‘So to Speak’ podcast transcript: 'Don't Tread on Me,' misgendering, cancel culture, and three strikes for Texas

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

Nico Perrino: This past weekend, I got a memory on Facebook that I – it was five years ago this week, I think, The Coddling of the American Mind came out.

Greg Lukianoff: Yes.

Nico Perrino: And we had recorded a podcast about that, and there was a picture from the podcast, and we were in our old office on North Capitol, which gave me some nostalgia, but five years later, you have another book coming out, Canceling the American Mind is coming out when? October –

Greg Lukianoff: October 17th.

Nico Perrino: October 17th?

Greg Lukianoff: Me and Rikki Schlott, 20-something wunderkind, and forward by John Haidt.

Nico Perrino: What’s the origin story of this?

Greg Lukianoff: Well, it’s actually kind of funny. Rikki reached out to me and John, because she dropped out of college, out of NYU in 2020, when COVID started, which I think was exactly what everyone should have done. The idea of going to school during the lockdown just seemed to miss the whole point.

But she read Coddling of the American Mind, thought it was completely correct, and she wanted to interview me about the idea that maybe COVID itself would present the kind of challenge that would give kids kind of the sense of self-efficacy that we argue that they don’t actually have, that at least ones with helicopter parents aren’t giving their kids. So, there was an idea that COVID could potentially un-coddle kids. Now, she says that – that ended up not really working.

Nico Perrino: Yeah, I was going to say, that worked out?

Greg Lukianoff: I’m a little bit more kind of, yeah, we probably don’t hear about the ones who actually rose to the challenge and were able to do that. I’m sure it’s different in every family. So, originally, she started writing for Reason Magazine, she started writing for the New York Post and a couple other places, and it was clear that she was just this exceptionally clear thinker and writer, particularly, not even just for her age, for anyone’s age.

So, she became a FIRE fellow, and we were talking about actually doing a follow up to Coddling of the American Mind together, which, having a Gen Z young woman made so much sense, because so much of Coddling is about problems suffered by Gen Z young women, with two Gen Xers, me and Haidt, writing it about it probably wouldn’t be as persuasive as actually having someone who –

Nico Perrino: And John has another book project ongoing.

Greg Lukianoff: Yes.

Nico Perrino: So, that’s why he’s not involved, although he’s writing the forward.

Greg Lukianoff: He did write the forward, yeah. And so, we were talking about writing this follow up to Coddling, but then I was watching all these people still trying to claim that cancel culture didn’t exist or nothing happened or it’s a hoax, and it’s like, okay. Given I define cancel culture as, I have a very simple definition of it, which is just an uptick of people, you know, either being threatened with or losing their jobs or being expelled or tenure professors being fired, that really started to accelerate around 2014, and really went off, completely off the rails in 2017 and after, and 2020 and 2021, just completely nuts.

The idea that there are still people saying that nothing actually happened was something like, no. That’s, part one, we have to address that, and to be clear, we talk about threats from the right and the left, but the idea that nothing happened in the last eight, five to eight years is completely insane. So, that was goal one. Goal two of it was to actually talk about this idea of rhetorical fortresses that I think they have both on the right and the left, which is to sort of situate cancel culture as being part of a way to win arguments without winning arguments, is the way to put it in the book.

That essentially, you know, if you’re having an ongoing debate about a hot button issue, you can persuade and you can marshal facts and you can have a discussion, or you can make that person terrified that to disagree will actually cost them their job, and guess which way is faster and easier in the age of Twitter? So, we try to talk about this as a larger, lousy way of arguing, and then the bottom third is talking about ways to get out of this trap that we’re in, and we talk about ways corporations can stay out of the culture war. We talk about reforms potentially for higher ed, K through 12, etc.

Nico Perrino: Much like Coddling, at the end of that book.

Greg Lukianoff: Yeah, but in Coddling, we spend just a little bit of time talking about reforms, whereas a good third of the book, in this case, is directed at reforms.

Nico Perrino: Yeah, with cancel culture, so, it was very much a part of the public conversation there for a couple years. I think 2020 might have been the peak, 2021. Do you think it’s waning a little bit? Do you think there’s a – because you have seen this counter narrative that is pushing back against cancel culture in a way that you didn’t really see, aside from the Harpers letter and some things like that, it seems like the normies, so to speak, have recognized what cancel culture is and are more skeptical of it.

Greg Lukianoff: Yeah.

Nico Perrino: Than they were, say, in 2019, 2020, 2021.

Greg Lukianoff: I feel like I’m hearing a lot of cancel culture being over, but a lot of times, it seems to be from kind of the same people who said cancel culture didn’t happen in the first place, so, it’s kind of like, cancel culture didn’t happen, and by the way, it’s over. It’s like, okay. Choose one. But for those who do actually believe something weird happened and something troubling happened, I do think that there is some common sense pushing back at the moment, but I’m not going to believe we’re in the clear until actually the 190 professors that we talk about in the book start getting their jobs back.

Some of these punishments are, and I think something like 700, 600 punishments of professors? The best data we have is actually on professors. We start seeing better results from students saying whether or not they’re afraid to talk to their friends or their professors, and I think that at every stage, and there is some hope on this one, the presidents who, there was 13 presidents who signed the letter saying that they’re going to commit to freedom of speech, but the proof needs to be in the pudding.

And right now, I feel like at every stage, and this is an argument we make in the book from K through 12 on up, there are what I call conformity inducing mechanisms. You need to actually change that to nonconformity encouraging mechanisms, if you really want to pursue truth, if you really want better ideas and innovation, and that has to start on day one, in orientation. That has to start in K through 12.

So, the idea, I think that people are saying cancel culture is over, I’ve kind of likened that to the British saying that they won the Revolutionary War because by 1785, the Americans stopped fighting. It’s like, yes, because you lost. So, I think speech is sufficiently chilled that you don’t have to burn all the witches, just enough to scare people.

Nico Perrino: Campus free speech, you’ve done it for what, over 20 years at this point?

Greg Lukianoff: Twenty-two years on October 2nd.

Nico Perrino: Yeah, I’ve done it for over 11, newbie, right? Can be a polarizing issue, but I don’t think it’s as polarizing as cancel culture, whether it actually exists. So, when you did Coddling of the American Mind, you worked campus free speech issues into this kind of broader narrative and this investigatory story about what’s happening to young people. This book more squarely focuses on cancel culture. Do you think the reviews for this book are going to be as across the board positive as they were for –

Greg Lukianoff: Oh, no.

Nico Perrino: There was like one bad review for Coddling from The Guardian, which was maybe a little predictable.

Greg Lukianoff: Yeah.

Nico Perrino: But this one –

Greg Lukianoff: Well, The Guardian just seemed to be trying to argue that we were soft right, basically, and essentially like bad people liked us, So, therefore, we had to be bad too. And that’s actually – we actually addressed that.

Nico Perrino: Pamela had a name for it, right, moral pollution?

Greg Lukianoff: Moral pollution, that essentially being close to somebody basically made you evil. So, we address that a little bit in the book. I don’t – now, we really meant the subtitle, Coddling of the American Mind, how –

Nico Perrino: Good intentions.

Greg Lukianoff: Good intentions and bad ideas, you know, are setting up a generation for failure. We really do think that a lot of what we’re talking about in, we were talking about in Coddling, was parenting, trying to be good parents, and K through 12, trying to be good, but just with some bad ideas. Cancel culture, there’s no way to address it and pretend that people who go after, who chase people down on their houses, who wish death and rape threats to their children, are good of heart, you know?

So, this is one where, in order to address it honestly, I feel like you almost are bound to write a more polarizing book, because people who actually make the argument that the cancellers have the best of intentions, I’m like, I’m sorry, no. They were going after their enemies by any means necessary, and that is not something I find commendable.

Nico Perrino: Do you find that this idea that cancel culture isn’t happening or didn’t happen of a piece with this relatively, well, not, it’s probably not a relatively recent phenomenon, the relatively current phenomenon of alternative facts?

Greg Lukianoff: I’ve noticed that generally, the cancel culture doesn’t exist came from people who came at the issue with the fact that it couldn’t possibly exist because it doesn’t actually like, agree with my politics, and then work backwards. I mean, I watch people literally know nothing about this topic, just being like, oh, it’s just a hoax. I’m like, you literally don’t know anything about what’s been going on on campus for the past couple years. I don’t know how seriously I should take it.

