‘So to Speak’ podcast transcript: Ilya Shapiro on Fox/Dominion and his 'cancel culture nightmare'

Note: This is an unedited rush transcript. Please check any quotations against the audio recording.

Nico Perrino: Ilya Shapiro, welcome to the show.

Ilya Shapiro: Good to be with you. I don’t know whether I’m back or I’m here for the first time. But regardless, always a pleasure, Nico.

Nico Perrino: I don’t think I’ve actually had a one-on-one interview with you, but we sometimes run the First Amendment Salons.

Ilya Shapiro: Right.

Nico Perrino: Which are hosted by Ron Collins, the First Amendment Scholar. And you, I think, and Bob Corn-Revere did the debate on Masterpiece Cakeshop, way back when. And we ran that as a podcast episode. So, some of our long-time listeners might recall you from that. It was you, right? You did that.

Ilya Shapiro: It could be. I have views on Masterpiece Cakeshop and whatever else. I always like a good salon. All the absinthe and all that. So, anyway.

Nico Perrino: Yeah. At the time you were still Vice-President at the Cato Institute. You were director of Cato’s Robert A. Levy Center for Constitutional Studies.

Ilya Shapiro: Right.

Nico Perrino: Publisher over at the Cato Supreme Court Review. And then you had a very, very brief tenure as Executive Director and Senior Lecturer at Georgetown Center for the Constitution that I want to talk about at the tail end of the show.

Ilya Shapiro: Brief but meaningful as I was once introduced. Yes.

Nico Perrino: Well, you know. I think it very much, kind of, shaped the conversation surrounding free expression and academic freedom all of last year, in 2022. But, again, I want to get to that. Now, you’re over at the Manhattan Institute. Yeah?

Ilya Shapiro: Yeah. People are like, “How do you like New York?” I mean, I like it just fine. I’ve been there exactly twice in the eight months since I’ve been with the Manhattan Institute. I’ve been to Florida more often, frankly. Yeah. No. It’s great. And ironically, I feel more free than I did when I was at Cato, at least that last little while. So. No, so far – so good.

Nico Perrino: Yeah. I will say we’re getting you back to New York next month. Right? April 18, you’re speaking at FIRE’s, kind of, big expansion gala.

Ilya Shapiro: Yeah. I don’t know. It’s kind of surreal to see your marketing. It’s like, “Featuring Killer Mike, Nadine Strossen, and Ilya Shapiro.” I’m like, “Huh. Okay. All right.”

Nico Perrino: You get strange bedfellows when you do the free speech work in a non-partisan way. Right? You get a famous rapper, someone from the ACLU, and someone from the Manhattan Institute.

Ilya Shapiro: You know? I’ve never changed my views. The world just... The issues of the day and the way that they present themselves just reconstitute themselves in funny ways.

Nico Perrino: There’s this famous Thomas Jefferson quote which says, “In matters of style, flow like the current. In matters of principle, stand like a rock.” And so. You know? I try and...

Ilya Shapiro: That should be a t-shirt. That should be FIRE swag right there.

Nico Perrino: It should. It should be.

Ilya Shapiro: In fact, it should be a paperweight. Like, a rock paperweight with that emblazoned on it, or something like that.

Nico Perrino: We have a swag task force, here at FIRE, who is responsible for determining what sort of swag we give out. And they’ve come up with some cool things in the past. Like FIRE socks, with our FIRE logo on them. I don’t know that we can mass-produce rocks, though. Paperweights, probably. We’ll have to figure that one out.

Ilya, I wanted to have you on the show because, one – we’ve just never done a one-on-one conversation together and at the end I want to get to, kind of, your Georgetown issues as well as your recent speech at the University of Denver, which caused some fireworks. But I want to talk a little bit about some...

Ilya Shapiro: I just try to keep you employed, Nico, give you things to talk about and work on. So.

Nico Perrino: Well, I’ve been doing this free speech podcast for seven years now, so I very much need those sorts of things, Ilya. So, keep sending them my way.

But our world’s kind of intersected because I’m friends with Noam Dworman, who’s the owner of The Comedy Cellar. And I’ve been a longtime fan of this podcast, which is just an interesting mix of comedy and current events. And I heard you go on the show, maybe, last week talking about Fox-Dominion and that whole defamation lawsuit.

Ilya Shapiro: Right.

Nico Perrino: And I found your guys’s conversation to be fascinating but also angering because I wanted to ask you questions that Noam didn’t ask you. Noam’s also...

Ilya Shapiro: Well, he’s not a lawyer.

Nico Perrino: Well, actually he graduated from Penn Law.

Ilya Shapiro: Oh, well there you go.

Nico Perrino: But he never became a lawyer.

Ilya Shapiro: All right.

Nico Perrino: He never became a practicing lawyer. He ended up owning The Comedy Cellar and having the really successful business doing comedy, but he actually has legal training and... But I was like, “I know Ilya, so I’m just gonna invite him on the show and ask him all of the questions that Noam didn’t ask him.” So, you know, let’s jump right in.

Ilya, I thought you did a really good job on that show of, kind of, laying the groundwork. Do you want to lay, kind of, the groundwork of what’s going on in that case and I can fill in some relevant details?

Ilya Shapiro: Sure. So, what we talked about there was Fox News is in the news because of the texts and other materials that have come out. Deposition, transcripts, from the lawsuit that Dominion Voting Systems, manufacturer of voting technology, has launched against Fox for defaming it as a business in its coverage of the 2020 election aftermath, when it had Sidney Powell and others on concocting conspiracy theories about the election being stolen and all of this. And then saying that...

Nico Perrino: Yeah, and them some of them... Right? That Dominion is owned by Venezuela.

Ilya Shapiro: Right. And made technology that enabled the stealing of the election in all sorts of ways. So, I mean, the point of the lawsuit is that our business was hurt by things that Fox did in a way that was defamatory, hurt our business reputation, you know, with the intent to harm us and things like this. But the materials that came out that got all the attention were statements by executives and on-air hosts; Tucker Carlson, Laura Ingraham, you know, all of the rest of it, saying that they understood that what they were putting on was crazy but that they had to do it to maintain their ratings.

