Ep. 167: Are Americans in danger of losing their freedom of speech? w/ Jonathan Turley
01:05:22 Share

You know, the anti-free speech movement has given everything it could give. It had the media, the government, corporations, and academia, an unprecedented alliance, and they threw everything they had at it. It's not working, because you can't kill free speech unless you kill us. Hello, and welcome to ThinkTwine.

This week, we have a very timely and important conversation for you with legal scholar Jonathan Turley about his new book, The Indispensable Right, about the battle to preserve free speech.

But before we start today's program, I want to remind you, as always, to like this video and podcast, subscribe to JNS, and click on the bell for notifications. Also, you still don't have to wait a full week for more of our content. There is a Jonathan Tobin Daily podcast where I share more news and analysis with you about the most significant issues we're facing today. You can find The Daily Show under Jonathan Tobin Daily on the JNS channel, wherever you get your podcasts.

Also, JNS's inaugural International Policy Summit will be held this April in Jerusalem. Click the link in the description below to request registration in order to attend. And now, to today's program. Recently, Vice President J.D. Vance gave a speech in Munich about the need for Western democracies to worry as much about preserving their democratic values as they did about possible external foes.

His particular concern was about the assault on the right to free speech in Europe from so-called progressives whose goal was to criminalize and eradicate speech that they thought was bad. The liberal establishment in the European Union, as well as in Britain, thinks that speech that criticizes new leftist orthodoxies like gender theory or opposes abortion or any other of a host of conservative or libertarian beliefs is

shouldn't be protected because the mere utterance of such ideas or in posts on social media does harm to those who disagree and should therefore be banned and prosecuted. But these bans and prosecutions were selective and hypocritically didn't apply to ideas that leftists or even the growing population of Muslims living in Europe approved of didn't deter the censors and the prosecutors of speech.

Moreover, as Vance admitted, the United States had recently often been just as guilty of such behavior with the Biden administration, devoting considerable effort and resources to an attempt to enforce censorship on the Internet by bullying social media companies and other actions. But rather than being showered with applause for this principled stand, he has been widely criticized for it.

Part of that had to do with hostility to the Trump administration, as well as Vance's advocacy for an end to efforts to isolate right-wing parties that are opposed to open borders, even when they have questionable associations with Europe and Germany's dark past. But the real problem that the European establishment had with Vance was their belief that freedom of speech is itself the problem, since it allows voices they would like to repress for any number of reasons to be heard.

That criticism was echoed among those who identify as liberals and progressives in the United States. Margaret Brennan, the host of CBS's Face the Nation, attacked Vance and in doing so stated that Nazis had weaponized freedom of speech to attain power. That wasn't just historically inane, since the Nazis did no such thing and had actually done everything they could to destroy that right.

Her statement was indicative of fashionable liberal opinion that holds that since Trump is the moral equivalent of Hitler, he and his supporters ought not to be debated but silenced.

Indeed, the entire thrust of public discourse from the left in recent years has been predicated on the idea that bad ideas, whether they are advocacy for Trump or criticisms of toxic left-wing theories like critical race theory, intersectionality, or the woke catechism of diversity, equity, and inclusion, or DEI, are inherently racist and should be suppressed, especially on the internet.

On college campuses, all conservative thought is put down as a form of violence and justifies the shouting down or banning of such speakers. They often apply the same treatment to pro-Israel and Zionist voices because they too fall under the rubric of bad speech that is falsely labeled racist.

But the problem here goes deeper than the hyper-partisanship of our times, or even the heated battle over DEI, the post-October 7th surge of anti-Semitism, or what you think about Trump. The issue is free speech itself, although most people, especially those in public life, claim to be supporters of it. In practice, they invariably oppose it for their political foes.

Writer Nat Hentoff's classic line, which spoke of those who believed in free speech for me but not for thee, has never been more apt. More to the point, as an important new book by legal scholar Jonathan Turley points out,

Even in the one country where freedom of speech is given the greatest constitutional protections in our First Amendment, throughout our history, it has been under attack by those who think it should be limited in ways that deny it to political opponents, as well as radical and deeply unpopular minorities. That includes the founding fathers of the republic, as well as judicial giants and contemporary leaders.

Few issues have more bearing on the true struggle to preserve democracy and to fight hate than that of free speech. And we're fortunate to have with us today Professor Turley to discuss it and his new book, The Indispensable Right, Free Speech in an Age of Rage.

Jonathan Turley is a law professor, columnist, television commentator, and litigator. Since 1998, he has held the chair in public interest law at George Washington University Law School. Since then, he has served as counsel in many famous legal cases, testified before Congress more than 100 times, including during the impeachments of Presidents Bill Clinton and Donald Trump, writ

written for leading newspapers, and appeared on television, network, and cable channels. He is currently Fox News' legal analyst. And he is also the author of the new book, The Indispensable Right, Free Speech in an Age of Rage. Jonathan Turley, welcome to Think Twice.

Thank you, Jonathan. It's great to be with you. Well, Professor Turley, thanks so much for taking the time to join us today. Thank you. I want to start by asking you to frame the debate about Vice President J.D. Vance's speech earlier this month in Munich, and not so much the politics of the moment, but the historical context of this issue that you discuss in your book, The Indispensable Right.

Well, the Vance speech I've described as Churchillian, I think it is actually one of the most historic and important speeches given by an American leader in decades, particularly a speech given in Europe and in Germany. The fact is that free speech isn't a free fall in Europe. I've been writing about that for three decades.

