So to Speak podcast transcript: 'Can free speech be progressive?'

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

Nico Perrino: Welcome back to So to Speak: The Free Speech Podcast, where every other week, we take an uncensored look at the world of free expression through personal stories and candid conversations. I am your host, Nico Perrino. And, our conversation today is with Louis Michael Seidman. He is the Carmack Waterhouse professor of Constitutional Law at Georgetown Law. And, he is the author of the much-discussed Columbia Law Review article, which will be the focus of this conversation, Can free Speech Be Progressive? Professor Seidman, thanks for taking the time to share with me today.

Louis Michael Seidman: It’s my pleasure.

Nico: In the first sentence of your article, you clearly state that no, free speech cannot be progressive. To get us started, can you kind of give us an executive summary of why that is?

Louis: Sure, maybe I should start by introducing some qualifications. I’m not saying that free speech can never be used for progressive purposes. There are individual clients out there that lawyers have who are progressives who maybe can use a free speech argument to get their way on occasion. I’m also not saying that free speech is bad or that we ought not to have free speech. There are a lot of arguments that don’t rest on progressive premises for freedom of speech. What I am saying is that it’s a mistake to think that free speech can systematically be used to advance a progressive program. In fact, I’m saying something the opposite.

That as a systematic matter, not in individual cases, free speech tends to promote nonprogressive ends. And, there are a lot of reasons. But, the underlying reason is really pretty simple. And, that is that in order to speak – and especially in order to speak effectively, you need property. And, progressives are in favor of redistribution of property in a fairer fashion. Redistribution of property inevitably involves redistribution of speech opportunities. Therefore, there is a tension that interestingly, progressives in the beginning of the last century really recognized between free speech protection and property redistribution.

Nico: Your former colleague, David Cole, who’s now at the ACLU – although I believe he still has an appointment here at Georgetown – said that this sort of argument about property rights and those who have more property have more access to speech vehicles proves too much. His argument is that the more property or wealth one has, the better defense attorneys you can hire, for example, the easier it is to gain access to birth control. You can buy guns if you’re a believer in the Second Amendment, you can travel more freely. You can start your own business and better protect your privacy. Isn’t that the protection of every right that we value in our Bill of Rights?

Louis: Well, I don’t know whether it proves too much or proves just the right amount. We’re talking about free speech. And, I don’t want to over-generalize because I’ve bitten off enough with just talking about the free speech right. But, I do think it’s generally true that it’s going to be very difficult to have an effective rights regime with respect to anything in a society where there is so much inequality and the amount of wealth people have and the amount of property they own. So, yes, this applies to other rights as well.

I think what is especially striking through with regard to free speech is that the Supreme Court has now figured out that there is this relationship between government regulation on the one hand, regulation of wealth and power, and free speech on the other. And, that’s why in recent years to use Just Kagan’s expression that the court has weaponized the First Amendment and turned it into a powerful argument for deregulation. My point about that is that as unfortunate as it is, it’s not completely indefensible as a matter of free speech law because free speech is associated with property ownership.

Nico: What are some of those examples that the Supreme Court has taken recently in sort of breaking down that barrier between property rights and free speech? I’m assuming you’re thinking of the Janus case, some of the campaign finance cases of the past 10 ten years.

Louis: Well, you’ve got it. But, it goes beyond that. For example, the court has limited the ability of the government to regulate cigarette advertising or to regulate doctors disclosing confidential information about their patients or to regulate the way prices are stated by merchants. This is a growth industry. The truth of the matter is that almost all government regulation of the market involves some expressive aspect to it. For example, think of securities law and misrepresentation of the value of securities. That has an expressive aspect.

If you go back to things like the Lochner case about whether the government can impose maximum hour and minimum wage laws, one could imagine a merchant saying by doing that, I’m expressing my views about the way capitalism ought to function. If you take a really expansive view of freedom of speech, then you also are taking an expansive view of immunity from government regulation more generally. Of course, somebody could take a narrower view of free speech, and then it’s less of a problem. But, that’s just because you’ve taken a narrower view of free speech.

Nico: And, you have a little bit of a history lesson in your article. You look at how the First Amendment has been interpreted for the past 250 years since it was passed. And, you say that there has in history or maybe the story of America is the story of a narrower interpretation of free speech that has gradually expanded. Do you think there was a point in which the government ever interpreted free speech protections correctly? For example, do you believe in the 1970s that was the golden age of First Amendment jurisprudence, and it’s just expanded beyond its original intended scope since then?

