Pushkin from Pushkin Industries. This is Deep Background, the show where we explore the stories behind the stories in the news. I'm Noah Feldman. Today we're continuing our Freedom of Speech series, and I'm going to share with you a conversation I had with an expert whom I admire greatly and with whom I very frequently disagree. Eugene Valak teaches First Amendment law at the UCLA School of Law. He's the author of a casebook about freedom of speech called the First Amendment and Related Statutes. His law few articles and his friend of the Court briefs have been cited in numerous Supreme Court cases. He's also the founder and co author of The Volak Conspiracy, a leading legal blog which, sometimes, depending on the issue, tends towards the conservative or libertarian. In the world of legal academia, where I have my day job, Eugene is universally recognized across the range of political opinions as one of the most significant and influential voices about the freedom of speech. I spoke to Eugene back in March. Eugene, I wonder if you would start by telling our listeners how you got interested in the freedom of speech, because your profile up until the time when you did fancy a pelletchord in Supreme court clerkships and became a law professor was extremely unusual. So how did you get interested in this issue in the first place. I've been interested in a constitutional law, and in particular free speech laws, since I was in my mid teens. I actually went to law school planning and becoming a prosecutor. And then I realized in law school two things. One is that prosecutors generally didn't do much with law like most lawyers. They did things with facts, as is right. That's what prosecutors should be mostly focused on, is figuring out the facts and proving the fact. But I was interested in law, so that meant I'd either be an appellate lawyer or a professor. And then I saw how much fun my professors were having, so I thought, oh, I'll be a law professor, and turned out that there were interesting things to say about free speech laws. I was delighted. Now, Gene, you say that you were interested in this from the time you were a teenager, but you were not, by any ordinary standard, a normal teenager. So you came to the US when you were seven from the then Soviet Union, and then you graduated from college at UCLA with a degree in computer science and math when you were fifteen. What were you doing when you were starting to think about this as a teenager? Was that when you were actively doing the job of a computer programmer. Yeah. I'd worked as a computer programer actually ever since I was twelve, and I was happy to be a programmer, and I was excited about my programming career. But at the same time, I was interested in this in the side, as I think so many people are. Right. My guess is a lot of your listeners who are interested in free speech law or law aren't lawyers. They're just people who think that this is an import part of their civic lives and their intellectual lives is getting a better sense of the rules of governor society. So I was interested in it then, kind of on the side, and then I realized it's something I might want to turn into a career. Much as I enjoyed being a computer programmer, I wanted to be more directly involved in these big picture illegal and public policy issues. And I got exactly what I wanted. Knock Wood, do you think that having come from the Soviet Union, even as a young kid, was relevant to your eventual formation of views in the First Amendment space. I sometimes hear some of my students whose families came from the former Soviet Union talking about how they're stronger pro rights viewpoint, and in some cases even strongly libertarian perspectives come as a reaction against seeing what communism could do in practice. Yeah, you know, it's so hard to say, in part because actually lots of positions on free speech issues are very, very far from the communist position. So, you know, I hesitate to ascribe that much to my background, in part because I can't step out of my background. I can't say, well, what if I had been born in the US, what would I have thought? I don't know what wouldn't be me. I will say that earlier in my life I actually took a less speech protective view. I think my views were perhaps somewhat more open to what people would say reasonable moderate regulations of free speech. And then over time I came to the view that the government really can to be trusted with even these supposedly reasonable and moderate regulations. But I'm not sure that that was because of my background and my parents background and communist Russia. You know, it's interesting you mention the question of trusting the government, and I do think that for a lot of people that comes down to how they form their views about free speech. It's how much do they trust the government to be able to engage in certain forms of reasonable regulation. Obviously that's not the only way to think about it, but do you think that that is the way that one form views on free expression? Sort of? You know, the more you distrust the government, the more pro free speech you should be. I think that's right. I think you've hit the nail on the head there, at least as a practical matter for most people, and I think for not just how most people think about about how they should think about it. Let's take an example. People talk about fake news, and isn't fake news bad? Well, yes, certainly, outright hoaxes are bad. Lies are bad. Even honest mistakes, especially about important subjects such as vaccination or the coronavirus, or foreign policy or a wide range of other things, those are bad. Well, why not allow the government to prohibit those things? Once there's a trial, let's say, or some hearing in which it's proved that something is false. Well, if you trust the government to sort the truth from the false, then that could be a big net plus to the quality of public debate. On the other hand, if you don't trust the government, not because you think the government is always awful, no, because government is composed of people and aren't always trustworthy, and people have both subconscious biases generally and also are pushed in particular directions by their own political self interest, then I think you might come to the view that it's better to tolerate a good deal of falsehood than to give the government the power to ban certain things that might be true on the grounds that they're false. I think one way of thinking about is thinking about history. So let's say there's some particular dispute, say over whether the killing of Armenians during World War One was a deliberate genocide or just the viccissitudes of war. Now I'm not an expert on the subject. My understanding is that people who've studied it generally do think that this was a genocide. But how do I know that to the extent I know it, or let's just say to the extent I believe it. I believe it because historians seem to have come to that consensus, and the best way we can figure out what is true about history, about social sideys, and especially about philosophy, religion, arts, and the like is based on consensus of people who really have studied things closely. But I know that only because I know that they could study all possible opinions on this and hear all opinions and air opinions, even ones that ultimately their colleagueses agree with, and through the continued process of hearing all those opinions, the consensus emerges and remains broadly accepted by historians. If I learned that it's illegal to deny that this was a genocide, then I would lose confidence in that very consensus, because I would no longer think that this is something that historians are coming to after hearing all the arguments, because some of the arguments now it's illegal to make to them. So