And this speech was something that no American leader has had the courage to say, to confront the Europeans with the contrast, a contradiction really, of being a claimed defender of democracy while you are denying the most indispensable right for any democracy in free speech.

And the reaction of the Europeans was hardly surprising. I mean, they sat there stony-faced. A few of them applauded. And then afterwards, they went into simple panic. You even had a minister who spoke through tears out of fear that free speech might regain ground in Europe.

And that response is continuing to build. I'm going to be speaking in Berlin in a couple of weeks, and many of the anti-free speech figures will be also speaking at that conference. Also in attendance will be Hillary Clinton, who has been one of the most outspoken proponents of censorship around the world.

So one of the things I've written about since the speech is for Americans not to delude themselves. We've never been more isolated. What Vance did is enormously important. You know, when John F. Kennedy went to Germany and said that I am a Berliner, he was telling the world that we stood with all of those Germans behind the Iron Curtain who were fighting for the right of free speech and other essential rights.

Now, Vice President Vance went and gave a speech of a different kind and said, I am an American. And to be an American means that we will fight for free speech, including a fight with our own allies in Europe. That's why that was, in my view, such a historic moment.

Yeah, I agree. My one thought when I saw what you wrote about Churchill's Iron Curtain speech was, I wonder how many people today actually know what that speech was.

which is the comment on our collective knowledge of history. But I have to say, I quoted in my column about the same thing and quoted your reference to it. Of course, you know, Jonathan, when he gave that Iron Curtain speech, he was also denounced. Exactly. That's the point. Yeah. Right. Yeah. We have to only hope that Vance's speech holds up as well, you know, in the future. But I think the most obvious takeaway from your book is

is that the principle of freedom of speech has been under attack from almost the moment that it was enshrined in the Constitution, in the First Amendment.

But before we take a deep dive into the history of this debate, I think it's important to understand what is the basis of that right? Is it, as the text of the First Amendment seemed to say, that it is an inherent right? Or is it something that is only useful as a utilitarian because it helps us in some way understand how things work or what we need for

further some cause that we approve of. What is the basis of our free speech rights? Well, that is a great question, Jonathan. And it's the reason this took 30 years in the making. I mean, Simon Schuster had to finally explain to me delicately that you actually have to release the book for people to read it. And I wanted to write a book that explored why we're still struggling with free speech.

And I use the title "indispensable right" because that comes from a magnificent opinion by Louis Brandeis. And Brandeis was, of course, one of the great civil libertarians, arguably the greatest justice on the Supreme Court in the view of many. And this opinion spoke beautifully about why we need free speech and why it's so indispensable.

But he wrote it in a decision involving Charlotte Anita Whitney. They had upheld her conviction and sentenced to jail for speaking out against lynchings. So it was every bit dispensable in that opinion. And so what the book is trying to explore is why even great minds like Louis Brandeis

seem to have lost their way. And the book suggests that at the beginning of our revolution, we had a truly revolutionary idea. Indeed, the most revolutionary aspect of the American Revolution proved to be our position on free speech. It was the greatest break from Britain. Britain has never supported free speech in the same way. It still doesn't.

And the First Amendment ultimately gave voice to a natural right, a view that free speech belongs to us as human beings, as a gift from God, that we can't become fully human without it. The ability to project part of ourselves in the world around us.

And that view came out in the writings of people like Madison. They relied on many English writers who spoke about this being a natural right. But we lost it. There was this twilight of clarity. But soon, Federalist judges defaulted back to the British view, which I call a functionalist view. And it's similar to what you, Jonathan, refer to as a utilitarian view.

that the functionalist view is that we protect free speech because it serves the function of making democracy better. It perfects democracy. And it certainly does that. You can see that in Brandeis's opinion. We need it to support every other right. But it's much more than that. But more importantly, when you say that you're defending free speech because of its function, it allows you a much broader array of trade-offs.

Because some speech will be viewed as not very beneficial and others as beneficial. You can have information and disinformation. And so it allows people to make tradeoffs to an extent that is more limited if you view this as a natural right.

Well, a lot of your book focuses on the history, taking us from the Federalists silencing the Jeffersonians to the repression of union organizers, pacifists, socialists, anti-war activists, as well as the efforts of those being repressed to repress others. I was educated to think that Voltaire's line, "I disapprove of what you say, but I will defend

Your right to say it to the death was a core principle of not just democracy, but of enlightened thought. But it appears that in every period, including our own right up into the present day, most people, including our leaders, don't actually believe in it because they can always be persuaded to think that shutting up opponents or radicals

is a life and death issue that supersedes it. So I guess if people like Adams and Jefferson couldn't rise above that, why are we surprised that the same is true for Joe Biden?

Well, that's an excellent point. And the problem is that our advertising is a little better than our history in the United States. You know, this book is an effort to tell the story of the personalities and periods that shaped our view of free speech.

And it is a checkered history. It is a history of numerous crackdowns. And, you know, the subtitle here is that of free speech and an age of rage. And it's an age of rage because it's not our first. It's not the age of rage. This country was born in rage. That's what the Boston Tea Party was.

And we've struggled with rage rhetoric since the beginning of the country. And the problem has not been the rage rhetoric itself. Right. Rage, as I talk on the book, is an odd thing. It is the sort of outward limit of reason.

It is people expressing the point of breakage, where they view the system as no longer responding to them. But it also is addictive. It gives a license for people to say and do things they would not ordinarily say or do. And I'm talking about both ends of the political spectrum.