Louis: Now we get into views I have that are really radical. You haven’t heard anything yet. I just hope people can bracket what I’m about to say and not treat me as a raving maniac and disregard everything else. As a general matter, I think it is a mistake to view us as bound by constitutional language or to treat issues about freedom of speech or anything else as a matter of interpretation of the Constitution. I think that gets in the way of thinking in a serious way about what’s best as a matter of public policy and instead gets us embedded in essentially irrelevant questions about interpreting the language that was written 200 years ago by people who knew nothing about our present circumstances.

That’s a more general view. Just in terms of the history of the free speech clause, I think it provides much less solace for progressives than people normally think it does. The fact of the matter really is that up until the First World War, there was no free speech protection. And, governments on a regular basis went after radicals of all kinds. There was essentially no Supreme Court protection for them under the First Amendment and very little protection in the lower courts. The pivot point is usually treated as World War I and the great dissenting opinions by Holmes and Brandeis, which for the first time set out in very eloquent terms a theory for free expression.

.What’s largely ignored is that those opinions were dissents. And, that indeed both Holmes and Brandeis themselves voted to uphold long prison sentences for individuals who criticized World War I. It wasn’t until after the emergency passed when progressives had much less need for a First Amendment that the court began to actually reverse convictions on First Amendment grounds. And, we had a repeat of the same story during the McCarthy period, when the First Amendment was really needed to protect political radicals; the court caved. It most famously upheld long prison sentences for members of the Communist Party simply for advocating Communist doctrine.

And, by doing so, those opinions were joined by progressives like Justice Frankfurter. Again, it wasn’t until the late ’50s when McCarthyism was no longer an important force that the court began to provide some protections. There was a kind of golden age during the Warren period where there was First Amendment protection accorded to civil rights demonstrators and anti-war demonstrators. Even then though, the protection was very limited. And, the court went out of its way, for example, not to provide protection for people in the labor movement. In any event, the Warren period was a very short period in American history.

After it passed, the protection for progressives waned. And, today, the valance of the First Amendment is entirely flipped. It is mostly being used by anti-progressive forces to stymie government regulation.

Nico: I guess as a definitional matter, we should probably talk about what you mean when you say progressive. I think you’ve kind of suggested it already insofar as the government takes a proactive role in redistributing wealth so that there’s more economic equality. What else is under the progressive program that free speech doesn’t proactively protect?

Louis: The definition of progressive is contested. But, just by stipulation, what I am referring to is people who don’t automatically trust market outcomes and believe that government has a role to play in regulating the market and redistributing wealth and in dismantling unjust hierarchies of power based on things like race or LGBT status or gender.

Nico: So, it’s more of a positive rights approach than the negative rights approach that our Constitution often takes. For me, a lot of this boils down to sort of that philosophical conception of what the government should and shouldn’t do. In particular, libertarians think the government should have a role in protecting negative rights. Progressives think that they should take that more proactive role. And, you give a couple of examples in here how this actually shapes out in the free speech debate. You say if homophobic religious fanatics add to the pain of grieving friends and relatives at a military funeral, the mourners have no legal recourse.

But, if the government tries to prevent infliction of this harm, the fanatics can invoke judicial process to enforce their rights and that negative approach that the government cannot step in, in the case of private action on another private individual. And, you all similarly say if Facebook takes down posts expressing political views it dislikes, that action is a manifestation of freedom. And, the government’s decision to do nothing about it raises no free speech concerns. But, if the government intervenes to force Facebook to provide fair speech opportunities to all, that action is coercive.

And, there is at least that First Amendment problem and maybe a First Amendment violation. You continue to say progressives think the government has a duty to act affirmatively to counterbalance private power and correct for the unfairness of market allocations. So, do you conceptualize this in a negative rights/positive rights framework?

Louis: Thank you for bringing that up. That’s really very useful. And, I think it ties it to a broader contradiction in the progressive program. And, indeed, this is a contradiction that early progressives saw. People like the early John Dewey saw this. I think Felix Frankfurter saw it. Let me start with the conservative stance. When general conservatives think through some sort of invisible hand process, unfettered markets, just people buying and selling without government intervention, that that’s going to produce justice.

If markets produce a situation where some people are poor and some people are rich and some people live longer and some people have short and miserable lives and because that’s produced in the absence of government, that somehow is definitionally fair. Progressives reject that. They say there’s nothing magic about markets. Yes, controlling markets involves public power. But, if you don’t control them, you have private power. And, private power can also limit liberty. That’s a central tenet that progressives have. When the government doesn’t impose a minimum wage, that doesn’t leave workers free to decide what wage they’re going to get.

