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Sound of gunshot A single gunshot again changes the trajectory of American history.

Charlie Kirk gunned down because of his ideas and the purely verbal arguments he made for years.

Walking on eggshells was part and parcel of living in a cancel culture.

And now people like Stephen Colbert, Jimmy Kimmel and institutions like public Broadcasting are getting their taste.

It has all reinvigorated the discussion about free speech.

Many people don't understand what constitutional free speech really is.

And that's part of the discussion tonight with UW political science professor James Long at Seattle University School of Law professor Andrew Seagull.

Free speech is the topic next on northwest now.

You.

Free speech means that we have a consequence free right to say anything we want, whenever we want.

Right.

Wrong.

Your employer might very well blow you right out the door for what you say are right.

Your school might expel you.

Even your church might gently explain that you're no longer a good fit.

There are perfectly legal consequences that can sometimes come along with speaking your mind, but the free speech as protected in the US Constitution is a bit of a different animal.

And that's part of our discussion now with UW political science professor James Long at Seattle U. Law school faculty member Andrew Siegel.

Thank both of you for coming to northwest now to have a really timely discussion.

I think about free speech, what it is, what it isn't, how it's impacting our view of how society is running right now, especially in an era of social media.

There's a lot to a lot to unpack here.

Let's start with a little background, though, James, start with a little bit.

Tell us who you are, what your major areas of study are, and what's your interest in this topic is?

Sure.

I'm a professor of political science at the University of Washington, where I also co-direct the Political Economy Forum.

And I'm also a member of their new Civic Health initiative as well.

So I think universities have a particular role to play in fostering free speech.

And and that's really my interest in it.

Andrew, same question to you.

What is your interest in this?

And you, you have a list.

And James, you may as well I don't want to exclude you from this, but your list of publishing I could fill the 26 minutes we have listing your publications.

Talk a little bit about your areas of interest and how you fit into this.

Sure.

I've been a professor and first time as an administrator at ACLU for about 20 years.

I am a professor of constitutional law.

I write mostly about constitutional law, but the Supreme Court is an institution.

Former law clerk to Justice Stevens at the Supreme Court.

So got some experience there.

And, I teach about this stuff.

I write about the stuff.

I interact with the students about it.

They have lots of questions.

And it's really timely stuff to be talking about.

I think constitutional theory and the impact of of that on democracies and how that works.

You know, you guys really sit at the intersection, perfectly for this discussion.

And I want both of your input.

So I'm going to ask the same question to both of you.

James, start with you.

I think people have a major misunderstanding of what free speech is all the time.

I see this in social media.

People just spraying, you know what?

And say, well, what's the problem?

Why?

Why are there consequences?

We have free speech in this country.

Would you please tell the folks who missed civics class in government, class in high school, and what free speech is and what free speech is not?

Well, thank you for mentioning civics.

In high school.

We've had a collapse of civics education, I fear.

So I encourage students to take social science classes when they're when they go to college.

And then, also perhaps go to law school.

I think free speech is a broad thing, and it has a particular meaning with respect to the First Amendment.

So it has a particular legal meaning that all that Andrew, talk about.

But I think there's a broader cultural aspect to it as well, which is that the First Amendment protects citizens from the government, but it doesn't protect citizens from each other.

And so I think, the culture of free speech is not just about, having First Amendment protections, but also that citizens are allowed to freely express themselves without fear of cancellation for speech that otherwise would be protected by the First Amendment.

And that has not proven to be the case, though, has it?

No.

I you know, history is full of cancellation attempts.

What's called Miltons curse refers to the the, English author John Milton, which is basically a free speech for me, but not for the, people always sort of like the First Amendment when they think it protects them or they like to say what they want on Twitter, but then if they ever come under the ire, prevailing opinion or opposing, opinion, then it's, you know, people become victimized and people also try to, to censor others or opinions that they don't like.

Andrew.

I think, you know, that's a great point about this cultural penumbra that exists around the constitutional, fairly tightly defined definition of free speech under the First Amendment.

Talk a little bit about, though, and how do you see the line and how do you see people misinterpreting it?

No, absolutely.

I think that's exactly right.

There is definitely, a broader values driven cultural commitment to freedom of speech, free expression.

But the constitutional right is a right against government.

And that's, I think, the point that we all want to emphasize it's the right against all different levels of government, imposing censorship upon people, imposing punishments, providing government benefits only to people of particular viewpoints.