But the problem has never been the rage rhetoric itself. It's the fact that rage rhetoric historically has often led to state rage of the government arresting unionists, communists, socialists, feminists, fascists. They all are very different in their views.

But they have one thing in common. You know, George Bernard Shaw once said that unreasonable people expect the world to conform to them. And then he added, that's why all history is made by unreasonable people. Well, this is really the story of unreasonable people, people who just wouldn't shut up. And you do have the real villains are not these people, some of whom are real extremists.

But the real villains, as you know, Jonathan, are people like John Adams, who proved to be the greatest hypocrite of any president in our history. He became everything that he fought against in the revolution. He sought to and succeeded in arresting and convicting people under the Alien and Sedition Acts. Jefferson did pardon all those people, but they were all Jeffersonians. But then he also prosecuted for sedition.

The framer that comes out the best, and my students will chuckle because they say that I can't talk five minutes without mentioning James Madison, but is in fact James Madison. In 1800, he wrote about free speech and these sedition prosecutions. And he used a term that really struck me in reading his account. And he referred to sedition as the monster.

and said that this monster brings shame upon its parents. And it's an apt analogy. We constantly face this monster that sort of lives within us, and we release it on our neighbors when we're really afraid or we're really angry.

And sedition prosecutions have been with us since the beginning of the country. We got that from England. And many people don't understand, which I talk about in the book, that the Star Chamber, that infamous secret tribunal, was actually a speech tribunal. The English courts had questioned whether making bawdy jokes about the queen is really treason. So the crown created a new court, a secret court, and instead of calling it treason, they called it sedition.

And that led to the many abuses of the Star Chamber. But we have never slayed Madison's monster. It comes back with almost cyclic regularity. And as you noted, Jonathan, when you mentioned the Biden administration, it came back with a vengeance under Biden, not as necessarily sedition, but in censorship and the effort to regulate speech.

I want to ask you about another line that we often hear quoted in defense of opposition to free speech, that of Supreme Court Justice Oliver Wendell Holmes, in which he said that it, you knew I was going to ask about that.

in which he said that it didn't apply to crying fire in a crowded theater. Your book tells us a lot about Holmes, an extraordinary figure who probably isn't as well known as he once was. Can you tell us why this fire in a crowded theater is not really the standard we ought to be upholding?

Well, that may be the dumbest line ever written by a justice in history. There's a lot of competition for that one, but it's a line that I think Holmes ultimately regretted. It has become the mantra of the anti-free speech community to the point that when I was testifying after the release of the Twitter files in Congress, I had this odd exchange with Congressman Goldman from New York.

And Dan Goldman said, well, you know, of course we have to censor because the Internet is like one big crowded theater and everyone's crying fire. And I said, you know, Congressman, you do realize where that line comes from, right? In the Schenck decision. I mean, this is a decision where a socialist was convicted for protesting the draft by handing out a flyer that quoted the United States Constitution.

And that's the case you want to cite? That's the line? Even though the Supreme Court moved away from Schenck, and so did Holmes. And he interrupted and said, you know, Professor, we don't need a law lecture. And I said, I think you do. I mean, the thing is, you do because people are using this line in the same way. I said, every generation thinks that it has a reason to silence other people.

But you're the same voices. We've heard you before. We've heard you throughout our history. You're making the exact arguments. You're even using the same terms. Terms like fake news was used at the beginning of the revolution. So the question that the book explores is, if you really want to know how this country got lost on free speech, you really have to understand how Oliver Wendell Holmes got lost.

And my editor said, you really need these 70 pages to do that. And I said, what a silly question. Yes, I probably should do 100 pages. Holmes is endlessly fascinating.

Because his story is so chilling. You know, Holmes was a positivist in an age when positivism was rising. This idea that the law is not based on any natural right or natural law. It is simply valid because of the process for which it is created. You know, that if it is duly enacted, then it has that authority of law. But what fascinated me about Holmes, when I taught...

his writings through the years is that he wasn't like the other positivists. There was a vehemence to Holmes, almost an anger when he talked about natural rights and free speech. He wrote some of the most anti-free speech decisions in history.

And I want to know where that came from, because it was different from his other writings. And so I explored where he developed his positivist views, but also his anti-free speech views and anti-natural rights views. And what I found is that he really developed that at Harvard, but I think it became more magnified when he joined the Harvard Regiment and fought with the Massachusetts 20th. In the Civil War. He was a very brave soldier.

Yes. And he was a very brave soldier. He was a very unlucky soldier. Every major engagement he was in, he was wounded. He would attract lead shot like, you know, tornadoes are attracted to motorhomes. I mean, he was it was a chilling military record. And indeed, he was saved ultimately from what should have been a lethal wound by his own father, Oliver Wendell Holmes, Sr., who I actually find in some ways more likable. I

He was a member of the Harvard Medical Faculty, but he didn't want to be a doctor, which I think that his son really didn't like because Justice Holmes was a bit of a tied down character. His father wasn't. He even went outside his house one day and sawed the M.D. off his sign. He wanted to be a poet, and he was a very good one. In fact, he was really, at his time, was viewed by many as one of the great American poets.

But he went to the battlefield and brought his son home and nursed him back to health. And then the future Justice Holmes returned and got shot again. But returning to that line, it was actually not Holmes's work. He actually lifted that line or a close facsimile of it from a brief in one of the three cases during that time. Because you also have the Eugene Debs case. And

He changed it slightly, but you'll notice that people use the line differently. The original line referred to falsely claiming fire, and it has mutated since then in a very dangerous way.