It just puts them at the mercy of employers who use market power to dictate how much they get. Okay, so if progressives think that’s true about everything else, why on earth do they think it’s not true about speech? Why do they think that the allocation of speech opportunities is going to be fair just because it’s what the market provides? Speech opportunities are like economic opportunities. Markets don’t necessarily produce fair results. And, by the progressives own logic, one might think the government would have a role to play in reallocating speech opportunities. To put it another way, sometimes when the government intervenes, it doesn’t make people less free, it makes them more free.

That was true, for example, with the 1964 Civil Rights Act that made black Americans more free to travel in the South without being subjected to private coercion by store owners who wouldn’t serve them. It might be true by government intervention that, for example, broke up Facebook and prevented Facebook from coercing people by taking down what they say from their platforms.

Nico: But, could you still be a progressive but not an absolute progressive? And, that is to say, that most of the time, it’s a good thing when the government intervenes. But, sometimes, the pill you’re taking is more than you bargained for. And, you kind of predicted this in your article. You predict these arguments. You say that if we take seriously the argument that the political branches are likely to be controlled by the enemy of progressives, we risk impeaching the progressive position more generally. The enemies of progressivism are more likely to win elections, then progressives should also want to shield property entitlements from political interference.

A reactionary state that suppresses progressive speech will also redistribute property in the wrong direction. As flawed as markets are, they are better off than this alternative. To be clear, the worry about reactionary government may be justified. But, you say that if that’s the case, then progressivism itself should be rejected. We live in the age of Donald Trump. I think it’s fair to say that he’s no friend of the progressive cause. When I talk to progressives of “the old school,” I think of Ira Glasser. He talks about free speech being an insurance policy. He thinks of censorship as poison gas. It might make sense when the enemy’s in the crosshairs and the wind’s blowing in your direction.

But, the wind has a way of shifting. And, you could be nipped in the bud by your political enemies. I mean, can a true progressive say yes, most times this is the case where the government can get involved here. But, in freedom of speech, the risk of the wrong sort of political regime is too great.

Louis: My view is essentially a pragmatic one where the government is in the control of the right people and where it’s engaged in progressive redistribution, then one ought to favor what the government’s doing. And, that’s true with regard to property rights. And, it’s true with regard to speech rights. When the government is in control of the wrong people, for example, when it’s redistributing property in favor of rich people and redistributing speech opportunities in favor of rich people, then we ought to oppose that. My commitment is to progressivism and not to free speech, not to property rights but to progessive regulation of both of those.

Nico: Would that exist within a democratic framework?

Louis: Sure.

Nico: Then you would almost have to accept the idea that there could be a government that is the enemy of certain progressive causes unless you structure a constitutional framework, which has strong protections for those progressive causes.

Louis: Yes, what I don’t understand is the inconsistency that progressives demonstrate in their treatment of property rights and speech rights. The Tump administration could just close down The Washington Post. And, that would raise First Amendment concerns. But, they could accomplish the same thing by just taking away all of Jeff Bezos’s money. And, that would involve property rights. For somebody like Ira Glasser, I’m not sure why he thinks we need this insurance policy for free speech rights but not for property rights. The truth of the matter is any government regulation, whether or speech or property can be abused.

And, when it’s abused, progressives stand against it. But, that’s not a reason for standing against it when it’s not abused and when it’s being used for progressive causes.

Nico: So, you could accept a situation where there is a nonprogressive in office who is violating or is censoring progressive causes just on the principle that if we are progressive, we need to allow the government the authority to do this sort of thing. You would oppose it normatively. But, as a structural constitutional matter, you’d say yeah, they can do this. We just need to win at the ballot box.

Louis: Here we get again to my more radical views about this. The problem is not just about the First Amendment. The problem is about the Constitution as a whole. And, I don’t think that the resort to constitutional law is a good way of advancing progressive causes. And, I think the notion that one would limit current majorities because of some very crazy ideas people had 200 or 250 years ago about a country that bore no resemblance to the country we live in now. The notion that that should control us requires some defense. And, I haven’t heard an adequate defense for it.

Nico: You say in the article that you’re kind of agnostic about the various free speech arguments and justification of the First Amendment. You say free speech theories premised on the search for truth, developmental of moral community, dignity, popular sovereignty, intellectual humility or tolerance might be convincing on their own terms. But, you say you’re agnostic about that.

It sounds like from what you just said that you’re kind of agnostic about the negative rights framework that protects a lot of what we consider individual rights more generally in the sense that they are kind of the antithesis of democracy or the popular vote in that it protects the minority of one against a majority that might seek to violate these sorts of rights. Is that a fair characterization of kinda what you’re getting at here?

Louis: Well, I don’t think it’s quite. But, one has to hold and reserve the possibility that what I’m getting at is completely incoherent. And, it may be talking to you for 45 minutes that will demonstrate that to everybody’s satisfaction, in which case, I won’t be so happy to have been on your program.