I do think it is part, actually, no, that’s a good question. Because I think that a big, one of the reasons why we ended up in this situation is, and here it’s going to get a little boring, I – oh man, Greg forgot to turn his phone off, my phone.

Nico Perrino: You’re going to have to get better at remembering that with all the podcasts you’re going to be doing here.

Greg Lukianoff: I’m a new – [no dictation] [00:09:33 – 00:09:47] so, yeah. I was giving the very exciting, it’s just about to get boring, exactly. In law school, I did six credits on studying censorship during the Tudor Dynasty, because I wanted to get at some of our ideas, where our ideas of prior restraint come from, and people usually – I mean, most people associate prior restraint with the Stuart Dynasty, but actually, I realize actually most people don’t have opinions on prior restraint.

But those of us who do – and this is a debate that I feel like is sometimes even happening with my coauthor, to a degree, is that anytime you introduce a huge number of people into a conversation, it changes the dynamics, and particularly – and so, the printing press was the best example of millions of people being added to a global conversation, and what was the result? Eventually, flourishing of knowledge and scientific revolution and all these kind of amazingly positive things, but in the short run?

An increase in the witch trials, religious war like crazy, massive bloodshed for about two centuries. So, it’s going to be disruptive, and we just introduced a billion or more additional people into direct communication with each other through social media, and you really started seeing it hit around 2011, in like, the Arab Spring, and then it really started hitting campuses around 2014 really hard. So, basically, my point is that when you have that many new eyes on any problem, it can tear down any idea, any person or any institution.

So, the person, of course, tearing down any person is cancel culture. Tearing down any idea is misinformation, disinformation, false facts kind of thing. So, I think that – and I think that there’s a lot of effort to have big state solutions to sort of putting the genie back in the bottle, and my answer to that is, that’s exactly what Henry the Eighth tried, man. Like, you can’t put the genie back in the bottle here. Basically, you have to learn to live with the existence of this new technology, and it’s going to be difficult, but it requires profound cultural shifts in order to take the best advantage of it. But there’s no way this is not an anarchical period.

Nico Perrino: That was an awesome segue to Texas and Arkansas.

Greg Lukianoff: Yeah, I think we’re going to get to Texas and Arkansas later in the podcast, but it made me think about the recent FAQ we put out about artificial intelligence and how futile that one letter written by, I think Elon Musk and a couple of other tech entrepreneurs was, where they called for putting a pause on AI research and development for the next six months while they figure out how to put guardrails around it. I’m like, you know, in a dynamic global capitalist society, nobody’s going to just, where there’s money to be made, of course, just stop working on it.

Nico Perrino: Let’s, because people are so naïve about laws, sometimes, it’s kind of like, so, you do understand that all you’re saying with this is, these law-abiding people will stop researching it, and meanwhile, everybody who’s completely unscrupulous can go as fast as they want. And meanwhile, the only real protection we’re going to have against AI is better AI defenses that come from AI.

Ronnie London: It’s always interesting when those who are in a market dominant position say things like, well, let’s have a pause on this until I figure out what we should do about it and how we should go forward. Let’s have a pause on this until Meta is really successful and everybody wants to be in the Metaverse.

Greg Lukianoff: That’s right.

Nico Perrino: Well, let’s move to some more old school media, backpack patches.

Greg Lukianoff: Oh yeah.

Nico Perrino: There was this issue that went viral, I guess everywhere, not just Twitter, this past week or two, where a student, Jaden Rodriguez, a kid who often has patches and other signage on his backpack, he’s in elementary school, I think.

Ronnie London: I think junior high maybe?

Nico Perrino: Maybe junior high.

Ronnie London: Somewhere in that, in those bridge years.

Nico Perrino: Yeah, in those bridge years, but he would go to school with this Gadsden flag on his backpack.

Greg Lukianoff: For my people, which one’s the Gadsden flag?

Nico Perrino: I was just about that, about to, because I know some people forget it, but it’s the Don’t Tread on Me yellow flag.

Greg Lukianoff: I got the Gadsden flag and the Gadsden Purchase confused.

Nico Perrino: Is there a Gadsden Purchase?

Greg Lukianoff: Yeah, it was a little part between Texas and Mexico.

Nico Perrino: Oh. Well, the more you know. But the Gadsden flag comes from the Revolutionary War. It’s the yellow flag that says Don’t Tread on Me.

Greg Lukianoff: Don’t Tread on Snek.

Nico Perrino: Yeah, it’s supposed to symbolize the 13 colonies kind of all banding together, and their tail rattles, they all rattle together, I guess, like a rattlesnake. And the school, however, there was a teacher, I guess, who complained about this particular patch and complained multiple times, and I guess the student, Jaden, was pulled out of class multiple times for this patch, and ultimately, the school said, you can’t wear it because, the school district argued in this case, it had origins with slavery and the slave trade, which is historically inaccurate. I think there are some groups that are maybe far right or right wing that have appropriated the Don’t Tread on Me flag, much like groups appropriate all sorts of symbols.

Greg Lukianoff: The cross.

Nico Perrino: Yeah, the cross, for example, and maybe they’re associating it with that, but its origins were very much with the Revolutionary War and didn’t have anything really to do with slavery and the slave trade. So, they banned the student from wearing it on his backpack. Echoes, right, of the Tinker Case from the 1960s, Ronnie?

Ronnie London: Well, yeah, and actually, it’s funny. There are two patches involved here.

Nico Perrino: Yes, there are.

Ronnie London: Right? So first of all, he’d been wearing patches on his backpack for years without incident, years. And he shows up this year with his backpack, and he’s got these two patches. One of them is the Gadsden flag patch, but the first one was not Don’t Tread on Me, it was, Don’t Tell on Me. It was basically like, you know, the junior high school, elementary school adapted version of the Gadsden flag.

Greg Lukianoff: That’s hysterical.

Ronnie London: Yeah. And the other one was, I think FPC Firearms.

Nico Perrino: It was Firearms Policy Coalition.

Ronnie London: Policy Coalition.

Nico Perrino: Official member.

Ronnie London: Right, so, it’s a patch with a gun and the name of the organization around it. You know, standard Second Amendment rights type stuff. And so, you know, a teacher complains, it didn’t cause any disruption in the classroom, no one, the teacher looks at it, is unhappy with it. And so, there’s a school policy that is basically, nothing, you can’t wear anything with guns or sex or drugs, just kind of this bright line.

Nico Perrino: Alcohol, weapons.

Ronnie London: Alcohol, weapons, right. And then there’s this other issue of, oh, the Gadsden flag is somehow racist or something, counterfactual historically, and they tell him, you can’t wear this. And this is, I mean, it’s funny, we’re going to talk about a number of things where my reaction to a lot of it is, my time machine worked. Because here we are, 50-odd years later from Tinker, and we’re arguing about what a student can wear quietly to school to make a political point and what rights they have, and I thought we had settled this, right?

And by the way, Mary Beth Tinker, I think, was the youngest of the three. I think she was 14, so, she’s not that much older than Jaden is here, and I thought the court was very clear in saying that, unless there’s substantial disruption or a reasonable forecast of substantial disruption, students can make political statements through what they wear silently throughout the school day. We wrote a letter explaining that, no, the First Amendment protects his right to do this.

There’s no basis for a prediction of substantial disruption. There was no disruption. And the thing is, they relented ultimately on the Gadsden flag patch, okay, he can wear it, so long as nobody complains, right?

Nico Perrino: Yeah, does that count as substantial disruption, though, under the Tinker –

Ronnie London: No, actually, there’s been case law, even recent case law where a handful of emails, calls from parents, administrators having to spend a little bit of time on something, that doesn’t count as substantial disruption.

Greg Lukianoff: Yeah, the Tenth Circuit case.

Ronnie London: Yes, and more to the point, a heckler’s veto, by saying, you can do something until somebody complains about your speech, well, that’s the definition of a heckler’s veto.

Greg Lukianoff: As long as these bottle throwers aren’t mad at you.

Ronnie London: That’s right, and so, so that patch, as far as we know, is back on the backpack. Jaden’s back in school, but the FPC patch is simply outright prohibited under the policy, and it’s hard to understand how the policy is constitutional, I mean, it’s easy to understand how it’s unconstitutional, because you couldn’t even wear a D.A.R.E. patch or a patch arguing for gun safety. If there’s a gun, it doesn’t matter what the message is, it’s out. And it’s so grossly overbroad, and it affords just an unfettered, what they call unfettered discretion on the school.