And it's used as we saw- As you point out, like crying fire in a theater where there actually is a fire probably isn't such a terrible thing. Right. But it's become the main rationale on the left for censorship. And Jonathan, when you raised the Vance speech, this is the line they use, even in Europe. And-

It is so intellectually dishonest. But more importantly, the Supreme Court moved away from Schenck and embraced Brandenburg and other standards that gave more breathing space to free speech. But at the end of the day, one of the things I point out is that this is all the result of being on a slippery slope when we lost the clarity of the revolution. Once we went to the functionalist approach,

We found ourselves constantly balancing the value of speech in any given circumstance. And that's where it takes you. For Oliver Wendell Holmes, by the way, it took him to a very dark place. You know, his almost radical positivism brought him to Buck v. Bell. You know, when he mocked a woman who was Carrie Buck, who was being sterilized.

and said that it was enough to have, you know, three generations of imbeciles are enough. It was the mocking aspect of it where you sort of realize that when he was untethered from any transcendental rights, any rights that belonged to us as humans, not just as American citizens, it left him, I think, ultimately in the very dark place that we found in Buck v. Bell.

Yeah. Now, another oft-quoted line which you reference is that of Supreme Court Justice Robert Jackson, who said that the Constitution is not a suicide pact, which is used to justify repressing speech in order to defend democracy. In a time when, I guess, it could be said that a significant portion of the public thinks that the person who won the last presidential election is the moral equivalent of Hitler,

It can, as CBS's Margaret Brennan showed us recently, lead not merely to efforts to repress or isolate a right-wing party in Germany, but to justify doing just about anything, as we saw in the last four years, to silence or repress the speech of someone who speaks for at least half of the electorate.

This is how people who claim to support democracy can justify all sorts of anti-democratic measures, as well as the suppression of speech, isn't it? No, you're right, Jonathan. In fact, we should do a podcast on stupid things justices have said.

And I would put Jackson right up there with that line. It is, as you note, also a mantra used to justify every excess. And I'm glad you brought up Margaret Brennan as David. I used to work for CBS, worked for them twice as their legal analyst.

And I was shocked by that statement because it was so ahistorical, but it was also very anti-free speech. It was the typical thing you see coming from the left to tell people to be afraid of free speech. But to suggest that the Holocaust was brought about because of free speech or largely contributed to it is so...

just stupefyingly uninformed. Speaking of imbeciles, I mean, that's... Right, yeah. I mean, because what's interesting there is that I celebrate Vance's speech because it is in Germany. Germany is really an example of everything that is false about the narrative from the left to justify censoring others.

This idea that the Nazis were brought to power through free speech is ridiculous. The Weimar Constitution protected free speech, but only in conformity with state laws. And they censored extensively anything they considered to be factually untrue. Does that sound familiar?

And they, in fact, barred Hitler from speaking for years. It was the bar on free speech that Hitler made himself into a victim and said that they're afraid to hear these views that he put in such horrific publications like Mein Kampf.

And so it was actually the denial of free speech that was used by the Nazis. But what's fascinating is if you look at Germany today, they have doubled down on that approach. And in the name of fighting the Nazis, they have used an extensive censorship system. But of course, it

mutated and expanded. So they now regulate anything that are insulting to a group or anything they consider to be factually untrue or disinformation. They have one of the most robust censorship systems in the world.

And yet their neo-Nazi movement is flourishing, just as it did under the earlier constitution. What's not flourishing is free speech. So a recent poll showed that only 17% of Germans feel comfortable expressing their views in public. So you've silenced the wrong people. So that's one of the reasons why I was so delighted that this speech occurred in Munich.

And I think that it did send the perfect message. That's why we're having this World Forum in Berlin. I mean, all of these anti-free speech forces are gathering. Yeah, I think that's exactly right. Now, one topic that you dwell on in your book and which you have already referenced is the systematic way the Biden administration sought to censor speech on the Internet. With the Internet and particularly social media platforms becoming the public square of our time,

Are you alarmed not merely by the fact of censorship, but by the way that so many otherwise well-meaning and supposedly enlightened people are so comfortable with the sort of censorship that was applied to the discussion of the COVID pandemic and other issues, and the way this topic seemed to fly under the radar of the press as well as the public? No, you're very right about that. And, you know, Jonathan, I don't view myself as naive.

But I could never have imagined that I would see what's happened in higher education and also media, two fields that I've been part of for three decades.

I would never have imagined the anti-free speech movement taking such great hold. You know, there are two anti-free speech movements I discuss in the book. One is the European movement, which we've been discussing. Our domestic movement really began in higher education, and it's a separate movement, and it metastasized throughout the media, politics, corporations.

to the point that we now have an alliance we've never seen before of corporations, academia, the media, and the government. Now that's beginning to change. But

The level of anti-free speech rhetoric is amazing. When my book came out, there were four books that came out that were decidedly anti-free speech. You know, one University of Michigan professor in her book called free speech our Achilles heel of the Constitution. They could destroy us.

One of my colleagues is leading a popular movement to amend the First Amendment. In her book, she says that the First Amendment is, quote, aggressively individualistic. And so she wants, and she's gotten support for this among law professors, to amend the First Amendment to balance against notions like equity. So you see that...

This wasn't just a revolutionary idea at the beginning of our country. It's revolutionary now. No country ever put those words with such clarity before, and they still don't.