Nico: Maybe this is a failure of my creativity to imagine this. I can’t imagine a regime in which you seed all authority to a majority in which we could always count on individual rights to be protected. And, that’s kind of why you set up a Democratic-Republican framework where most things are decided by democracy but limited by what we conceptualize as these various individual rights. I guess one way to ask the question is where has this sort of framework worked before?

Louis: Just to answer that question before going into more detail, places, where it has worked is the United Kingdom.

Nico: That still doesn’t have a written constitution.

Louis: Right, and last time I looked, those were not dictatorial regimes. There wasn’t rioting in the streets. I mean, Brexit is pretty bad. I don’t think that’s because they don’t have a written constitution. So, of course, it works. I do just wanna clarify some things here. There are arguments available, that some might appropriately function as side constraints on progressivism for why free speech is a good thing. In general, I think if people have things on their mind, they ought to be able to say them. And, one can develop sophisticated theories about that. But, that’s an intuition I have. It’s just that these are in the end, for me, essentially pragmatic and public policy questions.

There’s something to be said for Medicare for all. There’s something to be said for letting people engage in hate speech. There’s a column in the Times today by David Brooks saying Medicare for all might be good in theory. But, if you actually try to put it into place, it might produce disaster. One could imagine that hate-speech regulations as a practical matter wouldn’t work very well. But, I think it really gets in the way when one starts instead of thinking about speech that way and one starts to quote James Madison and John Peter Zenger, and this is what the framers thought and all of that stuff.

Nico: It’s a circular argument. You say that free speech is good because the First Amendment says so without actually making the proactive argument for why the First Amendment is a good thing. And, you talk about this in your article.

Louis: That’s right. If one believes in free speech, then we’re gonna have free speech about free speech. And, there ought to be a vibrant discussion about the virtues of free speech in various circumstances. The trouble with constitutional law is it tends to cut the discussion off. When you say there’s a First Amendment right to do this, what you’re saying, in essence, is, I don’t have to give you a reason why I think it’s a good thing to do it because the Constitution just trumps all of that. You just say you can’t do it because it’s unconstitutional.

Nico: Don’t you kinda get that in the common law framework sometimes? I mean, you have the discussion. But, at some point, you need to decide whether this speaker is allowed to say this. At that point, it’s –

Louis: Well, who is the you?

Nico: Well, for example, if I am criticizing the government’s position on Brexit and people are arguing XYZ or reasons why that should be censored as they have in the past when people criticize government, shouldn’t there be some sort of framework to –

Louis: You mean a judge?

Nico: Yeah, a judge. That’s the point at which you have to make a decision about what’s tolerable in society in the same way you do with the Constitution.

Louis: Judges decide cases. I’m not arguing about that. The question is the basis on which they decide them. And, when they say something is unconstitutional, then there are really only two ways you can respond. You can say no, it’s not unconstitutional. Maybe that’s what the dissenting judges say. If you say that, then you go down this rabbit hole of really relevant kinds of arguments about the Alien and Sedition Acts 200 years ago and about whether free speech was meant by James Madison to go beyond prior restraint and about the relationship between the 1688 Bill of Rights in England. It’s all sorts of stuff that just has nothing to do with the world we live in.

That’s one option. The other option, in theory, is you could say well, okay, it’s unconstitutional. But, I don’t believe in obeying the Constitution. And, if you say that in current American political culture, you’re completely discredited. That’s very different from when a judge says well, I think this ought not to be allowed because if it is allowed, it’s going to cut off more speech. Or, it’s going to lead to the election being polluted or something like that. We can now actually have an argument. I can say well, here are the facts. This speech actually is not gonna have the bad effect you say it’s gonna have.

Nico: So, you would weigh the costs and benefits in each given case rather than look to what the Constitution allows for or doesn’t allow for.

Louis: If I could just make one other point, not only does it lead us to talk about the things we ought to be talking about, it also lowers the temperature. If you say something is unconstitutional that I favor, what you are saying to me is you are willing to disregard our foundational document. You’re not a real American. You’re in favor of something that’s unconstitutional. You see this in public debate all the time. We can’t really talk about that. We can talk about facts in the world. If you say Donald Trump is acting unconstitutionally because he just doesn’t understand the separation of powers, that’s something that really gets people angry.

If you’re saying the border wall’s really a mistake because most of the immigrants, most of the illegal drugs are coming through checkpoints and not where the wall’s gonna be built, that’s a fact in the world at least until recently. People could argue about those sorts of things without losing their temper quite as much.