In other words, it’s not that they were big fans of Donald Trump’s ‘Big Lie’ Narrative, as it were, but to maintain their business model, they had to continue having these people, including Dominion alleges these defamatory statements against its business.

And so, the legal case is a high bar because of New York Times versus Sullivan, the Supreme Court case about having to establish actual malice when you’re harming public figures for defamation cases. The news was significant because of, kind of, the journalism ethics and, you know, the insight into how Fox News operates and they’re putting on all this stuff and fanning the flames of polarization in this country and all of the rest of it, while knowing or thinking themselves, the hosts and the executives, that this is all nonsense. Which, again, is significant newsworthy things on the legal side. And this is what I got into in this podcast, that still might be a high bar but again it resounds differently with the lawsuit against Fox than it does against the lawsuits against Sidney Powell and Rudy Giuliani who are the ones who are actually saying this stuff.

Nico Perrino: Yeah. No. One question I have, and I haven’t read the complaint, I have to admit that. Is it mostly focused on the guests that Fox invited rather than the hosts themselves, the things that they said? Or is it too inextricably tied together that it's more or less the same thing that Fox...

Ilya Shapiro: It's more or less the same thing. Essentially, they're saying that at best, recklessly, at worst, intentionally and maliciously, Fox was airing/publishing statements that they knew, meaning Fox as a corporate entity through its officers and spokesmen, or at least thought themselves were lies or not true, that were as it turned out damaging to Dominion. That’s how I’d state the legal case.

Nico Perrino: Yeah. And it’s gotten attention recently because, I’m assuming, through discovery, we’re learning some conversations that happened on the back end at Fox. So, on the one hand, you have people like Lou Dobbs and Maria Bartiromo, doing what they do on-air, and Tucker Carlson and Sean Hannity. But behind the scenes, you have executives and people like Sean Hannity and Tucker Carlson saying, “I’m not sure about this coverage.” Like, one piece of discovery, two days after the election you had a Fox Corporation lawyer saying, “Hannity is getting awfully close to the line with his commentary and guests tonight.” Rupert Murdoch, the chair of Fox News expressed concern in a January 21, 2020 email to Fox CEO Suzanne Scott saying, “Still getting mud thrown at us. Maybe Sean and Laura went too far. All very well for Sean to tell you he is in despair about Trump but what did he tell his viewers?” You know, Murdoch said...

Ilya Shapiro: That’s exactly right. It’s come out in discovery. And the point isn’t that this happened, you know, once or twice right after the election but again and again and again after Dominion’s lawyers notified Fox’s lawyers that these things need to be corrected, these are errors. So, they were on notice and still Fox persisted in publishing, putting on-air, all of these statements that were allegedly defamatory despite Fox knowing, or not believing themselves, that they were not true.

Nico Perrino: Yeah. There was a recent email that came out in discovery. And I guess the judge in the case, kind of, lambasted them all because they keep discovering new things that they need to introduce into the record. Right? But, I guess, Maria Bartiromo, who’d seemed to be a true believer in the conspiracy theories, right, or the things that Trump and his team were saying, was approached by a Dominion spokesperson about the guest she was having on the show.

And she invited the Dominion CEO onto the show and the spokesperson didn’t respond but said, “Sidney Powell is trying to smear a company with completely unsubstantiated allegations and they're unsubstantiated because they're untrue and then talks about the evidence.” But it seems like, at least in that case, Maria invited the CEO to come on and rebut it.

I want to dig in to, kind of, what the legal standards are here in determining the liability that Fox might face. Dominion is suing them for $1.6 billion dollars, is my understanding. But, here’s the main crux of my question and why I think this case is so challenging. People, journalists, quote people in news stories, have guests on the show all the time, with whom they disagree. Who they believe think their opinions are bunk. Who spout, frankly, what they consider to be bullshit. But those opinions are a part of some national story. Right?

For example, you could have someone from CNN interviewing someone who stormed the Capital who can give their reasons for storming the Capital. And while the CNN reporter might know or thing that those things are untrue, it’s still newsworthy to know why the people who are engaged in a national news story are doing what they’re doing. Right?

And in this case, you had Donald Trump, you know, making these arguments, as baseless as they might be. That’s the President of the United States, and Sidney Powell and Rudy Giuliani were a part of its team. So, you know, on one hand, just kind of putting the guests on the show to talk about it and then holding Fox liable for that, you know, could create a chilling effect on reportage. The other hand, it’s interesting here because the hosts of opinion news shows are often engaged in that commentary as well. Meanwhile, you have people behind the scenes saying...

So, it just seems a lot more messy and I worry about whether a judgment against Fox in this case would make it more difficult to quote people on one side of a national news story that almost hard to ignore. Or, if you have to do the thing that a lot of outlets are doing now which is putting “baseless” or “untrue” before presenting Trump’s, you know, opinion about the election. Which is something that has become fashionable in recent years that you didn’t used to see all the time because it’s often editorializing.

Ilya Shapiro: Well, I think its almost like a multiple-bites-at-the-apple type scenario. Or, you get one free pass, but after that you start becoming liable. In the sense that they key details, legally speaking, are that the hosts and executives are essentially uniformly saying that the people that they’re putting on, the narrative that they’re advancing, even if couched in, “I’m just asking questions.”, almost disingenuousness in the way that Dr. Carlson is known for doing, that they themselves believe that what they’re doing, what they’re putting on, what they’re publishing, what they’re allowing to spread or facilitating the spread of, is malicious lies that the argument goes from Dominion are defamatory.

Whether they are defamatory or not is a separate... I suppose it’s a fact question. I suppose that’s a jury question. But the legal standard is they bear complicity in this because they subjectively believe that it’s false. They’re acting with intent to spread this stuff. So, it’s not that they’re simply putting it on as newsworthy because the President’s saying something, or the President’s lawyer is saying something.

Nico Perrino: Yeah.