it's actually, I think, better for our understanding of truth if people can make statements, even false statements, because only that way can we be sure that all of the arguments have been aired, and the whatever consensus there is is as best we can tell an accurate one. You know, it's interesting that in this particular instance, the law in Turkey actually runs the other way. It's a crime to say that it was a genocide. And that leads to a question that I really want to ask you, which is about how the experiences of different countries might be relevant to creating different rules here. It's sometimes said that if you look at the example of Germany or other European countries where fascism or national socialism or other ideologies actually managed to swamp liberalism and then led to the emergence of totalitarianism, that in those countries there might be a strong pragmatic reason to outlaw some things that are ideas or opinions that the United States permits, for example, prohibiting racism or prohibiting statements that dehumanize people on the basis of their membership in a group. The argument is something like, those countries have learned through hard experience that they cannot trust the free marketplace of ideas to actually clear and get people not to believe in these terrible viewpoints. To the contrary, when these views were expressed under relatively free circumstances, they actually led to people adopting them. And then sometimes the conclusion is drawn from that that depending on your national experience, you should be able as a state to outlaw hate speech and to outlaw other forms of racism, or to outlaw political organizations that rely on these points of view. Do you find yourself sympathetic to that at all? Do you think to yourself, well, maybe in the United States we shouldn't do this, but in Germany it's actually appropriate for them to have a law that prohibits the Nazi Party and its symbols. No, I don't. I should say I specialize in American free speech law. I know a lot about it. I don't know a lot about foreign rules. So I've got to acknowledge that I have limited expertise in foreign law matters. But if you ask me the question, I think the answer is that the same reasons that justify skepticism of the government here justify skepticism in the government there. And that's true if it's the Germans trying to ban Nazi advocacy or more broadly, racist advocacy or of racism is potentially very broad and ill defined category or supposedly dehumanizing advocacy, or for that matter, if Polls or Ukrainians want to ban communist advocacy, communism is of course caused as much misery in those countries as Nazism caused in Germany, possibly more so. You say, well, those countries have concluded, based in the judgment of history, that they can't trust the marketplace of ideas. But I should think that the judgment of history has made it even clearer that they can't trust the government policing the marketplace of ideas. That in fact, as I understand it from our Germany did try to suppress the Nazi Party, which of course was engaged not just an advocacy of it in outright crimes, didn't do a great job of it. And then of course Nazi Germany and then in Eastern Germany, Communist Germany, they tried to regulate what they thought was in badly working marketplace of ideas by suppressing liberal democratic advocacy. So the question is always comparative, is it not? Is the marketplace of ideas perfect? Where is it even very good? The question is whether we're likely to get better results by allowing people to say things, even evil things, even wrongheaded things, or by allowing the government to control what it is that people say. And I'm pretty skeptical that giving the government that kind of power is going to be terribly helpful. We'll be right back. Let me ask you about a concrete case where this issue is actually put very directly into play on which you and I disagreed. Now, some years ago, this case took place at the University of Oklahoma, and to summarize it, there was a fraternity where two fraternity brothers were taking a group of pledges on a bus ride and then they had them sing a song that basically said, first of all, there will never be an African American. They did not use that term in our fraternity. And then it went on to say you could hang an African American from a tree, but they would not join the fraternity with me, namely with a member of the fraternity. So the song effectively insisted that there would be no blacks in their fraternity. It also threatened violence in at least in some way by invoking lynching. And when this story got out, David Bourne, who was then the president of the University of Oklahoma, acted very quickly and sanctioned the students. I believe they were actually expelled. And as I recall it, your view was that since the University of Oklahoma is bound by the First Amendment the president had actually infringed on the free speech rights of the fraternity brothers? Was that in fact your view? And if so, do you want to say a few words about why? Yeah? That it was my view. It continues to be my view. I think it was a clear First Amendment violation. I obviously have no sympathy for the particular speech they engaged in, but we should ask ourselves what would be the rule under which the university is allowed to expel students for that kind of speech. Note it's not even to like traditional speech codes, which were limited to speech on campus. This is speech off campus. This was a speech being restricted precisely because of the viewpoints that it was expressing. And if the argument is well, off campus speech expressing certain views is going to have on campus effects, Well, that's true of a vast range of off campus speech. That means that if I take it to a student were to go to a rally for a racist organization or an organization that's perceived as racist, then presumably there'd be a similar outcry and it would be similarly justified for them to be expelled for that. Well, may I try out the alternative view? Well, so, tell me, Noah, what rule you would propose under which this speech would be restrictable but other speech would not be. And why you think that rule sound but also is politically defensible. Is something that's going to actually be maintained as opposed to just leading to more and more calls for restriction. My view would be that A on a university campus, B there should be rules, as indeed are required by federal law that protect against racial discrimination. That C A fraternity is a university sanctioned organization. That D What was wrong here was conduct. The conduct was discrimination discrimination in association with the membership in this particular fraternity. They weren't making a decision on membership in that moment, but through the song, they were making it extremely clear that their fraternity, a campus organization, was a racially discriminatory one. I would add to this that there was also a threat of violence. I don't know how serious it was, but nevertheless there was a threat of violence associated with this. And then under these circumstances where what's being punished is the conduct, even if that conduct is achieved via words, via singing something, that this was a form of discriminatory conduct that was justifiable to regulate under these circumstances. And then the analogy that I would draw here is to the regulation of workplace sexual harassment, which, as we know, can be rendered civilly unlawful even when it's achieved just by talking. You know someone who says to his coworker every day, you're unqualified. You know, because you're a woman, you can't do this job well a range of other discriminatory things. We recognize that the government can sanction that conduct because it's in the workplace, which is a environment. It's