things that
I think are really good but they’re not particularly progressive and free speech might be like that. And a third, I’m not saying that, in isolated cases,
progressive lawyers can’t use free speech argument to
benefit their clients, actually we have a long
and honorable record of progressive lawyers doing just that, so the First Amendment prevented the suppression of labor
picketing in the 1930s and 40s, it prevented the suppression
of civil rights demonstrations in the 1960s, it protected
the New York Times, when it published an advertisement defending Martin Luther King Jr, and when it some years later published a report discrediting the Vietnam War, constitutional protection
for freedom of speech shielded anti-war
protestors, who proclaimed that the wanted to, fuck the draft, artists who challenged
conventional morality, schoolchildren who, resisted compelled patriotic indoctrination and so forth, so you might say, well what is not
progressive about all that? And if that’s all
progressive, what am I saying? Well, yes, the First Amendment
has occasional utility in protecting progressives,
and it might even protect us from some very severe downside risks, I think myself those risks
are somewhat overstated, but I’m not gonna deny that it might provide some protection, but here’s what I wanna say
the First Amendment cannot do. It cannot be of significant help in realizing progressive goals or enacting a progressive program,
and in some respects it stands in the way of that. And furthermore, that’s not just because of an evil Supreme Court. The fact that the First
Amendment can’t be progressive is woven into the basic
commitments at the core of the American idea of free speech. So why is that? Well, the basic problem is this: if progressives stand for anything at all, they stand for the idea
that supposedly free markets don’t necessarily produce a fair allocation of life opportunities. So unregulated markets produce tremendous wealth on the one hand and grinding poverty on the other, these are not states that people deserve, and the government has an
obligation to correct them. And how does it correct
them, it corrects them largely through regulating
and disciplining the market. In other words, there’s
nothing, for progressives, sacrosanct about wealth and property. The government could and should redistribute goods to
make our society fairer and to dismantle unjust
hierarchies of power and privilege. I take that to be, if
you don’t believe that, you’re not a progressive,
which is not to say you’re necessarily wrong,
but you’re not a progressive if you don’t believe those things. but freedom of speech is in tension with that core progressive commitment. And that’s because the ability to speak necessarily depends on one’s
possession of property. So speech has to occur someplace, and generally the someplace
where it’s, occurs is owned by someone, to be effective it has to
be amplified in some way, and the means of amplification, newspapers, TV stations, Google, Facebook, they’re also property
that’s privately owned. Now, with regard to all
other forms of property, progressives understand
that the government has a role to play in
redistributing those resources, I think progressives need to recognize that exactly the same point
holds with regard to property that’s used for speech purposes. Here’s another way to make the same point: for conservatives, there’s sort of an unthinking and automatic association between the absence of
government and freedom. So markets are said to be free when the government doesn’t control them. Progressives reject that equation. They insist that at
least some of the time, it’s not the absence of government, it is government regulation of markets that makes us free,
why, because it controls private coercion that limits our freedom. So just to take one of a
zillion different examples, think about the 1964 Civil Rights Act that prevents racial discrimination in places of public accommodation. So before 1964, and I’m old
enough to remember this well, I’m afraid, I also remember 1864 actually, that was a great year, the
middle of the Civil War, but I’m gonna talk about 1964, African Americans traveling
or living in the South were not free. So if you were taking a road trip, and you couldn’t find a place to pee, or to buy lunch, that was a big problem. It meant that, really, you
weren’t free to travel. And now, so Congress enacted a law, it was first proposed,
and then enacted a law, to do something about that, the 1964 Civil Rights Act, conservatives, like Ronald
Reagan, William F. Buckley, Robert Bork, all those people said, this is a horrible law! It ought never to be passed,
why, because it interfered with the freedom of
merchants to be racists. Now today I think almost
everybody understands that that had it backward, the law was part of a necessary great
and unfinished project of making African Americans truly free. But if that’s true about
public accommodations, then why isn’t it true
about speech as well? So just as conservatives
think markets are free when there’s no government, so too, the very words
of the First Amendment say, speech is free, when
Congress makes no laws. but why would one think that? So suppose for example, that Facebook takes down a post, that, say,
says something uncomplimentary about our esteemed President
of the United States, under standard free speech theory, that is a manifestation of
Facebook’s freedom of speech. Just like the refusal of merchants to serve African Americans
is a manifestation of the merchants’ freedom. If the government tells Facebook that they have to publish my post, that’s an invasion of
their free speech rights. That’s just like the
argument that Robert Bork, Ronald Reagan, and William F. Buckley made against the 1964 Civil Rights Act. but so I understand why
conservatives take that position, but why on Earth would
progressives accept it? I thought progressives understood that markets don’t
magically produce justice in the absence of government regulation, and sometimes it’s the regulation,
rather than its absence, that makes us free, so what
gives me a free speech right, might be for the government
to tell Facebook, uh-uh, you’ve gotta publish that post. Otherwise, my freedom of speech
is substantially limited. So because this assumption of
the justice of free markets is built into the architecture
of free speech law, the modern conservative
slant on free speech doctrine is not just an ephemeral contingency, it is what the free speech tradition in some respects stands for. Beyond that though, there’s another reason why free speech doctrine
is anti-progressive, and that’s because at
it’s core, I believe, like constitutional obligation generally, but I’m, for present
purposes, gonna limit it to free speech law, I
think it’s authoritarian. Now that seems very
strange, because of course, one of the first things
authoritarians typically do is limit freedom of speech, but I do think
constitutionalization of free speech is authoritarian because an assertion that the constitution requires
a certain state of affairs, like freedom of speech, is a way of avoiding the necessity for providing actual reasons why that state of affairs is desirable or just. If the Constitution requires something, then, at least in the