Ilya Shapiro: But again and again, they’re keeping this narrative alive. And after the first time, after being put on notice by the lawyers and showing evidence that it’s not true. And yet, they persist in doing that. That’s, I think, the strongest presentation of what’s going on. And what’s interesting is, on the other hand, Sidney Powell and Giuliani and the others who go on and talk about this stuff, are they then not liable because they, let’s stipulate, really believe all that stuff, and “It’s just their opinion, and you can’t be held liable for defamation if it’s just your opinion, man.”

Nico Perrino: Yeah.

Ilya Shapiro: And so, you’ve got this ironic outcome where the Fox executives who don’t believe in the harmful stuff are liable but those who do believe in it and are actually the ones saying it directly are not liable. But, you know, that sort of indicates some oddness, I would characterize it as, in our defamation law.

Nico Perrino: Well, let’s talk a little bit about defamation law. Right? So, New York Times v. Sullivan which is not as revered as it used to be. You have Clarence Thomas and Neil Gorsuch on the Supreme Court...

Ilya Shapiro: I’ll just be on the record that I’m a student of Richard Epstein, the famous University of Chicago Law Professor and Legal Scholar. One of the most cited Legal Scholars of our time. I had him at U of Chicago Law School back in the day and he was against the New York Times vs. Sullivan before it was cool. And I think I agree with him on those old school grounds, nothing to do with modern social media company regulation or anything.

Nico Perrino: Well, I mean. So, let’s dig into that a little bit. In the context of, kind of, discussing the standard because I feel like a lot of people think of New York Times vs. Sullivan as doing what subsequent cases actually did. So, New York Times vs. Sullivan presented the actual malice standard, which you can define for us in a moment here, as it applied to public officials. Right? You know, people high up in government...

Ilya Shapiro: Intending to do harm. I don’t know the actual lawyerly standard, but that’s how I think of it in my mind.

Nico Perrino: Yeah. Well, in later cases it was extended to public figures. Which is celebrities...

Ilya Shapiro: Including temporary public figures, which I never understood.

Nico Perrino: Yeah. Limited purpose.

Ilya Shapiro: It’s like, if it’s newsworthy, if it rises to the level of something that people care about, you’re automatically not liable because you’ve become a temporary public figure.

Nico Perrino: Yeah. And I had a conversation... My last podcast, actually, was about New York Times vs. Sullivan. And Floyd Abrahms was the famed First Amendment lawyer, and I didn’t have any critics in New York Times vs. Sullivan on the show. I wish I’d known you were a critic yourself, I would have invited you on. But I tried to play the critic as well and talked about the Nicholas Sandmann case on the steps of the Lincoln Memorial. You know? Does this become a limited purpose public figure because someone just so happened to film a confrontation that happened in public. Right?

So, you have on one hand, the kind of public figure standard. Where the bar for defamation is very high. And then you have beneath that, public figures who are held to the same actual malice standard, is my understanding. And then you have these limited purpose public figures who become part of, like, a limited public controversy and the bar for defamation there is also fairly high. And I feel like some of the people who are critiquing New York Times vs. Sullivan are actually critiquing the cases that came later that expanded the precedent of New York Times vs. Sullivan, the actual malice standard, to public figures and limited purpose public figures.

And the actual malice standard, I don’t have the exact verbiage in front of me, but it’s acting with actual malice. You should have known that this was untrue or acted with reckless disregard for the truth.

Ilya Shapiro: Right. Right.

Nico Perrino: And so, I mean, is your critique with all of those buckets or it is...

Ilya Shapiro: I mean, it’s definitely with the limited purpose public figure standard. Which, again, anytime something becomes controversial, by definition, becomes a limited purpose public figure. You know, my imbroglio with Georgetown, which made national news, does that mean all of a sudden I’m a public figure when I wasn’t before. It's bizarre.

You might be right, that most of the criticism comes from how it’s been interpreted but the idea that we have that media companies are essentially exempt from liability for defamation, that doesn’t sit right with me. I think that’s where Epstein is coming from.

Nico Perrino: I want to ask a little bit about this case. Right? Because, so you have public figures, you have limited purpose public figures, and you have public officials. Right? All protected under the Sullivan lineage of cases. How does a corporation like Dominion fit into that constitutional analysis? Do you know? I mean, it’s...

Ilya Shapiro: I haven’t looked at it. I’d be talking about it off the top of my head but it’s in the same sense that corporations are legal persons for this among many other purposes but certainly not all, you know going back to the debate over Citizen’s United. And they have reputations that can be damaged. In fact, for businesses, presumably, it's easier to put a dollar figure on that damage than for individuals, even. And so, you defame the corporation, as corporations typically are set up as to derive their rights from the individuals that make them up and when you damage corporate reputations, you damage the shareholders, effectively.

Nico Perrino: Yeah. And Dominion Voting Systems, I mean, their systems were in use in 28 states in 2020. It’d be interesting to see if, as a result of...

Ilya Shapiro: I mean, I remember they were being attacked by Democrats in the 2004 elections. John Kerry made noises about Ohio, or something. Yeah, these voting machines seemed to be the subject of conspiracy theories coming and going.

Nico Perrino: Yeah. I mean, I guess we did just have a mid-term election. I guess you could show damages in a certain respect by showing if any Republican states, for example, stopped using those systems.

Ilya Shapiro: Right. Right.

Nico Perrino: But I’ve just found this case to be fascinating because, like all defamation cases, they’re fact intensive and the facts in this case that we’ve discovered through discovery present intrigue, but it raises a lot of complicated questions about fair reportage, the ethics surrounding reporting, and who should be held liable for defamation. And I guess that both sides are seeking summary judgement in the case, and I had read an article saying that a trial is expected to start as of April. I mean, can you explain that procedure? How that kind of works?

Ilya Shapiro: So, summary judgement is viewing the facts in a light most favorable to the other side, the side that’s not moving for summary judgement, although there are cross motions for this. Anyway, they are basically saying that no material facts are in dispute and therefore a ruling can be made on the law. You don’t need a trial because trials are for fact finding. And so whether it’s a jury or a judge, they’re determining, you know, who’s right in a he-said, she-said situation. Or given the circumstantial evidence, is the person guilt or liable for such and such an action here?

