Welcome to Crash Course, a podcast about business, political, and social disruption and what we can learn from it. I'm Tim O'Brien. Today's Crash Course Free Speech Versus Censorship. I'll take a leap and say that speech has probably never been freer in the world than it is today. Multiple venues, especially social media, allow people's perspectives to take flight fluently
globally and frequently. Pick your format print, audio, video, and images, for example, and you can easily put ideas in front of an audience huge audiences. Potentially, the culture of free speech is also under steady and ever more sophisticated assaults, perhaps because its ubiquity is threatening to any person or institution that holds an opposing viewpoint. The very thing that makes speech so free right now, ease of motion, is
perhaps what also makes it more threatening. And I'll say that if speech feels threatening, the solution isn't to bottle it up, as Supreme Court Justice Lewis brandeis once advised almost a century ago, and I quote, the remedy to be applied is more speech, not enforced silence. But we are awash in efforts to enforce or encourage silence in our current chaotic era. Everything from education and public health to political opinion, religion, and art have offered fodder for
attempted censorship. Joining me today to discuss free speech and efforts to corral it is Jamille Jaffer, an attorney who is also the director of the Night First Amendment Institute at Columbia University. The institute deploys what it describes as strategic litigation, research and public education to defend free speech in a digitally driven world. Welcome to Crash course.
Jamil, thanks so much, happy to be here. So just start us off.
A little bit, talk about how it came to pass that free speech has become the focal point of your own professional life.
Well, I was a lawyer at the ACLU for almost fifteen years starting in two thousand and two, and I focused mostly on national security cases. So this was obviously right after nine to eleven, and we were doing a lot of work relating to detention and interrogation surveillance, and it turned out that a lot of those cases were
incidentally First Amendment cases or free speech cases. So in the course of doing work on national security issues, I ended up litigating a lot of transparency cases where we were trying to get information about, for example, what was going on in the CIA's black sites. That litigated a bunch of cases involving the denial of visas to foreign citizens who had been invited to speak inside the United States, and those two turned out to be First Amendon cases.
A lot of cases involving access to the courts, and then some cases involving the free speech and freedom of association implications of government surveillance. And so I was approaching all those cases as cases about national security and human rights, but they all ended up turning on these questions about the First Amendment, or at least free speech. And so
I became a First Amendment lawyer almost by accident. And I'd been at these you a long time again, almost fifteen years, and I got a call from Columbia, which had decided with the Knight Foundation to set up this institute here to focus on digital age free speech questions. That was twenty sixteen. Now we've been doing this for seven years and it's now a real organization. We have
about twenty five people, including thirteen or fourteen litigators. We bring strategic litigation, We host and commission research, and we have a growing public education program as well, so did I.
They sort of over sell or improperly describe the dynamic that's a foot in our lives right now. You know this idea that the digital revolution, and with it, the advent of social media, has made free speech freer perhaps than ever before, while at the same time making it so front and center in people's lives that it appears to people with opposing viewpoints also be more threatening than ever before. Or is that the wrong way to think about it.
I think that's a legitimate way of thinking about it. It's not the only way of thinking about it. So it might depend what you mean by free speech, right.
Just to clear that up, I guess I would say the ability to speak freely and the ability to speak without being censored.
You know, I think it also depends what you mean by censorships. Let me tell you why I'm sort of resisting this frame. So you're definitely right that social media in particular has democratized speech so that now anybody who wants to comment on matters of publica or for that matter, matters of private concern, can do it without the kinds of gatekeepers that were always in the way twenty years ago. Right, You no longer need the permission of CBS or New
York Times to speak to a broad audience. There are lots of people who are doing that right now on social media without any mediation at all, and in many ways that's been an amazing thing for free speech. You know. It means that we can hold government officials and other powerful private actors to account much much more easily. So you know, in that sense, yes, absolutely, speech is freer
now than it's ever been. On the other hand, we do have these new gatekeepers, the social media companies themselves, that play a very large role in determining what speech gets heard online, which ideas get traction, which speakers are allowed to speak. All sorts of new technologies pose new kinds of threats to free speech. We have a case against spyware manufacturer whose technology was used to hack the
phones of Central American journalists. That's the kind of threat to press freedom that nobody even contemplated ten or twenty years ago. So I would say it's complicated. There's a sense in which you're certainly right, but that's not the only way to look at the facts here.