a little different than being on the street. And even though it's done by words, what we're doing is we're punishing the conduct, the conduct of discrimination, rather than the words themselves. That would be the argument that I would mount. Free speech supporters actually support us all sorts of rights. Abortion rights, gun rights, and others. Often worry about slippery slopes, and I think that that worry is very justified in a legal system such as ours that's built on precedent and analogy. Let's look at in particular the kind of argument that you're making. So first, as it happens, I have long criticized workplace harassment law. I think while private employers are entitled under the First Amendment to try to control what goes on in the workplace and the interest of morale. I think that at least certain aspects of workplace harassment law go too far in coercing employers to do that. But note some of the defenses of workplace harassment law, in fact, including in your own argument. So it's in the workplace, but this isn't in the workplace. It isn't even on campus. It was on a bus, and you were saying, well, somebody telling a female coworker every day that she is unqualified. They weren't saying that to prospective black applicants to the fraternity. Indeed, my understanding is that they did not expect it to leak out. They did not want it to leak out. It's just that somebody recorded it and that's what alerted the rest of the public to it. So already you're taking one thing which I think is already at the boundary or perhaps beyond the boundary of what is acceptable under the First Amendment, which is workplace harassment law. And now see the slippage goes from the university, where the theory is university is for working, it's not for public discourse like college. Well now it's getting to college, it's not even on campus, it's off campus, and it's not speech to a person that is offensive to them at speech about a person. So what this comes down to the conduct argument is also it seems to me a way of taking things that clearly speech. What they're expelled for is what they said, and trying to redefine it as conduct. The strongest argument that I can see is, and I think you pointed to in some measure, is that well, the university could ban exclusion based on race from a fraternity, and that this was somehow a signal that they would do this. It's like you're saying, not even threatening, because again they didn't expect anybody to see it, but you're kind of saying, I will commit this wrong of discrimination. So maybe we can anticipatorially punish you, not for what you've done or whether you've been proven to do, but for what we are expecting you to do, not something we usually do under our legal system. But even if that's so, what's the typical penalty for students discriminating based on race or religion, or in sex or sexual orientation or whatever else in student group? Membership. I can bet you that it's never expulsion. Maybe it's suspension of the group sometimes, but never expulsion, which makes it clear that they weren't just saying, well, this is a and even handed no discrimination in group membership law. We're just applying to you regardless of what you're saying. They were doing it because of what they were saying. And then the last thing is the threat of violence. Well, again we have to ask how do we deal with threats of violence in songs? Generally speaking? Let's say somebody is singing cop killer, and let's say the university says, ooh, well, because we employ police officers and we heard that you were singing cop killer at a party we think praising the killing of cops. Then in that case, we're going to expel you because you're creating an unsafe environment for our police officers. I take it we'd say, no, that's not restriction on conduct. That's obvious restriction on speech. It's restriction on speech that may be quite offensive, may even be vile, but it's not something the university should be doing. That's the consequence, it seems to me, of accepting the rationale that the University of Oklahoma used here that all of these kinds of speech could equally be restricted using exactly the same arguments. Something you said, Eugene, will I imagine get the attention of some listeners as it got my attention, and that was that you were on the edge. It sounded like of saying that workplace sex harassment law as it's currently constituted, where it's possible to hold someone liable for harassment just based on things they've said, you know, without any physical touchings or other harms, is of questionable constitutionality. Not only did I say it now, I said in nineteen ninety two in what was my student note? It was my job talk. Eventually, so you've consistently held this view for more than twenty five years, Oh right, I've written literally half a dozen articles on the subject. So, in light of the Me too movement and the raising of consciousness around forms of workplaced discrimination, has any of that had any effect on your view? I mean, I understand the constitutional or legal basis for it, as you just expressed, But what about the sort of real world consequential part of the picture. Has that changed or affected your mind at all? No, I've been against sexual assault I'm happy to say all my life I have been against people, for example, engaging in sexual extortion. I made that clear in my original article. That is indeed a threat of illegal conduct, and that is generally so called quid pro quo sexual harassment. Sleep with me or you're fired, and that is communicated directly and deliberately to that person. I also actually argued in my icle that indeed unwanted speech to a person, sort of one to one speech where you're approaching somebody and insulting them, or for that matter, persistently asking the how for dates where you're not trying to insult them a love speech rather than a hate speech. But unwanted love speech, as it were, that could indeed be restricted. But speech that's merely overheard, or in the Oklahoma situation, speech that was never expected to be overheard, but that somebody records and then is revealed, No, I don't think that can be properly restricted by the government using workplace harassment law. Let me give you an example. Imagine that somebody is talking at a party. A guy is talking to other guys saying, you know, I think women just don't do a really good job here. I think that things were better when we only had men. And then somebody records that that is revealed to women of the workplace. Remember this is all set outside the workplace, and then the company is sued under Title seven for not hiring somebody for his off the job sexist statements. I think that would be outrageous to have such a lawsuit proceed and I should say, to the credit of hustle environment harassment law, I don't know of any cases that actually do involve a lawsuit proceeding based on this person's off the job speech, right, because it's workplace harassment and the fact that it's in the workplace is supposed to matter. But could you explain in your mind, what's the magic difference between discriminatory harassment that takes place directed at a person and discrimination that takes place behind their backs. I mean it's in the nature of discrimination that it can take place either directly or indirectly. I mean, you and I can set around and discriminate against the third person, even if the third person doesn't know we're discriminating against her. Surely, so you say discrimination, But we're talking about his speech. It's like people used to say, well, this isn't speech this is sedition or this is communist conspiracy. Workplace harassment law is based on a statute that outlaws discrimination. It's not a statute of outlaw speech, so that's right. But when it is applied to speech because