FREEDOM OF SPEECH: Nadine Strossen

from almost the opposite place on the political spectrum. Nadine Strawson was the president of the American Civil Liberties Union for almost two decades up until two thousand and eight. She was the first woman and the youngest person ever to lead the organization. She's now a professor at New York Law School. I spoke to Nadine back in October, when the world was very different, and yet we were

wrestling with a lot of the same issues. Needin, I want to start with hate speech, because after a long career of focusing on all aspects of freedom of expression, you wrote a book recently called hate Why we Should Resist It with free speech not censorship, which is I think appropriately provocative and controversial title. So what do you mean when you say hate speech, there are lots of

different definitions out there. The core of the concept is speech that conveys hateful, discriminatory, stereotyped ideas, particularly on basies such as race, religion, ethnicity, sexual orientation, groups that have traditionally been marginalized or excluded. But if you look at how we use the term in everyday parlance in the United States, you will see that people are using that term absolutely profligately to describe and decry and often try to sense or any speech that conveys any idea that

they hate. And some of this has been well publicized. For example, on some college campuses, t r U m P chalked on sidewalks or worn on T shirts or caps has been attacked as hate speech. Some politicians have denounced Black Lives Matter activism and protests as hate speech. Most chillingly to me, although I understand where it's coming from, on some campuses and other venues, the phrase free speech

has been attacked as hate speech. And the reason why I say I know where that's coming from, sad ly, Noah, is that so often white supremacists and white nationalists and other hate mongers have had the right to express their repulsive ideas because of free speech principles, and unfortunately that means in the minds of too many people, racist speech and other hate mongering speech has become equated with free speech.

So I really had to write. I felt absolutely compelled to write the book because I have been a proud social justice warrior my entire life. I consider that a compliment, not an insult, as some people use the term. And I am absolutely committed to freedom of speech, and I

am absolutely convinced that both goals are inextricable. That we cannot advance equality, dignity, diversity, inclusivity, especially for groups that have traditionally been discriminated against, without having really robust free speech, robust enough to extend even to so called hate speech.

So let's focus then, nating if we can, on what I would consider the hard case, the kind of speech that almost every country that considers itself roughly being civilized in the world does sanction or outlaw to some degree. Let's call it dehumanizing speech that is directed at traditionally marginalized groups. And I want to ask you, in that, to my mind, somewhat hard case of hate speech, what you think about the main rationales that are usually used

to justify regulations. So the first is that such speech has a tendency to lead to real world, concrete physical harm against people from marginalized groups. That it's not enough to only prohibit speech that immediately threatens imminent violence, but that ultimately we need to also think about the downstream effect. You know, when Hitler starts talking, he's not got crowds in front of him immediately about to lynch people, but over time he builds up support through a steady diet

of hate. And so goes the argument, we need to nip that the bud. It'll be too late if we wait until the point that there's an angry crowd. We have to worry about the structural development of dehumanization because we know, having lived after the terrible twentieth century, and we know in the twenty first century we're still encountering genocide, and so the argument goes, we need to limit hate speech to prevent that kind of disaster. What's your primary

answer to that charge? Before I answer the question, Noah, I have distressed because you asked about dehumanizing speech that's targeted at particular groups, and as you adverted to later, in your excellent question, certain speech that meets that criterion can and should be punished consistent with First Amendment principles.

So if the speech is targeting an individual or small group of individuals, and if it constitutes intentional incitement of imminent violence that's likely to happen, that cannon should be punished. If it's targeted harassment or bullying, that can and should be punished. If it means to instill a reasonable fear that the audience that's targeted is going to be subject to harm, that is a punishable so called true threat.

So in general, I and others summarize this principle under US law and by the way, also under international human rights law as the emergency principle. When the speech presents a direct threat of serious, imminent, specific harm, then it

can and should be punished. But I completely agree with you that speech does cause harm even if it does not satisfy that strict definition, or at least it certainly can potentially cause harm more indirectly and remotely, as you ask in your question, And my reason for opposing censorship is not because I just ute the potential harmful impact of non punishable hate speech, but rather because I think that censorship is at best and ineffective way to counter

the potential harm, and at worst a counter productive one. So let's push on that Indian So you know, let's talk about mitigation. We're not talking about curing the harm. So imagine you have a country. We have a lot of European countries that fit this description today, where they're far right politicians who are getting more and more votes in each election and their rhetoric is getting more and more radical. And this time it's not Jews that they