I'm sure it's not the only way to think about it. Jimil That's why I wanted to kind of do a reality check with you. And as it happens, the Supreme Court itself is wrestling right now with trying to understand this interplay between digital platforms and free speech and then the intervention of opposing parties and how that speech is conducted essentially, And there's a couple of imminent Supreme Court
hearings afoot. Those actually might have taken place by the time we air, but I wanted to talk to you about those. In the first one of them, a California school board blocked parents on their own Facebook page because the parents had left posts complaining about racism at the school. And in that specific case, the court is trying to come out on whether or not the school board has a right essentially to limit parents speech if the parents are criticizing the institution. I think that's a sort of
a thumbnail of what's at stake here. Tell me how you view that particular case and what's in play there.
So these are representative of a broader class of cases involving the use of social media by public officials, and as you know, public officials now use social media often as their principal means of communicating with the public and with their constituents in particular, and the result is that some public officials social media accounts have become really important public forums, like forums for discussion of public policy. I mean,
Trump's account, I think was the paradigm here. People used to go to Trump's Twitter account to hear the views of the president, to engage with those views, to engage with other citizens about what the president had said. There's a lot that you could learn from President Trump's Twitter
account you couldn't learn anywhere else. And so that Twitter account took on this democratic significance kind of like you know, a city council meeting or a school board meeting, or a legislator's town hall, but you know, on steroids, almost like Trump was standing at the front of the room and there are millions of citizens assembled in front of him who were listening to him, talking back to him, talking to one another. You know, that's one way to
think of what that social media account was. And you know, Trump is unique in many different respects, but many other public officials now use their social media accounts in basically the same way. And so this question of what status these accounts have under The first Amendment is a really important one. If there's a school board meeting, you can't get kicked out of it just because you disagree with
what the school board thinks. And if you go to a city council meeting and you complain about racism at city schools, the city council can't kick you out just because they don't like what you're saying. And so the question is what happens if a public official effectively kicks you out of his or her social media account, you know,
blocks you from accessing the account. I think that when people first come to this set of questions, they they go this is trivial, but given the significance that these accounts now have to our democracy, it's actually a really important question. When can a public official block a citizen from participating in that democratically important space? And that's the question this before the court.
Wait, but before you go on here, because I think we should clarify something. Is you mentioned that school officials have their own, say, personal accounts. They may also have individual accounts as a representative of the local government or a local institution, and then there also might be an an institutional account. Yes, so there's different classes of accounts
actually that come into play. I would presume that a local official with a personal account is free to let anyonet to honor off that personal account that they want to if it's in their capacity as an individual.
Yeah.
You see members of Progress, for example, expressly saying this is my personal account and this is my federal account as a politician. In the school board case in California, my understanding is the parents were posting on a school board account, not an account representing any individual, either in their capacity as a local official or as an individual, and that they were kicked off the school board account or blocked from it. Essentially. Is that correct?
I mean, all that's correct, And conceptually you're right that nobody's saying that the First Amendment should apply to a public official's personal account. But what counts as a personal account is actually a complicated question, because you know, Trump used to say that his account was personal, but he used that account to do the work.
I'm a Trump later because he's very Suey ganeerous in a lot of ways and important in this debate and discussion. But I want to focus in on what the Supreme Court right now is looking at in these two cases.
Yeah. Even with these two cases, though, you know, the question is when does an account reflect the exercise of state power? Because when the account reflects the exercise of state power, it's subject to the constraints of the First Amendment. But you can't answer that question about whether an account reflects the exercise of state power without actually looking beyond the label. It's not enough that somebody says this is a personal account, or you know, I also have an
official account. You got to look at how the account is used. And it's one of the things the Supreme Court is going to have to struggle with is how do you draw this line? Because on some of these accounts you've got a bunch of photographs of cats, and then you have, you know, a legislator saying if you have comments about my proposal to do X, then please write to my office. So it's a combination of things. And how do you decide is this subject to the
constraints for the First Amendment or not? That's a hard question.