And this is a perfect example, right? Is that you have a teacher deciding, without consulting with anybody else, saying, oh, those practice are no good. I mean, ultimately, the administration gets involved and backs the teacher, but all it takes is one teacher saying, this hits me the wrong way, you got to get out or you got to stop bringing these things to school. And that’s not the way this is supposed to work.

Greg Lukianoff: We might have to remind the young-uns what D.A.R.E. stood for.

Ronnie London: Oh.

Nico Perrino: Or is it just dare to keep kids off drugs?

Ronnie London: Yeah, dare to keep kids off drugs, it was an acronym, and you can see how effective it was, because that was from my day, and I have no idea.

Greg Lukianoff: Drugs Are Really –

Ronnie London: Evil? I don’t know, maybe, I’m guessing, I doubt that’s right. That’s how effective the program was. But you couldn’t wear an anti-drug patch, you couldn’t wear an anti-gun patch. You, I mean, and there’s no reason to think that any of this would cause any disruption or likely to cause a disruption. The school board and the district are kind of just going beyond what the Constitution allows.

Nico Perrino: Well, it looks like there’s a federal appellate court that also says that a t-shirt with a logo of a gun rights group that included an image of a handgun –

Ronnie London: Yeah.

Nico Perrino: Was materially indistinguishable from the black armbands worn in Tinker to protest the Vietnam War and upheld a student’s right to wear that.

Greg Lukianoff: Can we complain about Bong Hits for Jesus?

Nico Perrino: Go right ahead.

Ronnie London: Well, and so, that’s the interesting part of it. You see in the policy that they’re trying to do their best to include the categories that the court has said, right?

Greg Lukianoff: Yeah.

Ronnie London: So, we know from Bethel if it’s kind of indecent or lewd or sexually tinged, whatever, that’s categorically something they can, you probably get at. You know, and we know from Bong Hits for Jesus that drug-related stuff, they can kind of, and it’s silly, but –

Nico Perrino: Such a mess of a case.

Ronnie London: Right, it’s silly, but these are the rules. But the rest of these categories have never been adjudicated to be something that a school can’t – and some of them go to core political speech, such as firearms, right? I mean, and so, the policy is unconstitutional. I’m just waiting for the first person to complain.

Because all anyone has to do is read the paper, and if you don’t want Jaden to be able to bring his Don’t Tread on Me patch to school, all you have to do is call up and complain. Now, we said, you can wear it until someone complains. Now, on the upside, Superman has come to his aid, I read in an article today.

Greg Lukianoff: Which one?

Ronnie London: Dean Kane.

Greg Lukianoff: Oh, that one.

Ronnie London: That one.

Nico Perrino: Jared Polis, the governor of Colorado, also came to his defense, saying the Gadsden flag is a proud symbol of the American Revolution and an iconic warning to Britain or any government not to violate the liberties of Americans. So, it was nice to see that. As you mentioned, the school district did kind of back down on the Gadsden flag, albeit saying that until someone complains, he can wear it, but they have not yet backed down on the gun patch, yeah, the FPC patch. So, we have a letter out to the school, and hopefully, they respond to that. I want to move now to California, where there is another issue that captured attention. This is at Yolo County, in Yolo County.

Ronnie London: It’s really Yolo, really?

Nico Perrino: We had to double check that, yeah, really Yolo County. But there was a group, Moms for Liberty chapter that was hosting some sort of conference at the library in Yolo County, and it was focusing on women’s sports and transgender women participating in women’s sports, and the organizers were opposed to transgender women participating in women’s sports, referred to transgender women as biological men or men. Library manager warned them not to do this, because they said that –

Greg Lukianoff: It was illegal.

Nico Perrino: Yeah, it was illegal that –

Ronnie London: Their argument was, under California antidiscrimination law, you can’t say those words.

Nico Perrino: Yes, so, you had the library’s manager sitting in the back, just kind of waiting for them to say biological men or men in referring to transgender women, gave them a warning the first time they did it, I think one speaker was asked to leave, but they kept doing it, obviously, because it comports with their ideological beliefs about this controversial issue of public concern. And the meeting ended up getting shut down, so.

Ronnie London: Minutes in, minutes in, I mean, it was supposed to be like an hour, hour and a half, hour 15 minutes, somewhere in that range, and I mean, within five minutes, they pulled the plug.

Nico Perrino: Yeah, so, and this was all captured on video, and the library manager said, if you’re speaking about a transgender female, they need to be referred to as female, transgender male needs to be referred to as male, and if there’s any misgendering, if it’s by any of the organizers, they will be asked to leave. There are no exceptions. And then one of the speakers, Sophia Laurie, referred to the physiological advantage of male athletes.

These comments led one audience member to ask, are you going to continue misgendering people throughout the event? One person recommended referring to them as biological men, and then the library manager shut down the event.

Greg Lukianoff: And this is why when people say cancel culture is over, it’s kind of like, when we’ve reached the point that you can’t refer to biological men as biological men, and where someone’s actually gone so far as to believe that it’s actually illegal to use that term in the entire state of California, that means we’ve been sufficiently chilled in our speech that we actually believe there are massive exceptions to freedom of speech that we all just have to respect now. So, yeah, this was about as bad of a case as I’ve seen.

Nico Perrino: Yeah, and mix – go ahead, Ronnie.

Ronnie London: And bear in mind, they’re not referring, in the course of these conversations that are on the video, to a particular biological male or biological female, transgender male or trans, they’re talking conceptually, right? And even then, you can’t use the label of your choice based on your perspective or your viewpoint. I mean, there’s no complainant per se except other than the group of biological females who, you know, want to participate in men’s sports or vice versa.

I mean, I don’t – no operation of a law like California’s law or harassment laws generally operate in that way, right? They don’t, they don’t say, oh, just generally to refer to a group as you’re talking about them conceptually can run afoul. It’s got to be directed towards specific individuals or a group, I mean, like actual individuals or specific members of a, who make up a group. I don’t know what this librarian was thinking.

And I have to say, it’s a little unfortunate that this happened at a library, because we’ve got so many issues going on with libraries right now with books and whatnot. I mean, this could’ve just as easily been a classroom at the local high school, after school where they let groups come in and use it. It could’ve been a community center, the fact that it’s a library, I think, also helps confuse the issues a little bit, the fact that Moms for Liberty, who’s also involved in some of the other library stuff happens to be involved in this, kind of muddies the water.

But it’s very straightforward. The library opened a forum, groups were allowed to come in and use it, it doesn’t matter whether you want to call it a designated forum or a limited forum, it’s some kind of forum, and in no forum can government actors discriminate on the basis of viewpoint. It’s that simple.

Nico Perrino: Greg, this makes me think a little bit of your perfect rhetorical fortress, which you referenced at the top of the podcast.

Greg Lukianoff: Yeah.

Nico Perrino: So, you think about this issue, right? Transgender women in sports, it’s so controversial that even the language you use in talking about it signals how you think about it, right? As the library manager referred to here, referring to them as anything but women, transgender woman.

Greg Lukianoff: Sounds like you couldn’t even refer to them as trans women.

Nico Perrino: No, that quote I –

Ronnie London: You had to.

Nico Perrino: Yeah, you had to, right? And then on the other side, you have people saying –

Greg Lukianoff: Oh, but it sounds like you just had to refer to them as women.

Nico Perrino: Yeah, from the quote. He said, if you’re speaking about a transgender female, they need to be referred to as female. So, you have this hot button issue that, if you’re on the other side of it from this library manager, you need to adopt the library manager’s terms of the debate, that kind of perspective in which the library manager sees the world.

Greg Lukianoff: Yeah.

Nico Perrino: Otherwise, in this case, you have your event shut down. And you can see this from the right, too, they say you need to refer to them as men or biological men, otherwise you’re, you know, engaged, you’ve adopted the gender ideology of the left. So, there’s like, you can’t win on either side, and they can push you out of the debate just by policing how you frame it.

Greg Lukianoff: Yeah, so, just to go over it real quick, in the book, in the middle part of the book, we talk about cheap dodges to debate. And first, we talk about what we call the obstacle course, which are standard minimization, logical fallacies that can disrupt a speech, that can disrupt an argument that exists largely to run out the clock in a world of limited time. Most debates on Twitter, for example, which go nowhere, are primarily just to, until the other person leaves in frustration.

Then the next stage that we call the minefield are these sort of ad hominem attacks that both sides use, and that’s like calling someone a grifter, accusations of bad faith, minimization, all this kind of stuff that everybody uses.