Nico: I’m able to agree with you that constitutionalizing the right to free speech or any individual right for that matter is a fool’s errand. Why it might be helpful in any particular instance, it doesn’t create the robust culture of the protection of those individual rights that we seek to advance. This goes back to Judge Learned Hand talking about how we place too much faith in the Constitution. But, when it dies in the hearts of men, then no constitution can favor it.

I’m just trying to wrap my head around how a situation such as you propose where you’re weighing the costs and benefits of any given government action, it wouldn’t just be subject to the whims of an individual judge or an individual panel of judges. Would there be any role for precedent to play in this sort of analysis?

Louis: Sure, again you might think about the United Kingdom. They don’t have a written constitution. But, it doesn’t follow from that every time an issue comes up, they reconsider it. There’s a lot of inertial pressure. There’s just ways that we’ve done things for a long time. There are people that are risk-averse at changing things. In theory, the United Kingdom could change the date on which parliamentary elections occur. It might not be that every five years there has to be a new parliament. In practice, people don’t much argue about those things because it’s the way we’ve done things. And, unless somebody presents a good reason for not doing it that way, then we continue to do it that way.

Nico: You were talking earlier about kind of the two approaches you can take when you’re looking at a constitutional argument. You can say yes, this is constitutional or this isn’t constitutional. Or, you could just ignore the Constitution. You were talking earlier about that apocryphal line from Andrew Jackson when the Supreme Court rendered a judgment against him. And, he said okay, let them enforce it. That’s kind of my broader worry about the constitutional framework. Again, this goes back to Learned Hand. If there is no respect for that constitutional framework, then there’s no means for enforcing it.

Any scholar of the late Roman Republic will recognize that one of the big reasons for its downfall is yes, they had laws, but they had no way to enforce them.

Louis: Let’s get back to free speech. And, let’s get back to our history. It turns out that when we’ve really needed the Constitution, it hasn’t done much good. In periods where there was popular revulsion against minorities, neither the Constitution nor the judges did much about it.

Nico: But, you can see it in the civil rights era. There was some of this in the gay rights movement. There was the one decision, for example, that prohibited the government from censoring distribution of homosexual literature through the mail. There have been instances.

Louis: There have been isolated instances. It’s really a big mistake to blow those out of proportion. Over the sweep of our history, the Constitution and the Supreme Court’s enforcement of the Constitution has really remarkably little to do with the level of civil liberties protection. In a way, that shouldn’t be a surprise. I mean, the Constitution is located about a mile from where we’re speaking now. It’s in the National Archives. It’s safely in a glass case. It doesn’t command any troops. It doesn’t do anything. It’s just a piece of paper.

Nico: It’s an article of faith in the sentence.

Louis: It’s an article of faith that people have. But, I think the faith is really misplaced because when you have a tyrant who wants to suppress the rights of people, somebody like that’s not gonna be stopped by a piece of paper.

Nico: I don’t want to get too esoteric here. Isn’t much of how we construct a society in an article of faith? The $10.00 in my wallet is an article of faith that actually means something to the person I’m going to give it to. So, don’t you need those?

Louis: Yes, you need people to have basic faith in the system. But, that leads to the question of what actually holds the country together. Here is where I think things get really worrisome because I think what holds the country together is not a piece of paper written 250 years ago that has very little relevance to our modern situation. It’s a sense that we are all in this together; that we sink or swim together. It’s a kind of vague sense of tolerance of the fact that we have differences and that there are other people we inhabit this country with.

It’s a set of nonconstitutional norms about restraints on power that come in part from the fact that you know you’re not always gonna be in power and in part just from regard for other human beings and a sense that we are all Americans. And, that’s what’s really eroding. That’s what we can see before our eyes kind of falling apart.

Nico: And, that’s why during times of war, for example, nationalism goes up. Support for the national government goes up. People put their flags up. That might not be the time in which you want people to come together. But, it seems to be the time in which they do because there’s this shared cause or this shared set of values that are privileged at that time.

Louis: I guess what I find disturbing is we’re not at a time of war, but even in times of peace, in the past, there has been –

Nico: The space race, for example.

Louis: Well, I would say even in completely normal times, we have had a kind of glue that’s held us together with what Lincoln called the mystic chords of memory – a sense of shared identity. And, in the era of Trump – although, I think it began before Trump – that has started to erode.

Nico: Would you have to reshape our identity in order for the progressive framework that you privilege and that you think would be most beneficial to society for that sort of thing to work? Our sense of national identity right now is kind of wrapped around this negative-rights framework of the Constitution.

Louis: Well, I don’t know that that’s true. At least it hasn’t been true for all of our history. Franklin Roosevelt proposed the Four Freedoms in a new Bill of Rights. Those were positive rights.