American political culture, that’s the end of the argument. There’s nothing more you can say, short of a constitutional amendment, a constitutional requirement
that the thing must be done, just means that it must be done. And once that requirement is established, there’s nothing left to talk about. So oddly enough, a constitutional
right to free speech cuts off the ability to
actually talk about things. And that fact about contemporary
constitutional culture produces another and even
more perplexing paradox, the constitutional right to free speech is actually at war with
freedom of thought, so here as elsewhere, an assertion of a constitutional right
shuts down and sidetracks serious thought about the problem. When the Supreme Court says, for example, that the First Amendment affords sadists the right to, on a movie camera,
crush defenseless animals, and by the way the Supreme
Court has held that, that you have a First Amendment right to stomp on some poor animal
and stomp it to death, or that the free speech right means that religious fanatics have
the right to disrupt the funeral of dead soldiers, and the Supreme Court
has said that as well, that’s really the end of the argument. Now, that’s not quite true, you could if you want to
get down in the weeds, about this and talk about
this the way lawyers talk about it, that is to say, gee, we’ll talk about
profoundly irrelevant things, like, what would James
Madison think 200 years ago, or what exactly is the
precise relationship between the First Amendment language and language in the 1688
English Bill of Rights, right, I mean, you can do that, but none of that is what
is actually at stake here. If you wanna talk
instead about the merits, why exactly should we,
allow people to stomp on defenseless animals, what
are we getting from that, what, social policy is that serving, that’s really off the table, because it really doesn’t matter, even if you convince me
you’re completely right, this is really stupid, the answer is, well you have to do it because the First Amendment requires it. And that’s the end of the discussion, and making that the end of the discussion, I think, abrogates the first
duty that we have to each other as citizens, and that is the duty, to justify our positions, to other people, to our fellow citizens, with
publicly accessible arguments. In other words, the First
Amendment provides an excuse for not speaking, not
listening, and not thinking. Alright, let me finish this way, there’s a law professor
who I really admire at the University of Chicago,
her name is Laura Weinrib, and she begins her magnificent
history of the ACLU, it’s a book-length history,
with the observation that civil liberties were once radical, but she says, they were radical in days when free speech
advocates embraced rights that were prior to and
independent of the Constitution, and that were secured
without recourse to law. They were, as she puts
it, a right to agitation that was enforced by workers
going into the streets, or occupying plants and things that like, translating that non-legal
right of agitation into a constitutional
right of free speech, she argues, means tying the right to cart property distributions, associating it with government passivity, and asserting the right by VI rather than trying to persuade people that the right is a good idea. In other words, it means turning the right into something that’s not progressive. And Weinrib describes, in a lot of detail what happened to the ACLU when it made that fateful bargain, so in her words, by the early 1940s, civil liberties were no longer radical. The ACLU had naively hoped, in an era when revolution seemed possible, that a mere right to
agitate would pave the way to substantive change. Implicit in their position was the confidence that
radicalism could prevail in the marketplace of ideas. By the 1940s employers understood that no free exchange of ideas existed. They understood that
a right to free speech would ordinarily favor those
with superior resources. That’s what Weinrib says, as she recounts, those were lessons
learned a long time ago, and yet, many modern progressives seem to have forgotten them. They just can’t shake
their mindless attraction to the bright flame of
our free speech tradition, progressives need to
turn away from that flame before they’re burned again. So those are my views, so I do believe in open debate, I am just confident not
everybody in this room agrees with them, so why don’t we have a conversation. Yeah? – Hi.
– Hi. – [Student] I think it’s a
really interesting point, I’m just– – Alright, that’s the
end of the conversation. (audience laughs) – [Student] I’m just curious, like, if progressives accept
that argument, so what? Like what’s next?
– What follows from it? – [Student] Yeah, like
how do you think it would impact, like, strategy position? – So the most immediate effect it has is progressives oughta stop being ambivalent or supportive
when the Supreme Court makes these outrageous decisions. So my friends at the ACLU, they support a lot of this stuff, and I just don’t think they ought to. More broadly, so this is
a point that goes beyond the First Amendment, but I think progressives much too often rely on law and legal arguments to get their way because of a very brief experience in our history, now 75 years ago, they think
that constitutional law and the Supreme Court is going to just magically save us
and we don’t have to do the hard work of
convincing other Americans that we’re right and they’re wrong, and this is especially a problem I think with regards to President Trump, just in the last week
we’ve seen how progressives have been burned by this. Because there was so much weight put on a legal argument that
Trump had violated the law, and so when Mueller comes back and says, as a technical legal matter, actually he didn’t violate the law, all of a sudden all the air
goes out of the balloon. And that’s just a mistake. What we oughta think
about the Trump presidency does not turn on the technicalities of, obstruction of
justice statutes, right, it turns on the fact
that this guy, pardon me, is a fascist and an idiot. And those are not legal concepts. And so what we have to
do is not rely on law, not rely on the Supreme Court,
we have to the hard work of convincing people that
we’re right and they’re wrong. Sorry for going on so long. Yeah? – [Student] So if there isn’t a sort of constitutional right to
free speech, for example, and you sort of talked about how certain things like stomping on animals or protesting funerals of soldiers shouldn’t be acceptable. Like, who decides and how do they decide that that ought not to be acceptable, and how do we figure that out? Is it not a governmental matter? – Right, so I think we figure it out the way we figure out anything else, I think we oughta have
a public option at least with healthcare and maybe a single payer, maybe you don’t, maybe you think that’s a bad idea, so what do we do, we talk about it. And I make arguments
and you make arguments, and in the end we decide
what’s best for the country. but here’s what we don’t do, I don’t say to you, because you don’t believe in a