of what the speech communicates, then it becomes a speech restriction. So the difference you asked, what's the difference between one to one speech and speech that's overheard, speech that may be talked about in the lunch room and such. I think this is a broader point that isn't at all limited to hostile environment harassment law, and it has to do with the value of the speech that talking to a particular person when the person has told you stop talking to me, or when it's perfectly clear that a person does not want to hear this because these are insults. That's something that has very limited First Amendment value because it's not likely to persuade or enlighten. It's just likely to offend. Whereas speech that's said to the public that is overheard by some people who are offended, that could have a great deal of First Amendment value. Here's an example from a non hostile environment harassment non discrimination law context. There's a case called Drowan the Post Office Department that upheld the statute under which any of us could say to any mailer, at least any commercial mailer, stop sending the unwanted mail, and then they have to stop. And the court said, look, there's no right to press even a good idea on an unwilling listener. And I think that's quite right, because if something's coming into my house and coming to me, I should be entitled to say stop talking to me. But let's say there was a similar statue that allowed anybody who's offended by a billboard or by a demonstration, or there was a famous case involving nudity on a drive in theater screen, that they could demand that that'd be taken down. That is a much greater, and I think unconstitutional restriction on speech because that interferes even with speech to willing listeners. So if a company could be suited under titled seven because and actually unfortunately it can be, I think this is the situation where hostile roman harassment law is impermissible because somebody is wearing a cap with a Confederate flag on it, or because some people are talking about gender roles and who are saying, you know, I think that these jobs should be for men and not for women. Saying the lung Truman they're overheard. That I think is unconstitutional because that interferes with speech among willing listeners just because somebody who hears it is going to be offended by it, and that I think is impermissible. And I think that that tracks dividing lines in a lot of first ammendent cases. Fighting words is another example. There are various rationales for restricting fighting words, but one of them is that they're not just likely to cause a fight, but there said to a person who is being directly personally insulted, as opposed to burning a flag which might cause a fight, where the court says that's protected. They're the important thing is that that message may reach willing viewers as well as unwillingness. Do you think of yourself as a free speech absolutist And I'll ask you that because it seems in terms of the continuum of where people come down that thinking that sex arrassement workplace sex arrasma as it currently exists is unconstitutional would put you towards one end of the continuum at least. Well, I don't think there's ever been a free speech absolutist. Some people have called themselves free speech absolute just as Black as an example, but even he was willing to uphold restrictions on threats on fighting words. So I don't think it's possible to be an absolutist. I don't think that threats of violence should be protected. I don't think that if somebody wants to speak very loudly in a residential area in the middle of the night that that should be protected. But if no one thinks those things, then maybe absolutes is the wrong word. But do you think you're at one end of the continent. I don't even I do think there are people who are free speech maximalist, but I'm not even sure I'm a free speech maximalist. I believe in strong protection for free speech, especially when the government is restricting it based on the content of the speech. I do think there are exceptions to free speech protection. I think they're well established and they're part of our law, but that they should be read narrowly and kept within their boundaries, and the slippery slope should be resisted. So in that respect, you know, in a sense, I'm kind of a free speech doctrinalist. I've read the cases, I've written about the cases. I think there's a good deal of wisdom in the courts cases, although it's not I agree with everything. I think there are particular rules that we have, but I don't think we should be moving towards a more speech restrictive, generally speaking model than we have today. Eugene, it's a huge pleasure to talk to you about these things, and it's a huge pleasure to disagree under conditions of rational debate of the kind of ideal speech conditions that the first amend is, at least in theory designed for it. And I suspect we'll keep on disagreeing on lots of issues, but I hope we can keep on talking about them as we disagree about them going forward. Thank you so much for your time. Thank you very much, very kind of you to say so to have me on. It is always a pleasure to talk to you. And indeed, that's I think why we became academics, right so we could talk to other people who know the field, and we can express our views and sometimes agree, sometimes disagree, and we hope learn from each other and come to better views ourselves. It definitely wasn't for the faculty meetings, Thank you very much, or Jane much is true, thank you. My conversation with Eugene raised in my mind one of the hardest problems to me, at least in the freedom of speech, and that is, should our speech be treated with the same degree of freedom in environments like the workplace or the university, where our values and goals may be potentially a little bit different from the values and goals we have in the naked public square. Eugene is very concerned about slippery slope problems. He's worried that forms of limitation on speech that we design for the workplace, or that we design for the university, or for other settings where we tend to think, or at least I tend to think that speech can rightfully be constrained, might in the long run, have the effect of undercutting our commitment to free speech. More generally, line drawing is one of the hardest tasks that the law faces. It's also a task that the law has to engage in every day, and of course there is also a slippery slope argument the opposite direction. If we insist on nearly absolute free speech in every context, what will that mean for our society's ability to shape productive, meaningful interactions and conversations in places like the workplace and the university. In any case, there's nothing like testing out one's ideas about free speech against the strongest pro free speech position in order to figure out where you believe lines can appropriately be drawn. Until the next time I speak to you, be careful, be safe, and be well. Deep Background is brought to you by Pushkin Industries. Our producer is Lydia Jane Cott, with mastering by Jason Gambrell and Martin Gonzalez. Our showrunner is Sophie mckibbon. Our theme music is composed by Luis gera special thanks to the Pushkin Brass, Malcolm Gladwell, Jacob Weisberg, and Mia Lobel. I'm Noah Feldman. I also write a regular column for Bloomberg Opinion, which you can find at Bloomberg dot com Feldman. To discover Bloomberg's original slate of podcasts, go to Bloomberg dot com Slash Podcasts. And one last thing. I just wrote a book called The Arab Winter, a Tragedy. I would be delighted if you checked it out. If you liked what you heard today. Please write a review or tell a friend. You can always let me know what you think on Twitter. My handle is Noah R Feldman. This is deep background

