FIRE staffers take your questions on the TikTok ban, mandatory DEI statements, the Kids Online Safety Act, Trump vs. the media, and more.

• Ari Cohn, lead counsel for tech policy

• Robert Shibley, special counsel for campus advocacy

• Will Creeley, legal director

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00:00 Intro

00:52 Donate to FIRE!

02:49 TikTok ban

10:01 Ari’s work as tech policy lead counsel

12:03 Mandatory DEI statements at universities

15:19 How does FIRE address forced speech?

18:17 Texas’ age verification law

24:35 Would government social media bans for minors be a First Amendment violation?

33:48 Online age verification

35:17 First Amendment violations while making public comments during city council/school board public meetings

37:25: Edison, New Jersey city council case

39:48 FIRE’s role in educating Americans

41:55 If social media addiction cannot be dealt with like drugs, how can it be dealt with?

43:34 “Pessimists Archive” Substack and moral panics

45:27 Trump and the media

51:23 Gary Gadwa case

52:49 How to distinguish the freedom of speech versus freedom from social consequences?

55:53 Free speech culture is a “mushy concept”

57:58 ABC settlement with Trump

01:01:27 Nico’s upcoming book!

01:02:32 FIRE and K-12 education

01:04:40 Outro

“TikTok Inc. and ByteDance LTD. v. Merrick B. Garland, in his official capacity as attorney general of the United States” (D.C. 2024)

“Opinion: The TikTok court case has staggering implications for free speech in America” L.A. Times (2024)

H.B. No. 1181 (Tex. 2023; Texas age-verification law)

“The Anxious Generation” Jonathan Haidt (2024)

S. 1409 - Kids Online Safety Act (2023-2024)

American Amusement MacH. Ass’n v. Kendrick (Ind. 2000)

“Edison Township, New Jersey: Town Council bans props, including the U.S. flag and Constitution, at council meetings” FIRE (2024)

“LAWSUIT: Arizona mom sues city after arrest for criticizing government lawyer’s pay” FIRE (2024)

"President Donald J. Trump v. J. Ann Selzer, Selzer & Company, Des Moines Register and Tribune company, and Gannett Co., Inc.” (2024)

“Trump v. American Broadcasting Companies, Inc.” (2024)

“New Jersey slaps down censorship with anti-SLAPP legislation” FIRE (2023)

“FIRE defends Idaho conservation officer sued for criticizing wealthy ranch owner’s airstrip permit” FIRE (2023)

“On Liberty” John Stuart Mill (1859)

“Home Depot cashier fired over Facebook comment about Trump shooting” Newsweek (2024)

“Free speech culture, Elon Musk, and Twitter” FIRE (2022)

“Questions ABC News should answer following the $16 million Trump settlement” Columbia Journalism Review (2024)

“Appellants’ opening brief — B.A., et al. v. Tri County Area Schools, et al.” FIRE (2024)

“Who controls what is taught in American universities — professors or politicians?”

Yale Law professor Keith Whittington answers this timely question and more in his new book, “You Can’t Teach That! The Battle over University Classrooms.” He joins the podcast to discuss the history of academic freedom, the difference between intramural and extramural speech, and why there is a “weaponization” of intellectual diversity.

Keith E. Whittington is the David Boies Professor of Law at Yale Law School. Whittington’s teaching and scholarship span American constitutional theory, American political and constitutional history, judicial politics, the presidency, and free speech and the law.

Read the transcript.

Timestamps: 

00:00 Intro

02:00 The genesis of Yale’s Center for Academic Freedom and Free Speech

04:42 The inspiration behind “You Can’t Teach That!”

06:18 The First Amendment and academic freedom

09:29 Extramural speech and the public sphere

17:56 Intramural speech and its complexities

23:13 Florida’s Stop WOKE Act

26:34 Distinctive features of K-12 education

31:13 University of Pennsylvania professor Amy Wax

39:02 University of Kansas professor Phillip Lowcock

43:42 Muhlenberg College professor Maura Finkelstein

47:01 University of Wisconsin La-Crosse professor Joe Gow

54:47 Northwestern professor Arthur Butz

57:52 Inconsistent applications of university policies

01:02:23 Weaponization of “intellectual diversity”

01:05:53 Outro

Show notes:

• “Speak Freely: Why Universities Must Defend Free Speech” Keith Whittington (2019)

• “You Can't Teach That!: The Battle Over University Classrooms” Keith Whittington (2023)

• AAUP Declaration of Principles on Academic Freedom and Tenure (1915)

• AAUP Statement of Principles on Academic Freedom and Tenure (1940)

• “Kinsey” (2004)

• Stop WOKE Act, HB 7. (Fla. 2022)

• Keyishian v. Board of Regents (1967)

• Indiana intellectual diversity law, S.E.A. 354 (Ind. 2022)

• “Tinker v. Des Moines Independent Community School District” (1969)

Woodrow Wilson or Franklin D. Roosevelt: which president was worse for free speech?