public option for healthcare, you’re not a real American, you’re not part of our political community, and therefore, I don’t even have to explain to you why it’s a good idea, because you’re just, you know,
I just can forget about you. And that’s what you say,
in effect, when you say this is required by our constitution. So we decide the way we, you know, I don’t know how people
change their minds, that’s a really deeply
mysterious thing, right? But what we do is we talk to each other, and people come to judgements about, all things considered, what
the best thing to do is. – [Student] But wouldn’t that,
I presume that would involve having to, that bridge, a
democratic process, right? Because the majority vote for that. And then conceivably you
could be silencing minorities, minority rights if you have opinion, like, 60% of America doesn’t want
so-and-so to be able to speak in this way. But that 40% is now harmed by not having– – So every law that Congress passes, helps some people and hurts other people. When Congress passed the
1964 Civil Rights Act, that hurt the merchants who were racists. They wanted to keep black people
out of their establishments and they couldn’t anymore, so yes, whatever we do some
people are gonna be hurt. When Facebook has the
right to take down my post, that hurts me, right? Especially because Facebook
is pretty much a monopoly, now I can’t get my message out. So why is it that you think that the problem is only when
Congress acts, rather than, maybe the problem is that
they’re not regulating Facebook. That also hurts people, and
that also obstructs speech. And just again, that is the
key progressive insight. Maybe there are conservatives
in the room, I don’t know, and we could talk about whether we oughta be conservatives or progressives, and maybe I’m convincing the conservatives this is why you oughta be a conservative, and I can see that, in some this supports the conservative point. but for progressives, it’s just a mystery why one would have that insight about, say, the 1964 Civil
Rights Act, but not have the insight about regulating Facebook. By the way, we’re a small enough group, so I’m perfectly comfortable
making this more informal, people can just, sort of
say what they want to say. – [Student] My question is, so is it, in putting it into the Constitution, this right of free speech
and putting it into words, or like does legislation
play into this idea if you put it into words therefore, that’s the end of it all, no more speech ’cause kind of led to the idea that, you might then want a smaller government which sometimes doesn’t
align with progressive views, so I don’t know if I’m misunderstanding. – So I may be misunderstanding you, why does it align with
a smaller government? – [Student] So because
from what I understood, when you put this label, when you make it a constitution right of free
speech, then it silences. So you’re saying opening
up to more discussion on what we should all agree on and changing hearts and minds instead of, necessarily, the constitutionality, then sometimes the lack of constitution or potentially legislation lends to you a smaller government? – Well, so what we’re left with, is we have to decide what
kind of government we want. And if the American people in the end decide they want a smaller
government, I guess I’m, personally I think that
might be a bad idea, but I’m just one person out of many, and so we oughta have
a smaller government. If we think we oughta
have a bigger government, then, I don’t want the
Supreme Court saying, you can’t do that because
it’s unconstitutional. But the basic point I guess is, I mean the point of the
second half of what I said, we ought have free
speech about free speech. So what it means for
speech actually to be free, that’s a complicated question, and it’s, there are things to
be said on both sides of it, there are also things to
be said on both sides of, whether free speech is
always a good thing. Speech creates costs. It can destroy people. It can silence people, it
can hurt their feelings, it can ruin their livelihoods, it can destroy them. Now sometimes those
costs are worth bearing, sometimes they’re not. But anyway, we ought
not to just assume that speech is always good, sometimes it’s bad. And sometimes maybe there’s
a role to play in government, in regulating who speaks,
and what they say, and when they say it, and so on. – [Student] Can’t we
just regulate ourselves? I mean, the First Amendment doesn’t purport to be a blueprint about how to live or how to
make your grandmother proud, it’s just this limitation, it just takes this one
thing off the table, okay, we’re not gonna punish people and stop them from saying stuff, why is that the end of the conversation? – Well because again– – [Student] Lawyers are out of work, but ethicists and
ministers and these people can get in the mix now. – So suppose we try that
out on some other things. Look, one might say the contract
clause in the Constitution means I get to decide for myself whether as an employer I
wanna pay the minimum wage. It doesn’t say, maybe
if I were a good person, my clergyperson would tell me, you oughta pay somebody $15 an hour, but that’s for me to decide, right? And if I wanna pay somebody
$7 an hour that’s fine. Well, I don’t think you’d say that. Am I wrong? – [Student] You’re sure correct. – Alright, so– – [Student] But I’m not sure you’re right that the analogy is perfect. – Okay, so let’s talk about that, what’s wrong with it? – [Student] So we have bad speech, speech that hurts, speech that defames, speech that makes it harder
for people to go to school here by minimizing their humanity
and treating them like, okay, slavery was great right,
we’ve had bio systems here, so there’s hurtful speech, I can think of a million
ways of preventing hurtful speech, and it includes one of the things we do
here, which is education. You’re trying to help people do better. I’m wondering why the
government regulation’s better– – Okay, so let’s, gee I have a great idea, why doesn’t the government fund a program whereby, people like you go
into corporate boardrooms and educate people about how bad it is to pay sub-minimum wage. Or better yet so let’s have an education program about all the carnage that’s caused when people drive 65 miles an hour on the Beltway. I’m not against that, I
think it might work some, but you know what, I think
we still need speed limits. Because when you drive
more than 65 miles an hour you’re hurting other people. And people have a right not to be hurt. And here’s another point, if you wanna get from point A to point B, it’s just not true that
the absence of government is gonna get you there most efficiently. You need somebody to say, well
you drive on the right lane and not the left lane,
and you don’t speed, and you don’t follow too closely, it’s government intervention, government regulation of freedom, that actually makes us more free. Because if you didn’t have that, the highways would be zoos and you’d not be able to get to work. – [Student] I think that presupposes that people are going to imagine human decency as an imposition on their freedom as opposed to an opportunity. – Well I do know, I guess what I wanna say is you oughta talk to those
animals who get crushed. – Can’t, they’re dead.