Nico Perrino: So, we have this fortress in the center, and these are the walls, the minefield, so to speak, that go around it.

Greg Lukianoff: Yeah, and we talk about the efficient rhetorical fortress on the right, which is, you know, you don’t have to listen to liberals, experts, journalists, and if you’re really hard right, anybody who disagrees with Trump. So, we’ve called efficient because there’s only four levels. But meanwhile, since so much of the norms around speech policing have come from campus, I call the one on the left the perfect rhetorical fortress, because it’s just layer after layer of ways to get out of arguments.

And a big part of it is, well – one, of course, you can dismiss anybody that you can deem conservative. That doesn’t mean they are conservative, by the way. That just means you just have to allege it.

Nico Perrino: Oh, doesn’t FIRE know it.

Greg Lukianoff: Yeah, that derails the discussion, and I call that out as the first step. But then we go through the demographic funnel, which is everything from your race to your gender identity, and we worked out that that gets you down to about 0.4% of the population of the United States.

Nico Perrino: That you can’t dismiss just out of hand.

Greg Lukianoff: Yeah, that you can figure out a way to run down the clock by bringing this up or otherwise dismiss, but there’s a wonderful kind of turn at the end which is like, oh, but by the way, if you have the wrong argument, you still don’t count. You could be in that 0.4%, but you will actually be hated even more if you have the wrong argument, which points out that this is primarily to protect dogma. I mean, Coleman Hughes has this incredible quote that we quote in the book.

He’s a black contrarian who – absolutely brilliant 20-something. And he talked about how, I keep on being told that being black is key to my being taken seriously on issues, any number of policy issues. But then when I have an opinion that doesn’t actually match what they think it should be, I’m suddenly told I’m not black, and I asked every black conservative that I knew, and a lot of black moderates, including people like John McWhorter, like have they been accused of not really being black for their opinions?

Every single one of them was like, oh yeah, and I’m like, okay. So, this is about protecting dogma. It’s not actually about what you’ve convinced yourself about that it’s about just protecting the marginalized.

Nico Perrino: I think that’s one of the kind of concepts that you have in your book that I hope, at least, will catch on, because I think it’s a perfect way of encapsulating how debate and argumentation has evolved in our society, just these barriers.

Greg Lukianoff: Or devolved.

Nico Perrino: Devolved, yes, just these barriers to actually getting to the argument itself and the substance.

Greg Lukianoff: Yeah. We could actually solve stuff if we argue about things when we get to the argument.

Nico Perrino: Without dismissing it for their identity or their political affiliation or using ad hominem or logical, yeah.

Greg Lukianoff: We could fix stuff.

Nico Perrino: Yeah. So, this is a case we also wrote a letter on, and I think both of them will result in lawsuits. We’ll see. I don’t think we’ve seen any lawsuits yet on either case.

Greg Lukianoff: Not yet.

Nico Perrino: But I want to turn, now, to a case where I think we did just see a lawsuit recently. This is the Marion County newspaper case.

Greg Lukianoff: Oh yeah.

Nico Perrino: So, this is a case involving the Marion County –

Greg Lukianoff: Good old Record.

Nico Perrino: Yeah, the Marion County Record in Kansas, it’s a small, local newspaper. The city had its entire five officer police force and two sheri deputies go into the paper’s offices and seize everything.

Greg Lukianoff: Yeah.

Ronnie London: But also, the house of the 90-year-old woman who was the part owner of the paper as well, they went in and seized everything.

Nico Perrino: They went in and seized everything, and according to her son, who I think also worked for the paper, she died the next day, he thought in part, due to the stress caused by this. A little bit of background here, right? So, the raid, reading from the Kansas Reflector here, “The raid followed news stories about a restaurant owner who kicked reporters out of a meeting with US representative Jake Laturner and revelations about the restaurant owner’s lack of a driver’s license and conviction for drunken driving.”

I believe the restaurant owner of starting a business or a catering enterprise and was trying to get a liquor license or something else for that. And so, there was this concern about this record and driving without a license that the newspaper was tipped off to. And so, the newspaper tried to corroborate some of these facts, I guess used a public, allegedly a public database to look into it, then was concerned that some of the information was gathered illegally or something. So, they went to the police and told them about this.

Ronnie London: And by the way, they didn’t publish.

Greg Lukianoff: And they didn’t publish any story related to this. Fast forward, their offices get raided, Ronnie, why is this wrong? Where to begin?

Ronnie London: What do you mean? Brilliant police tactic. This, why is it wrong? Because the government doesn’t get to go in and seize the tools of publication just because they think that you have published or were thinking about publishing something that they don’t like. I mean, we have a whole – in addition to the first amendment, we have a whole federal statute that prevents this.

We had the federal statute, the Privacy Protection Act that grew out of the raid on the Stanford Daily, where unless the actual crime is being committed by the journalist or the publication and the evidence is on the premises, you have to use a subpoena to get materials out of the press, the offices of the press, the property of the press. And there was, there was a warrant sworn out on probable cause to authorize this, let’s call it what it is, it’s a raid, right? To authorize this raid. Later, it was labeled improvidently issued.

Greg Lukianoff: You think?

Nico Perrino: That’s an understatement.

Ronnie London: Yeah, and the newspaper is, and you know, this is a small newspaper in Kansas, but the entire press nationally got up in arms over this, as well they should. There is a lawsuit that has been filed.

Nico Perrino: I think by one of the reporters.

Ronnie London: By one of the reporters, and I think also, I need to double check this, but I think the editor of the paper as well. I mean, someone can sue on behalf of the paper.

Nico Perrino: I’m sure if it hasn’t been filed, it will be soon.

Ronnie London: Yeah, I mean, and I mean, if you’ve seen the video from the mother’s house, there’s video of the cops in the mother’s house. They’re taking apart her computer, and I will give the police at least enough credit of, they were very kind and they were explaining what they were doing and that they had a warrant, and they would say, come over here and whatever. But she’s yelling at them, you know, you have no right to do this, and that’s my property, and she’s absolutely right. And she dies the next day.

Greg Lukianoff: Oh God, yeah. It’s just such an awful –

Ronnie London: Yeah, it’s just such a terrible –

Greg Lukianoff: Late 90s, I forget how –

Ronnie London: She’s 98.

Greg Lukianoff: Ninety-eight, yeah, and I think they did the raid, what, like on a Friday afternoon or something like that? They tried to do it in a way that would get minimal coverage, and it’s like, well, good luck with that, because this is insane.

Nico Perrino: So, the allegation here is that when the Marion Record was looking into this restaurant owner’s driving history, they were suspected of relying on information, personal information that they shouldn’t have had that was –

Greg Lukianoff: I’m only laughing because the justification was so thin.

Nico Perrino: Yeah, I mean, it was – there was suspicion that the source for the information was the restaurant owner’s husband or ex-husband who had filed for a divorce and, you know, all of this kind of messiness surrounding it led the paper to not publish the story, and to report it to the police.

Ronnie London: And it’s important that you note that it wasn’t a matter of the newspaper going out and accessing unlawfully information, which, by the way, wouldn’t change the right for the police to raid, but it makes it even more clear cut, because we know from Pentagon Papers and from Bartnicki vs. Vopper that the fact that the press receives information that might’ve been unlawfully gained by somebody else who gave it to the press, it doesn’t in any way, shape or form diminish the right of free speech and the right of free press of the newspaper or whatever type of publication it happens to be. I mean, this is black letter law.

Greg Lukianoff: Yeah, it’s the Pentagon Papers.

Nico Perrino: The, what is it? The Kansas Press Association has kind of a fundraiser open for the paper with t-shirts and coffee mugs and hoodies emblazoned, so, the paper actually ran I think on its normal schedule. They managed to do it without any of their assets, and FIRE actually placed an ad or a couple of ads.

Greg Lukianoff: Two.

Nico Perrino: Two ads, yeah, but the headline on that first issue after the raid was, “Seized but Not Silenced.” And so, you can go to the Kansas Press Association’s website, it’s a fundraiser for the paper, and get t-shirts which say Seized but Not Silenced. I bought one yesterday and two coffee mugs. We’re going to put them up here in the office. So, if you’re looking to support them, that’s one way to do it.

There is also kind of an allegation or a suspicion, I should say, that the police might have been inclined to raid this newspaper because the police chief, new police chief, I believe, Gideon Cody, was being investigated by the newspaper, and maybe the police chief got wind of that, was concerned about it. Those are some suspicions that are going around. I don’t know what to think about it, but.