are primarily biased against. Now it's Muslims, still an immigrant group, it's on the group that's being labeled criminal and an other parallels to you know, Europe in the nineteen twenties and thirties are obvious. Let's say we want to say, you know, maybe we won't ban all of that speech, but we're not going to let you be elected to the parliament as a party if you advocate expressly racist views. Some European countries have rules like that. And again this

isn't meant to eliminate all racism. It's meant to mitigate the real world effects, especially when organized political parties realize that they can gain more votes by using forms of hate speech. I'm assuming that's not okay with you either, even though that's something short of a pure ben because

it is a fifth technique of mitigation. Though the facts that you cite now actually support my point, because the fact is that those European countries have extremely strict anti hate speech laws that are very strictly enforced, and they have not prevented the rise of hateful expression by hateful parties that are gaining support among the people. Germany is an excellent case in point. It has the strictest anti hate speech laws in the world, with a possible exception

of some Middle Eastern countries. The law are extremely strictly enforced. They are enforced against politicians as well as candidates, as well as elected officials, and as you well know, despite and would some German commentators say because of those laws that they have spurred the frustration and the anger and the backlash that has fueled the frightening rise of the AfD, the Alternative for Germany, which is an expressly racist party. It got thirteen percent of the vote in the last

national election a couple of years ago. And Germany also has had distressing levels of violence against Jews, against Roma, against refugees, to the point that Angelo Michael, for the very first time in German history, actually appointed a cabinet level minister for anti Semitism, and the head of the largest council Jewish organizations in Germany warned Jews that they should not feel safe wearing the yamuka, the skull cap that some observant male Jews feel a religious obligation to

wear in public. Now, I know you can't prove a counterfactual. Maybe the situation would be even worse if Germany wasn't enforcing I mean, I unless you can help me on this, I don't think there's any way I could ever prove that. But it's clearly the case that even very strictly enforced laws have not been enough to sufficiently quell the rise of hateful expression and conduct. And the same thing happened in the Weimar Republic, during which Hitler rose to power,

you know, and that's often cited as epitomizing this situation. Now, and I agree, as the daughter of a Holocaust survivor, My goodness, you know, if anything could have prevented Hitler from rising to power, I certainly would have been in favor of it. But back then Germany also already had very strict anti hate speech laws that were enforced against

Nazis repeatedly, and they loved it. It was a propaganda platform for them, an opportunity for them to gain attention that they otherwise never would have and sympathy they otherwise never would have. And that is the same strategy that's used by hate mongers in this country. Noah, and I don't at all mean to compare them to the Nazis, thank goodness, they're certainly not advocating genocide, but you know, the Miloanopolises and the Richard Spencers of this world, other

provocateurs revel. Oh, and in the online context, Alex Jones, you know, they celebrate when they're subject to attempts to ban or punish them, because they know that that gains them attention that they otherwise would not have received. Organizations whose work I generally very much admire, the Anti Defamation League and the Southern Poverty Law Center, whose mission is

focused on countering actual discrimination. They've actually urged college students and others please resist the temptation to try to deep platform or shout down or shutdown or otherwise suppress the voices of those that are conveying trying to convey hateful messages. It may feel very morally satisfying, but it is actually going to do more harm than good. We'll be right back.

So let me turn out, then, Nadine, to the question of social media, and let me try out an argument that you know, I know is not yours, but that I believe as a person who is very deeply committed to free speech principles, and it runs something like this. It says, you know, Nadine, and you and your work with the ACL you have convinced us and the forefathers and foremothers are free speech doctrine, have convinced us that the government shouldn't be trusted to engage in regulation of speech.

But when we turn to the context of social media, the very same First Amendment principles that tell us the government can't regulate also tell us that a private publisher or a private platform is protected by the First Amendment in possessing its own right and authority to make its own decisions about what content it does or doesn't want to allow on its platform, or it does or doesn't

want to promote to varying degrees. From this premise, the argument goes on to say that if a company doesn't want to allow hate speech on its platform, it should be allowed to prohibit it, and that it's also desirable for platforms that have the capacity to reduce the amount of hate it's in circulation to use their own tools and techniques for engaging in that form of regulation. Full disclosure, I've been advising Facebook on the creation of an oversight board.