– They’re dead. (student laughs) Or you oughta talk to the families of the veterans who are trying to bury their dead and have these people
with placards saying– – [Student] I wanna talk to athletes who are taking a knee to
protest police violence who would be the first
people on the chopping block with government regulation of speech. – So if I’m in charge of things, I would not shut down that speech. I wouldn’t. – [Student] We sort of elected
somebody other than you. Over protest for me– – That’s true, but again,
what I wanna say is the solution to that problem
is to elect somebody else. It’s not to count on the Supreme Court, and there’s another
point that I didn’t make because of the absence of time, but it is really, it’s
worth thinking about, if you look at the history
of the First Amendment, throughout our history,
and of the Supreme Court’s enforcement of the First Amendment, the notion that it is
what has protected us from shutting down protests
against the president or something like that, it turns out mostly not to be true. So at the time when First Amendment rights were most at risk, the Supreme Court deserted the battlefield. During World War I, there were thousands
of anti-war protestors who were locked up. Eugene Debs who get several million votes for president was locked up, by the way this was by a
progressive administration, by the Wilson administration. The Supreme Court, by the way, in opinions joined by Brandeis and Holmes affirmed all those convictions. – [Student] I’ve got the
place right here, you know. – See, now that speech
ought not to be allowed. (laughing) And a similar thing happened
during the McCarthy period. So a majority of the Supreme Court affirmed the criminal convictions of the leaders of the
American Communist Party, they were sentenced to years in prison, and the Supreme Court said that was fine. Most of the Court’s
pro-free speech opinions have come in periods when free speech wasn’t under pressure in the first place. – [Student] Aren’t these terrible examples of the Supreme Court’s
jurisprudence in free speech examples of democratic
majorities passing laws that restrict speech in ways that are conservative or regressive? So that doesn’t really take up the worry that empowering government to
censor will be progressive, it just sort of says it’s
possible it could be progressive. – Well, sometimes it’ll be
progressive, sometimes it won’t, but my point is, don’t
look to the Supreme Court to make it more progressive. – [Student] I guess,
I take well your point that the Supreme Court isn’t
going to be progressive, but I guess more needs to be argued in terms of, as it currently stands, political processes being progressive. So the argument is that the powers that influence the court also influence democratic majorities, that are elected to represent as presidents, or are elected
to the electoral college and so forth. – To what? – [Student] To the electoral
college and so forth. I won’t call it a majority. – So progressives have a problem. They are always fighting an uphill battle and there are gonna be
lots of losses on the way, and all victories are temporary, so it’s an endless struggle and it’s a struggle against the odds. And that’s because we
start from a position where wealth and power
is not fairly distributed in the country, and wealth and power affects the Supreme Court,
it affects elections, it effects politicians, and if you don’t believe
in armed revolution, and I don’t, if for no other reason than because I think it’s
completely impractical, and there might be other
reasons to oppose it as well, but that’s the first one, so if that’s not gonna work, the only choice is to fight
this kind of uphill battle. There’s no way around it. So I think too many progressives have this idea of a
kind of fairy godmother who is in the Supreme Court, who’s looking benevolently over us, and they’re gonna come and rescue us at the crucial moment and just impose, say, sorry we’re now
gonna have a just society, that’s silly. And it’s more than silly, it’s dangerous, because those guys are not our friends. And the basic fundamentals
of constitutional law are on their side. Because free speech and most
of other constitutional law rests on existing entitlements. So look, if you ask the question, who really has freedom of
speech in the United States, Fox News, right? And why do they have freedom of speech? There was this great
press critic years ago, who used to write for the New
Yorker named A.J. Liebling, and he said, freedom of the press means you have freedom if you can buy a press. So Fox News, they have freedom of speech because this one guy, Rupert
Murdoch, is a billionaire. It’s not just that he’s a billionaire, that’s not right, but that affects who gets
to speak and who doesn’t. So if I wanna be on Fox News, except when they occasionally put me on to make fun of me, they’re gonna say tough luck. And why is that, that’s because Murdoch owns property and I don’t. And that’s not right, it’s not fair that he
has all that property and the rest of us don’t. – [Student] Well, I feel like it’s maybe a bit of a mischaracterization to say that progressives imagine there’s a fairy godmother
in the Supreme Court. Like, I don’t think
many progressives really have placed their full
idealism in the Supreme Court. They recognizes its limitations– – Good, I’m delighted to hear that. – [Student] But the Bill of Rights and the Constitution at least provide some check on the inequalities of the capitalist system. – I think it, largely, aggravates it, rather than providing a check. – [Student] Okay but we’re not gonna get rid of the Constitution
anytime soon, are we? – (laughs) You know, we
live in a very strange age. I have no idea what’s gonna happen. But I do think that progressive support for constitutional law generally is a mistake. – [Student] To make it
a little more specific, let’s take up the example of
the NFL players protesting. Could it be that the cost of protecting progressive speech is also
protective regressive speech and people crushing animals and
doing other horrible things? Because, the danger to me in
scrapping the free speech right is, when you have a regressive
demagogue come to power, then he could conceivably suppress, in really awful ways, speech. – So first of all I think
the NFL is an odd example for you to choose, because who is it who’s interfering with the
speech of Colin Kaepernick? It’s not the government, it’s the NFL. The NFL, they’ve got a lot power, but they’re not the government, okay. So if you’re interested in Colin Kaepernick’s free speech right, what you want is the
government to intervene to tell the NFL to cut it out. – [Student] But the government,
under President Trump, would intervene to put him in jail. – Right, so again, what I wanna do is just transfer this argument over to, other areas the progressives care about. So progressives believe in
redistribution of property. Of redistribution of wealth. You might say, but gee whiz,
why would you believe in that, because if you have
Donald Trump in office, what he’s gonna do is redistribute wealth
in favor of rich people. And of course, that’s true, and you know, if I thought that risk was serious enough, I might not be a progressive anymore. So what you’re talking me
into is being a libertarian. If you the really think the government is just always gonna make things worse, no matter what we do, then I think, we oughta stop being