Pushkin from Pushkin Industries. This is Deep Background, the show where we explore the stories behind the stories in the news. I'm Noah Feldman. Today we're continuing our Freedom of Speech series, and I'm going to share with you a conversation I had with an expert whom I admire greatly and with whom I very frequently disagree. Eugene Valak teaches First Amendment law at the UCLA School of Law. He's the author of a casebook about freedom of speech called the First Amendment and Related Statutes. His law few articles and his friend of the Court briefs have been cited in numerous Supreme Court cases. He's also the founder and co author of The Volak Conspiracy, a leading legal blog which, sometimes, depending on the issue, tends towards the conservative or libertarian. In the world of legal academia, where I have my day job, Eugene is universally recognized across the range of political opinions as one of the most significant and influential voices about the freedom of speech. I spoke to Eugene back in March. Eugene, I wonder if you would start by telling our listeners how you got interested in the freedom of speech, because your profile up until the time when you did fancy a pelletchord in Supreme court clerkships and became a law professor was extremely unusual. So how did you get interested in this issue in the first place. I've been interested in a constitutional law, and in particular free speech laws, since I was in my mid teens. I actually went to law school planning and becoming a prosecutor. And then I realized in law school two things. One is that prosecutors generally didn't do much with law like most lawyers. They did things with facts, as is right. That's what prosecutors should be mostly focused on, is figuring out the facts and proving the fact. But I was interested in law, so that meant I'd either be an appellate lawyer or a professor. And then I saw how much fun my professors were having, so I thought, oh, I'll be a law professor, and turned out that there were interesting things to say about free speech laws. I was delighted. Now, Gene, you say that you were interested in this from the time you were a teenager, but you were not, by any ordinary standard, a normal teenager. So you came to the US when you were seven from the then Soviet Union, and then you graduated from college at UCLA with a degree in computer science and math when you were fifteen. What were you doing when you were starting to think about this as a teenager? Was that when you were actively doing the job of a computer programmer. Yeah. I'd worked as a computer programer actually ever since I was twelve, and I was happy to be a programmer, and I was excited about my programming career. But at the same time, I was interested in this in the side, as I think so many people are. Right. My guess is a lot of your listeners who are interested in free speech law or law aren't lawyers. They're just people who think that this is an import part of their civic lives and their intellectual lives is getting a better sense of the rules of governor society. So I was interested in it then, kind of on the side, and then I realized it's something I might want to turn into a career. Much as I enjoyed being a computer programmer, I wanted to be more directly involved in these big picture illegal and public policy issues. And I got exactly what I wanted. Knock Wood, do you think that having come from the Soviet Union, even as a young kid, was relevant to your eventual formation of views in the First Amendment space. I sometimes hear some of my students whose families came from the former Soviet Union talking about how they're stronger pro rights viewpoint, and in some cases even strongly libertarian perspectives come as a reaction against seeing what communism could do in practice. Yeah, you know, it's so hard to say, in part because actually lots of positions on free speech issues are very, very far from the communist position. So, you know, I hesitate to ascribe that much to my background, in part because I can't step out of my background. I can't say, well, what if I had been born in the US, what would I have thought? I don't know what wouldn't be me. I will say that earlier in my life I actually took a less speech protective view. I think my views were perhaps somewhat more open to what people would say reasonable moderate regulations of free speech. And then over time I came to the view that the government really can to be trusted with even these supposedly reasonable and moderate regulations. But I'm not sure that that was because of my background and my parents background and communist Russia. You know, it's interesting you mention the question of trusting the government, and I do think that for a lot of people that comes down to how they form their views about free speech. It's how much do they trust the government to be able to engage in certain forms of reasonable regulation. Obviously that's not the only way to think about it, but do you think that that is the way that one form views on free expression? Sort of? You know, the more you distrust the government, the more pro free speech you should be. I think that's right. I think you've hit the nail on the head there, at least as a practical matter for most people, and I think for not just how most people think about about how they should think about it. Let's take an example. People talk about fake news, and isn't fake news bad? Well, yes, certainly, outright hoaxes are bad. Lies are bad. Even honest mistakes, especially about important subjects such as vaccination or the coronavirus, or foreign policy or a wide range of other things, those are bad. Well, why not allow the government to prohibit those things? Once there's a trial, let's say, or some hearing in which it's proved that something is false. Well, if you trust the government to sort the truth from the false, then that could be a big net plus to the quality of public debate. On the other hand, if you don't trust the government, not because you think the government is always awful, no, because government is composed of people and aren't always trustworthy, and people have both subconscious biases generally and also are pushed in particular directions by their own political self interest, then I think you might come to the view that it's better to tolerate a good deal of falsehood than to give the government the power to ban certain things that might be true on the grounds that they're false. I think one way of thinking about is thinking about history. So let's say there's some particular dispute, say over whether the killing of Armenians during World War One was a deliberate genocide or just the viccissitudes of war. Now I'm not an expert on the subject. My understanding is that people who've studied it generally do think that this was a genocide. But how do I know that to the extent I know it, or let's just say to the extent I believe it. I believe it because historians seem to have come to that consensus, and the best way we can figure out what is true about history, about social sideys, and especially about philosophy, religion, arts, and the like is based on consensus of people who really have studied things closely. But I know that only because I know that they could study all possible opinions on this and hear all opinions and air opinions, even ones that ultimately their colleagueses agree with, and through the continued process of hearing all those opinions, the consensus emerges and remains broadly accepted by historians. If I learned that it's illegal to deny that this was a genocide, then I would lose confidence in that very consensus, because I would no longer think that this is something that historians are coming to after hearing all the arguments, because some of the arguments now it's illegal to make to