The other case that the Supreme Court's looking at in the docket that I've referenced to you right now is is a case in Michigan where a resident was blocked from the city manager's Facebook page after the resident to complained about the locality's response to the COVID nineteen pandemic. I'm assuming the same things that we just discussed in the school board case in California are at play in
this Michigan case. Again, Can a local entity block a resident from expressing himself or herself on a social media platform that's affiliated in some way with the local government.
Yeah, now that's right. I mean these two cases that you just mentioned, the court is really focused on the question of whether the accounts reflect the exercise of state power, and the court didn't grant cer, so the court hasn't agreed to consider the question of what those constraints might be. So it's conceivable that the court says in these two cases, in both of these cases, the public officials social media accounts were exercises of state power, and therefore the first
amenment applies. But this question what does it mean when the first amendent applies is not actually presented by these two cases and is going to have to be addressed by the lower courts in the first instance, and you could imagine a rule that says, well, public officials can block their constituents for all sorts of reasons, like, for example, for spamming them, but they can't block them based on
viewpoint alone. Like that would be one possible First Amendment rule, but we're not going to get that kind of rule out of the Supreme Court this term. It's going to be for the lower courts to address that first.
In this collection of things that the Supreme Court is looking at, another one that's intriguing to me is they're going to consider a case involving content moderation on social media platforms and what protections the platforms themselves, as private entities, should enjoy around how they moderate what appears on their
own sites, whether it's Facebook or Twitter. And we'll talk more about this as we go on in the conversation because this is also kind of, i think, ground zero of our current debate about the new digital world and free speech. But talk a little bit about what the Supreme Court is looking at in that case, what responsibilities private entities have over content moderation.
Yeah, So the cases we just talked about are cases about the government as speaker right, where you have public officials wanting to use social media themselves and their speakers
in that context. These cases that you just brought up are cases involving the government as regulator, where the question is what limits is the First Amendment place on the government's power to control or influence the content moderation policies of the platforms, And these two cases involve laws out of Florida and Texas, both passed in twenty twenty one. Both of the laws impose what are sometimes called must
carry obligations on the platforms. So the Florida law, for example, requires the platforms to carry the speech of political candidates as well as prohibits them from taking down the speech of media organizations on the basis of the content of the media organization's articles. And then the Texas law prohibits the platforms from taking down speech on the basis of viewpoint. So both of these laws impose again what are called must carry obligations on the platforms that require them to
publish speech that they might not want to publish. And both laws also require the platforms to notify users whose speech is taken down. So if Facebook decides that one of your posts violates a term of service, then Facebook is required under these laws to tell you that they've taken the speech down and to explain why they've taken
it down. So those are the laws, and the question before the Supreme Court is does the First Amendment permit the government to impose those kinds of must carry obligations on the platforms? And does it permit the government to require the platforms to notify and provide explanations to their users in the way I just described. So those are the questions, and they turn out to be really complicated First Amendment questions, in part because the precedents that we
have don't involve social media. The precedence we have, you know, sometimes involve newspapers, and then there's a question of how far do those precedents that were decided in relation to newspapers go when we're talking about this very different medium. So for that reason, these two cases are complicated.
And because of the technology platforms themselves have worked mightily to claim that they're not publishers, they're merely technology platforms, even though in my opinion, they do act as publishers in the world we live in right now, and I think it's a smoke screen that the tech companies have thrown up because to moderate more would be more expensive. That's an extra expense they want to take on. Describing themselves as a publisher brings them into a different, potentially
regulatory regime. Describing themselves as publishers puts a different onus on them legally and exposes them to new life abilities. If they embrace the definition of publisher, it's more expensive and more complex to run their businesses. And so they insist that they're merely technology platforms and they're simply offering
people a place to express themselves. But if we've seen when technology platforms, I think, hide behind that label to a certain extent, they don't perform the kind of gatekeeping role you sometimes want in a complicated era in which propaganda and disinformation exists alongside free speech and facts.