Nico: Freedom from fear, freedom from want.
Louis: The 1964 Civil Rights Act, which is effectively part of our Constitution even though not formally guarantees positive rights. It guarantees the right of African Americans not to be discriminated against by places of public accommodation. Social Security and the minimum wage are all positive rights. It’s not that our political culture is uniformly hostile to positive rights. It’s that constitutional rhetoric tends to be.

Nico: So, you and I were talking before we went live with this podcast about why this article got so much attention. And, I said I had a theory that I wanted to pose it to you. And, that theory is that for a lot of people, the word progressive is associated with a good ideology. So, progressivism equals good. And, if free speech does not equal progressive, then free speech does not equal good. To me, it’s kind of a misuse of the transitive property. But, I think that’s how a lot of people have interpreted it. I believe – and correct me if I’m wrong – your article was written for a progressive audience who still has faith in the free speech clause of the First Amendment.

Do you think people have interpreted it that way and kind of put the word good in place of progressive when reading your title can free speech be good?

Louis: First of all, let me just correct a misimpression you have. The reason the article’s gotten so much attention is because it is a great work of scholarship. I have to honestly say that I’m not used to my work getting much attention. About 10 or 15 years ago, my father passed away. And, I was sad for many reasons. But, among the reasons was because I’d lost my only reader. So, I’m not used to it getting this much attention. But, if people think that what I’m saying because progressivism is good and because free speech is not progressive, therefore, free speech is bad; that is a misinterpretation. There are a lot of reasons why one might favor freedom of speech that are not rooted in progressivism.

And, one can be a progressive and still believe that there are side constraints on the pursuit of progressive goals. And, freedom of speech might be such a side constraint. What I would say the thesis of the article is, is that if you think free speech is good because it’s progressive, then you need to rethink that. But, even if it’s not good for that reason, it might be good for other reasons.

Nico: You argue that modern First Amendment law makes progressive political victories much more difficult and often impossible. Have the 2018 midterms kind of changed your opinion on that? I think about people like Alexandria Ocasio-Cortez, who defeated a very powerful democratic incumbent. Bernie Sanders almost took down Hillary Clinton. In this sense, money doesn’t have as much to play if the message that that money supports doesn’t resonate with the voters. Jeb Bush had a lot more money than Donal Trump had for the campaign. I think back to some other big upsets during the Tea Party era, which underfunded candidates defeated incumbent candidates based in part – at least I’d suspect – on their message.

Louis: I think what I’d say about that is yes, I am much more optimistic about things than I was before the elections.

Nico: We should say your article came out in 2018.

Louis: It came out before November of 2018. Things to some extent are looking up. But, I do think if one takes a longer view of being a progressive and being on the left is always gonna be an uphill fight. It’s always gonna be the case that you’re fighting against long odds. The chances of victories are temporary, and each one has to be struggled over. And, that is because the basic claim that progressives make is that social power is unfairly distributed. If that’s the claim they’re making, then it follows from that claim that social power is gonna be a raid against progressive causes. That doesn’t mean that victories are impossible.

There’ve been times in our country where progressives have prevailed. But, here’s the real key point. They haven’t prevailed because of the Supreme Court and the Constitution. They prevailed because people were willing to do the really hard work of organizing because they got really angry because they put their freedom and life on the line sometimes and because they acted as role models for other Americans. It wasn’t because the Supreme Court came and bailed them out. It wasn’t because some piece of paper written 250 years ago commanded that they win. They prevailed because they convinced people.

Nico: I wanna explore two more arguments that you present in this paper that I think is really fascinating. This first one gets at kind of how we could redefine property rights to become more progressive. You used Boy Scouts of America v. Dale as an example of how this can be done. And, I don’t know that I’ve ever heard this before. This was an interesting thought experiment for me. You write in relation to Boy Scouts of America v. Dale that state and anti-discrimination law prohibited the Boy Scouts from excluding individuals from the organization because of their sexual orientation.

The Boy Scouts claimed that the law violated their right to expressive association by requiring them to endorse a lifestyle they opposed. But, this argument depended on the unstated assumption that the Boy Scouts were owned by an organization called the Boy Scouts of America. Suppose though that one treated the anti-discrimination statute as adjusting this property claim. So, you presented one argument in your paper that I found incredibly fascinating and novel and something I hadn’t heard before. And, it’s in relation to Boy Scouts of America v. Dale and how we might be able to redefine property rights to be more progressive.