And so to answer, it's a rather long answer to your question, Jonathan, but no, I wouldn't have imagined what we have seen. It has become a touchstone of media and of academia to sort of fear free speech that this is something that may destroy us. Yeah. Now, you mentioned Madison and his fears of the monster of sedition. The January 6th Capitol, 2021 Capitol riot is an issue that

most people have strong opinions about, but leaving the partisan element aside, what should concern us about the way that it was labeled an insurrection rather than a riot and the prosecution of some of the rioters, including some for sedition? Why is the talk of sedition specifically a warning sign for democracy, even when it comes from those who say they are defending democracy? Well, you know, I was doing the coverage on that day and was appalled by what I saw, and

And the next day I denounced it, as everyone did. We denounced it while it was happening. And that's saying, I should note that while President Trump was speaking on the ellipses, on the ellipse, I was critical of his speech. I felt that he was wrong about the role of Vice President Pence, for example. And so I criticized the speech while he was giving it.

But that speech was constitutionally protected. He had every right to give that speech. And he actually told his followers to go peacefully to protest. There's often protests during elections. The Democrats used the very same law to oppose the certification of Donald Trump and prior presidents. Now, what I did object to was that almost immediately this was weaponized.

And many on the left insisted that you had to call this an insurrection. And the media picked that up. NPR and other news outlets referred to the insurrection. And I wrote an article soon after this to say, look, this is many things. I mean, it's a desecration of our constitutional system. It is something that was disgraceful in our history. But it was not an insurrection. That it was a protest that became a riot, right?

I because of a small group of violent people, but also a lack of security. You know, when before the breakthrough to Congress, I actually said on the air I'd never seen security so light. I was surprised. I mean, that we were showing on Fox that.

critical choke points that just had a handful of officers and their bicycles behind a couple of barriers. And I was really floored by this, given the level of anger in the country. And also because we had violent protests during the Trump inauguration from the left. So why wouldn't you have... As well as just a few months before that during the Black Lives Matter summer. That's right, at the White House. And...

And Trump offered to have the National Guard there to put up the same fencing they ultimately used around the White House. Those offers were turned down. So it was not an insurrection, but of course there was a method behind this madness.

that ultimately you had a huge number of law professors and legal experts saying that you could not just remove Trump from the ballots, but dozens of Republicans. So there were calls to remove Republicans, cleanse ballots by calling this an insurrection. And of course, that failed a

In a spectacular fashion and from the Supreme Court. And but I also should note, to the credit of many Democratic jurists, most of them rejected this theory that was put forward by law professors that I have been highly critical of.

It was just a few. I mean, even the Colorado Supreme Court, that was a court entirely composed of Democrats. And it went through by one vote. And the Democrats in dissent correctly were shocked by this effort. It said that this is wrong, that you don't do this in this country. Right. I think we got a lesson in Banana Republic politics with that.

Now, before I get further to the question of how this applies to academic freedom, I want to take a slight detour because I was particularly intrigued by the way you analogized the debate about art, specifically Norman Rockwell's classic picture epitomizing freedom of speech with modern art critics who mocked him and how that applies to the discussion of law and free speech rights.

Well, I'm so glad you mentioned that because it's actually one of my favorite parts of the book. I love Rockwell. I love art. But I was always intrigued by a debate that occurred within the art community and how analogous it is to the legal community. Because when FDR gave his famous For Freedom speech, Rockwell wanted to paint the freedoms.

And he started with free speech, but instead of any number of conventional or expected images, he picked a neighbor of his named Edgerton, who was a dairy farmer in Vermont. And he had seen Edgerton at a small council meeting where they were talking about building a small country school. And it was enormously popular and everyone praised it. And then one man stood up

Edgerton. And he said, every dairy farmer in the state is struggling. I might not be able to keep my dairy farm. He was the great grandson of a Revolutionary War hero, but he was a farmer who was struggling. And he said, I don't want to lose my farm. So how are we going to pay for this? I mean, where does this money come from? Because I need to be able to feed my children. I need to sustain my cows to live.

Rockwell was so struck by that moment of this singular figure standing up that he made him the symbol that ultimately became the poster used for war bonds in the United States. But that reception was, the positive reception by the public, was different from that of the art community. There was a famous critic named Clement Greenberg who

who was the discoverer of Jackson Pollock and one of the early advocates of abstract art. And he was vehement in his denouncing of Rockwell and said that Rockwell's style shows that he was an artist who decided not to be taken seriously. And he attacked him almost on a weekly basis. Rockwell didn't respond. He rarely did. But he eventually responded with the painting The Connoisseur.

And you can see both of those paintings in The Indispensable Right because they're wonderful just to look at. But the Contessor shows what seems to be a sort of affluent figure in a nice crisp suit with his hands behind him gripping an art catalog rather tightly. And you can't see his face, but in front of him is a huge abstract painting. And this painting itself was quite large. And he seems to have been there for a while trying to find meaning from this abstract painting.

And it was sort of Rockwell's elegant response to Greenberg. And the funny thing is when they unveiled the connoisseur, arguably the more famous abstract artist of his time, de Kooning, was in the crowd. And he reportedly exclaimed, my God, that's better than Jackson Pollock. And he actually had a critic walk up with a magnifying glass. And he said, look at this painting. He said, I think it's one of the best abstract paintings I've seen.

And it was Rockwell's way of saying, I can do that. And he wasn't, Rockwell never said abstract painting was not real painting. What he said was that he wanted to paint what he saw in the United States of America. He said, when I travel through America, I see things that surprise me that others don't see, things that are profound.