A motion for summary judgment in a civil lawsuit says, “Okay, viewing the facts in the light most favorable to the other side, we would say that no facts are in dispute, just rule on the law.” That’s what they’re moving. And it is fascinating. I mean, the latest motion, I think it’s more than 200 pages, and that’s where all that stuff comes out from discovery. And they’re basically saying, “Look, there can be no dispute from Dominion’s perspective.”

Fox, acting through its executives and hosts put on, continued putting on, even after Dominion warned them and told them to correct their facts, still kept doing it. This stuff that they knew to be false and was harmful to Dominion. That’s what they’re saying. And there’s no facts in dispute. No reasonable fact finder could dispute that the stuff, this evidence they’re presenting, is detrimental and is subjectively thought by Fox to be false.

Nico Perrino: So, I read this article talking about the procedure that said, “In person arguments are scheduled for March 21.” And it said in the next sentence, “A trial is scheduled to start on April 17 with jury selection four days earlier.” Is that wrong? Like, can you give...

Ilya Shapiro: No. I mean, they can always... District court process is fluid. You know? We’re sort of used to talking about the Supreme Court and a lot of us who speak in the media about constitutional issues are appellate lawyers who are lawyers who focus on appeals. Those are much more set pieces. You have the universe of facts, the record is set, you are argue based on these briefs, the argument date is set. It’s all kind of clean.

At the trial level, there are a lot more moving pieces. So, the judge could, at any time, postpone the trial, cancel the trial, wait to hear argument on these motions and then cancel the trial. Hear the arguments, rule from the bench denying the motion and the trail goes on under the current schedule. So, currently it’s understandable that the argument on the motion would be scheduled for before the trail and then the trial goes on. And if the judge needs more time to rule, then they’ll just delay the trial.

Nico Perrino: I didn’t ask you to talk about this but if I could just throw you a quick curveball about the free speech question that’s in the news, TikTok. There are movements to ban it. Not just by the Federal Government but you have states like Montana, for example. And the arguments can be two-fold. Right? So, there’s concerns about children and Chinese propaganda but also about data privacy. My understanding is that the Chinese government essentially has a backdoor to any kind of Chinese company’s data if it wants it.

And Mark Warner and Senator Thune, I think, introduced a bill the other day which seeks to ban TikTok in the United States, not just for government contractors or the government itself on government devices, which has been in place for a little while, but also for all citizens presumably. And I was just wondering what sort of constitutional questions you think that poses both on the First Amendment side but also on, maybe, the Bill of Attainder side. And is there anything from the Huawei and ZTE stuff that happened recently that might lend some insight there.

Ilya Shapiro: Well, Bill of Attainder which means punishing for past behavior that people weren’t on notice for, I don’t think it’s that because it’s not like TikTok is being sued for stuff that went on in the past that wasn’t illegal in the past when that happened. So, I don’t think that...

Nico Perrino: But isn’t it also, like, the targeting of an individual person or a company for punishment might not be the right word.

Ilya Shapiro: Well, it ultimately collapses into the National Security justification and courts are quite deferential to government on National Security matters and the argument is this is an arm of a foreign agent who is hostile, the Communist Party of China, and we can’t willy-nilly allow them to get hold of this information about American citizens. It's not a bad argument. Again, I haven’t been looking at it very closely but from the policy argument both about privacy and National Security is certainly plausible.

From, you can imagine the strongest example, let’s say it was the Chinese government was surveilling and collecting all this data on Americans to better manipulate our elections, influence public discourse, all of this spy on, get the wisdom of crowds and learn lots about our defense capabilities because of bits and pieces they pick up here and there. Well, what if this is that.

Nico Perrino: Yeah.

Ilya Shapiro: Right? What if this is the surreptitious bug that's meant to surveil in that way? If all of that is true, then I think it stands up to constitutional scrutiny.

Nico Perrino: Well, sorry for throwing you that curve ball. It’s just something that’s been coming up in the news and I figured I would grab your opinion on it.

Ilya Shapiro: You know, this is really sort of at the outer edges of what I can feign expertise in because as a Gen-Xer I do Facebook. I do Twitter, poorly apparently, and anything else. You know? I think I have an Instagram account that I’ve been on, like, twice, and then quickly closed up. Yeah, TikTok, you don’t want to see me interpret... I think one of my friends, Professor Ilan Wurman at Arizona State does, like, TikTok interpretations of different constitutional clauses. I don’t know if that’s like a dance for... You know? I want to see his dance for the Privileges and Immunities Clause or something. Who knows? I’m a simple constitutionaler. It’s above my can.

Nico Perrino: Yeah. I mean, TikTok it does have niche communities and there is a law community, and it can be used for really valuable educational purposes. It depends what you watch fully and how the algorithm determines what you like. But...

Ilya Shapiro: Oh, that algorithm. You know the Supreme Court recently heard argument in a couple of cases about whether these companies can be liable for their algorithm recommending more terrorist videos that arguably radicalizes and causes these actions. Also, very interesting cases that I plead relative ignorance about.

Nico Perrino: Yeah. We’ve talked about those cases on this Podcast before and it sounds like the court is sort of skeptical of the arguments being made. So, I’m doubtful that the...

Ilya Shapiro: Well, the court is skeptical of their own full understanding of exactly how the technology works. They don’t want to... As they have with technology for decades, they don’t want to take some step that completely skews the way that they markets operate and you know, in this case, breaks the internet, as it were. So, yeah. I don’t think we’re gonna have a swooping ruling.

Nico Perrino: Yeah, who was it, Kagen who said, “We’re not the nine greatest experts on the internet.”

Ilya Shapiro: Right. Right.

Nico Perrino: Or something like that. Yeah. I mean, anyway, it’s really interesting cases but TikTok’s algorithm is super powerful. Like, I’m on TikTok, for better or worse. I don’t post anything, but it is addictive. It is more powerful than Instagram’s algorithm. We’re starting to see a platform shift where it’s not who you follow, and your feed is just populated by the people you follow. It’s like the algorithm learning what you’re interested in and feeding you content from anyone, regardless of whether you follow them. In that regard it’s more powerful and also more addictive.