You write that state anti-discrimination law prohibited the Boy Scouts from excluding individuals from the organization because of their sexual orientation. The Boy Scouts claimed that the law violated their right to expressive association by requiring them to endorse a lifestyle they opposed. But, this argument depended on the unstated assumption that the Boy Scouts were owned by an organization called the Boy Scouts of America. Suppose though that one treated the anti-discrimination statute as adjusting this property claim. Although the Boy Scouts of America retained most of the sticks in the bundle, the statute created a kind of nondiscrimination easement and vested that property right in people like Dale.

If Dale had the entitlement in the first place, then the free speech rights cut the other way. The Boy Scouts would be violating Dale’s speech rights by utilizing his property to advance their ideological ends. So, is that a novel argument to this paper? Or, is that kind of an argument that’s been made in progressive circles that you create sort of property rights that go in the other direction from the individuals and away from the association?

Louis: Pardon me if I get a little esoteric here. But, this is tied to kind of a broader development in constitutional law. With the New Deal, when progressives gained control of the Supreme Court, there was a kind of constitutional settlement that was reached. And, speaking in very broad terms and somewhat simplistically, the settlement was civil liberty rights are fixed and can’t be changed. But, property rights are contingent and can be changed by the government. So, free speech is protected; property rights are not. The government can transfer property from one person to another, redistribute progressive taxation and so on. The point of the Dale example is that settlement ultimately doesn’t work.

And, the reason it doesn’t work is because free speech rights are parasitic on property rights. So, if you can switch property rights, you can also switch free speech rights. We might think about who owns the Boy Scouts of America. If the ownership of the Boy Scouts – after all a kind of property right – could be redistributed by the government – if the government can say no, it’s not owned by this corporation. It’s owned by maybe the individual boy scouts, then that changes the free speech right. Now, the owner of the property – that is to say, the Boy Scouts or Mr. Dale is asserting a free speech right. And, it’s the Boy Scouts of America that are getting in the way of the free speech right.

Nico: And, that speech right might not be progressive. Dale might have a nonprogressive approach.

Louis: He might. But, the basic point is that this progressive solution to the problem doesn’t work. And, it’s not working as implications that I think are very unsettling. Let’s not talk about the Boy Scouts of America. Let’s talk about The New York Times. Suppose the government comes along and says just as a property right matter, Arthur Sulzberger thought he owned The New York Times. But, he actually doesn’t. The New York Times is owned by its readers. And, we’re gonna transfer that property. Maybe we’ll give him just compensation or something. But, we’re just gonna transfer the property right to the readers.

Well, then The New York Times doesn’t have what we think of as freedom of the press anymore. They don’t have the right to not publish some story that some reader wants published. This solution doesn’t work. Now, if it doesn’t work, there are two ways to get around the problem. You could fix property rights. That’s what libertarians want. And, by the way, libertarians regularly make this argument. So, no, it’s not original with me. It’s people on the far right have made it for a long time. You can’t have free speech without free property. So, we could become libertarians and fix property rights.

If you don’t do that, then the only other alternative is to make speech rights contingent. And, that’s, of course, what progressives don’t want. But, I don’t see a way of avoiding it if you’re going to have property rights up for grabs the way progressives want them up for grabs.

Nico: I wanna close out here by asking you about one critique of your article, which could be that social media has democratized speech in a way that couldn’t have been conceived of 30 years ago. And, you address this and say one might suppose that this democratization of speech breaks the link between wealth and speech opportunities. In fact, though, the change exacerbates rather than diminishes the difficulty for progressives. In a world where there is too much speech, people need a filter. My question is what if that filter becomes the government?

We look at what happened in the Arab Spring back in 2011 or so when Egypt was filtering out sort of that revolutionary speech – arguing, of course, that it was bad. What do you make of that sort of argument?

Louis: There’s no question that governments can be too tyrannical. One of the ways they’re tyrannical is by controlling speech. The fundamental point that progressives make is that private forces can be tyrannical also. Suppose Facebook was made a public entity. The government might use its power to filter out speech it didn’t like. But, as things stand now, Facebook has the power to filter out speech it doesn’t like. And, there is one difference between Facebook and government. Nobody ever elected Mark Zuckerberg to anything. But, our government is subject to elections.

If Facebook were a public entity and people didn’t like what the government was doing, at least in theory, they could elect a new government. At least that is the position progressives have traditionally taken about government regulation. I guess I wanna close where I started. I think if my article does anything, it creates a kind of tension that progressives need to think about between their positions on property redistribution and their positions on speech redistribution.

Nico: But, you also have a nonproperty-related argument against the position or the idea that social media has democratized speech. You right that the First Amendment Doctrine is dominated by obsession with government restrictions on speech and with government interference with listener autonomy, which you just spoke to. But, you say it’s ill-equipped to deal with a world where there’s too much speech and where listener autonomy makes real conversations impossible. What do you mean there?