them. So it's actually, I think, better for our understanding of truth if people can make statements, even false statements, because only that way can we be sure that all of the arguments have been aired, and the whatever consensus there is is as best we can tell an accurate one. You know, it's interesting that in this particular instance, the law in Turkey actually runs the other way. It's a crime to say that it was a genocide. And that leads to a question that I really want to ask you, which is about how the experiences of different countries might be relevant to creating different rules here. It's sometimes said that if you look at the example of Germany or other European countries where fascism or national socialism or other ideologies actually managed to swamp liberalism and then led to the emergence of totalitarianism, that in those countries there might be a strong pragmatic reason to outlaw some things that are ideas or opinions that the United States permits, for example, prohibiting racism or prohibiting statements that dehumanize people on the basis of their membership in a group. The argument is something like, those countries have learned through hard experience that they cannot trust the free marketplace of ideas to actually clear and get people not to believe in these terrible viewpoints. To the contrary, when these views were expressed under relatively free circumstances, they actually led to people adopting them. And then sometimes the conclusion is drawn from that that depending on your national experience, you should be able as a state to outlaw hate speech and to outlaw other forms of racism, or to outlaw political organizations that rely on these points of view. Do you find yourself sympathetic to that at all? Do you think to yourself, well, maybe in the United States we shouldn't do this, but in Germany it's actually appropriate for them to have a law that prohibits the Nazi Party and its symbols. No, I don't. I should say I specialize in American free speech law. I know a lot about it. I don't know a lot about foreign rules. So I've got to acknowledge that I have limited expertise in foreign law matters. But if you ask me the question, I think the answer is that the same reasons that justify skepticism of the government here justify skepticism in the government there. And that's true if it's the Germans trying to ban Nazi advocacy or more broadly, racist advocacy or of racism is potentially very broad and ill defined category or supposedly dehumanizing advocacy, or for that matter, if Polls or Ukrainians want to ban communist advocacy, communism is of course caused as much misery in those countries as Nazism caused in Germany, possibly more so. You say, well, those countries have concluded, based in the judgment of history, that they can't trust the marketplace of ideas. But I should think that the judgment of history has made it even clearer that they can't trust the government policing the marketplace of ideas. That in fact, as I understand it from our Germany did try to suppress the Nazi Party, which of course was engaged not just an advocacy of it in outright crimes, didn't do a great job of it. And then of course Nazi Germany and then in Eastern Germany, Communist Germany, they tried to regulate what they thought was in badly working marketplace of ideas by suppressing liberal democratic advocacy. So the question is always comparative, is it not? Is the marketplace of ideas perfect? Where is it even very good? The question is whether we're likely to get better results by allowing people to say things, even evil things, even wrongheaded things, or by allowing the government to control what it is that people say. And I'm pretty skeptical that giving the government that kind of power is going to be terribly helpful. We'll be right back. Let me ask you about a concrete case where this issue is actually put very directly into play on which you and I disagreed. Now, some years ago, this case took place at the University of Oklahoma, and to summarize it, there was a fraternity where two fraternity brothers were taking a group of pledges on a bus ride and then they had them sing a song that basically said, first of all, there will never be an African American. They did not use that term in our fraternity. And then it went on to say you could hang an African American from a tree, but they would not join the fraternity with me, namely with a member of the fraternity. So the song effectively insisted that there would be no blacks in their fraternity. It also threatened violence in at least in some way by invoking lynching. And when this story got out, David Bourne, who was then the president of the University of Oklahoma, acted very quickly and sanctioned the students. I believe they were actually expelled. And as I recall it, your view was that since the University of Oklahoma is bound by the First Amendment the president had actually infringed on the free speech rights of the fraternity brothers? Was that in fact your view? And if so, do you want to say a few words about why? Yeah? That it was my view. It continues to be my view. I think it was a clear First Amendment violation. I obviously have no sympathy for the particular speech they engaged in, but we should ask ourselves what would be the rule under which the university is allowed to expel students for that kind of speech. Note it's not even to like traditional speech codes, which were limited to speech on campus. This is speech off campus. This was a speech being restricted precisely because of the viewpoints that it was expressing. And if the argument is well, off campus speech expressing certain views is going to have on campus effects, Well, that's true of a vast range of off campus speech. That means that if I take it to a student were to go to a rally for a racist organization or an organization that's perceived as racist, then presumably there'd be a similar outcry and it would be similarly justified for them to be expelled for that. Well, may I try out the alternative view? Well, so, tell me, Noah, what rule you would propose under which this speech would be restrictable but other speech would not be. And why you think that rule sound but also is politically defensible. Is something that's going to actually be maintained as opposed to just leading to more and more calls for restriction. My view would be that A on a university campus, B there should be rules, as indeed are required by federal law that protect against racial discrimination. That C A fraternity is a university sanctioned organization. That D What was wrong here was conduct. The conduct was discrimination discrimination in association with the membership in this particular fraternity. They weren't making a decision on membership in that moment, but through the song, they were making it extremely clear that their fraternity, a campus organization, was a racially discriminatory one. I would add to this that there was also a threat of violence. I don't know how serious it was, but nevertheless there was a threat of violence associated with this. And then under these circumstances where what's being punished is the conduct, even if that conduct is achieved via words, via singing something, that this was a form of discriminatory conduct that was justifiable to regulate under these circumstances. And then the analogy that I would draw here is to the regulation of workplace sexual harassment, which, as we know, can be rendered civilly unlawful even when it's achieved just by talking. You know someone who says to his coworker every day, you're unqualified. You know, because you're a woman, you can't do this job well a range of other discriminatory things. We recognize that the government can sanction that conduct because it's in the workplace, which is a environment. It's