And that’s why you see some of these state legislatures trying to regulate, not just TikTok because it’s super...

Ilya Shapiro: Well, we do have the findings that Jonathan Haidt has been writing about. The mental health issues, especially in teenage girls, especially as it turns out in white liberal teenage girls, from social media in the last decade and depression and all of these different things. And how that contributes to our illiberal moment in higher education. I mean, it’s mind-blowing stuff that he’s doing and apparently, he’s about to publish two books at the same time. But these insights from social psychology and the effect of social media on that. So, quite apart from Chinese National Security concerns there could be, kind of, a health of the body politic concerns.

Nico Perrino: And Greg, who co-wrote “The Coddling of the American Mind”.

Ilya Shapiro: Right.

Nico Perrino: Greg Lukianoff and Jonathan Haidt, which was way before it’s time in blowing the whistle and, kind of, the effects of social media potentially on mental health. They made these arguments long before you have this, sort of, robust data that you have now. Jonathan Haidt, I think, wrote about this, this morning. He has a Substack called, I think, After Babel, in which he highlighted some of the most recent data. He has an open-source Google document which consolidates all the data for many of our listeners who might be interested in that.

But, if TikTok goes, one of FIRE’s most powerful platforms for communicating with younger audiences goes. I mean, FIRE has over 50,000 followers on TikTok, and it seems to outperform our peers on that platform.

Ilya Shapiro: Well, if you want to do a guest post on my Substack, Shapiro’s Gavel, you’re welcome to.

Nico Perrino: Yeah. It’s an interesting question and I’ll link your Substack in the show notes here. But I now want to pivot to, you said you do Twitter, and then parenthesis, “apparently not very well”, which I am assuming is a reference to what happened to you at Georgetown. I don’t know that I need to recapitulate it for all of our listeners but long story short, you sent a tweet about President Joe Biden’s decision, essentially, to nominate, was it a black woman?

Ilya Shapiro: Yes.

Nico Perrino: To the Supreme Court. Those were the only candidates he was going to consider and, in your opinion, U.S. Court of Appeals for the District of Columbia Circuit Judge Sri Srinivasan, is that how you pronounce the last name?

Ilya Shapiro: Yep.

Nico Perrino: Was a better choice and you say, but alas doesn’t fit into the latest intersectionality hierarchy, so we’ll get a lesser black woman. And this led to Law School Dean William Treanor denouncing the tweet, calling it “appalling” and “at odds with everything that we stand for at Georgetown Law.” I think the argument that, kind of, animated your tweet which was that, you know, we’re gonna get a lesser candidate because...

Ilya Shapiro: Because you’re restricting the pool by race and sex.

Nico Perrino: Yeah. There was an ABC News/Ipsos poll that found that 76% of respondents said that the President should consider all nominees regardless of race or sex.

Ilya Shapiro: That’s just a right-wing rag organization.

Nico Perrino: Well, 54% of Democrats surveyed said the same thing. And you admitted that your tweet was a little bit ham-fisted.

Ilya Shapiro: I could have phrased it better. You know?

Nico Perrino: Yeah.

Ilya Shapiro: Who among us hasn’t sent a bad tweet? You know?

Nico Perrino: But this resulted in a 122-day investigation. We did the calculations here at FIRE, and I should fully disclose we helped provide counsel for you in the situation because this, to our minds, was a clear violation of your rights as a faculty member and academic at Georgetown. It violated, although it is a private school, it’s contractual promises for the “untrampled expression of ideas and information”. That’s a direct quote from them, and their promise that all members of the university community enjoy the broadest possible latitude to speak, write, listen, challenge, and learn. Didn’t quite live up to that, in our minds. But the 122-day investigation was longer than 12 round-trips to the moon.

Ilya Shapiro: That’s now known as a “Shapiro”. We know that the Scaramucci is 13 days. Well, “Shapiro” is four months and six days.

Nico Perrino: For a 45-word tweet. And I think, you know... But you were reinstated. Right? At the outcome of it.

Ilya Shapiro: Yeah. After spending, you know, however much, you know, a million dollars or whatever on their outside counsel. Hogan Lovells, white-shoe D.C. law firm to advise them on this investigation, employing two offices, Human Resources and the Office of Institutional Diversity Equity Affirmative Action. You’d think that a law school could apply the law, meaning these relatively short university policies to the facts, my tweet, and in half an hour come up with an outcome based on this so-called investigation. But yeah. It took that long.

And eventually a Junior Associate at this law firm presumably looked at the calendar and said “Oh, well he wasn’t an employee yet when he tweeted, so the policies didn’t apply.” And yeah, I celebrated that technical victory but then I got the fine print, the 10-page investigation report from the diversocrats which basically said had I been an employee and going forward, were I to say something similar that offended someone along these lines then that would make me subject to discipline.

So, I said I cant live under those terms and I made what we lawyers call a “noisy exit”, publishing my resignation letter in the Wall Street Journal, as one does. And away we went.

Nico Perrino: Yeah. Dean Treanor’s fining letter is worth reading because he describes your comments as harmful, antithetical to the work of Georgetown Law, and it said if you were to make another similar, more serious remark as a Georgetown employee, a hostile environment based on race, gender, and sex likely would be created. Essentially, you had already accepted the job and weren’t an employee yet. It was like a week before you were supposed to start. They got out of it by saying, “Oh, he hadn’t started yet therefore the policies didn’t apply but if you do it again. Or if you were to create something that ginned up the mob again, you can’t really trust that our policies are going to protect you because we’re, more or less, suggesting here that they won’t.”

And I think any reasonable observer would understand, “How could an academic exist in that environment where this sort of...?”

Ilya Shapiro: And clearly that was aimed not just at me but, you know, pour encourager les autres, as they say, to show a shot across the bow of all faculty and staff. Just saying, you know, stay in line.

Nico Perrino: So, I want to ask you, because that story captured the public’s consciousness in headline news. What is it like to be at the center of something like that?