Greg Lukianoff: The Streisand Effect.

Nico Perrino: Yes, yes, so, we’ve seen one lawsuit there from a reporter. I did read, Ronnie, though, they might’ve been polite on that video, but there was one reporter who alleged that the police snatched their phone from their hand or something like that, out of their hand.

Ronnie London: In the press office.

Nico Perrino: Oh, in the press.

Ronnie London: I don’t think that happened –

Nico Perrino: There were a couple of raids, right?

Ronnie London: Right, so, there’s the raid at the newspaper’s offices, and there, they were not – at least from what I could see on the video, it didn’t seem like they were going in guns drawn and jackboots and whatever else, but it didn’t seem like they were exercising the same care that they tried to exercise at the mother’s house, but yeah. There was, bottom line, they should not have been there, in either place.

Nico Perrino: So, next, I want to turn to a slew of court decisions that came down late last week.

Greg Lukianoff: Texas 3-Peat?

Nico Perrino: Yeah, there was – I think it was, Texas was slapped down thrice, I think is what we used on Twitter. Tyler helps with our social media stuff, is behind the camera, might’ve had something to do with that copy. But there was three kind of censorial laws in Texas that were slapped down, and then one in Arkansas. So, I want to move through them with you guys and get your perspective on them, because they all deal with issues that are kind of recent trends in the First Amendment world, although issues, albeit, that have been addressed by courts in the past, but they just keep cropping up, right?

Ronnie London: You know, every now and then, the, you know, attorneys for the state, whether it’s Texas or elsewhere, will just kind of have a bad week. Like for example, the last week of the Supreme Court term, Colorado, this poor AG had a particularly bad week with Counterman being decided against the state and with 303 Creative being decided against the state, last week it was Texas’s turn where they had, like you say, three decisions decided against them.

Nico Perrino: And I think the Texas Attorney General, Ken Paxton, is up for impeachment this week.

Greg Lukianoff: Oh, sure, yeah.

Nico Perrino: His trial in the Senate starts today.

Ronnie London: Right, as a matter of fact, if you look at – one of the cases is the Free Speech Coalition’s challenge to the age requirements for online adult content.

Nico Perrino: Let’s start there. What is that, Ronnie?

Ronnie London: So, basically, and this, again, is another one of these cases where I feel like, oh, my time machine worked, because we’re right back where we were in 1997. I mean, in, when the Telecom Act of ’96 was passed, they adopted the, well, first it was the Communications Decency Act, the provision that didn’t survive, the provision that we all know and love now, Section 230, that protects third party content on online platforms.

Greg Lukianoff: Let’s educate the young-uns a little bit about that. That’s one of the reasons why I went to law school, and it literally was a ban on indecency on the internet, which was horrible.

Nico Perrino: Isn’t that the definition of the internet?

Ronnie London: Well, as with every technology, the leading edge tends to be adult content. That’s why –

Nico Perrino: Wasn’t that the case with credit cards, too? It was, you know.

Ronnie London: Credit cards?

Nico Perrino: There was a movie made about it.

Ronnie London: Betamax, the –

Greg Lukianoff: Virtual reality.

Ronnie London: Virtual reality, I mean, that’s where the money’s going to be.

Nico Perrino: Hopefully that’s not the case with robots, too.

Greg Lukianoff: Pornovation.

Ronnie London: I don’t know how to tell you this, but – but anyway, so, the federal law basically said, like you said, it basically tried to outlaw indecency on the internet, and the way it did it was, it said if you had content that would be inappropriate for minors to access, you had to like, check an ID and so on and so forth, and the Supreme Court came out and said, no, this is fully protected speech. If you’re going to in any way really impede access by adults, it’s going to be unconstitutional. It has to satisfy strict scrutiny.

Greg Lukianoff: ACLU v. Reno.

Ronnie London: Yeah, and that means you have to have the, use the least restrictive means and the court was very clear, you haven’t – and this is early in the internet, right? You haven’t tried filtering. You haven’t tried doing stuff at the ISP level. You haven’t tried a bunch of other alternatives. This can’t be the least restricted, and I’m grossly oversimplifying ACLU v. Reno and the follow on case, FSC vs. Ashcroft, because Congress tried again.

Nico Perrino: Yep.

Ronnie London: This is essentially the same statute.

Greg Lukianoff: Well, but there’s something that I think makes it decidedly worse, though. This is the one that had the warning labels.

Ronnie London: I haven’t even gotten to that part yet.

Greg Lukianoff: And that’s compelled speech, which is the heart of darkness when it comes, which is – it’s worse to tell people what they must say than what they can’t say.

Nico Perrino: Yeah.

Greg Lukianoff: So, this is kind of a two-parter. Let’s talk about age verification first.

Ronnie London: Exactly.

Greg Lukianoff: Because I think this is something that, on its face, a lot of listeners will think, oh, age verification access pornographic sites on the internet makes sense, right? But there are some serious First Amendment and privacy concerns.

Nico Perrino: Sure.

Greg Lukianoff: That if you are going to implement age verification on this, it will also apply to adults, right? Because they need to –

Ronnie London: Of course.

Greg Lukianoff: – provide their information to prove that they are above age. Which is different than showing your driver’s license or some other sort of identification that, you know, a video retailer or at a newsstand, right? Where you’re just kind of flashing it, no data is actually transmitted or submitted electronically. Online, it’s a little bit different, right?

Ronnie London: Well, yeah, and bear in mind also that those ID checks, whether it’s walking into a strip club or buying certain magazines or renting certain videos, those are not government imposed requirements. I mean, they are –

Greg Lukianoff: I think a lot of people would be surprised by that. They’re voluntary?

Ronnie London: Yeah, I mean, you know, what you basically have is, you have laws that say, it’s unlawful to provide to minors material that would be obscene as to minors, and material that’s obscene as to minors means, by definition, that it’s not obscene full stop. Obscene full stop, you can regulate for everybody, adults and minors. Obsceneness to minors is content that is protected as to adults, but it’s not appropriate for minors because it satisfies a modified version of the test for obscenity that is directed towards minors.

And so, in order to avoid inadvertently selling a material that might ultimately be deemed obscene to minors to a minor, a retailer, a purveyor will check an ID. A strip club, if they’re serving alcohol, is going to check an ID, because you got to be 21 to go into a place where there’s alcohol. I mean, that’s a separate category. But like you say, online, in order to do this, you’re basically asking everybody who wants to access this content, and it’s a very, very broad definition of sexual content. And it’s a fairly broad definition of which websites and services –

Nico Perrino: I think they need to have at least a third of their content be, you know, indecent or obscene as to minors.

Ronnie London: Or, you know, sexually explicit.

Nico Perrino: Sexual explicitness.

Ronnie London: Whatever it is, and when you think about it, that’s not a lot, and you basically are creating a record under a government law announcing that, I am going to go watch porn online, and that’s not comfortable for some people, and as a result, they’re not going to go watch porn online. So, you’re creating a very significant barrier to access to protected content online by having these age verification laws. And by the way, they’re not terribly effective, because if anyone knows how to use technological tools to get around –

Nico Perrino: Doesn’t prevent them.

Ronnie London: For example, I mean, what happens is, and then this is an example in Virginia, and I checked because Virginia has a law also, and I’m a member of the First Amendment Lawyers Association. The lawyers who are bringing these cases against these laws around the country in Utah and Texas and other places are members as well, and they passed a law in Virginia. If you go to an adult website in Virginia and you want to see the content, there’s an age gate.

Please demonstrate that you’re over the age of 18, and you have to upload an ID and whatever else. I could ask my kids, and my kids are late teenagers, it’s not like I’m asking little tiny kids to help me get access to porn.

Greg Lukianoff: Here, Daddy!

Ronnie London: I can ask my kids, and they’d be able to tell me, not that I didn’t know myself, how to use a VPN to mask your geographic location. So, now, the website doesn’t know I’m in Virginia anymore. I’m in. It’s that simple, and so, also, the law can only cover entities that the state has jurisdiction over, so, all these foreign websites that may be available in the state that the state can’t get to because they’re outside the United States, they’re not going to be age verifying their users.

So, the law isn’t having its intended consequence, but it is having the consequence of making people who don’t know how to use a VPN and who do want to access it but don’t want to create a government record. Now, the laws do come up with this framework of a third party intermediary where you show your ID to the third party intermediary, the intermediary informs the website that you’re allowed to go forward, and ostensibly – but even so.