The to bring an action to the First Amendment requires government action, state action or government interference in some way.

A lot of things the government can do to regulate speech, that, are okay, if they're neutral and things like that.

But when the government starts imposing viewpoints, distinctions, making content based distinctions, limiting speech altogether in certain areas, then, we run into the problems the Constitution is speaking to.

So we get right into the news cycle.

Then, and we look at things like, the chairman of the FCC, threatening broadcasters with their licenses, because of some of their content issues.

PBS, losing its funding to talk about an issue that hits close to home here at KPCC.

So, James, how to you know, you talked a little bit about this, previously wrap that a little more into context for us.

Are those cancel culture things or are they free speech issues?

It seems like there's a lot of checkmarks, a lot of boxes to check.

There.

Yeah, I think the the cancellation of Jimmy Kimmel is a complicated question because it is I mean, allegedly it is sort of, the FCC or a government pressuring or a company feeling pressured by the government to make a specific decision.

And so I think people were talking about the legality of that when it happened.

But even if you were to take the FCC pressure out of it, if you were just to look at the pressure by ABC and some ABC affiliates not to air the show after Jimmy Kimmel made remarks about, Charlie Kirk's death, that is sort of social pressure and or market pressure or market pressure as well.

And so as I think companies are constantly finding themselves, you know, promoting certain things and getting criticized for that.

And then, you know, and then they, they censor something and then they get criticized for that.

And so, we even saw ABC in the, in the ABC affiliates back off once people then started to boycott their Disney Plus, subscription, for example, after the cancellation of Jimmy Kimmel.

And so these things have a sort of vicious cycling to them.

And I think the, the role of private actors, comedians, companies is really interesting in this question.

But again, it is often separated from what the role of government is.

And constitutionally, the companies were well within their rights to to make content choices based on ratings or the reaction of the public or even on the ownership opinion to some degree.

But as soon as the FCC stepped in and said, you know something, we can do this.

These where the hard way, which was the quote, now that gets us back into the First Amendment.

No.

Yeah.

I mean, it's an interesting aspect of the era here that they say all the quiet parts out loud.

I mean, usually in a case like this, you have to look behind the scenes, speculate, try to figure out if the government is applying some sort of coercive pressure here, but there literally are saying it out loud on the news, tweeting it out.

And, in the, building a file, building a case, for someone like Jimmy Kimmel or others in similar situations, to be able to come in and allege government, government influence, the government government being behind the decision, it was about licensing, it was about mergers.

It was about access to access to news and access to government.

And the Trump administration has been very clear in a lot of contexts that they're weaponizing those kinds of things.

That seems like a clear violation to me.

I mean, there will always are questions of proof.

They can backtrack.

They can say they they can they can say they meant they meant other things.

You can provide evidence, you know, you can try to provide counter evidence that the decision wasn't actually motivated by this, but by market concerns, as you said, or something else.

But it's a really good start for the lawyers, for someone like Kimmel.

Yeah.

I want to talk a little bit about the assassination of Charlie Kirk, and you guys touched upon the cancellation piece of this.

You know, there was a, a major wave of cancellations, you know, in the early to, 2020s.

That was, you know, a lot of people would tell you is left canceling right now.

We're a little bit into right canceling left to some degree.

And we've seen that with people, expressing their views, being unsympathetic to it in that assassination.

Are they two sides of the same coin, James?

Are they somehow different?

And what do people need to understand, I guess, about where their free speech rights possibly end when it comes to maybe what their employer thinks or their or their church thinks and says, you know, we're not a great fit anymore.

What just happened a couple of times, apparently two or their school district talked a little bit about that.

Yeah.

I mean, this is Milton's curse.

So John Milton was an author.

He's a famous, in, in British history, a famous advocate for free speech.

But he, he himself tried to censor Catholic writings or writings about Catholic teaching.

And so we call it Milton's curse, because you can be pro-free speech for your side.

One minute.

And censoring, another side, particularly if that side is on the minority or is seen as having some sort of heterodox opinion.

And so it's not surprising to me at all that when the left kind of had the cultural cachet and, and, and majority opinion, in the, in the 2020s that that then shifted when Trump was reelected.

And so these things are constantly cycling.

And that's why we need a First Amendment is to say without fear or favor, this applies to everyone.

It doesn't matter what the majority opinion is at any one moment.