progressives and be libertarians. We oughta say, no we don’t
believe in government ’cause government’s evil. And you know what, twice a
week I wake up in the morning, and think, gee whiz, maybe
I should be a libertarian. (student laughs) Maybe I oughta be conservative. And when Donald Trump is president, it begins to be three times a week. But I do think if there is any hope at all of making our society
more just, more fair, more solidistic, more empathetic, it’s gonna come from government, it’s going to be because
the government does things like pass the 1964 Civil Rights Act. And if that’s true, then
the last thing you wanna do is buy into an ideology that
says government’s the problem. – [Student] Just on the notion
of fighting an uphill battle and sort of trying to
change hearts and minds, I know in your thesis and introduction you acknowledged the utility
argument of free speech, but at a certain point it seems like you’re gonna have to come up against that in your idea of what
progressive free speech can be, so what do you say to someone that puts the utility argument forward? – I don’t know what you mean
by the utility argument. – [Student] The idea that free speech is the greatest mechanism
we have for identifying, articulating, and solving
problems in this society. – So let’s suppose for the moment that you think that’s true,
I’m a little skeptical, but let’s suppose you think it’s true, the next question I wanna ask is what do you mean by free speech? So African Americans weren’t
free to travel in the South before the 1964 Civil Rights Act. I’m not free to speak when
Facebook takes down my post. So one answer to that might be okay, yes, free speech is really important,
what makes speech free, is when Congress makes laws rather than when Congress makes no laws. The First Amendment says,
because of freedom of speech, Congress shall make no
laws, maybe it should say, because of freedom of speech,
Congress should make laws. I’m also I have to say
I am a little skeptical, about the power of freedom of speech to get to the right answer, and here, I mean this is in deep tension with the way I make my living
and what I’m doing right now, because on some level, I
do believe it’s worthwhile talking to people and having dialogues, my mind gets changed,
your mind gets changed. But I’m not so sure that’s how things work on a mass scale. So if you ask the question, for example, is Beto O’Rourke gonna
get elected president, I think if he does, a
lot of the reason will be because my god, when he
takes off his T-shirt, people go crazy, right? When you ask why do people
really change their minds? I don’t know how often somebody’s actually argued into a position, so I’ll just give some
personal history here. I am really ashamed to say early on in the Vietnam War period, I was for the war, I thought the war was a pretty good idea, so I was maybe in my first year of college or something like that. And what I’d like to say is, I read a whole bunch
of books about Vietnam, and I understood the arguments about it, and I came to see that
this was cruel and evil because of the arguments. When I think about how I
actually changed my mind, I think it that really had
very little to do with it. What happened to me was I looked around at the people
who were against the war, and I looked around at the
people who were for the war, and I didn’t much like the
people who were for the war, and I like the people
who were against the war. And I wanted to be like them. And so I became like them
by being against the war. In other words it’s a
really complicated process and maybe speech has
something to do with it, but the notion that we
come to most of our ideas through a kind of reasoned process, the kind of thing that
Milton or Holmes had in mind, I think that might be
pretty unrealistic actually. I don’t know, what do you think? – [Student] Well I was just
gonna ask, a follow up to that, so it seems like your idea of we need to get to a better society and one of the ways to do that is to have a conversation about free speech, and how can it possibly be changed. Are we trying to, for an overall goal, are we trying to discredit
or get rid of bad ideas or are we trying to point
people towards good ones more? – So I guess the one thing that I feel strongly about is that it is wrong to try to win an argument by just saying to somebody,
you have to agree with me and I’m not gonna tell you why. Now, I do think that’s in some tension with what I just said because
the alternative to that is giving reasons, and if
reasons don’t much matter, then why am I so attracted to reasons? So I think you’ve got me
in a kind of contradiction, but I guess what I would say is, I do believe in
reason-giving at least enough to think that one ought not to just insist as a matter of pure power
you’ve got to agree with me, and that’s the problem with arguing from a constitutional right. It cuts off the obligation
to give reasons. I guess everybody’s convinced. – [Student] Just one point
about your Vietnam anecdote, or experience, I mean you could argue that it actually was free speech in a sense that changed your mind
because speech isn’t necessarily limited to posting on Facebook or reading a book in a library, it’s how someone portrays themselves and what you’re picking up
in everyday conversation, so I think there’s
still the idea of speech being the culmination of
everything you’re saying to make you a person– – Certainly if you really
had a totalitarian government that was controlling
all of our interactions so that, one of the, when
you read about East Germany, one of the awful things about
the way things were then was that you just could not
have a normal interaction with somebody, because
the Stasi was everyplace, and just had to be very careful about the most casual sorts of things. So in a world like that what I’m talking about couldn’t happen. So I think that’s right, but those kind of interactions
are very different from reading a newspaper
editorial or a book or something like that, it’s more, it’s both more subtle and
more mysterious than that, it is just kind of, I don’t know, the Quakers, I think, have an
expression called witnessing, so you’re witnessing how another person is living their life, and you
wanna live your life that way, that’s the sort of thing I have in mind. – [Student] So if all
these factors in society discourse are so you know, unpredictable, and I think if we’ve learned
anything in the past few years about norms can be broken
and society doesn’t always progress in the way
you necessarily want it to, the issue I see is, I
think you’re right that sometimes having a constitutional right can cut off an argument but I think if we’re gonna be fighting this uphill
battle anyway, I think do you think it’s worth it
to get rid of that protection in order to hopefully
have a better argument, or do you think would it be better to keep that restriction because you were saying how Trump
and a Republican majority could pass a law putting
Colin Kaepernick in jail and Obama and a Democrat majority– – And what makes you think that he wouldn’t get away with it? That the Supreme Court would
say, no you can’t do that? – [Student] But I think all
the people in the system can change, and all the ideas
in the system can change, but isn’t part of the point
of having a constitution that there are certain
things that we agree that are so fundamental they should be hard to change?