Nico Perrino: Right, and then it’s supposed to delete it.

Ronnie London: It’s supposed to delete it, but as the court says very clearly, you know, there are data breaches, there are even innocent mistakes of things not being deleted, and it is a significant burden on the right of adults to access protected information. And then the court very carefully goes through, well, is this the least restrictive means? It’s still strict scrutiny, it’s still a content-based regulation, and lo and behold, just like in 1997, and again in the early 2000s when the Ashcroft case was up in the Supreme Court and bouncing back and forth to the Third Circuit, the court said no, you know?

There’s filtering, there – you could, for example, have ISPs. I’m not necessarily advocating this as a constitutional solution in and of itself, but it is a less restrictive means. You could at the ISP level tell subscribers that if you want to be able to access this material, you’d have to affirmatively turn on the access to it. But no one would have a record of that. You would simply make that choice yourself.

That is putting the power in the hands of the parent of individual children to make decisions at the device level or at the access point level, whether or not they want to allow access, not having the government come in over the top and create rules for everyone, including adults who have full rights to access this stuff.

Nico Perrino: They’re, one of the things that was interesting about this law is that, while these third party services that these websites could hire to check this data had to delete the data, the government didn’t have to delete the data, and one of the two possible mechanisms of a verification is through the government.

Ronnie London: Sure.

Nico Perrino: Through your government-issued ID, and the court talks about how Louisiana passed a similar law to this, HB 1181, just shortly before a vendor for its Office of Motor Vehicles, which breached by a cyber attack. So, these vendors are, can be hacked as well, right? So, and injury occurs according to the court because the individuals know that information is at risk and that hacks happen, even at the highest levels of our government, hacks happen.

And there are states still, even after Texas sought to criminalize men having sex in the privacy of beds, that law, I guess, is still on the books in Texas, the court says, here, given Texas ongoing criminalization of homosexual intercourse, it is apparent that people who wish to view homosexual material online will be profoundly chilled from doing so if they must first affirmatively identify themselves to the state. So, there’s a chilling effect, kind of the Big Brother’s eye.

Greg Lukianoff: How is that still around after Lawrence v. Texas?

Ronnie London: Well, because what happens oftentimes is, a law will get declared unconstitutional and it’s invalidated, and the technical part, way it works is, there’s an injunction against enforcement by the attorney, state attorney general, whoever has the enforcement power, and in order to comply with the injunction, they simply can’t enforce it.

Very rarely, I think, relatively speaking, does the state actually go back and scrub the offending statute from the code. Sometimes they do. I mean, and in fact, they tend to do it if there’s some other separate reason that they’re going back and revisiting that chapter or that part of the code, but if they don’t, there’s still –

Nico Perrino: Because that would have to happen legislatively.

Ronnie London: That’s right, that’s right, it means they have to pass a whole – you have to go through a whole legislative process, pass a bill amending the law to repeal it or to amend it to something constitutional, and unless there’s a reason to be there, most, let’s say legislatures don’t bother. I mean, even the provisions of the CDA –

Nico Perrino: Yep.

Ronnie London: – that got struck down and left section 230 to protect the third party online speech, those provisions are still in Title 47. They’re just sitting there right next to 230, they just can’t be enforced.

Nico Perrino: So, what this boils down to is that there are less restrictive means available. Content filtering, allowing people to manage this content at the ISP level and opt in if they would like, and also that there are these larger privacy concerns by having to submit your personally identifying information to either a third party or using government tools to do so, and none of this, as you’ve mentioned, Ronnie, is new.

These cases made their way in the ‘90s. There was an argument that the technology has gotten better since then, but as the court clearly lays out here, it doesn’t fix the strict scrutiny problem, and it doesn’t necessarily fix the – the new technology doesn’t necessarily fix the privacy problem either.

Ronnie London: Yeah, and the state has the burden on all of these elements of the test, including the burden of showing that the potential, less restrictive means are in fact not effective, and there’s none of that here. There’s no findings, there’s no legislative history or hearings demonstrating, I mean they have, it’s funny, because I don’t want to jump ahead to the Arkansas case, because I want to talk about the disclosures in Texas.

But they have an expert that’s supporting these statutes, and it’s the same expert in Arkansas as in Texas, and you see both courts basically rejecting the experts’ views on the efficacy of these alternative means, among other things. But do you have the language of the disclosures, by any chance?

Nico Perrino: I do, I do.

Ronnie London: You can read them.

Nico Perrino: Yeah, so there are, so as part of this law in Texas, this age verification law, there’s also mandatory disclosures, and we’re litigating a sort of issue like this that was actually sited by the court in this case in New York regarding their hate speech law in Volokh v. James, I think is the title of that case. But they have mandatory disclosures, here, it says Texas Health and Human Services warning, pornography is potentially biologically addictive, is proven to harm human brain development, desensitizes brain reward circuits, increases conditioned responses, weakens brains function. There are two more that kind of track that.

Ronnie London: No, no, you have to read it.

Nico Perrino: All right, well, keep going.

Ronnie London: They’re sufficiently ridiculous that they should be read into the record.

Nico Perrino: Texas Health and Human Services is the second one, Human Services warning, exposure to this content is associated with low self-esteem and body images, eating disorders, impaired brain development, and other emotional and mental illnesses. Texas Health and Human Services warning, pornography increases the demand for prostitution, child exploitation, and child pornography. So, porn sites would be compelled to put these on their websites, much like, I guess, cigarette manufacturers are forced to put a health warning on packages of cigarettes. The funny thing is, though, that the Texas Health and Human Services has never actually, itself, issued these warnings or these findings.

Ronnie London: These findings.

Nico Perrino: Yeah, or made these findings –

Ronnie London: I’m shocked that they stopped short of blindness and hairy palms. I mean, it’s –

Nico Perrino: And I guess the expert in this case even admitted that these claims are controversial.

Ronnie London: Yeah.

Nico Perrino: And unsettled.

Ronnie London: Right, and so, the law in this area is –

Greg Lukianoff: To say weak evidence would be an understatement.

Ronnie London: Yeah. The law in this area is, you know, it’s compelled speech, right? Which is anathema. I mean, it’s to make somebody say something, even a company. It’s just not what the First Amendment anticipates the government doing, and there’s a very narrow exception to that rule. I mean, for example, you can’t compel someone to recite the Pledge of Allegiance in elementary school, in public school, right? We have Barnette.

You can’t compel someone to put, live free or die on their license plate if that’s not something they believe in. You can’t force people to include in their parades groups that they don’t necessarily have an affiliation or are in philosophical agreement with. We don’t compel speech. The narrow exception is commercial disclosures.

Nico Perrino: So, is this like the California, according to the knowledge of the State of California, this product, you know, causes cancer or the –

Ronnie London: Yeah, that’s the –

Nico Perrino: The cigarette warning.

Ronnie London: Yeah, that’s Prop 65, that has its own problems. We could do a whole separate podcast on Prop 65 cases, but more broadly, the seminal case is Zauderer in the Supreme Court, and basically, the test is, the government may impose disclosure requirements where commercial speech is or might be misleading, and the requirements are that the disclosure has to be purely factual, non-controversial, and it has to be no more burdensome than necessary in order to solve the potential misleading problem.

And originally, this rule applied only in the commercial speech context. Over the last 10 years or so, we’ve had an issue with what I call Zauderer creep, where the government, having found that they were getting slapped down in court more frequently when they tried to prohibit speech about a product or service or about anything for that matter that they thought the public should know the truth about, they would start imposing disclosure obligations instead. So, for example, there’s a federal agency that wanted to compel disclosures about companies’ use of certain minerals that were conflict minerals in their products.

And again, that’s kind of a very controversial issue. What does it mean to be a conflict issue, a conflict mineral, right? It comes from a country that doesn’t have the best practices, whatever it is, and the court ultimately struck that down, and one of the classic examples is the packaging and advertising for tobacco products, and you know, even there, where that’s commercial speech, when the government tried to require graphic warnings –

Greg Lukianoff: Disgusting pictures.

Ronnie London: Disgusting pictures like bringing up brown lumps.

Greg Lukianoff: Which you see in Europe.

Ronnie London: Yeah, which you see in many other countries, including Canada, the court stepped in and said, look, this isn’t purely factual, non-controversial. And by the way, the tobacco companies didn’t challenge the new warnings about cancer and low birth rate and everything else, what they objected to were the pictures, but I mean, there’s, the insurance companies tend to have relationships with like, windshield repair. Like one of the things that’s covered in many car insurance policies without paying the deductible is when you get a crack in your windshield.