Ilya Shapiro: Well, I’ve written about it at my Substack, “Shapiro’s Gavel” and I’m writing about it more in this book that I’m working on now. The working title is, “Cancelling Justice: The Illiberal Takeover of Legal Education.” I say that the first four days, so after my tweet, before the Dean announced that I was indeed onboarded and immediately suspended with pay, pending this investigation. Those first four days, I called “Hell”. And it was like my whole world was crumbling in front of me. Everything I’d worked towards, my career, my professional reputation, just everything. My ability to function as a scholar, as a pundit, my ability to support my family, for that matter. I was between jobs. I was leaving Cato. I was at a vulnerable position. You know?

There were physical manifestations. We talk about legal standards of things, there’s intentional infliction of emotional distress and all that, in which you can’t win unless there’s physical manifestations of that. Well, you know, there was that. It affected my family. I say, “It’s not that I wouldn’t wish that on my worst enemy, I would only wish that on the people that first fanned the flames and instigated the Twitter mob that moved to the online world.” Mark Joseph-Stern of Slate and others on there.

And then began four months of purgatory, where it was this surreal world of, “Okay I’m getting paid.” But I literally was not allowed to set foot on Georgetown campus. That was considered “unsafe”.

Nico Perrino: Yeah.

Ilya Shapiro: And I wasn’t allowed to do any work for the Center for the Constitution that I was hired into. The Center that’s all the more important because, as we learned, the rest of the law school’s the center against the Constitution. And as FIRE documented, about how many trips to the moon we can take in the time it takes to investigate this, or trips by the Mayflower across the Atlantic, and the gestation of the Georgetown bulldog and all these different things.

After the first month or so, when I was interviewed and made a written submission, it just became clear very quickly that it was a farce. And at that point, I was in this limbo, and I was trying to... You know, my counsel was basically saying, “All right. As long as you don’t directly criticize Georgetown, you can say whatever you want.” And so, I was on the road speaking. Including one time where I made national news again for having an event shut down at the law school formally known as Hastings. It’s no longer called that, because Mr. Hastings, it turns out, did some politically incorrect things by 21st century standards.

Nico Perrino: Oh, I didn’t know they changed the name. I missed that story.

Ilya Shapiro: Oh, yes. It’s now the University of California College of Law at San Francisco. UC Law SF, for short. And yeah. I was speaking and writing on the Supreme Court battle, on all sorts of different issues and until this denouement, the reinstatement but ultimately a forced resignation and what have you. You know? I never sought... And I’d worked with FIRE plenty. That’s how I’d already known you and all the folks I was able to quickly call upon for help, to whom I am grateful, during that trying period.

I’d worked, you know, supporting you with amicus briefs or joining together on briefs and things like this. I didn’t think I’d ever be a client. I never thought I’d be the target of one of these illiberal moments. I didn’t seek to be a poster-boy for cancel culture or anything like that but that’s the way that things turned out. And as they say, “Man plans, and God laughs.”

And so, people ask, “Did you views on speech change or anything like that?” None of my views changed. My professional priorities changed. Obviously, I’m spending much more time on these issues than I would have otherwise. Even though I don’t think I became more of an advocate for free speech, academic freedom, civil discourse, all that due process that I was before.

Nico Perrino: Yeah. FIRE does our annual Worst Collages for Free Speech, where we investigate all the cases of censorship that we took on in the previous year and create, kind of, a 10 Worst List. And some years, we decide that a school has come up on our list so frequently that we’re tired of talking about them and adding them to our list because they’re crowding out a bunch of other bad actors, too. So, we give them a Lifetime Censorship Award and this year, Georgetown got it.

Because I mean, what they did to you wasn’t the first time they’ve done things like that. Right? They’ve done it to other faculty members as well. They did it to a Bernie Sanders student group at the law school that we helped out, I think, back during the primaries of 2016. And one of those students, Alex Adkins, I believe his name is, we helped him testify in Congress. Because one of the things collages and universities will do is say, “We can’t have these political groups on campus because it violates our tax-exempt status.” Which is bunk and the IRS has issued a memo more or less to that effect, is you know, “No, they’re not speaking for the university. They’re speaking for themselves.”

And then there was a H*yas For Choice group that they’ve repeatedly refused to recognize. It’s a Jesuit school, of course, but promises free expression and doesn’t create any sort of carve out for groups with certain Jesuit values, in this case, pro-life.

So, we decided to give the school a Lifetime Censorship Award and we actually drove a mobile billboard.

Ilya Shapiro: I saw that. I wanted to ask you if there was any reaction to that or did anything happen? I saw it pass by.

Nico Perrino: Yeah. You see people tweeting about it. But you never know quite how much it might stick into the craw of the administration. Sometimes you get inklings of it from people who are privy to those conversations. For example, we did it at Emerson College when they were going after a TPUSA chapter there that was handing out stickers that said “China kinda sus.” And called them an anti-Asian hate group, essentially. When the vice-president of that group was herself Asian. It was just a weird, bizarre situation.

But we heard that the administration really didn’t like it and the school newspaper kept asking us, “When are going to get rid of your mobile billboard?” Because it’s a metropolitan campus and the main building in on a public street so we just parked that mobile billboard right in front of the admin building for two straight days and we took out ads on the Boston Tea. So, that’s one of the, kind of, guerrilla tactics we like to use. But we had one of our staff members out there taking pictures because we post about it on social media. And there were prospective student groups walking past it like, “What is this?” And so, we talked to them. Right? Yeah. Don’t censor your students and faculty and you won’t get FIRE’s mobile billboard.

Ilya Shapiro: Right.

Nico Perrino: We did that to Rensselaer Polytechnic Institute. We didn’t do the mobile billboard but we did do one of those big, giant checks or certificates, so to speak. And we walked into the administration building at RPI and tried to present it to the president. And filmed ourselves getting escorted out by law enforcement. And we politely complied but we got it on video, which is the point. Right? And so we try and do those sorts of guerrilla tactics to create greater awareness for what we think is an abridgement of either contractual rights that are guaranteed to faculty members, such as yourself. Or...