Yeah, I think that there's no doubt that you're right that the social media companies have tried to have it both ways. You know, they sometimes say that we're effectively merely conduits for our user's speech, and we can't be held responsible for what's on our platforms because all of that, you know, has been written by other people and we're
just kind of the infrastructure they have. I would say, if not abandoned that talking point, now they've certainly drifted considerably far away from it, and in these cases before the Supreme Court, their argument is actually just the opposite. Their argument is that the social media platforms are just like newspapers for First Amendment purposes. We also exercise editorial judgment when we decide what content can be on our platforms.
You know, when we decide that misinformation needs to be labeled, or when we decide that speech that glorifies violence needs to be taken down. Those are editorial decisions and their editorial decisions within the meaning of the First Amendment. And for the same reasons the newspapers are protected, and to the same extent the newspapers are protected, we're protected too. That's the argument they're making. That's sort of the first step of their arguments in these cases, is that we're
just like newspapers. And the second step is, for the same reasons Congress couldn't tell a newspaper to carry speech it didn't want to carry, Congress can't tell us, or legislators can't tell us in this case, is Florida and Texas can't tell us what to carry. And for the same reasons that legislators couldn't require newspapers to explain why they did or didn't publish any particular article. We can't be required to explain to our users why we took
down their posts. So you're absolutely right that in other contexts, the platforms have tried very hard to disavow any responsibility for the content on their platforms. In this particular context, they're running in exactly the opposite direction and saying that we're no different from newspapers and are entitled to the same constitutional protection as newspapers are.
Okay, on that note, I want to take a quick break and hear from one of our sponsors, Jamil, and then we'll come right back and continue this conversation. We're back with Jamil Jaffer, director of the Night First Amendment
Institute at Columbia University. Jamil is a free speech warrior. Jamie, let's step away from the specifics of the Supreme Court cases we've been talking about in the prior segment and just talk philosophically for a minute about what place the values or virtues of free speech have traditionally occupied in American life. Why is this thing that we call free speech protected in the Constitution, Why is it constantly debated in our public life. Why are you and I talking about it right now?
Yeah, I mean, I think that a big part of the answer to that question is that free speech and democracy, or free speech and self government are very very closely connected, right, and democracy is core to our self conception in the United States. That's sort of what defines our society is
it's a democratic character. But if you're going to have a government that is answerable to the people, then the people need to have the freedom to debate government policy, they need to have access to information, and it's the
First Amendment that guarantees those things. And so one way to think about the First Amendment, or the core purpose of the First Amendment, is that it's intended to create the conditions that are necessary to sustain democracy, and that, in fact, is how most free speech theorists have thought about it, at least for the last fifty years. You know, I think people don't always know this, but the First Amendment as we understand it today is actually very young.
It grew out of opinions that Oliver Wendell Holmes and Louis Brandeis wrote beginning in nineteen nineteen, so just a century ago, and those opinions were dissents and concurrences initially, and then over time they sort of moved over into
the majority. But most of the rules that we think of as fundamental to the First Amendment today were established by the Supreme Court in the nineteen sixties and seventies through cases like New York Times versus Sullivan, which insulates news organizations from most defamation claims, Brandenburg versus Ohio, which holds that even extreme forms of political advocacy are protected by the First Amendment unless they amount to incitement, or
cases like the Pentagon Papers case in the nineteen seventy one case that held that the government couldn't obtain a prior restraint against the newspapers for publishing a secret report about the Vietnam War. Like those cases were decided fifty years ago, and those cases really defined the First Amendment as we understand it today. So all this is very very new, but those cases from the nineteen sixties and seventies really
positioned democracy at the heart of the First Amendment. They really saw the purpose of the First Amendment as again kind of creating the conditions that would make self government and democracy possible. And so now when you think about extending the First Amendment to new spheres. One question that you might begin with is what would serve our democracy in this new sphere. What rules relating to free speech would be best for our democracy in this new sphere, like,
for example, the sphere of SAE social media. So that's one way to approach these questions, and I think it's the way that's most consistent with the way that the Supreme Court approached these questions in this formative period in the nineteen sixties and seventies.