Louis: I’m not original in thinking this. There is a problem with siloing.

Nico: Tim Wu talks about this sort of thing.

Louis: That’s right. Perhaps more than in the past, people are subjected to only speech that they’re inclined to agree with in the first place. I am old enough to remember when the national conversation about politics was dominated by the three networks. Those networks filtered out speech. And, people on the far left and the far right simply didn’t get a fair shot. But, they filtered out speech much less than the narrowcasting that goes on now.

Nico: They had the fairness doctrine back then, right.

Louis: There was the fairness doctrine. It wasn’t all that effective.

Nico: Like you said, it filtered out the far right and the far left.

Louis: I think it’s correct to say that there was less of a problem with this narrow casting that exists now. And, our First Amendment Doctrine is not very well equipped to deal with that problem.

Nico: So, last question here. This article was probably published about a year ago at this point.

Louis: Less than that.

Nico: Have any of your opinions changed since the article was published?

Louis: My opinion since I came out of the womb never remain constant. Here is the dirty little secret. I try to write as if I have answers to these problems. And, I try to talk with a lot of confidence. The truth of the matter is I’m not sure about anything. And, all of the views I hold are held in a contingent way and subject to my being shown to be completely wrong or even just a complete idiot about it. I live in terror of that. But, it happens on a regular basis. If you wanna ask the question what produces a mature and well-functioning republic – I think without patting myself on the back too hard – I think it is an attitude like that that we hold all our views contingently, and they’re subject to revision.

Nico: Well, that’s one of the normative arguments for free speech.

Louis: That’s where the paradox comes. Free speech advocates seem to not be open to revision of their views about freedom of speech. So, that is taken just as a ground level faith that they can’t be proven wrong about. And, what I wanna do is challenge some of the certitude about that.

Nico: Are you gonna write anymore about the free speech clause of the First Amendment now that this article has gotten so much attention?

Louis: I’m working now on a project about progressive and populist views of civil liberties. And, we didn’t get to talk about this really at all. I think if you look historically at what progressives have done with free speech, they’ve often tried to protect people like themselves against mass opinion. Oddly, the free speech of the masses they think of as very threatening.

Nico: Well, that was then raison d'etre for the founding of the ACLU. You had a lot of pro-labor, anti-war activists who were being jailed. So, they came up with a reformulation of what the First Amendment should protect, right. That was a hundred years ago – 1920.

Louis: I’ve become obsessed with the Scopes Monkey trial. And, what’s really interesting about the Scopes Monkey trial involving evolution –

Nico: A teacher at an elementary school or a K-12 environment presenting arguments for evolution in Tennessee – against the law.

Louis: The ACLU participated in that case. And, the argument the ACLU made was we have to protect the free speech of this teacher to speak his mind about evolution. But, it turned out that wasn’t the ACLU’s position at all. It’s not like the ACLU thought teachers should be allowed to say anything they wanted.

Nico: For example, they wouldn’t go in and argue that it’s the First Amendment right of this teacher to teach creationism.

Louis: But, they wouldn’t say an individual teacher has a right to teach that math is the work of the devil or that the Earth is flat or that Communism is the best form of government. What the ACLU was defending was not freedom of speech. It was evolution. And, why was it defending evolution? It was defending evolution because that was the view of the kind of people who joined the ACLU. And, who were they defending it against? They were defending it against mass opinion of people who thought evolution was wrong and attacked their basic understanding of the universe.
Nico: Well, this is one of those ways when you talk about how free speech can be open and textured or is open and textured. We see this in the campus context all the time whereby you have an academic freedom right to present an argument. But, the department in which you teach also has the academic freedom to hire professors who, for example, don’t argue that the Earth is flat.

Louis: Right, there are not many creationists in biology departments.

Nico: So, Professor, I think we’ll leave it there. Thank you so much for talking with me today. And, I should add that you’ll be speaking at Brooklyn Law School in April about a hundred years or 50 years since the incitement standards were introduced.

Louis: Yes, it’s April. Thank you for your patience. This was just a lot of fun. I really appreciate you asking me.

Nico: That was Georgetown Law Professor Louis Michael Seidman. And, his article for the Columbia Law Review is entitled Can Free Speech Be Progressive? We had this conversation on Tuesday, the fifth of March at the Georgetown Law Center. So to Speak: The Free Speech Podcast is hosted, produced, and recorded by me, Nico Perrino, and edited by Aaron Reese. To learn more about So to Speak, you can follow us on Twitter at twitter.com/freespeechtalk or like us on Facebook at facebook.com/sotospeakpodcast. You can also email us feedback at sotospeak@thefire.org or call in a question for a future show at 215-315-0100.

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