– So I wanna say, who is the we, white man? Right? I didn’t agree to this. When did I agree? The First Amendment was agreed to by a bunch of people in 1791, they were (laughs), I wasn’t there, none of my relatives were there, my relatives were
wandering around someplace in Eastern Europe at the time, who probably knew nothing about it, so I don’t what you mean
by we all agreed to it. As a matter of fact I don’t agree with it. – [Student] What comes to mind for me, with talk of removing or
changing the First Amendment, is talk of, in the Senate, removing the impossibility of a filibuster, and it feels like just sort
of making change easier, so it just feels like there’d be bigger swings back and forth. – [Student] Yeah, in
making changes easier, you’re also opening yourself up to more conservative enforcement
of things you disagree with. – So first of all, it makes change easier but it might also make change harder. So if Fox News were broken up so that, there’s a long
article in the Times today, quite a remarkable thing
about Rupert Murdoch and how he’s controlling the world. If his power were limited, he wants to change some things also and that might make that change harder, so that’s the first thing. The second thing is, I guess the question is, what kinds of changes
are we talking about? So let’s take, suppose we take the Senate. So the Constitution, forget
about the filibuster, the Constitution requires that the Senate be
apportioned in a way that bears no relationship to population. The three people who live in
Wyoming have as much power as the millions of people
who live in California. So that makes change harder
for a majority of Americans. If the Senate were apportioned on the basis of population, the last two Supreme Court
justices wouldn’t be there. So is that a good thing
because it makes change harder? I don’t see why. If the majority of the people wanna live in a certain kind of country, and they’re prevented from doing so why is that a good thing? – [Student] Well, would it be progressive? If a majority of people decided they wanna live in free speech rights– – I actually think the country
would be more progressive because it turns out the people who have the
disproportionate power in the Senate tend to be people who live in rural areas that are deep red, so actually it would, yeah. (laughing) – [Student] I’m not sure you
answered his question though. – Probably not. (laughing) – [Student] I think he was asking more, is the idea itself a progressive one, not so much will it result in
results that are progressive. – Is what idea progressive? – [Student] So basically, if we’re getting rid of the First Amendment, we’re taking the guardrails off, there’s no end-all, be-all
rule that there’s free speech? And and if we’re fighting an uphill battle to change the discourse
around free speech anyway, is it worth the risk to
take away that protection? – So you might think
that the downside risks are really large. I’m afraid I’m gonna repeat
an answer I gave before, but I think it’s the same answer, you might think the downside
risks are really large, so maybe most of the time the government is
controlled by right-wingers. And if you got rid of the First Amendment, those right-wingers are gonna
suppress progressive speech. So all of a sudden you’re
not gonna be allowed to criticize Trump or you’re not gonna be allowed
to advocate for gay rights, or something like that. And I’m not saying
you’re wrong about that, but what I am saying is,
if you’re right about that, then you ought not to be a progressive. Because, look, if the
government’s gonna be in the control of plutocrats,
and that’s a sort of big risk and a permanent state of affairs, then the problem is not just free speech, they’re also gonna redistribute property in the wrong direction. – [Student] But even if
it’s 50% of the time. Are we comfortable with
the actions they would take in that half of– – Well why are you comfortable
with giving the government the power to redistribute property? If 50% of the time the
government’s gonna be in the control of
right-wingers who are gonna pass tax cuts that give huge
subsidies to millionaires and make ordinary people miserable – [Student] Because there
are certain property rights that are in the constitution so no matter who’s in the government there’s certain boundaries
they can’t pass. – Well, depending on how strict you think those boundaries are, you may
or may not be a progressive. You might be a libertarian. So your view, again, maybe
I’m talking you into this, I think this is the strongest
argument for libertarianism, the people who run the
government are bound to be jerks. You know and you can have
this idealistic notion that the good guys are gonna
take over the government but they’re not, they’re
not gonna be jerks. And therefore we wanna
limit the government. – [Student] Well what you said, even with progressivism,
victories are temporary. So a bunch of good guys take
over the government tomorrow, and then in a decade we could be right back where we are now. – So– – [Student] Not even a
decade, like six years. – There is a kind of progressive faith that progressives hold onto just by the tips of their fingernails, but this is what it is. Yes, sometimes the government
produces bad results. Sometimes they suppress
progressive speech, sometimes they pass the Trump tax cuts, but what’s the alternative to that? The alternative to that is markets. And markets also are really terrible. Why, because if you have more
money you can buy more things. Markets don’t distribute things fairly, they give more power to
people who have more money, and they don’t get more money because they work harder,
they get more money, often because they inherited it. So we have two bad things. And the question is, the
question progressives and libertarians have to
answer is which is worse? And what it means to be
a progressive, I think, is to say, no, governments
are not perfect, they’re gonna do a lot of bad things also and when they’re doing bad
things we oughta oppose them. But the best chance for justice is to do something about markets. And maybe the something
will be done by having Lara go and lecture people about
their moral obligations, but I’m a less optimistic
person than she is. Who, was it Lyndon Johnson, who said, grab them by the balls so their
hearts and minds will follow maybe sometimes people have to be forced, and if the institution
that’s gonna do the forcing is the government. And so what this rests
on in the end I think is, again a kind of