And I want to capture those moments. And they were captured in scenes of a police officer sitting next to a young boy at a soda stand or a kid delivering papers or a family struggling on a farm. These were vignettes that everyone found penetrating. They weren't shallow at all. They were profound.

And what the book suggests is, you know, I am admittedly rockwellian in how I view free speech and the Constitution. I think it is simple in expression but quite profound in its meaning. I do respect Justice Hugo Black for saying that he believes that the First Amendment means what it means. You can't abridge free speech. Unabridged means unabridged. Congress shall make no law. Yeah. Congress shall make no law. Yeah. And...

Many people have become sort of legal connoisseurs. Many law professors say it can't be that simple. People like Turley are just not, are deciding not to be taken seriously. It's nuanced. You have to listen to us as to where you draw these lines. Nothing is that simple or straightforward. I think it is straightforward, but not simple. I think that the framers were describing a natural right.

a right that belongs to us as human beings. That doesn't mean that it's absolute. There are no absolute rights in the Constitution. And people sometimes say that I'm a speech absolutist, and that's not true. But I admit that I allow for fewer trade-offs because I believe it is what it says it is. So when you have people like Brandenburg, who was a horrific, horrible, grotesque figure,

He was the head of his KKK, and he hated everyone, Jews, Catholics, foreigners, hated everyone but Brandenburg. And yet the court said that he had a free speech right to project his grotesque view of the world around him. And we have a free speech right to call him out as himself a monster among us.

It's not that his speech has value. So under a functionalist view, his speech doesn't help anyone. It doesn't. It's not positive. It's hateful. But it has value to him. It has value in projecting his views out there. And it's a different type of way of looking at free speech from a functionalist perspective.

Yeah, I think that's well summed up. Now, in your book, you try to draw some clear lines about how freedom of speech applies to

academic freedom. The academy has become in many ways the central front in the battle for free speech. But part of the problem is that those who are most intent on suppressing these, they disagree with. In our time, the left shutting down conservatives, but in the past, it's been the other way around too. But in our own time, it's not clear how academic freedom can be restored without using the government, as I think the Trump administration is trying to do

to topple the orthodoxy that currently dominates not just the academy but so much of our culture. So where should we draw the line against that kind of action? Well, you're absolutely right. And the book has a long section on higher education because, quite frankly, we're not going to be able to regain the ground we have lost without dealing with higher education, without changing the culture. It's become an echo chamber.

In many departments, no longer have a single conservative or Republican. There's been a virtual purging of dissenting voices. You know, I talk in the book about how the Harvard Crimson ran an article of the last Republican in one of the large schools at Harvard. And he was a 90-year-old political scientist. And they describe him like he was some creature that they were poking with a stick to see what a Republican is really like.

There are new surveys. These are self-identified surveys. So these are professors identifying themselves. And most departments around the country that have been surveyed have just a small number, a handful of Republicans or conservatives. They're over 90 percent, some cases 100 percent liberal and Democratic.

And that's created this echo chamber, it's created this viewpoint intolerance that we see across the country. You know, I recently had a debate at Harvard with Professor Randall Kennedy, who I have a great deal of respect for. And I do not think that Randall is anti-free speech. To the contrary, I think that he deeply supports free speech. But it did mean we didn't have differences in that debate.

And I mentioned to him that at Harvard, less than 9% of the Harvard student body is now Republican or conservative. And the number of faculty at places like Harvard Law School is down to less than number of actual professors. Less than eight would be our self-identifying in that way. And Randall interjected and said, look, we're an elite institution. We don't have to look like America.

I give it because I had mentioned that the United States is about 50 percent conservative and libertarian. And yet you just have a handful of faculty. And when he said that, I said, you know, Randall,

It's not that you don't look like America. You don't even look like Massachusetts. I mean, 34 percent of Massachusetts is Republican. And the question is, what is that for your students? You have just a handful of faculty that will even broach the viewpoint in a serious way of the jurisprudence of over half the judges in this country and a majority on the Supreme Court. They have to learn from far left professors exclusively.

how to view the Supreme Court. And that is something that we've seen across the country in schools. And what you also see are polls, including one just recently from Harvard, showing a huge number of students. These are liberal students at a liberal university saying that they were chilled in their speech, that they self-censored. They did not feel they could speak freely.

And I'm sorry to go on this long, but it's something I feel passionately about that, you know, the book talks about how I went to University of Chicago and it was an amazing moment for me, amazing time. You know, I grew up in a liberal democratic family in Chicago, politically active family in Chicago.

I had met a couple of Republicans. I knew they existed, but I never really actually spoke at length with any Republican of my age. When I went to the University of Chicago, I actually lived at a vegetarian cooperative. And downstairs, the Spartacus League, a group of Trotskyites, would meet every week. And upstairs were militant vegans. And next door were libertarians. And I thought they were all crazy.

It was like walking into the Star Wars bar scene. Everyone just seemed so exotic and odd. And I loved every single minute of it. It changed me because I wanted to know how people could see things I was seeing and see something so different. And it changed my views in many respects. You know, many, many years later, Robert Zimmer, who is a wonderful man who passed away not long ago, sent out a brilliant letter

And the letter congratulated people who had been accepted into the University of Chicago

And he said, you know, this is a great moment for you. And he says, I fear that some of you may be uneasy, that you'll come here and you won't find a safe space, that you'll have ideas that you find degrading or threatening or triggering. And so I wanted to write you before you accepted our offer to say there are no safe spaces at the University of Chicago. We will not protect you from ideas. That's not what we do.