And yet, even with the presidents that you've referred to and the sort of legal architecture that's been built around free speech, it still gets contested daily and plenty of venues outside of courtrooms. You've mentioned Florida already in the podcast. Florida has been sort of on the cutting edge of asserting I think, state involvement in different forms of speech. You know, the state government in Florida has intervened around how the history of slavery and the African American black
experience in the United States should be taught. They've intervened in things around what the K through twelve curriculum should look like. It's empowered parents at a very microcosmic level, to essentially police libraries for texts that are acceptable or unacceptable to sometimes just one parent in a community of How do you see that, How do you see some of these things that have been going on in Florida?
How do you see that shaping this current battle we're having now over defining both the nature free speech and the parameter surrounding it.
Yeah. I would say first that those cases that you just described only underscore how important First Amendment protections are. There really is a kind of authoritarian impulse behind some of those policies. Those policies are intended to restrict the
ideas that the public has access to. And the point of the First Amendment, and the point of a lot of the precedents that I just described from the nineteen sixties and seventies, is to take that power out of the hands of government to make sure that we the people get to decide which ideas are worthwhile and which ones aren't. And these laws that you just described are these kind of regulatory interventions that you just described, I
think are completely inconsistent with that principle. And so I would say that some of these First Amendment protections are going to get tested in cases involving those regulatory interventions that you just described. But I still have confidence that the courts will uphold those principles to sort of define
the First Amendment. And again, one of those principles is just that it's not up to the government to decide which ideas are worthwhile that's a power that Constitution gives to ordinary citizens.
What about private entities ability to shape what isn't isn't acceptable? Obviously, the First Amendment was erected essentially to protect individuals from government censorship. It doesn't stretch with the same kind of robust vigor into private enterprises as it does into how it moderates and as a watchdog against government censorship. Nonetheless, again, this digital era we're in has really put all out of this in stark relief, which leads me to Elon
Musk and Twitter. Musk bought Twitter. When he bought it, he described himself as a free speech appsolutist, and he said that one of the reasons he was purchasing Twitter was because he felt people's free speech, particularly conservative free speech,
was being circumscribed. Since taking it over, I as a Twitter user and a Twitter observer, think it's become this sort of carnival less car crash of mismanagement and misinformation, And in fact, I think Musk has acted to make it easier for disinformation and a kind of hysteria to take root on Twitter that wasn't there before. It was there in bits and pieces, but it's very center stage now.
How do you think about the responsibilities that are on private owners in this digital era in terms of making sure that everyone has access from both sides of the aisle politically, and that good factual information, as opposed to disinformation and propaganda, don't flow freely across sites.
I share your view of what's happened to Twitter. I think that it's too bad because I think Twitter used to play really important role in underwriting public discourse. I don't really see it playing that role now, in part because of the pathologies that you just described. I would separate, though, the question of the social media company's ethical responsibilities, and I do think that there are ethical responsibilities in the same way that media organizations have, you know, a kind
of journalistic set of ethics. Social media platforms should also be thinking about what their ethical responsibilities are. But I would separate that question from the question of what the government should be doing to influence or control the content moderation policy of the platforms, because it's possible that most of the work that we need done here has to be done not through regulation, but through the development of
platform ethics. One concern I have with the cases that we were just talking about in the Supreme Court, these Florida and Texas cases, is that the laws that these two states have passed I think are largely unconstitutional. I don't see the Supreme Court coming to the conclusion that the social media plot platforms don't have First Amendment rights. I don't see the Supreme Court upholding these laws that impose quite onerous must carry obligations on the platforms for
no articulated reason. But I am worried that in struking down these laws, the Supreme Court might write those opinions so broadly that those opinions foreclose other legislation in the future that might be narrower and more justified by legislative findings and more closely connected to legitimate democratic goals. I do think that there is a role for governments to play in this sphere. I think that some form of
transparency mandate would be a good thing. You know, requiring the platforms to be more accountable to the public and to researchers and to regulators about the decisions they're making would be a good thing. Some version of a notice requirement, I think would be a good thing. I think it makes sense that, you know, when people are kicked off these platforms that have gatekeeper powers or with respect to public discourse, it makes sense that they should have to
explain their decisions. And I worry that Florida and Texas's laws will, for good reason be struck down, but struck down in terms that are so categorical that the court will foreclose much more sensible legislation that might be proposed next year or the year after. That's my worry about those particular cases.