faith that if the system is roughly democratic,
people are gonna vote for stuff that’s humane and decent, but maybe that’s wrong. And I do have to say what’s
happened in the last few years shakes my faith in that. – [Student] How much of what’s happened in the last few years would
you ascribe to Citizens United? In terms of elections? – For technical reasons it turns out, I think
Citizens United itself hasn’t made a huge difference. I won’t go into that but
I wanna make another point which is related to the
arguments I just made. Progressives very casually say Citizens United oughta be overruled. What they don’t realize, I think, is how deeply overruling Citizens United cuts into standard First
Amendment doctrine, which many progressives, I
think mistakenly, support. So why do I say that? Well, what Citizens United said, was that the government can’t regulate the amount of money that corporations spend to elect candidates. Here’s a corporation that spends
money to elect candidates. The New York Times. The New York Times is a corporation, it spends money writing editorials saying vote for Hillary Clinton. If Citizens United
comes out the other way, then it turns out the New York Times doesn’t have First Amendment Rights, and the government could say stop writing editorials saying
vote for Hillary Clinton. So my view is, I don’t believe
in the First Amendment, so I think that’s right, that’s the way it oughta come out, but for progressives who
say we oughta overrule Citizens United, think
about what you’re saying. You’re agreeing with me, right? So Citizens United itself,
it was about a movie. So this group, Citizens
United, put out a movie about Hillary Clinton, and the Federal Election Commission said, you cannot put out that movie. Because you’re spending corporate funds to try to get Hillary Clinton elected. The point at which the argument was lost before the Supreme Court
was when the justices started saying, well, what
about if they published a book? And the solicitor general who was arguing in favor of the laws had
to say, well that’s right, the government could stop them from publishing a book
criticizing Hillary Clinton. – [Student] I don’t wanna go back too far in the conversation, but I wanna go back to what these two were getting at, so it seems like, you laid out that, the ways for change in
this country have been the markets, historically, which have been slow, and at times have
had disastrous results, or you have the government, and
the axiom you’re playing on, which I think they were
getting at as well, was the one of national power
versus local and state power. I think the Colin Kaepernick
analogy was a bad one, I think you might have
selected the wrong case study, because it seemed like the Founders’ idea, which I understand you may disagree with, was trying to build a government that granted more power to
state and local entities than to the federal one. – The whole point of the Constitution was to empower the federal government. The Articles of Confederation had lots and lots of power
for state governments. The framers didn’t like that and so they tried to give the
federal government more power. – [Student] But I think
they would’ve understood that, especially in present day, some of them would have said to argue that the government is
growing out of control instead so we need to either reign it in or return some of this back to the state. – I actually don’t know,
if James Madison knew our current conditions, what he would say, it’s pretty hard to figure that out, but suppose he would say that, what I’d say is who cares. I mean, look, whatever else you wanna say about James Madison, he’s dead. (laughing) None of this is gonna matter to him. So but we’re alive, this is our country. Thomas Jefferson once said, prior generations are
like a foreign government, and the analogy’s really a powerful one. So I wouldn’t say for a moment that the way the United States behaves, what kind of country we have,
we oughta cede it to France, or to the General Assembly of the U.N., no, we’re Americans, we get to decide. So I also don’t think we oughta cede it to people who died 200 years ago. This is for us to decide. Now in terms of the balance between state and federal power, I think that is a complicated subject, I think one’s views on it oughta be radically contingent,
depending on who it is who’s more likely to achieve progressive goals, but there is a reason why historically progressives have generally
been nationalists, and the reason is that the more localized power is the easier it is for people with wealth to avoid regulation by threatening to move
from one state to another. If New York wants to impose a $15 minimum wage, it’s
very hard for them to do that because all of the businesses
might move to New Jersey. So if you want government regulation there is an argument in favor of having as big a unit as possible to
prevent that kind of escape. – [Student] So I wanna ask
a follow-up question to– – By the way, I just wanna
compliment you people, these are terrific points,
and one of the things, I’m getting a sinking feeling
in the pit of my stomach, as we go through this, as my
position gets chipped away, I’m beginning to think do I
have any position here at all? So I’m glad we’re stopping at four o’clock (laughing) before I’m completely humiliated. But go ahead, yes. – [Student] So I really
liked the Jefferson quote that you referenced, I
hadn’t heard that before. – [Student] Yeah but who
cares what they said? (laughing) – [Student] Good point, but I do, so I’ve been reading a lot
of Jill Lepore recently, she’s a historian, and she
talks a lot about how– – Did you read her new book? – [Student] I haven’t actually read it– – It’s a lot of fun. – [Student] Yeah, well, and
one of the arguments she makes is that progressives have made the mistake of throwing out some
important common ground with other Americans who
just fundamentally don’t think about these things as much as we do, or they don’t think about
the highfalutin ideals that academics tend to
think about as much, so don’t you think
there’s a bit of a danger in throwing out appeals to our lineage and appeals to this kind
of shared national history? – Yeah, I do think there’s a risk but we have to understand
what our history is. And here’s something
that’s really interesting that I don’t think Lepore
pays enough attention to, some of the most revered
figures in our country, and some of the greatest moments in the history of our