a little different than being on the street. And even though it's done by words, what we're doing is we're punishing the conduct, the conduct of discrimination, rather than the words themselves. That would be the argument that I would mount. Free speech supporters actually support us all sorts of rights. Abortion rights, gun rights, and others. Often worry about slippery slopes, and I think that that worry is very justified in a legal system such as ours that's built on precedent and analogy. Let's look at in particular the kind of argument that you're making. So first, as it happens, I have long criticized workplace harassment law. I think while private employers are entitled under the First Amendment to try to control what goes on in the workplace and the interest of morale. I think that at least certain aspects of workplace harassment law go too far in coercing employers to do that. But note some of the defenses of workplace harassment law, in fact, including in your own argument. So it's in the workplace, but this isn't in the workplace. It isn't even on campus. It was on a bus, and you were saying, well, somebody telling a female coworker every day that she is unqualified. They weren't saying that to prospective black applicants to the fraternity. Indeed, my understanding is that they did not expect it to leak out. They did not want it to leak out. It's just that somebody recorded it and that's what alerted the rest of the public to it. So already you're taking one thing which I think is already at the boundary or perhaps beyond the boundary of what is acceptable under the First Amendment, which is workplace harassment law. And now see the slippage goes from the university, where the theory is university is for working, it's not for public discourse like college. Well now it's getting to college, it's not even on campus, it's off campus, and it's not speech to a person that is offensive to them at speech about a person. So what this comes down to the conduct argument is also it seems to me a way of taking things that clearly speech. What they're expelled for is what they said, and trying to redefine it as conduct. The strongest argument that I can see is, and I think you pointed to in some measure, is that well, the university could ban exclusion based on race from a fraternity, and that this was somehow a signal that they would do this. It's like you're saying, not even threatening, because again they didn't expect anybody to see it, but you're kind of saying, I will commit this wrong of discrimination. So maybe we can anticipatorially punish you, not for what you've done or whether you've been proven to do, but for what we are expecting you to do, not something we usually do under our legal system. But even if that's so, what's the typical penalty for students discriminating based on race or religion, or in sex or sexual orientation or whatever else in student group? Membership. I can bet you that it's never expulsion. Maybe it's suspension of the group sometimes, but never expulsion, which makes it clear that they weren't just saying, well, this is a and even handed no discrimination in group membership law. We're just applying to you regardless of what you're saying. They were doing it because of what they were saying. And then the last thing is the threat of violence. Well, again we have to ask how do we deal with threats of violence in songs? Generally speaking? Let's say somebody is singing cop killer, and let's say the university says, ooh, well, because we employ police officers and we heard that you were singing cop killer at a party we think praising the killing of cops. Then in that case, we're going to expel you because you're creating an unsafe environment for our police officers. I take it we'd say, no, that's not restriction on conduct. That's obvious restriction on speech. It's restriction on speech that may be quite offensive, may even be vile, but it's not something the university should be doing. That's the consequence, it seems to me, of accepting the rationale that the University of Oklahoma used here that all of these kinds of speech could equally be restricted using exactly the same arguments. Something you said, Eugene, will I imagine get the attention of some listeners as it got my attention, and that was that you were on the edge. It sounded like of saying that workplace sex harassment law as it's currently constituted, where it's possible to hold someone liable for harassment just based on things they've said, you know, without any physical touchings or other harms, is of questionable constitutionality. Not only did I say it now, I said in nineteen ninety two in what was my student note? It was my job talk. Eventually, so you've consistently held this view for more than twenty five years, Oh right, I've written literally half a dozen articles on the subject. So, in light of the Me too movement and the raising of consciousness around forms of workplaced discrimination, has any of that had any effect on your view? I mean, I understand the constitutional or legal basis for it, as you just expressed, But what about the sort of real world consequential part of the picture. Has that changed or affected your mind at all? No, I've been against sexual assault I'm happy to say all my life I have been against people, for example, engaging in sexual extortion. I made that clear in my original article. That is indeed a threat of illegal conduct, and that is generally so called quid pro quo sexual harassment. Sleep with me or you're fired, and that is communicated directly and deliberately to that person. I also actually argued in my icle that indeed unwanted speech to a person, sort of one to one speech where you're approaching somebody and insulting them, or for that matter, persistently asking the how for dates where you're not trying to insult them a love speech rather than a hate speech. But unwanted love speech, as it were, that could indeed be restricted. But speech that's merely overheard, or in the Oklahoma situation, speech that was never expected to be overheard, but that somebody records and then is revealed, No, I don't think that can be properly restricted by the government using workplace harassment law. Let me give you an example. Imagine that somebody is talking at a party. A guy is talking to other guys saying, you know, I think women just don't do a really good job here. I think that things were better when we only had men. And then somebody records that that is revealed to women of the workplace. Remember this is all set outside the workplace, and then the company is sued under Title seven for not hiring somebody for his off the job sexist statements. I think that would be outrageous to have such a lawsuit proceed and I should say, to the credit of hustle environment harassment law, I don't know of any cases that actually do involve a lawsuit proceeding based on this person's off the job speech, right, because it's workplace harassment and the fact that it's in the workplace is supposed to matter. But could you explain in your mind, what's the magic difference between discriminatory harassment that takes place directed at a person and discrimination that takes place behind their backs. I mean it's in the nature of discrimination that it can take place either directly or indirectly. I mean, you and I can set around and discriminate against the third person, even if the third person doesn't know we're discriminating against her. Surely, so you say discrimination, But we're talking about his speech. It's like people used to say, well, this isn't speech this is sedition or this is communist conspiracy. Workplace harassment law is based on a statute that outlaws discrimination. It's not a statute of outlaw speech, so that's right. But when it is applied to speech because