The COVID lockdown and the COVID here has also introduced an interesting new development I think or highlighted, maybe one that pre existed, but this idea around the extent to which the government is allowed to police digital platforms for bad information around say healthcare and public health that if it is false, could be threatening to the well being of individuals, but that obviously also can run up against individuals desired to present their own views about a public
health crisis, or the efficacy of government recommendations during a public health crisis, whether it's asking for vaccinations, wherever it might be. That's also been playing out in a very intense way in recent years, in a way that I didn't think it had in the past, and I was wondering how you think about that issue.
Yeah, I mean, I guess two things. So one is authority. I mean absolutely, you know, the government has information and insight that the public lacks on issues relating to public health. It's obviously crucial that the CDC be able to share that information with the public, important that government agencies be generally trusted. I think that the lesson from the last few years, though, is not that we need to clamp down on misinformation about public health or ensure that only
the government's views are heard. I think the lesson from the last few years is first that the platforms have a kind of ethical responsibility to their users to ensure that their users are hearing information from trustworthy sources, but also that the platforms have an obligation to sure that there is space for dissent. You know, the government does have this special expertise but that doesn't mean the government
doesn't get things wrong. Sometimes the government gets things wrong in good faith, and sometimes government officials, for whatever reasons, decide to mislead the public about something or the other. And part of the reason we create space for dissent is because the fact that dissenters are allowed to voice their views is one of the things that gives legitimacy
to the government's views. Right. We're willing to trust the government in part because dissenters are allowed to have their say, and we trust that when dissent is persuasive, it'll eventually have the effect of forcing the government to change its own views or its own policies. So I think you need kind of both of these things. You need the platforms to ensure that their users are given access to trustworthy speakers, but also they need to make sure that
there's room for dissent. And I think that the way that platforms can do that is by responding to what they think of as misinformation with labeling rather than suppression. I think labeling is a much much better solution to the problem of public health misinformation than suppression. Is much better for Facebook to just stick its own speech on top of what it believes to misinformation, and it can say we don't think this is accurate. If you want
an accurate view, go to the CDC's website. That is an appropriate way for Facebook to respond to speech that it thinks of as dangerous misinformation. If Facebook responds with suppression rather than labeling, the effect is to give those speakers of a kind of monopoly on public discourse, and also to disable the kind of descent that for one thing you might turn out to be right, but for another the kind of descent that actually ends up legitimating
the government's views. The fact that the descent is there is one of the reasons that we are willing to trust the CDC, because we know if the CDC gets things wrong, people will say so other scientists will say, the CDC got this wrong, And here's how I know I got it wrong right. So I think that's why I favor labeling over suppression. I don't think it would make sense to give the government the power to make misinformation unlawful. And I say that for a number of reasons.
One is that what is or isn't misinformation is always a contested thing. There's no way to draw that line in a way that will be seen as politically legitimate. Another is the government often gets things wrong even when it's operating in good faith, and still in others of the government doesn't always operate in good faith. Those are all reasons why it would be a bad idea to go down the road of giving government officials the power
to suppress misinformation. And I will say just one more thing about that, which is that when people propose that government officials should be given that authority, they always have in mind that the government officials who will be exercising that authority are people like them. And you cannot have any confidence that the people who are going to be exercising that governmental authority tomorrow will be people like you,
even if they are people like you today. So that's still another reason to reject that possible purported solution to the problem of misinformation.