Facebook itself, like all the other major platforms, does limit hate speech on its platform if that's allowed by the First Amendment, if it doesn't threaten at its core the idea of a free speech because after all, the platforms also have free speech rights. Why shouldn't those private actors take a different stance than the government does? Or should I completely agree with everything you said until you got to the desirable so called content moderation by the social

media giants, including Facebook, I couldn't agree with you more. Noah, that we have no free speech rightspees v. Private sector actors. I for one, would balk at government trying to reign in what I do believe to be the free speech editorial rights of social media companies, just as I would balk at that power being used for traditional media. Where I part company with you is on the desirability of Facebook using its enormous power. And we'll just use Facebook

as an example. But the points I'd make I would apply to the companies that have dominant power. As the Supreme Court set in decision a couple of years ago, they really constitute the major platform now in our society and in our political sphere, not only for discussions between you and me and our friends and our colleagues, but also between we, the people, to quote the opening words of the Constitution, who wield sovereign power in this country

and those we elect to represent us. So the major power in terms of not only individual free expression but also democratic self government is now in the hands of these powerful private sector actors. And I have to say that worries me as a similar retariant. The question is

whom do I distrust more? The government, which I traditionally instinctively distrust for good reason based on history, but also it's hard to trust a powerful private sector entity, no matter how good spirited the individuals associated with it may be, and no matter how brilliant and you know people that they are working with such as you knowah, and with your commitment to free speech. Ultimately they're not accountable to

we the people, but ultimately accountable to shareholders. I guess in the case of Facebook, that means to Mark Zuckerberg, right, and that's worrisome. But that said, I don't think that there is a legal solution of government imposing limits on how Facebook exercises its editorial power trying to remain open minded. So for me, now, the question is, practically speaking, is it in fact desirable for Facebook to try to define

and to try to enforce standards against hate speech? And my reason for concluding no, Although I will, to the best of my ability try to be open minded as new evidence comes in, but I think it is as doomed to be arbitrary at best and discriminatory at worst as all so called hate speech so called standards have been when enforced by government around the world throughout history. So let me let me make then a different version

of the argument on the other side. So I'm going to begin by conceding to you I completely agree that if we don't trust government, there's no reason we should trust private corporations. And it doesn't matter how well intentioned or ill intentioned they or their leading shareholders might be.

I agree, there's no reason we should trust them. The argument though, for restricting hate speech on social media, I think takes seriously your point that increasingly social media is where we go to engage in the civic republican conversation

that we need to run our country. And the argument would be something like this, in order for us to have a collective series of conversations that we need to be a functioning democracy, we need to have some basic guidelines of civility and of not speaking in a way

that shuts up other people. And you know, again I am with you that we don't trust the government to come up with those standards, but we could be a little more experimental in the social media context, partly because the social media companies can change their minds, they can alter their standards, They can do real world experiments. They can see if certain kinds of speech are leading vulnerable people to get off the service or to shut down

or not speak. There's some better tools available here than there would be available to a government. Why not run the experiment? Why begin a priori with the view that all regulations of speech are going to go awry. I certainly am open to experiment, and as I said earlier, Noah, I am open to considering evidence, and my starting premise is I'm only looking for what is the least bad solution because I see problems with all of the options.

I see the problem that you're talking about. I associate myself very much with a number of reports that have been done on these issues by PEN America, the organization that represents writers including journalists and very much advocates free speech, and a couple of years ago, PENN did a handbook for writers and bloggers and journalists about the hazards of being on social media, trolling and dosing and harassment, and they did a survey of their members which showed that

people were being driven off and see saying journalists were sobbing they're ending their social media commentary, especially women and members of minority groups. So I couldn't agree with you more. I had earlier said there are free speech concerns here on both sides, right, nonregulated and regulated. But PAN America's proposed response is not regulation beyond and forcing legal standards that exist already. As we talked about against targeted harassment

and bullying, and so forth. But beyond that, Pan America was advocating a series of free speech type responses, including by publishers, by editors, by friends and colleagues, and in addition to experimenting with content moderation. And you know, you know better than I do that Facebook wasn't always trying to restrict hate speech. So it also wasn't an a priori assumption that there would be content regulation, including a

hate speech on these social media companies. And I know that Facebook and the others are experimenting with different definitions and different ways of enforcing the definitions and so forth, So I do appreciate that open mindedness and experimentation. But also in the spirit of experimentation, I have read with great hopefulness about efforts that have been funded by Facebook and other social media giants for how can we harness the power of social media to promote counter speech of

various types. That will be another way of countering the potential adverse impact of hate speech, Rooting people toward affirmative information that will counter the statements that are being made by hate mongers, providing support for people who are disparaged by hate mongers, and so forth. Yeah, that all seems that seems like a potentially promising direction. So let's talk then about trends. And here I want to ask you