Ilya Shapiro: You’d think it’s such a simple point that y’all are making but it gets misunderstood. And this might can use this as a segue to talk about my recent Denver experience.

Nico Perrino: Yeah.

Ilya Shapiro: Because so I was able to speak at Denver University Law School. This was two days ago. We’re recording this on...

Nico Perrino: Or is it University of Denver?

Ilya Shapiro: It’s University of Denver Law School but it’s shortened to D.U. for some reason, even though it should be U.D. But it’s yeah, University of Denver Law School. Strum College of Law which is a private school. But at any event, grudgingly, the Dean said, “Yeah. We have this policy. We have to allow this speaker. We stand for free speech.”

So, they made all the right noises and there’s a recording I tweeted out, the recording of the Dean making the statement before I spoke. And there were no incidents during my event, which went well. We had Q&A and students asking skeptical questions and nobody was cut off and all that but the administration, sort of, overplayed its hand. It’s like they just can’t get it right because they don’t really know what to believe, they just want to not make national news. You know? The goal was to not become the next Yale or Hastings.

Nico Perrino: Well, they want to please everyone and as a result they end up pleasing no one.

Ilya Shapiro: They want to please everyone. That’s right. And so, what they did was, they shunted protestors to designated ‘free speech zones’ and FIRE, you know, inquired, “Why are you doing this? It seems to violate all sort of things and principles?” And then FIRE, I saw on social media, was being criticized, you know, “Why are you for those who want to cancel and disrupt Shapiro?” Completely misunderstanding the point. Because then I agreed with your point about that.

Nico Perrino: And we appreciate that.

Ilya Shapiro: Like, “What a disruption!” And the point is, as long as they’re not blocking hallways, violating the fire code, you know, allowing students to go back and forth, disrupting the event, all of that.

Nico Perrino: Banging on doors in the hallway outside.

Ilya Shapiro: Right. Disrupting classes and all the rest of it. You know? They should be allowed to express themselves. They weren’t allowed to bring signs into my event. I can understand in some places, people put up signs to block the speaker from the audience. No, they’re not doing that. They can’t even have signs of any kind. So, overkill in that sense. And so, just can’t quite get it right. When you’re not actually doing it for the right reasons, you can’t calibrate this right.

Nico Perrino: Yeah. I mean. Yeah. I don’t think people understood FIRE’s position on this. As we know, we will defend Ilya Shapiro when his rights are being violated and we have been long on the record that we oppose Heckler’s veto and that we should allow peaceful protests that don’t disrupt the event. But they shouldn’t be cabined off into so-called ‘free speech zones’ and FIRE’s filed numerous lawsuits over the years that, kind of...

Ilya Shapiro: Aren’t ‘free speech zones’ what set off, like, the Berkeley Free Speech Movement in the ‘60s? Isn’t that what the administration there was doing to, like, Vietnam or Civil Rights protests?

Nico Perrino: I think it was partially that. I don’t know if they were ‘free speech zones’ as much as categorial prohibitions on doing civil rights work on the outskirts of campus. But yeah. I mean, we’ve sued on behalf of a student at Modesto Junior College and Pierce College in California who were told that they needed to pass out their pocket constitutions in the ‘free speech zone’ lest they be charged with trespassing. It seems California is awful on these sorts of things. Cal Poly Pomona we had an animal rights activist who couldn’t hand out his PETA flyers unless he went to the ‘free speech zone’ which you can only use during the ‘free speech hours’ on the ‘free speech day’. You had to wear a scarlet letter. You had to have a badge on that said, “I’ve gotten permission to exercise my First Amendment rights here.” We win all of those.

I think it was confusing for some people who were really concerned about the Heckler’s veto, like we are. And we think universities need to have clear policies that prevent people from disrupting speech and those policies need to be enforced. Behavior that gets rewarded gets repeated. What the point of having a constitutional policy if you’re never gonna enforce it? Then they’re just going to assume that you’re never gonna enforce it.

But we also oppose ‘free speech zones’ and we also protect the rights, in this case, it was the National Lawyers Guild that was going after you, calling for censorship, demanding that the administration cancel your speech. Like FIRE, going way back when, will defend the rights of the people who call for censorship. And so, I think it was just a little bit confusing to people.

I think it was interesting that the National Lawyers Guild didn’t go after you for your Georgetown tweet but rather for your work on DEI initiatives. Is that right?

Ilya Shapiro: I guess so. I saw some of the flyers that some of the students gave me. It was kind of a confluence. This white supremacist who says something about lesser black women also recently tweeted in support of avowed racist Chris Rufo. It was like a confluence of all sorts of things because Chris Rufo and I had worked on this proposed legislation, part of which is something similar to something FIRE just put out against diversity statements and loyalty oaths and things like this but targeting DEI structures and so forth.

And then, afterwards, yesterday, the day after the event, the Black Law Student’s Association put out a statement on Instagram. Which again, I’m not on Instagram, so it was screen shotted to me where the main attack seemed to be the argument that I was for meritocracy, meaning against the admission of black and other diverse students, even though only though only 2% of the student body was black.

None of which was part of my talk, which was about the importance of free speech on campus, but anyway.

Nico Perrino: Yeah. I guess that National Lawyers Guild letter is now no longer accessible. The response from the administration, at least initially, seemed to be good. They were warning against disruption of the event. They said that anyone who did disrupt the event would be subject to proceedings as well as potential referral to a professional licensing authority. It was the National Review who wrote about this and had access to the letter and one of the things the letter said was, “We recognize that prohibiting Shapiro from speaking in our law school in some ways plays into his hand. In fact, his proposed speech is about the alleged silencing of conservative academics.”

And then the National Review goes on to say, “The alleged silencing. Huh. I wonder how conservatives got that crazy idea in to their heads.”

Ilya Shapiro: Yeah. They’re almost self-aware. Almost. You’re almost there, buddy. You know. Yeah.

Nico Perrino: But you had a tweet thread today about some of the rigmarole that the student organizers, in this case...

Ilya Shapiro: That is the real thing. So. Yeah. The university made it that my event went off without disruption. So, that’s good. But we talked about the ‘free speech zones’, the regulation of signs and other non-disruptive protest. But to get there, the student organizers had to jump though a lot of hoops.