In August, FIRE posted a viral X thread, arguing that Woodrow Wilson may be America’s worst-ever president for free speech. Despite the growing recognition of Wilson’s censorship, there was a professor who wrote a recent book on FDR’s free speech record, arguing that FDR was worse. 

Representing the Wilson side in our discussion is Christopher Cox, author of the new book, “Woodrow Wilson: The Light Withdrawn.” Cox is a former member of the House of Representatives, where he served for 17 years, including as chair of the Homeland Security Committee. He is currently a senior scholar in residence at the University of California, Irvine. 

Representing the FDR side is professor David T. Beito, a Research Fellow at the Independent Institute and Professor Emeritus at the University of Alabama. He is the author of a number of books, his latest being “The New Deal’s War on the Bill of Rights: The Untold Story of FDR's Concentration Camps, Censorship, and Mass Surveillance.”

Read the transcript.

Timestamps: 

00:00 Intro

03:41 Wilson’s free speech record

15:13 Was FDR’s record worse than Wilson’s?

24:01 Japanese internment

29:35 Wilson at the end of his presidency

37:42 FDR and Hugo Black

42:31 The Smith Act

45:42 Did Wilson regret his actions?

50:31 The suffragists

56:19 Did FDR regret his actions?

01:02:04 Outro

Show notes:

• Espionage Act of 1917

• Sedition Act of 1918

• Executive Order (creating the Committee on Public Information)

• Schenk v. United States (1919)

• Abrams v. United States (1919)

• Smith Act of 1940

• President Franklin D. Roosevelt’s “Four Freedoms” speech (1941)

• The Lend-Lease Program (1941-1945)

Ayaan Hirsi Ali grew up in a culture of conformity. She was beaten and mutilated. She was told who she must marry.

Eventually, she rebelled.

“You don’t speak up at first,” she told us. “First you leave and you find a place of safety. It’s only after that experience that it occurred to me to speak up about anything.”

Hirsi Ali is a human rights activist, a research fellow at the Hoover Institution, the founder of the AHA Foundation, and the host of the Ayaan Hirsi Ali Podcast. She is also the best-selling author of a number of books, including “Infidel,” “Nomad,” “Heretic,” and, “Prey.” Her latest initiative is Courage Media, which describes itself as a space for courageous conversations. 

Read the transcript.

Timestamps: 

00:00 Intro

04:36 Conformity and its consequences

09:03 Islam and free speech

16:38 Immigration and the clash of civilizations

26:03 Censorship and decline in higher education

34:14 Cost of criticism and finding one’s voice

37:20 Hope for the future

43:58 Outro

Show notes:

• “Submission.” Ayaan Hirsi Ali and Theo Van Gogh (2004)

• Brandeis Change.org petition. (2014)

• “When you use AI to replace every mention of ‘our democracy’ with ‘our bureaucracy,’ everything starts making a lot more sense.” Bill D’Agnostico via X (2024) 

In this live recording of “So to Speak” at the First Amendment Lawyers Association meeting, Samir Jain, Andy Phillips, and Benjamin Wittes discuss the legal questions surrounding free speech and artificial intelligence. Samir Jain is the vice president of policy at the Center for Democracy and Technology. Andy Phillips is the managing partner and co-founder at the law firm Meier Watkins Philips and Pusch. Benjamin Wittes is a senior fellow in governance studies at the Brookings Institution and co-founder and editor-in-chief of Lawfare.

Read the transcript.

Timestamps: 

00:00 Intro

01:54 The nature of AI models

07:43 Liability for AI-generated content

15:44 Copyright and AI training datasets

18:45 Deepfakes and misinformation

26:05 Mandatory disclosure and AI watermarking

29:43 AI as a revolutionary technology

36:55 Early regulation of AI 

38:39 Audience Q&A

01:09:29 Outro

Show notes:

-Court cases:

• Moody v. NetChoice (2023)

• The New York Times Company v. Microsoft Corporation, et al (2023)

• Millette v. OpenAI, Inc (2024)

• Walters v. OpenAI, L.L.C. (2024)

-Legislation:

• Section 230 (Communications Decency Act of 1996)

• AB 2839 - Elections: deceptive media in advertisements

• AB 2655 - Defending democracy from deepfake deception Act of 2024

• California AI transparency Act 

• Colorado AI Act

• NO FAKES Act of 2024 

-Articles:

• “A machine with First Amendment rights,” Benjamin Wittes, Lawfare (2023)

• “22 top AI statistics and trends in 2024,” Forbes (2024)

• “Global risks 2024: Disinformation tops global risks 2024 as environmental threats intensify,” World Economic Forum (2024)

• “Court lets first AI libel case go forward,” Reason (2024)

• “CYBERPORN - EXCLUSIVE: A new study shows how pervasive and wild it really is. Can we protect our kids – and free speech?” TIME (1995)

• “It was smart for an AI,” Lawfare (2023)

The FIRE team debates the proposition: Should there be any categories of unprotected speech? General Counsel Ronnie London and Chief Counsel Bob Corn-Revere go through each category of speech falling outside First Amendment protection to decide whether it should remain unprotected or if it’s time to “remove an arrow from the government’s quiver.”