Okay, Jamil, let's take another break and then we'll come right back. We're back with Jamil Jaffer, and we're talking about free speech. Jamil, we talked earlier in the show about Donald Trump as a sort of avatar for a lot of the issues that have arisen around free speech and the uses and potential abuses of social media platforms. In the era we're in, Trump has actually made free
speech a shield for himself. Recently around some of the court cases that have been directed against him, he said that his involvement in the January sixth insurrection that resulted in a violent clash at the Capitol and an attempt to overthrow the election result on that day interfere with the election counting that efforts to prosecute him our assaults
on his own free speech. And I think this raises an interesting thing in the free speech debate that's worth clarifying, which is, you can protect speech in all of its forms, even often hate speech is protected legally. But there's a difference between speaking freely and inciting violence or inciting a crime, isn't there.
Yeah, No, that's right. It's sometimes hard to separate these things. But if you protected all speech, then you know, you would presumably protect the person who says attack to their attack dog, and that would be self defeating, and so you kind of have to separate out speech that is part of criminal conduct. I think that if you look at the indictments of Trump, there's a lot of speech in there, a lot of what the government is relying
on in accusing Trump of criminal activity is speech. I don't think that is in itself a First Amendment problem. Are prosecuted for conduct that involves speech all the time. Incitement is one example, Fraud is another example. Solicitation of criminal conduct is another example. You know, those are all situations where all that the person did is speak, but they spoke as part of a course of criminal conduct. So that's a line that's often difficult to draw. But it's the.
Line between free expression and being a cod in criminal conduct.
Yeah, exactly, because criminal conduct often involves speech. So that's going to be a challenge for the government in these cases. But I don't think the mere fact that the indictments accuse or list episodes in which Trump is alleged to have said this or that, you know, I don't think that is in itself a reason to think that these indictments are a First Amendment problem.
Another troubling, poignant issue in the news right now is the Gaza conflict that's given rise to all sorts of debates around free speech, Muslims accusing Jews of being anti Muslim, Jews accusing Muslims of being anti Semitic. This has taken
root on campuses now around the country. In the US, the debate about who's in the right and who's in the wrong in this particular conflict, and in some recent incidents, students who've either come out as being pro Palestinian or have said that they don't have an issue with what I think are some of the grotesque measures Hamas took and its attack on average Israeli citizens have come under sanction from their own universities, from outside owners to the
universities who think the students have gone beyond the pale. My view of this has been that, however wrong some of the students might be in the way that they're describing what's occurred or what they're advocating for it, they are still students on a campus, and if you start
sanctioning them for their speech, you get into very tender territory. Obviously, disagree with me if you want, but I did want to put this thing up in front of you because I think it's also another very public, poignant reminder of some of the fault lines and difficulties that's around free speech.
Yeah, I do think that there are some difficult free speech questions here, but for the most part, they are not First Amendment questions, right, They are questions about free speech culture. So, for example, when a donor says to Harvard University, I used to give you hundreds of millions of dollars, and because you haven't condemned the students who didn't vociferously enough condemn the Hamas attacks, I'm going to
withhold future donations. I think that the students had a right to say what they said, the university had a right to respond in whatever way it did, and the donor has a First Amendment right to respond in that way too. Now, those are the easy questions. The First Amendment questions are easy. Harder questions are about free speech culture. It does make me very uncomfortable to see donors putting this kind of pressure on universities to condemn their students.
You know, one prominent headgefund manager was running these billboards at campuses around the country accusing some of the students of being anti Semitic, plastering their faces and names and home addresses on these billboards. Again, I think that those actions are probably lawful. I mean, I don't know all the details, but based on the description I just gave you, the actions are probably lawful, but they do seem inconsistent to me with the basic principles of an open, free
speech culture. I don't see that as, you know, a kind of legitimate form of counter speech. Instead, those billboards are an attempt to intimidate and coerce students into giving up their First Amendment rights, stopping students from participating in public discourse about, you know, an issue whose importance everybody recognizes.