And this was well understood by the framers, in the sense that, one of the things that I when Andrew was talking, I was reminded, I'm talking about the government putting Margaret pressure on is the Stamp Act itself was basically a tax that the king put on the colonies to increase the price of the paper that newspapers were sold on to basically effectively censor those newspapers.

Right.

And so governments and the framers well, understood this, and that's why freedom of the presses is put in the First Amendment.

But then the framers themselves even became the biggest hypocrites and violators of this.

If we think of, John Adams in the Alien and Sedition Acts and so you constantly see this sort of cycling, and it depends on who's in power, who's being criticized, who's being censored.

And then people often do want retribution, for sure.

Constitutionally, just playing right off of that.

Attorney General Pam Bondi came out and talked about prosecuting people for their hate speech and, you know, the real test of free speech is whether or not you can tolerate hate, the hate, the things you perceive to be hate speech to some degree, and things that are unpleasant.

But is the is there a limit to that?

Was Pam wrong?

And and are there limits to what can be said in the public square when it comes to government intervention of the First Amendment?

She was completely wrong.

I mean, wrong in a way that, people in her position aren't normally wrong.

You know, the category of hate speech is not a constitutional category in this country.

In some countries it is.

And you can make arguments that that it perhaps should be.

In Britain, it's a huge problem right now.

Absolutely.

But it is not.

It is not a constitutional category.

There are things that are hateful, that are said, that could arguably fall into other, much smaller, narrower exceptions to the First Amendment.

Things like incitement and fighting words and things like, and true threats.

But those are really narrowly defined categories.

We police them pretty well.

We allow, harsh, sometimes vicious, deeply critical speech that we very much disagree with and we don't criminally prosecuted for it.

And, we don't even, enforce civil penalty, civil penalties for it.

So, you know, doctrines are complicated.

I'm not saying that you can say I'm not saying that no one's ever prosecuted for anything they ever say anywhere, but simply calling something hate speech and saying it's outside the First Amendment is like, you know, something that gets you in a class.

Good to know, James.

Want to circle something back to something that was mentioned, just briefly explicated a little bit public broadcasting in the last of funding, with the Corporation for Public Broadcasting.

The right didn't like a lot of the messaging coming out of public media.

It was taxpayer funded.

So they said no mask, no more.

Is that legal?

Is that the government stepping in to to control free speech and content, even if, even if they were right and they did.

And if you did a big content analysis, you found out now it is a left leaning organ.

How do you view that pressure and how do you how do you view Congress's action when it comes to the Corporation for Public Broadcast?

I mean, I don't think it would be like, oh, well, I mean, Congress can fund how it wants to fund, what do you think about that?

Well, certainly.

Congress in the long term can make funding decisions, to promote, particular visions and, and particular and in particular values, when there are preexisting commitments and funding streams and things like that.

Yeah.

That exist and long term commitments and budgets and contracts and things like that that are then broken for, because of a, broken because of concern about, particular viewpoints, particular particular things that are said that can potentially raise issues.

The area that I'm not clear about here, and I would need a primer.

Maybe you can give it to me.

Maybe you can't.

Is I don't actually know the status of the whole broadcasting corporation for public Broadcasting as an entity, how private it is, how government it is.

It's and all of that pretty pretty much all government and two years forward funded.

And as you suggest that was rolled back.

And that's where I think the interesting legal question comes into play.

I agree, I mean, and maybe because it is because there's so, entwined with the government, it's not even the most interesting case.

There are lots of interesting cases right now about university funding for funding of scientists, funding of programs where there are contractual commitments, statutory commitments, grants that are that are years out, that are being rolled back.

And I do think that those present, those present, unique and in some cases new constitutional issues, I think that there definitely is room for constitutional challenges there.

Of course, the upside of winning those challenges isn't as high as it is in other contexts, because those two years will run out, those funding cycles will run out, and then government does have a lot of authority to make decisions as to what they want to fund.

Yeah, yeah.

Talk a little bit about the Supreme Court and case law and you, you both, I think are involved in this, you know, in the, in kind of the modern era, you know, privacy was was a lever.

That concept was a lever by which a lot of decisions, were, were made.

Now it feels to me like we're going to see a lot of court action, possibly, around free speech and First Amendment issues when it comes to flag burning or hate speech or, you know, funding Corporation for public Broadcasting, whatever it may be.

How do you is is my perception here that this may be fertile new grounds?

This may be a new lever for Supreme Court action, right or wrong?

Set me straight.