So if you want a safe space, if you don't want to be triggered, you need to go somewhere else. And it was a brilliant letter. And it's sometimes now called the Chicago letter. It's been adopted by some universities, not enough. But that's what we're going to have to do. I just spoke to a university president just yesterday, and he expressed a desire to

to change the culture. This is a well-known university, a highly ranked university. And he said, you know, I want to do this. He had read the book and he says, I agree with the book, but I also need to survive. And he said, and I said, you know, why don't you start by adopting the Chicago letter and telling people they won't be protected from ideas? And he says, because it'll be the last letter I send out as a university president.

And I understand that, and I'm glad that he wants to change the culture. And I truly believe he does, as do some other presidents. But many do not. I mean, many of these university presidents are true believers. They like the echo chamber. They like the orthodoxy, and they're not going to change. So the only way they'll change is, you know, Jonathan, I talk about in the book, I suggest measures that Congress can take.

But also donors need to act. Universe presidents are not complex human beings. If donors say we're not going to give you money, then things will change. Yeah, I think that's quite true. I think we've even seen that in some instances working. Now, one issue that I want to focus on in the time we have left is the role of anti-Semitic discourse.

Now, I'm going to guess that your book, which was published in mid-2024, might have been completed before October 7th, 2023, and the subsequent surge of anti-Semitism in the United States as well as around the globe. So the question is, when is anti-Semitic discourse protected? And when is it a form of oppression that must be rooted out? I can tell you that starting in 2019,

There was a strong push from many in the Jewish community, including the Anti-Defamation League, for internet censorship so as to root out bad ideas that we justifiably worry about and wish to oppose. But predictably, that led to a partisan attack on conservatives and not just the far-right extremists they were supposedly worried about. Where do we draw the line between the right of individuals, including professors and students, to advocate

for what is functionally, for all intents and purposes, genocide against the Jews in Israel? And when does it become an illegal as well as improper action that can be banned or prosecuted? Yeah, that is perhaps the most challenging question that we're facing today. My own kids saw this. My wife is Jewish and they belong to Jewish groups and they witnessed some of these. They were with

their friends at Hillel and other groups when they saw the tearing down of the pictures of hostages. And this was done openly and it was celebrated. And the environment was very threatening for them. They were not confident that it was safe to be on campus. One of the things I stress in the book is that much that could have been done was not done.

It is true that free speech requires you to allow people to say things that are grotesque. And I would include the anti-Semitic comments and views expressed. But we have to focus not on the content of the speech as much as the conduct. For example,

You know, one of the reasons this went as far as it did is because universities like Columbia, Northwestern, were not using the authority that they had. They allowed students to occupy buildings, occupy spaces. That's conduct, right? That's not free speech.

That you should expel those students. Yeah, preventing people from going to classes or sometimes invading classes. Yeah, and the book talks about the fact that deplatforming is a big part of this anti-free speech movement. They go into classes. They go into events. They shout down speakers. Faculty participated in that.

There was never any difficulty here with free speech in terms of what they should do. You expel them. You fire those faculty because what they are doing is the antithesis of free speech. And I've had debates where they say, well, we're just exercising free speech. I had a debate with John Yoo, who was the author of the so-called torture memos.

And John and I were having a substantive debate. And the students kept on interrupting. Every time John tried to speak, they would shout him down and they were escorted out. And afterwards, they came up to me and said, you know, we want you to know it wasn't about you. I think you can understand we're just using free speech. And I said, what makes you think that I would approve what you just did?

You weren't defending free speech. You were the antithesis of free speech. In my view, you shouldn't be part of this university. This is a learning environment. This is a community committed to the discussion of ideas. And John Yoo was giving his views as to why he views executive power is so encompassing.

You just didn't want others to hear views that you didn't like. So quite frankly, it's not that I think that you are anti-free speech. You are. I think you're anti-intellectualism. You're anti-higher education. And you have no role here.

A lot could have been done at these universities with those voices to exclude them. And then also some of the things that they were writing were threatening to groups on campus. That is, when you're talking about exterminating Jews, when you're talking about that Jews should be killed, the university has a right to protect the environment that people feel safe in.

And yes, that does interfere with pure free speech. But there is some balancing that can occur there. It's not absolute. But what I suggest in the book is that we need to focus more on the conduct. For example, at Stanford, when those students shouted down a judge, Judge Duncan, and Judge Duncan turned to an administrator and said, are you going to help here? And she stood up and denounced Duncan.

And said, I can't imagine why you came here to express views you knew people wouldn't like. Well, when the Stanford dean and president finally said, well, this is wrong, they didn't punish a single student. And instead, they required all students to watch a meaningless video on free speech that the students openly mocked. And then they said, OK, we've done our job here.

Yeah, that doesn't protect anyone. And, you know, part of the problem with the surge of anti-Semitism on American campuses is that we know that these institutions that famously, whose presidents couldn't say whether advocacy for genocide of Jews was against the rules of their schools,

We know that they would have acted precipitously if, you know, the Ku Klux Klan were having a rally on their campuses, if they were attacking blacks or advocating for lynching rather than, you know, chanting for the destruction of Israel and for terrorism against Jews. We know what the reaction to that would have been. Yeah. Right.

And so that that that clearly points out that when those people say they're exercising free speech and when they are coddled by those institutions, you know, we have a big problem. That's right. I agree.