Read the transcript.

Timestamps: 

00:00 Intro

17:59 Obscenity

21:20 Child pornography

25:25 Fighting words

32:36 Defamation

41:22 Incitement to imminent lawless action

52:07 True threats

56:30 False advertising and hate speech

01:02:50 Outro

Show notes:

-Court cases:

• Schenck v. United States (1919)

• Near v. Minnesota Ex Rel. Olson, County Attorney (1931)

• Chaplinsky v. New Hampshire (1942)

• Roth v. United States (1957)

• Miller v. California (1973)

• R.A.V. v. City of St. Paul, Minnesota (1992)

• Counterman v. Colorado (2023)

• Brandenburg v. Ohio (1969)

• New York Times Co. v. Sullivan (1964)

• Virginia v. Barry Elton Black, Richard J. Elliot, and Jonathan O’Mara (2003)

• United States v. Xavier Alvarez (2012)

-Legislation:

• The Comstock Act (1873)

• The Stolen Valor Act (2005)

The FIRE team discusses Tim Walz’s controversial comments on hate speech and “shouting fire in a crowded theater.” We also examine California’s AI deepfake laws, the punishment of tenured professors, and mask bans.

Joining us are:

Aaron Terr, FIRE’s director of Public Advocacy;

Connor Murnane, FIRE’s Campus Advocacy chief of staff; and

Adam Goldstein, FIRE’s vice president of strategic initiatives.

Read the transcript.

Timestamps:

00:00 Intro

01:51 Tim Walz’s comments on hate speech and “shouting fire”

15:36 California’s AI deepfake laws

32:05 Tenured professors punished for expression

54:27 Nassau County’s mask ban

1:04:39 Outro

Show notes:

Court cases:

Schenck v. United States (1919)

Brandenburg v. Ohio (1969)

National Socialist Party of America v. Village of Skokie (1977)

Texas v. Johnson (1989)

Snyder v. Phelps (2011)

Matal v. Tam (2017)

Virginia v. Black (2003)

NAACP v. Alabama (1958)

Kohls v. Bonta (this suit challenges the constitutionality of AB 2839 and AB 2655) (2024)

G.B. et al. v. Nassau County et al. (this class action lawsuit alleges Nassau County's Mask Transparency Act is unconstitutional and discriminates against people with disabilities) (2024)

Legislation:

AB 2839 

AB 2655

AB 1831

Title VI (Civil Rights Act of 1964)

Section 230 (Communications Decency Act of 1996)

Articles/Tweets:

“This is amazing😂” Elon Musk via X (2024)

“BREAKING: The Babylon Bee has obtained this exclusive, official, 100% real Gavin Newsom election ad.” The Babylon Bee via X (2024)

“The 1912 war on fake photos.” Pessimists Archive via Substack (2024)

“Professor fired for porn hobby vows to take university to court.” FIRE (2024)

“Amy Wax is academic freedom's canary in the coal mine.” FIRE (2024)

“In major hit to tenure, Muhlenberg fires pro-Palestinian professor.” FIRE (2024)

“U.S. Department of Education’s Office for Civil Rights announces resolution of antisemitism investigation of Muhlenberg College.” U.S. Department of Education (2024)

Can free speech and content moderation on social media coexist?

Jonathan Rauch and Renee DiResta discuss the complexities of content moderation on social media platforms. They explore how platforms balance free expression with the need to moderate harmful content and the consequences of censorship in a digital world.

Jonathan Rauch is a senior fellow at the Brookings Institution and the author of “The Constitution of Knowledge: A Defense of Truth” and “Kindly Inquisitors: The New Attacks on Free Thought.” Renee DiResta was the technical research manager at the Stanford Internet Observatory and contributed to the Election Integrity Partnership report and the Virality Project. Her new book is “Invisible Rulers: The People Who Turn Lies Into Reality.”

READ THE TRANSCRIPT.

Timestamps:

00:00 Intro

03:14 Content moderation and free speech

12:33 The Election Integrity Partnership

18:43 What activity does the First Amendment not protect?