a question that's maybe a tiny bit impolite. You're a self described social justice warrior, and you also a simultaneously are deeply committed to freedom of expression. And doesn't that make you and I might include myself in this category too, doesn't that make us dinosaurs? Hasn't there been a radical change over the last fifteen or twenty years. It happened gradually,

it didn't happen all in one go. But if you look at where broadly speaking, progressive thinkers are today compared to where they were twenty years ago, the trends seems to be completely against you. The trends seems to be And I see this with my students, and I see it in the work of my generational contemporaries who are

intellectuals writing from the progressive perspective. There seems to have been a major retreat on the left from the values of strong civil libertarian free speech, whereas on the right there's been almost a huge rise in support for them

of freedom of speech. I mean, we see something very close to one hundred and eighty degree flip where if you think of the classic Supreme Court cases of the sixties, there it was the court's greatest liberals who were in favor of freedom of expression and the conservatives were in favor of censorship. And now, if anything, it's going the other way, and conservatives are most strongly in favor of

freedom of expression. And maybe it's not quite true on the Supreme Court, but more broadly in the society, freedom of speech is not so favored among progressives. So what's going on? And are we dinosaurs? I disagree with the factual generalizations to this extent, now that I read every survey, and there to me inconclusive and do show that depending on what the subject is, you get self described liberals and progressives who are against censorship or for and this

aim is true for self described conservatives. And in fact, I think this situation throughout my entire adult lifetime, and I'll pull the age rank on you. I've been in the trenches probably for a couple more decades. In the early nineteen eighties, Nat Hintoff, who was very active with ACLU, a journalist, wrote a book whose title I think said at all it was freedom of speech for me but not for me how the left and right are relentlessly

censoring each other. But I obviously believe that there are too many social justice activists who do not understand how important free speech is to advance their causes. That's what motivated me to write my book. And as one astute reviewer commented, it's very clear that my book is aimed at the left. That is the main audience now that I believe needs persuading, and I do see a particular need to make a case that is rooted specifically in

the social justice causes as a rationale for supporting free speech. Nadine, I want to thank you not just for this terrific conversation, but for fighting the good fight in a serious way, both in the trenches and in the leadership role for so long. I've learned such a huge amount from your free speech advocacy, and I learned a lot from this book, and I hope we can keep on talking about these

really important issues. I guess that's the whole point of free speech, right to discuss the idea as long as we want, in for as much time as we want, and hope that we get it right eventually, and right back at you. Noah, thank you so much for your work, including doing your best to preserve a wonderful free speech environment on Facebook. Let's hope, so thanks a lot, Nadine,

take care. Coming from the left of the political spectrum, where the ACLU has mostly been ever since its founding in the nineteen twenties, Nadine Strausson offers a vision of free speech that's grounded in a deep skepticism and distrust of who controls the government and therefore of what will happen when speech gets regulated. It's in the dna of Nadine's view to believe that the government is not likely to serve the interests of the dispossessed, of minorities, or

of those who lack power in the society. She therefore thinks that any time we have limitations on speech from the government, and indeed, she goes further and says, any time even private entities like social media companies limit freedom of speech, the results are likely to be, roughly speaking, statist, to serve the interests of power, not to serve the

interests of the powerless. Nadine's perspective is to some degree at odds with the views of many younger left liberals, many of whom believe that free speech has ultimately come to be used as a tool to help powerful forces, rather than functioning as a tool to protect the alternative

and dissenting views of minorities and the powerless. This is a difficult question and a hard problem to solve because it depends on different people's predictive assessments of what's actually going on in the world and what might go on in the world if trends continue. I'm grateful to listeners for sticking with us as we've gone deeper and deeper

into the issue of freedom of speech. No doubt will return to the issue in certain ways in the future, and will certainly continue to keep a close eye on it until I speak to you next time. Be careful, be safe, and be well. Deep Background is brought to you by Pushkin Industries. Our producer is Lydia Jane Cott, with mastering by Jason Gambrell and Martin Gonzalez. Our showrunner is Sophima Kibbon. Our theme music is composed by Luis GERA special thanks to the Pushkin Brass Malcolm Gladwell, Jacob

Weisberg and Mia Lobel. I'm Noah Feldman. I also write a regular column for Bloomberg Opinion, which you can find at bloomberg dot com slash Feldman. To discover Bloomberg's original slate of podcasts, go to Bloomberg dot com slash podcasts. And one last thing. I just wrote a book called The Arab Winter of a Tragedy. I would be delighted if you checked it out. If you liked what you heard today, please write a review or tell a friend. You can always let me know what you think on Twitter.

My handle is Noah R. Feldman. This is deep background