You know, I if I came to class with this theory, what would you hit me with?

Well, I think what I'd hit you with is the 700 pages of the casebook that already exist on the First Amendment.

There's been lots of First Amendment litigation.

You're absolutely right that there was a lot of privacy litigation under due process.

There was a lot of equality litigation or the equal protection clause.

Yeah.

And that's being rolled back.

I'm not it's not so much that freedom of speech litigation is going to jump up and fill that void, but it's an area that has always also been the subject of a lot of litigation.

That is, has not yet been rolled back.

The politics of freedom of speech at the Supreme Court have always been complicated.

If you just lay out all of the cases that are decided without content, without who should be right on each and just measure who voted for speech and who voted against speech, it hasn't historically been a left right break.

It's been much more complicated than that.

So it's an area where some of the justices on the right might have three commitments that make them in play.

It's an area in which, some of the things that look beyond, beyond is saying are so far beyond the accepted position where we're, we have decisions, our arguments with things like flag burning that are already decided.

So it's an area where you could imagine the court pushing back against the Trump administration, despite its conservative majority.

And the case that got me to posit this is the the move that is afoot to make illegal conversion therapy in the states and the pushback from states that want to do conversion therapy isn't, you know, maybe some of the areas of law that you might expect.

It's free speech that we have a right to counsel without government intervention.

People considering transitioning or whatever it may be.

And I just found that to be a very interesting, I don't know about expansion, but new way to approach, to approach it.

What are your thoughts on that?

Yeah, I mean, it does seem like, the Supreme Court might be, in a position or they likely will overturn the case from Colorado about conversion therapy on, on free speech grounds.

The other area of law that I think is really interesting, which isn't necessarily the court, but it's also Congress is section 230 of the Communications Decency Act from.

Yeah, 1996.

And, you know, both the left and the right and different administrations have talked about revisiting that which gives broad immunity to online platforms for, content that I mean, first of all, it allows them to moderate content that they may find objectionable, but it also gives them broad immunity.

And I think in kind of the broader conversation about whether, how in what ways, why, social media platforms might be, moderated or not, there is a legal aspect of this, and I think both sides have an appetite to look at section 230.

How would you argue it?

Yeah, I think it's I think it's great you brought that up and I appreciate that.

You know, is there do social media platforms, when you look at my humble opinion, the destruction that's been wreaked upon democracy in society, do they need to bear some responsibility for being publishers in the most classic sense, and have their feet held to the fire and being held to standards, that make them somewhat liable for the for what they have wrought.

What do you think of what do you think of that as a legal theory?

Well, it's not my nature to defend big corporations, but one of the things I will say is, I think, you know, the kind of heyday of anything goes is over.

I think they are trying to do, various aspects of moderation themselves.

And I think that might be a positive thing.

I think it's going to take a while to figure out what works and just to just to give a contrary opinion on, you know, them destroying democracy.

Obviously, social media platforms have been the site of a lot of anti-democratic sentiment and the expression of that.

But one good aspect of free speech is that it lets you learn who the idiots are, and it lets you learn where there is opposition, and it lets you learn some social problems that people may not otherwise, you know, express.

It sort of allows you to say, actually, you know, a lot of Americans believe this or a lot of Americans don't believe this, or does it allow radicalization?

And what we saw with the young Republicans?

Well, it does a lot.

Yeah.

I mean, it is it is something that would facilitate that, for sure.

So there are positive and negative aspects of it.

And I think that's why that's why it's not surprising to me that both left and right have, have thought about what they want to do with section 230, because I think they both are worried about this.

Aren't you glad I'm not in your constitutional law class making problems?

Andrew, I would same question for you because I think 230 is so important.

Yeah, I mean, I, I see the arguments in favor of more corporate responsible, more corporate responsibility here.

But I think the dangers on the other side of making big changes and posing a lot of liability are probably bigger.

I mean, when you get into a situation where they're making content choices, they're feeling responsible, they're taking things down.

I mean, we have some evidence from the recent climate of what comes down and what comes down and what gets criticized and what gets punished and what gets called hate speech is calling Charlie Kirk an idiot, saying that he's not some sort of hero just because he was assassinated, right?

I mean, those are the kinds of things that, those are the kinds of things that people the people want to see taken down from social media.

And I think that, I think that globalize the intifada, too, though, so.

Well, I mean, yes, there are things that that yes, there are things that are said that that are hurtful and there and that arguably over the lines of discourse.