21:44 Backfire effect of moderation

26:01 The Virality Project

30:54 Misinformation over the past decade

37:33 Did Trump’s Jan 6th speech meet the standard for incitement?

44:12 Double standards of content moderation

01:00:05 Jawboning

01:11:10 Outro

Show notes:

Election Integrity Partnership report (2021)

The Virality Project (2022)

Moody v. NetChoice and NetChoice v. Paxton (2024)

“This Place Rules” (2022)

Murthy v. Missouri (2024)

“Why Scholars Should Stop Studying 'Misinformation',” by Jacob N. Shapiro and Sean Norton (2024)

“FIRE Statement on Free Speech and Social Media” 

What happens when philosopher Ayn Rand’s theories meet free speech?

Tara Smith and Onkar Ghate of the Ayn Rand Institute explore Rand’s Objectivist philosophy, its emphasis on reason and individual rights, and how it applies to contemporary free speech issues. 

Smith and Onkar are contributors to a new book, “The First Amendment: Essays on the Imperative of Intellectual Freedom.” Listeners may be particularly interested in their argument that John Stuart Mill, widely regarded as a free speech hero, actually opposed individual rights.

Tara Smith is a philosophy professor at the University of Texas at Austin and holds the Anthem Foundation Fellowship in the study of Objectivism. Onkar Ghate is a senior fellow at the Ayn Rand Institute, where he teaches undergraduate and graduate courses on Objectivism.

Timestamps:

00:00 Intro

02:51 What is Objectivism?

06:19 Where do Objectivism and free speech intersect?

09:07 Did Rand censor her rivals?

13:54 Government investigations of communists and Nazis

18:12 Brazilian Supreme Court banning X

20:50 Rand’s USSR upbringing

24:39 Who was in Rand’s “Collective” group?

35:12 What is jawboning?

40:01 The freedom to criticize on social media

46:02 Critiques of John Stuart Mill

59:49 Addressing a critique of FIRE

01:09:01 Outro 

Transcript is HERE

Show notes:

• “Safe Spaces and Trigger Warnings: Free Speech on Campus” (2016)

• Letters of Ayn Rand (1995)

• “Goddess of the Market: Ayn Rand and the American Right” (2009)

• “Brandenburg v. Ohio” (1969)

• “NRA v. Vullo” (2023)

• “Murthy v. Missouri” (2024)

• “Moody v. NetChoice” and “NetChoice v. Paxton” (2024)

Can a course on conservatism shake up the liberal status quo on campus?

Tufts University professor Eitan Hersh presents his unique class on American conservatism and its impact on campus free speech and open dialogue. He discusses the challenges and opportunities of teaching conservative thought in a predominantly liberal academic environment.

Eitan Hersh is a professor of political science. He earned his Ph.D. from Harvard University in 2011 and was a faculty member at Yale University from 2011-2017. 

In March, professor Hersh’s course on conservatism was profiled in Boston Magazine under the headline, “A Conservative Thought Experiment on a Liberal College Campus.”

Timestamps

00:00 Intro

02:02 Prof. Hersh’s personal political beliefs

03:47 Political diversity among faculty and students

05:14 Hersh’s journey to academia

06:07 What does a conservatism course look like?

09:30 His colleagues’ response to the course

10:29 The challenges of discussing controversial topics

13:28 FIRE’s data on difficult campus topics

17:50 How have campus dynamics changed

19:42 Institutional neutrality

39:14 What are faculty concerned about?

42:18 What is Hersh expecting as students return to campus?

46:41 Outro

Transcript is HERE.

How has 19th-century English philosopher John Stuart Mill influenced America’s conception of free speech and the First Amendment?

In their new book, “The Supreme Court and the Philosopher: How John Stuart Mill Shaped U.S. Free Speech Protections,” co-authors Eric Kasper and Troy Kozma look at how the Supreme Court has increasingly aligned its interpretation of free expression with Mill’s philosophy, as articulated in “On Liberty.”

Eric Kasper is professor of political science at the University of Wisconsin-Eau Claire, where he serves as the director of the Menard Center for Constitutional Studies.

Troy Kozma is a professor of philosophy and the academic chair at the University of Wisconsin-Eau Claire - Barron County.

Timestamps

00:00 Intro

02:26 Book’s origin

06:51 Who is John Stuart Mill?

10:09 What is the “harm principle”?

16:30 Early Supreme Court interpretation of the First Amendment

26:25 What was Justice Holmes’ dissent in Abrams v. U.S.?

30:28 Why did Justice Brandeis join Holmes’ dissents?

36:10 What are loyalty oaths?

40:36 Justice Black’s nuanced view of the First Amendment

43:33 What were Mill’s views on race and education?

50:42 Private beliefs vs. public service?

52:40 Commercial speech

55:51 Where do we stand today?

1:03:32 Outro

Transcript is HERE