Nico Perrino: Yeah.

Ilya Shapiro: A lot of emails. A lot of meetings, including this past Sunday with the Vice Chancellor of the whole university who was none too pleased that they had invited me. So, clearly it’s a chill on any organization that wants to invite a so-called ‘controversial speaker’. It’s not so much a chill on the speaker, per se. I mean, you know, I’d rather not have to walk a gauntlet and be escorted by security everywhere, it’s kind of annoying. I mean, it’s kind of a neat war story to tell with your friends over drinks later, I suppose.

But it’s a bit of a headache but not enough to dissuade me from going places where I’m invited to speak. But for the students who are there before, during, and after, and have to live with this stuff. You know? At the margins, students are simply gonna say, “It’s not worth the hassle. I’m not gonna invite someone like that.”

Nico Perrino: Yeah. It’s a tax on controversial speech. I mean, it’s a speech tax and can you really blame students who decide that “If I’m gonna have to go through this every time I invite someone that people on the other side disagree with and don’t like, is it worth it? I’ve got other shit I can spend my time on.” Right? So, it creates a chilling effect. And it’s a chilling effect that isn’t often seen. Because, you know, the decision not to host someone doesn’t create headlines unless, of course, they were invited and then subsequently dis-invited.

Ilya Shapiro: Yeah.

Nico Perrino: But, like, most of the time, those decisions, because people don’t want to deal with the hassle and the bureaucratic and, sort of, mob-tactics that seek to shut it down, you just don’t hear about this. You know, I think my colleagues in FIRE’s campus rights advocacy department, after seeing your tweet, are trying to figure out what was going on there and what was this burden that was added to these students after they invited you to speak. So, we might have more to say on that front. But boy. It’s tough.

Speaking to, kind of, the substance of what you were talking about at the University of Denver while we’ve got just a few more minutes here, what are you seeing in law schools? We’ve heard about the stuff happening at Yale, for example. But what’s going on there? What’s the chill you are seeing that concerns you most?

Ilya Shapiro: Self-censorship. It’s the conversations that don’t happen. Both professors and students feel they can’t talk about certain things. And this day and age, that means as much on the student listserv and social media as it does in person, in class. Anyone who, kind of, deviates from a fairly rigid orthodoxy, you know, the Overton window, they’re kind of moved to the left and narrowed. Anyone who says anything is immediately slapped down. There are social consequences. You know, there’s the student culture aspect of it on top of administration things.

And a lot of administrations, you know, aren’t heavy-handed like Yale or allowing disruptions like at Hastings. Hastings has since changed their policies, although their policies seemed to be pretty clear even when I was there. I don’t know with the new policies, how exactly it’s going to be different, other than it needs to be enforced.

But just the fundamental thing is that deans, leaders, have abandoned the idea of instilling a culture of speech and process and, kind of, classical liberal values. Law school deans are very good at imbuing whatever the mission statement of the institution is. Whether its public service, inclusion, service to the needy, being officers of the court, whatever they want to instill – they’re good at doing that. And free speech and civil discourse used to be those.

Excellence. But now, we learned from Stanford that excellence is code for white supremacy or something like that.

Nico Perrino: Yeah. You’re affirming to their hate-speech guidelines. I forget what they actually call it.

Ilya Shapiro: Yeah. Yeah. And the thing is, it’s not that Bill Treanor at Georgetown or Heather Gerken at Yale or Bruce Smith at the University of Denver, they’re not social justice warriors. They’re not woke radicals. But the squeaky wheel gets the grease. And as you said, they try to please everybody and all to often, get that wrong and never please anybody. On the other hand, the University of Chicago is a good example. Both the president and the dean of the law school are pretty good at saying, “Look, we’re not the speech police. We’re not getting involved. You don’t like what someone says - the professor, the invited speaker, your classmate, whatever, take it elsewhere. We’re not going to adjudicate these disputes about who said what to whom and who’s offended and all of that.

That’s the only way to, kind of, lower the heat on these kinds of battles. The only way to win is not to play, to invoke WarGames from 40 years ago, I think at this point. Classic Gen-X movie.

Nico Perrino: Yeah. We’ve seen that play out before when leaders take a firm stand on principle against this sort of behavior. It usually dissipates. The classic example for me is University of the Arts, where students were trying to get Camille Paglia fired and the university said, “Not now. Not at U Arts. We’re a school for art. And free artistic expression is in our bones. And the idea that we are going to cancel speak because we don’t like their ideas is just ridiculous at U Arts. So, we’re not gonna do it.”

Well, Ilya, I’ll leave it there. I do hope that some of our listeners will come and see you, for your third trip to New York, in a year, at our gala on April 18th. We’ve already sold a couple hundred tickets but I believe some more still remain. So, if you want to hear Ilya speak alongside Killer Mike and Nadine Strossen. I think FIRE’s gala is the only place that you’ll see a line up like that. You can head over to website at thefire.org.

Ilya Shapiro: I have collaborated with one of Killer Mike’s lawyers, though, who is a First Amendment professor at the University of Richmond. Erik Nielson, I think his name is.

Nico Perrino: Yeah. I’ve had him on the Pod. He did Rap on Trial.

Ilya Shapiro: There you go.

Nico Perrino: Yeah. He’s a pretty good speaker on free speech issues, particularly in relation to rap. So, Ilya, thanks for coming on the show.

Ilya Shapiro: My pleasure.

Nico Perrino: This podcast was hosted and produced by me, Nico Perrino, and edited by my colleagues Ella Ross and Aaron Reese. To learn more about “So To Speak”, you can subscribe to our YouTube channel which is linked in the show notes, as well as follow us on Twitter or Instagram by searching for the handle “Free Speech Talk”. We’re also on Facebook at Facebook.com/SoToSpeakPodcast. We take email feedback at sotospeak@thefire.org and 5-Star reviews help get more listeners to the show. You can leave us a review on Apple Podcasts, Google Play, or wherever else you get your podcasts. And until next time, I thank you all for listening.