country have involved disregarding the constitution. So lemme give you some examples. We were talking about
Jefferson a moment ago, Jefferson was responsible
for the Louisiana Purchase. Jefferson thought and said that the Louisiana Purchase
was unconstitutional. He didn’t think he had the
constitutional power to do it, and so the first thing he did was he started drafting, Jefferson
did this stuff himself, he started drafting a
constitutional amendment that would give him the power. But then it looked like if
he didn’t act really quickly with this elaborate
negotiation both with France and with Spain, and it looked like it was all going to fall apart. And what he said, both in his
contemporary correspondence and then he wrote about this years later, he said, you know what,
it’s more important for us to have Louisiana than
to obey the Constitution. So he said, I’m just gonna do it. And he later defended
that, he said, you know, it’s true we violated the Constitution, look we’ve now got the
Louisiana territory. If you ask me what is the
single greatest moment in American history, it’s the
Emancipation Proclamation. Well, Lincoln was on
record, over and over again, saying that the federal
government did not have the right to free slaves, something that’s not widely remembered. At the time, when he was inaugurated, there was a constitutional
amendment pending in Congress. It had passed Congress. Ironically it was the Thirteenth Amendment and what the amendment said was, there is an absolute right of slaveholders to have their slaves, the federal government
cannot interfere with it, and this amendment is not amendable. In is inaugural address in 1861 Lincoln endorsed that amendment. He said, if anybody asks, I’m for it, and he said, the reason
I’m for it is because it doesn’t change existing
law, that’s true now. About six months before the
Emancipation Proclamation, a general, as it happens it was Fremont, who had run for President
in 1856 as a Republican, he had control of some territory, and he said, as a war measure, I’m gonna free all the slaves. Lincoln fired him for that, and he, it’s no mystery why he fired him, he wrote, what Fremont
did was unconstitutional. He said, it’s okay to take property, to use it to fight a war, if the property’s being used against you, but you’ve gotta give it
back after the war’s over. So what did Lincoln do then? He turned around and he signed the Emancipation Proclamation, a clearly unconstitutional act. And it was widely understood
that way at the time. He transformed the nature of the war by ignoring a constitution
that got in the way. Franklin Roosevelt. I think, and a lot of
scholars agree with me, many of them are on the
right, but not all of them, Bruce Ackerman is on the left, the New Deal was mostly unconstitutional. And Roosevelt, most people
don’t read this speech today, but I think, one of the
greatest speeches he ever gave, if not the greatest was on
the, what was it, I guess, 150th anniversary of the
ratification of the Constitution, something like that, on Constitution Day. He gave a outdoor speech
at the Washington Monument, huge crowd of people, and it
was about the Constitution. And what he said was, you people are misunderstanding the Constitution. It’s not like a will
or a deed or a contract where it’s got legal requirements
that you have to follow, what the Constitution does is,
it just sort of inspires us. And judges who go round enforcing
terms of the Constitution, to prevent the government
from doing what it wants, they’re not acting legitimately. Okay, so yes, we need to
connect with our history, but we need to understand what it is, and that’s one way to think about it. And that’s what oughta be taught in seventh grade civics classes,
it’s gonna take some work to change the curriculum. Yeah? – [Student] Mostly there
aren’t seventh grade civics classes in New York. So it’s interesting that
Jefferson has come up so much, because Jefferson, once,
proposed the idea of having a constitutional
convention every 18 years. So would you subscribe to that? Would you argue for– – I think that would be a great idea. I think, a lot of the
problems with the Constitution would go away if it were
more like an ordinary statute where we could change it. So actually, Maryland this
hasn’t worked very well but Maryland has a provision
that the state constitution has to come up for
referendum every 10 years or something like that. But the reason it doesn’t, I mean, so people just vote for it again. But yeah, I do think, the worst provision in the
Constitution is Article V, which makes the Constitution
almost impossible to amend. The American Constitution,
it’s widely thought to be the hardest constitution
in the world to amend. And as a practical matter
now it’s really impossible. And that’s not a good state of affairs. – [Student] So have you changed your mind since Great and Extraordinary Occasions? – Um (laughs), thank you
for asking about that. So the document itself, this was an organization
I was the reporter for, and the document itself was a joint piece of work, and I didn’t agree with everything in it. I did agree with the basic insight, that we wanna stop
constitutionalizing our arguments. So the argument was against
constitutional amendments that tried, by constitutional amendment, and constitutional
compulsion, to cut off debate about things that are debatable. And when the aims of it are put that way, I’m completely in favor of it. but the honest answer is my views have evolved some since then. Yeah? – [Student] Just wanna
say I’m very sympathetic with the words about
constitutionalization, constitutionalization of politics, but I wonder if you’re
advising a young progressive who might be in the audience today, okay, you have a limited
amount of time and energy, I see you’re fellow progressives, do you put your time and energy into changing hearts and minds
about the First Amendment, and the constitutionalization of politics, or do you advocate for the
redistribution of wealth? – Oh, the latter. For sure. Right. – [Student] Thank you. – Okay. So what am I doing up here, you might say. – [Student] No, it’s just,
in order of operations, – It’s all her fault! – [Student] It’s to what extent do some of these problems get resolved. In a fair bargaining with
a redistribution of wealth, a better case you might say. – Alright, we’re, gee, thank you so much. I actually learned something from this, so I really appreciate it. – Thank you.
– Thank you. (clapping) (inspiring music)

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