Because they don’t want it to spread and have to pay for a whole windshield, but they’re often affiliated with specific companies that do the work, and so the insurance companies will refer to the affiliated company, and some states have these requirements saying, you must tell the customer that there are other alternatives out there, and you must identify some of them, and some of these, some of these regulations have started to stand, and the DC circuit, among others, has backed away from the requirement that this applies only in purely commercial speech, that is, speech that proposes a commercial transaction.

The court in Texas strikes down these disclosure requirements for the adult content websites for a variety of reasons, not least of which is, it’s not commercial speech. Texas tries to argue that, you know, these websites, they’re out there and they’re accessible because they want people to buy subscriptions or they want them to buy the content, and so there’s content that’s available for free, ergo, it’s advertising. The court backs that away and says, no. That’s not proposing a commercial transaction.

You’re talking about the actual speech. And then when they get to the purely factual, non-controversial part, I mean, these are laughably not even close to being purely factual, non-controversial. And as you said, I mean, there’s actually no findings.

Nico Perrino: From the Texas Human Services.

Ronnie London: The disclosures themselves are misleading by suggesting that the Texas agency has in fact made these findings, and that they are in fact valid.

Greg Lukianoff: Yeah.

Nico Perrino: Mm-hmm. We should move quickly now, because I realize we’re over an hour, and we haven’t covered all of the cases. So, we’ll get through them quickly just so our listeners are familiar with them. Of a piece with this age verification law in Texas is a law in Arkansas, Ronnie, which you reference that requires a parental okay or permission to create social media accounts. These are kind of proliferating across the country. Greg, I know you’ve done a lot of research into kind of the effects of social media on certain demographic groups, but as a First Amendment matter, what does the First Amendment say about limiting young people’s, minors’ access to social media?

Greg Lukianoff: Well, it’s many of the same problems that the Texas law has with respect to sexually explicit content, right? You’ve got the same problem of age verification. How do you do age verification without having the same privacy problems that you have, and therefore creating impediments to adults who are free to use social media services? And the court in Arkansas also steps through much this very similar analysis, even though it’s talking about social media as compared to adult content.

Ronnie London: Yeah, and the thing is, kids have First Amendment rights.

Greg Lukianoff: Yeah.

Ronnie London: And certainly, the government’s often found to have a more compelling state interest the younger the kids get, but certainly, there’s no question that particularly teenagers have pretty, relatively strong First Amendment rights, and you can’t just kind of bat that away. And if people, and I am persuaded that some social media is quite harmful for some young people, but that’s something you have to prove to go as sweeping as a state solution as saying that no kids can be on social media whatsoever without parental permission. That basically says that, actually, we changed our mind. Teenagers actually have no First Amendment rights, which would be a distressing and inappropriate change of the law.

Nico Perrino: Yeah. Some of these laws, although I think they’ve gotten better at it, don’t distinguish between young minors and older teenagers, right? I think Arkansas, Ronnie, and correct me if I’m wrong, kids 13 or under were blocked from access to it completely, or maybe under 13. Older kids needed parental permission up until the age of 18 in order to access these sites.

A lot of the case law stemming from this comes from Brown v. Entertainment Merchants Association, which involved a California law that banned the same of videogames or violent videogames to anyone under the age of 18, not distinguishing between a 17-year-old and a 10-year-old, for example. This one did distinguish between a 12-year-old and a 17-year-old, but it still restricted access to it, and separate from that, the Supreme Court has only held these regulations as it pertains to content for minors apply in contexts where the material is sexually explicit, right?

Ronnie London: That’s right.

Nico Perrino: They’ve never gotten to like, violent videogames or the potential psychological harms of social media. They might one day, but as of right now, that sort of delineation between adults and minors can only occur in a sexual content.

Ronnie London: That’s right, one of the points that the court made in the violent videogame case, EMA verses Brown, was that we have only ever said that material that’s obscene as to minors may be restricted as to minors, and by the way, one of the features of the case law that allows that restriction is that parents are still permitted to give the material to minors if they so choose, whereas the California law made it impossible for minors to purchase this stuff, and I don’t believe that there was any –

Greg Lukianoff: Create accounts, yeah.

Ronnie London: Yeah. But you know, the videogame law was struck down for a variety of reasons, not least of which was, well, what does it mean to be violent and how does this differ from, there’s lots of, and Justice Scalia’s decision goes through all kinds of violent content that has been available through the ages. Beowulf, for example.

Greg Lukianoff: My favorite comic books.

Ronnie London: Right, I mean, all of that stuff. And so, you’re right. You can’t kind of bat away, but what’s interesting is, you watch how this kind of creeps along. So, we start with, you know, the COPA, Children’s Online Privacy Protection Act. This is a statute among the FTC statutes, it says you can’t collect or disclose information from children under, collected online from children under 13 without verifiable parental consent.

And there’s a whole framework around that. By the way, never constitutionally challenged, you know? It’s, I mean, no one wanted to be the poster child for that. We don’t know whether that law is constitutional or not. There are arguments on both sides. And then you’ve got, years go by, and now you have the California Privacy Act, which now imposes restrictions on the collection and use and storage of information on minors under the age of 18, and they have separate rules for the group that’s older than 13 and separate rules for the group that’s younger than 13.

And now we get to Arkansas social media restrictions, and like you say, they’ve got one set of rules for minors who are 13 and over, another set of rules for those who are under 13, and by the way, the social media companies, the big major ones, they all disclaim having availability to minors under 13. If you look at their terms of service, they say point blank, and you know, because they are not services directed toward children, they are not obligated to comply with COPA, unless they get actual knowledge that a specific user is under 13.

But they started doing that from the jump, because COPA already existed, but you can see the creep, how you let these incremental changes go unchallenged, and the next thing you know, you’re looking at a social media law like this in Arkansas, and how did we get here? And bringing the constitutional challenge and it succeeds, well, you know, it’s got to go up on appeal yet, so let’s see what happens, and the same thing is true of the Texas case. I mean, let’s see what the Fifth Circuit does with it.

Nico Perrino: Yeah. One important point, I think worth making, is that parents have the means to police their kids’ access to social media, and as we’ve heard from social media companies, parents just voluntarily decide not to use it. The record in this case shows that they’re fairly easy to use, there was no dispute by the defendants that it wasn’t easy for parents to use this content and filtering mechanisms that prevent their kids from accessing social media, or pornography for that matter, any content on the internet.

It’s just parents, much to the chagrin of many social media companies, aren’t utilizing this, and as we learned in the Playboy case, right, if these sort of voluntary measures that could be taken by parents are met with, to use the court’s phrase, a collective yawn, it doesn’t mean that the government gets to step in and violate the First Amendment, or at least First Amendment principles, and play parent for parents who decide that it’s not worth doing it in the first place. And I think that should be a compelling argument for libertarians, civil libertarians, anyone who believes in parental rights, that parents should have control, and they have the tools that the social media companies have created to prevent their kids from accessing this sort of content online.

They just choose not to use it. And when you’re talking about young kids, talking about them being at school, at home, if you give them a device, that’s a device you give them, unless they are somehow independently wealthy and can go purchase it, you know, before you give them the device, set up the parental controls on it. But parents just aren’t utilizing those tools, and so the government, assuming, in these cases just assumes it’s their responsibility then to be in the –

Greg Lukianoff: That’s why I was talking about the need for cultural shift to adapt to technology, and I do think the stuff that I learned from writing Coddling of the American Mind means I have all sorts of, you know, my kids don’t know how to use a tablet, and I see kids who are using screens, interactive screens since they’re three and up.

Nico Perrino: Yeah.

Greg Lukianoff: And I do think that some of this stuff, there are going to be more parents taking advantage of this stuff. Because it’s not like there are no parents who take advantage of some of these technologies to, you know, keep their kids off of social media, for example, or porn. Just, we haven’t fully adapted to the reality of this.

Ronnie London: One, one less restrictive means that rarely gets mentioned? Teaching technological literacy, we don’t teach that in school. I mean, now you have mandatory sex education in most schools. You can opt out as a parent, if you want, but I mean, ask kids what they’re taught about how to interact with the online world and where to place credence and what dangers are out there, I mean, you get some of the apocryphal things where your parents tell you, you know, the child molesters are out there on the internet, don’t do this and that.