Since we're talking about campus life, Jamil. Some data or studies have suggested that faculty members are getting punished or fired for speech or expression more frequently in recent years than they have historically. It's not clear to me how that breaks down if it's faculty members on the left getting censured by institutions on the right, or faculty members on the right getting it censored by administrations that are more left leaning. But it does seem to be increasing
regardless of where the ideologies line up. And I'm wondering what you think about that. Do you think it's actually become more ubiquitous and apparent now than it has in the past, And what are your thoughts about that?
If so, Yeah, I don't know the statistics, but it does certainly feel like academic freedom is under a special threat right now, not just with these sanctions being imposed on professors who say controversial things, but there are these attempts around the country to restrict the ways that teachers public university faculty teach. We have a case in Texas where we're challenging a law that restricts public university faculty
from teaching with TikTok or studying TikTok. There are the interventions you mentioned earlier involving critical race theory or motivate it anyway, by the perception that critical race theory has kind of taken over schools. So there are all these efforts to chill the speech of public university faculty. And it goes beyond universities as well, you know, high schools
and elementary schools too. These efforts to really kind of narrow the ideas that students are exposed to, and narrow the options that teachers have to teach their students, even you know, restrict the books that students can read, and all of that I think is a matter for real concern.
You know, the standard here we're talking about is more broadly, I think, is that airing contentious views is a virtue, and disagreement about those views is healthy, especially on campuses.
Yes, absolutely, I would say it goes even beyond that. The whole point of a university is to create a space in which people can really consider ideas freely, can pursue ideas to their limits, can explore ideas even if they're controversial or unpopular. I mean, that is the point of the university. If a university can't do that, then you know you've really undermined it's, you know, entire purpose.
I always like to wind the show up, Jamil by asking people what they've learned. What do you know now as an attorney and an advocate steeped in issues surrounding free speech that you didn't know when you first embarked on your legal career.
I would say that I know that these issues are more complicated than they seem at first. You know, you come to free speech, or certainly I did, with a pretty two dimensional understanding or one dimensional understanding of the First Amendment and the concept of free speech, that the whole point is to prevent the government from censoring us right.
And it's not that that's wrong, but it turns out to be much more complicated, much more complicated, because there are legitimate questions about when something should count as censorship. There are legitimate questions about should we be worried only about the government or should we be worried about private actors too. There are legitimate questions about the purpose of
the First Amendment. You know, we talked a little bit about self government and democracy, but there are also completely plausible theories of the First Amendment that center other values like individual autonomy or truth seeking or accountability. And if you think those are the values that the First Amendment should care most about, then your First Amendment is going to look a little bit different than a First Amendment
that is focused principally on democracy. And ultimately, there's no right answer to those questions, or maybe a better way to say it is that the only way we can figure out what's right is to figure out what works. We have to think about, you know, what kind of society is this going to create? And do we like
that society? So those are really hard questions, and you come to this for the first time you think it's just a matter of stopping the government from censoring people, and again, not incorrect, but not complete either.
This has been such a great conversation, Jamil, but we're out of time unfortunately. Thank you for joining us today.
Thank you so much.
Jamil Jaffer is the director of the Night First Amendment Institute at Columbia University. You can find him on Twitter at Jamil Jaffer. Here at crash Course, we believe the collisions can be messy, impressive, challenging, surprising, and always instructive. In today's Crash Course, I learned that the digital revolution has upended so many things that even free speech and how we define it, enforce it and build our laws around it is also in motion. What did you learn?
We'd love to hear from you. You can tweet at the Bloomberg Opinion handle at Opinion or me at Tim O'Brien using the hashtag Bloomberg Crash Course. You can also subscribe to our show wherever you're listening right now, and please leave us a review. It helps more people find the show. This episode was produced by the Indispensable Animasarakas, Julia Press and Me. Our supervising producer is mo Hendrickson, and we had editing help from Sagebauman, Jeff Grocott, Mike
Mietze and Christine Vanden Bilart. Blake Maples does our sound engineering and our original theme song was composed by Luis Gara. I'm Tim O'Brien. We'll be back next week with another crash course.