But I have not seen a coherent attempt to explain, you know, to explain what needs to what kind of, pro-Palestinian and anti-Israeli speech needs to come down in the name of anti-Semitism that doesn't have terrible line drawing problems and that doesn't ultimately, here's a here's here's a radical idea.

Professional gatekeepers, I mean, people who who spent careers and lifetimes doing that job, who have been disintermediated do we miss them?

Do we need them back?

Gatekeeping.

What, though?

Gatekeeping the content.

The people see where people can say yes, making solid editorial decisions about what's relevant and how discussions can be productive as opposed to spiraling down a rabbit hole.

I'm just throwing that out again.

The devil's the devil's in the details.

But, I think for the most part, social media platforms aren't equivalent to newspapers or television stations.

They're equivalent to message boards and town halls and, open mic nights.

More than more than that.

Yeah, I would say the walls in a bathroom stall too.

Yeah, yeah.

Well, and I think this gets to kind of a broader thing throughout history, which is that, on this point, which is that a lot of the supposed biggest proponents of free speech have been in an elite class who essentially wanted it for elites to decide and for elites to control, but not for the common person to be able to engage with.

So even if you think about, you know, the, the, the printing press and then the Bible being printed in German, during the Reformation and, you know, the Catholic Church being very, very worried that suddenly this Bible, that everyday people can read it, you know, the Catholic Church wanted to have complete control over information.

And that's in part what allowed the Reformation to spread is that everyday people were becoming literate and actually able to read it for themselves.

And so that's sort of who are the gatekeepers?

How are they defined?

Yeah, it's a very interesting question.

Brings its own set of problems, doesn't it?

Because too much, too much of either is the wrong answer and it's hard to get it right.

Our last, a minute here.

Andrew, what are people not getting about this conversation that they need to.

Well, what have I missed that you think is important to tell folks?

I think I think it can't be an abstract conversation.

It has to be contextualized politically.

And I really do feel like there is a new existential threat to dissent and freedom of speech in this country.

And I think we have to identify it and speak about it as different in kind to some of the threats that we've faced.

We have, a president and an administration that doesn't really believe in dissent, wants to stifle it, wants to send in the Army to the Army when they see it.

Biden administration did a lot of censorship on social media platforms.

I am not suggesting that the Democrats and the and other organizations don't do don't violate free speech norms in some places.

But I really do think that we are in a situation right now where, we have, one we have a president.

I want to say one side of the political spectrum.

We have a president who does not believe in dissent and dialog to the point of being an existential threat is a yes.

Yeah, yeah.

James, I'm going to give you the last 30s here.

I mean, I what I tell my students is always to steel person on the other side always make the other side's argument as strong as possible and argue that and then steel person your own side and argue against that.

And so one of the things I try to teach my students is to get around Milton's curse.

Look at the of the other side of the argument that you absolutely detest and don't like and appreciate that it should be allowed to be shared and then disagree with it.

Come up with the best argument against it rather than trying to censor it, build it up, make it better for, you know, make the argument better than that person maybe is making for themselves and then argue against that.

Yeah.

And I think that kind of exchange intellectually is good for people because then they understand why.

Then when, when, when people are, you know, opposed to their ideas or something like that, they should still be allowed to express those ideas and then have a fruitful conversation that hopefully, you know, gets us closer to the truth from your lips to God's ears.

So I think that's a great place to end that.

Thanks, guys.

Thank you.

Thank you.

Spewing hatred is always wrong, but so is defining hatred in such a way as to preempt honest debate about policy and social issues.

The bottom line is that once we stop talking with each other, the Republic is doomed.

And in recent years, we've taken a lot of steps down that road.

So please ignore the rage farmers.

They're using your anger to make money, and it's destroying the country.

Rather, pay attention to the people whose entire lives have been dedicated to helping you understand the world.

The people doing great journalism, conducting and explaining solid, evidence based research, or leading meaningful discussions that are borne out of deep learning and experience.

As for the rest of us, we can make sure we're having the kinds of conversations with people that lead to understanding, not division.

And my last rant just get off social media for anything much beyond sharing personal interests or reinforcing relationships with family and friends.

Don't feed rage.

I hope this program got you thinking and talking.

You can find this program on the web at kbtc.org , stream it through the PBS app, or listen on Spotify and Apple Podcasts.

That's going to do it for this edition of northwest.

Now, until next time, I'm Tom Layson Thanks for watching.

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