But you know, we’re not really teaching them in any meaningful, structured way, here are some ways to interact with, whether social media or even being an online shopper, for that matter. I mean, you’re going to see products where it looks too good to be true, and if you look at the URL and you click behind it, you’re going to see that it’s not really who they say they are. We need to teach kids as they start, like you say, if they start using screens at the age of three or the age of five or the age of eight, whatever it happens to be, coming along with that should be understanding what that environment is.

Just like we teach them when we allow them to start walking a few blocks to the park or whatever it is, we teach them about stop signs and crosswalks, the same thing should be happening. And that’s a less restrictive means than the government coming in and Bigfooting over who uses social media.

Nico Perrino: Not just educating kids.

Ronnie London: Well, sure.

Nico Perrino: Talks about educating – the government hasn’t put any money toward educating parents about these voluntary content filtering tools that the social media companies or any technological provider of computers or operating systems on phones provide to prevent access to this, and the court goes to great lengths to say, you know, this would be the least restrictive means, that has never even been pursued. So, why don’t we start there first? We have two more cases, but I think we’re just going to talk about one.

There was a federal judge in Texas, just give the listeners an update on this, I want to talk about the book rating system, which is just kind of weird and novel and unique, but first, there was also a judge in Texas, I think it was a federal court, yeah, it was a district judge, who struck down a drag show ban in that state, which is of a piece with a number of other courts striking down drag bans in states like Tennessee, for example. We’re litigating a case at West Texas A&M where a college president banned a drag show on that campus for very weird reasons.

You got to read the letter that the resident wrote about his reason for doing those. But I want to very quickly discuss, separate from that case, is the federal judge who barred Texas from enforcing its book ratings law, and this was a law, HB 900, that would require school library vendors, so these are book publishers, right? Who sell their books, or companies that take books that are published by publishers and sell the books to libraries, to rate all of their books and materials for appropriateness before selling them to schools, based on the presence of sex depictions or references.

It also requires vendors to rank materials previously sold to schools and issue a recall for those that are deemed sexually explicit and are in active use by a school. So, this essentially requires book vendors who sell books to schools to go through their entire catalog, not only future, but past, read all the books, and determine under some of the vague standards that Texas outlines here, whether a book is sexually explicit and give it a rating.

Greg Lukianoff: Yeah, and I mean, what’s interesting here, and listeners need to understand this, is that at every stage, people can consider whether or not a book is age-appropriate or age-inappropriate, and that goes for bookstores if they want to, public libraries, K through 12 libraries. They all, that’s part of the practice. But requiring booksellers to actually go through and warn people about content by very vague standards, like, that is also compelled speech, for one thing, and it’s going a step way, way, way further than they should be allowed to.

Nico Perrino: Yeah, and it also empowers the Texas Education Agency, the authority to review a vendor’s rating, and if the TEA disagrees with the vendor’s rating and gives it a different one, the vendor must use that rating, and vendors who do not will be added to a list of vendors that can no longer, that schools can no longer buy library materials from. This kind of makes me think of kind of comic books and all these sort of rating enterprises that have been proposed in the past but have been, never gone anywhere, but are voluntary.

Greg Lukianoff: Almost all voluntary.

Nico Perrino: Almost all voluntarily now.

Ronnie London: Right, and the law’s very clear, you can’t turn a voluntary rating system into a government enforceable scheme, but this goes back even further. I mean, my time machine is working so well, this goes back to the church saying which books could be printed and disseminated, right? I mean, you’ve got the government saying, go figure out which of these books have –

Greg Lukianoff: Or Henry the Eighth. It comes full circle.

Ronnie London: Right, right? I mean, go tell us which books have sexual content, and we’re not going to use those books and we’re going to make you recall any that have already been sold, and by the way, if we don’t think you’re right about it, we’ll decide and we’ll make you withdraw those books. I mean, it’s like the priest ringing the bell in Cinema Paradiso, right? Every time there was a kiss, you had to ring the bell and they would take it out so you could show the –

Nico Perrino: That’s a great movie, by the way.

Ronnie London: Yeah, so that you could show the film in that town. None of this is new. People who pass these laws think they’ve stumbled across a great new idea. Go back and read Yaku’s book, every single evolution of communication beyond one person talking to another one has come with exactly these kinds of, the sky is falling, it’s going to be the end of civilization, the government or the church has to step in and say how it can be used, and over and over again from comic books to television to records. I mean, this is Bob’s book in a nutshell, right?

And now here we are with the internet and now social media. I’m sure we’re going to have the same thing with AI if we don’t have it already, and whatever’s next. We’ve been fortunate every single time that, at least in America, every single time, the First Amendment and free speech principles have won out. For the most part, I mean, if you watch TV today and go back and watch TV when we were much younger and talk about our parents got to watch on TV, the world has changed.

I mean, we’ve been fortunate, but you have to wonder, if we’re not careful, the way that the technology develops can be greatly impacted. I mean, if Section 230 had not been put into place, we might have ultimately gotten to the same point. What Section 230 says is that if you run an online, an interactive computer service and you host third party content, you’re not responsible for any liability that arises from the third party content. You can’t be treated as the publisher of that content. And that’s what allows comment sections, right? And that’s what allows ultimately –

Nico Perrino: Uploads to YouTube and, yeah.

Ronnie London: Right, and uploads to YouTube, and ultimately, all social media, because all social media is is nothing but third party content. If section 230 hadn’t existed, I have often envisioned an alternate history where we kind of get to the same point, just under the First Amendment, because you remember there’s old cases about how you don’t –

Nico Perrino: What’s the matter, his topic –

Male Speaker 1: Yeah, sorry, so there’s been some miscommunication. I have a Twitter space I need to start, can I just like, keep –

Nico Perrino: Yeah, which button do I press?

Male Speaker 1: The big red button at the top. I apologize, guys, sorry.

Nico Perrino: Our videographer has, needs to go do a Twitter space.

Male Speaker 1: I apologize.

Greg Lukianoff: We talked too long.

Ronnie London: Yeah, so, I envision like an alternate history where we get there through the First Amendment, through doctrines like, we don’t hold bookstores responsible for selling books that might be libelous to somebody. The liability goes to the author or the publisher. It doesn’t go to the bookstore. I think we’d ultimately have gotten there, but would the internet have had the rapid growth that it experienced, and would there have been a critical mass of utility that drove investment if 230 hadn’t been there?

And by the same principles, if you’re going to start stepping in on social media or you’re going to start stepping in on AI as it’s coming around the bend now, you’ve got to be very careful, not just to not infringe speech, because of course that’s the whole game, but also, be careful even about, if you know you can overcome those hurdles, putting them there, because it can actually alter the way the technology and the market develops.

Nico Perrino: Yeah. The interesting thing about this is, as Greg kind of mentioned at the top of this discussion about this case is, librarians have to determine age-appropriateness for the books in the first place. So, what the state is essentially doing here is offloading it to booksellers and then forcing them to do this very burdensome activity retroactively, and they might come to determinations that are different than librarians, and you have different age-appropriate considerations, depending on what sort of student that library serves, whether it’s an elementary school student or middle school student or a high school student. And that, all that is separate from how vague and overbroad this particular law is in determining what is –

Ronnie London: Well, and in that respect, it’s depictions or descriptions of, you know, sexual conduct or sexual activity, however they define it, which means that, you know, Catcher in the Rye? Out, right? And Beloved, I mean, not just, and it’s not just the books that always show up on the banned book list. I mean, if you think about, I mean, arguably, any discussion about sex, no matter how non-sexy, no matter how non-prurient it is, no matter how innocuous or instructive, if it’s in there, it comes out. Which, by the way, makes me wonder how they have sex ed in Texas with a textbook these days, because by definition, wouldn’t that qualify?

Nico Perrino: Well, yeah, you could still have the sex ed book, you’d just have to have a rating on it, presumably. But anyway, guys, we went way over time and we lost our videographer, who had to go do some Twitter space. I really appreciate it. Greg Lukianoff, of course, the president, CEO.

Greg Lukianoff: Sign up for my Substack.

Nico Perrino: Foundation for Individual Rights and Expression, also coming out with his book in October with Rikki Schlott, which you should preorder, it’s available for preorder now, and of course Ronnie London, our general counsel here at FIRE. I thank you both.

Ronnie London: Sign up for my OnlyFans. No, kidding, kidding.

Nico Perrino: What a note to end on, thank you, gentlemen.