of what the speech communicates, then it becomes a speech restriction. So the difference you asked, what's the difference between one to one speech and speech that's overheard, speech that may be talked about in the lunch room and such. I think this is a broader point that isn't at all limited to hostile environment harassment law, and it has to do with the value of the speech that talking to a particular person when the person has told you stop talking to me, or when it's perfectly clear that a person does not want to hear this because these are insults. That's something that has very limited First Amendment value because it's not likely to persuade or enlighten. It's just likely to offend. Whereas speech that's said to the public that is overheard by some people who are offended, that could have a great deal of First Amendment value. Here's an example from a non hostile environment harassment non discrimination law context. There's a case called Drowan the Post Office Department that upheld the statute under which any of us could say to any mailer, at least any commercial mailer, stop sending the unwanted mail, and then they have to stop. And the court said, look, there's no right to press even a good idea on an unwilling listener. And I think that's quite right, because if something's coming into my house and coming to me, I should be entitled to say stop talking to me. But let's say there was a similar statue that allowed anybody who's offended by a billboard or by a demonstration, or there was a famous case involving nudity on a drive in theater screen, that they could demand that that'd be taken down. That is a much greater, and I think unconstitutional restriction on speech because that interferes even with speech to willing listeners. So if a company could be suited under titled seven because and actually unfortunately it can be, I think this is the situation where hostile roman harassment law is impermissible because somebody is wearing a cap with a Confederate flag on it, or because some people are talking about gender roles and who are saying, you know, I think that these jobs should be for men and not for women. Saying the lung Truman they're overheard. That I think is unconstitutional because that interferes with speech among willing listeners just because somebody who hears it is going to be offended by it, and that I think is impermissible. And I think that that tracks dividing lines in a lot of first ammendent cases. Fighting words is another example. There are various rationales for restricting fighting words, but one of them is that they're not just likely to cause a fight, but there said to a person who is being directly personally insulted, as opposed to burning a flag which might cause a fight, where the court says that's protected. They're the important thing is that that message may reach willing viewers as well as unwillingness. Do you think of yourself as a free speech absolutist And I'll ask you that because it seems in terms of the continuum of where people come down that thinking that sex arrassement workplace sex arrasma as it currently exists is unconstitutional would put you towards one end of the continuum at least. Well, I don't think there's ever been a free speech absolutist. Some people have called themselves free speech absolute just as Black as an example, but even he was willing to uphold restrictions on threats on fighting words. So I don't think it's possible to be an absolutist. I don't think that threats of violence should be protected. I don't think that if somebody wants to speak very loudly in a residential area in the middle of the night that that should be protected. But if no one thinks those things, then maybe absolutes is the wrong word. But do you think you're at one end of the continent. I don't even I do think there are people who are free speech maximalist, but I'm not even sure I'm a free speech maximalist. I believe in strong protection for free speech, especially when the government is restricting it based on the content of the speech. I do think there are exceptions to free speech protection. I think they're well established and they're part of our law, but that they should be read narrowly and kept within their boundaries, and the slippery slope should be resisted. So in that respect, you know, in a sense, I'm kind of a free speech doctrinalist. I've read the cases, I've written about the cases. I think there's a good deal of wisdom in the courts cases, although it's not I agree with everything. I think there are particular rules that we have, but I don't think we should be moving towards a more speech restrictive, generally speaking model than we have today. Eugene, it's a huge pleasure to talk to you about these things, and it's a huge pleasure to disagree under conditions of rational debate of the kind of ideal speech conditions that the first amend is, at least in theory designed for it. And I suspect we'll keep on disagreeing on lots of issues, but I hope we can keep on talking about them as we disagree about them going forward. Thank you so much for your time. Thank you very much, very kind of you to say so to have me on. It is always a pleasure to talk to you. And indeed, that's I think why we became academics, right so we could talk to other people who know the field, and we can express our views and sometimes agree, sometimes disagree, and we hope learn from each other and come to better views ourselves. It definitely wasn't for the faculty meetings, Thank you very much, or Jane much is true, thank you. My conversation with Eugene raised in my mind one of the hardest problems to me, at least in the freedom of speech, and that is, should our speech be treated with the same degree of freedom in environments like the workplace or the university, where our values and goals may be potentially a little bit different from the values and goals we have in the naked public square. Eugene is very concerned about slippery slope problems. He's worried that forms of limitation on speech that we design for the workplace, or that we design for the university, or for other settings where we tend to think, or at least I tend to think that speech can rightfully be constrained, might in the long run, have the effect of undercutting our commitment to free speech. More generally, line drawing is one of the hardest tasks that the law faces. It's also a task that the law has to engage in every day, and of course there is also a slippery slope argument the opposite direction. If we insist on nearly absolute free speech in every context, what will that mean for our society's ability to shape productive, meaningful interactions and conversations in places like the workplace and the university. In any case, there's nothing like testing out one's ideas about free speech against the strongest pro free speech position in order to figure out where you believe lines can appropriately be drawn. Until the next time I speak to you, be careful, be safe, and be well. Deep Background is brought to you by Pushkin Industries. Our producer is Lydia Jane Cott, with mastering by Jason Gambrell and Martin Gonzalez. Our showrunner is Sophie mckibbon. Our theme music is composed by Luis gera special thanks to the Pushkin Brass, Malcolm Gladwell, Jacob Weisberg, and Mia Lobel. I'm Noah Feldman. I also write a regular column for Bloomberg Opinion, which you can find at Bloomberg dot com Feldman. To discover Bloomberg's original slate of podcasts, go to Bloomberg dot com Slash Podcasts. And one last thing. I just wrote a book called The Arab Winter, a Tragedy. I would be delighted if you checked it out. If you liked what you heard today. Please write a review or tell a friend. You can always let me know what you think on Twitter. My handle is Noah R Feldman. This is deep background