Yeah. Now, to drill a little further down to a subject that you didn't exactly address in your book, but which speaks only to higher education with respect to academic freedom. My question is, how does this apply to primary and secondary schools, where, as we at JNS have reported, anti-Semitic discourse and even teaching has become quite prevalent, and where the people doing that, especially teachers, often defend their actions as free speech?

You know, I do talk a little bit about secondary education in the book because I've been a great advocate of public education my whole life. I believe it plays a critical role in making citizens. And for that reason, it's been very difficult for me to embrace school choice.

But I've come to that point because the teachers unions particularly have sought at the branch they're sitting on and they have pursued these political agendas. And you see that in some of the union leaders and how really extreme they are in their language, including against Israel. And so, yeah.

The most immediate solution to that is to allow school choice because parents have been treated by teachers unions as a captive audience that they have nowhere to go.

In some ways, school choice allows for the power of the market to work, that you have a lot of families, particularly immigrant families, that came to this country for a better life. They want their kids to do math and English and science. They want them to have a traditional education. In fact, that's the one thing that unites both Democrats and Republicans in just surveys. They all agree with that.

So this is a minority, a very small minority view that is taking control of schools. Until parents can vote by walking away, it's not going to change. I mean, you have places in Baltimore where you have schools where the kids literally are graduating without being able to do basic math or English. We're sacrificing those generations. Those kids are left untethered. They have little chance.

of success in this life. And it's outrageous. And yet many on the left want to just replicate the system, that they just, they fight every challenge to the system. So I think that one of the solutions here is to give parents the right to walk away, to go to schools that teach basic subjects again. Well, that's, I agree with that. And my final question is,

is what measures should we be contemplating as a society to defend free speech? And given the fact for the entire history of the republic, as you write, free speech has been under attack. Are you optimistic about the future of our freedoms, given that the opponents of it seem, the recent election results notwithstanding, louder than ever? I am optimistic. You know, it's funny because I was presenting the, I was talking about the book recently in Colorado.

And a woman came up to me before the speech and said that she had read The Indispensable Right and that she liked it. But she said, could you say something positive? And I was crushed. I thought that the book was positive. And I...

And I felt like Woody Allen, you know, one time where he was giving a speech and they said, we'd like you to end on a positive note. And Woody Allen said, I really don't do positive. But he said, would you take two negatives to make a positive? And in many ways, I do think I can offer two negatives to be a positive in that first, it's not working. You know, the anti-free speech movement has given everything it could give. It had the media, the government, corporations, everything.

an academia, an unprecedented alliance, and they threw everything they had at it. You know, Facebook did this really creepy campaign where they tried to convince young people to embrace, quote, content moderation. And I had a debate with one of the meta officials months back. And I said, how did that work out for you? Right. You stopped the campaign eventually because it didn't work because it's really hard to get

free people to give up part of their freedom. Yeah, you move the needle a little. Polls are showing that a lot of young people in higher education, particularly after college, view free speech more negatively, but not enough, not enough to get there. And, you know, at that Harvard speech, for example, when they took the vote before Randall and I debated at Harvard, it was about 60% in favor of Harvard and against the free speech position.

After the debate, it flipped, and over 60% supported free speech. That was not because of my debating, certainly not. When you're up against Randall Kennedy, that's not a factor. It was because they hadn't really heard that type of justification for free speech. And after only about an hour and a half, it changed many of their minds. So that's point number one. The second one is...

You know, I often talk about Pandora's box, which was actually a jar. And, you know, Pandora was created by Zeus as the perfect woman. She was sort of like the femme fatale of her time. And, of course, Zeus was mad because Prometheus had given man fire. And so as Prometheus was having his liver pecked out by eagles on the side of the mountain, Zeus sent fire.

Pandora with her jar to mankind. And in the jar was everything, death, disease, envy that have destroyed us. And many people talk about that, but they often forget what was the last thing that escaped the jar. You know, she wasn't supposed to open the jar, but Zeus made her too human, right? We're always going to open the jar because we're human.

But the last thing that came out was hope. And Zeus didn't want that out any more than the other thing. Certainly, that was the one thing he did not want to give humanity. I think that hardwired in who we are is hope, that despite every self-inflicted wound,

We have hope. And if you believe in a natural right to free speech, you have that hope. Because if you believe that we're hardwired for speech, the book talks about how we physically can change if we cannot speak freely. If you believe that, then you have to be an optimist because you can't kill free speech unless you kill us. And it'll always find a way out. All those unreasonable people in this book.

They ultimately prevailed because not of who they were, but who we are. So I am optimistic.

Well, that is a great note to end on. I hope so. I hope you're right. Professor Turley, thanks so much for sharing your insights with us today. You can see him on Fox News discussing legal issues, read him in The Hill, The New York Post, and other publications, and follow him on X at Jonathan Turley. And I heartily recommend The Indispensable Right. It's not only a valuable history of free speech in America, I think it's an essential guide to the current debate about censorship. And if you care about this issue, and we all should,

You really need to read this book and think about what it teaches. We also want to thank our audience. Please remember to tune in every day for Jonathan Tobin Daily Edition. Whether you're listening to us on any one of the various podcast platforms or watching us live on Facebook or X or on the JNS YouTube channel, please like and or subscribe to JNS, click on the bell for notifications, and give us good reviews.

Please write to us at thinktwice at jns.org. Let us know where you listen or watch the show and what you think about it. Also, a reminder that JNS's inaugural International Policy Summit will be held this April in Jerusalem. Click the link in the description below to request registration in order to attend. And remember, keep reading and thinking for yourself, and we'll see you again next week.