So to Speak Podcast Transcript: Rethinking free speech with Peter Ives

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

Nico Perrino: Okay, folks, welcome back to So to Speak, where every other week, we talk about free speech. But today, we’re going to rethink free speech. Our guest is Peter Ives. He is a professor of political science at the University of Winnipeg in Canada, and he is the author of the new book "Rethinking Free Speech", in which he argues that much of the popular conversations surrounding free speech is too simplistic and would benefit from a more careful analysis, which is what "Rethinking Free Speech" seeks to provide. Professor Ives, welcome to the show.

Peter Ives: Thank you for having me.

Nico Perrino: So, the central thrust of your book is that free speech is “persistently misunderstood and distorted.” So, let’s start there. What about the free speech conversation led you to be frustrated enough to write a book about it?

Peter Ives: Right. Well, to some extent, is that I think most people think about free speech as one thing, and on obviously, podcasts like yours offer us a very nuanced and all the complexities within it and lots of examples –

Nico Perrino: You’re so kind.

Peter Ives: – but I still think there is this focus that we use this one concept, free speech, or free expression; we use the term synonymously, but we mean one thing or one set of things by it. And I think in the book I use several examples, but the basic thesis is, and I sort of use a tool analogy to say that, “Sure, a screwdriver and a hammer have things in common, but they are very different things, and they do very different work,” right? One of the basic distinctions is, again, one that comes up in your podcast quite often, which is the difference between, say, the First Amendment and the legal principles of free speech, or in Canada here, we have our Charter of Rights and Freedoms, and that gives us freedom of expression.

But that’s very different because it’s aimed at the government. And the government can’t impede upon our free expression as opposed to what is often discussed or the desire for free speech, which is I want a good, open, critical conversation in the public that actually has nothing to do with the government, right? So, that’s the basic distinction. In the book, I use the example of Harper’s Letter. It was called an Open Letter on Justice and Open Debate, I think.

Nico Perrino: Yes, yeah, I got it right here in front of me, A “Letter on Justice and Open Debate.”

Peter Ives: Right? And so, that was a really interesting example. It was in 2020, and it sort of castigates the left for following the right’s notion of being too censorious. But it’s actually interesting because it doesn’t mention the concept of free speech or free expression. It sort of is much more descriptive than that.

Nico Perrino: Yeah, it says, “The free exchange of information and ideas is the lifeblood of a liberal society.”

Peter Ives: Exactly. And it’s sort of interesting because it doesn’t mention the government, right? It was signed by, I think, over 150 people on the left and the right sort of luminaries like Cornel West and Margaret Atwood and people who you would expect like Salman Rushdie and the whole list; Wynton Marsalis, which is sort of an interesting one. It’s interesting because even some of the signatories afterward because there’s a bit of a controversy around how it was put together and that people didn’t know who else would be signing it.

Nico Perrino: Yeah, that always struck me as odd. Do you really need to know who else is signing an open letter, the premise of which you agree with, in order to determine –

Peter Ives: Right.

Nico Perrino: – whether you’re gonna sign the open letter and you agree with the premises?

Peter Ives: But then people, I think, were sort of assuming, “Oh, well, if J K Rowling is signing it, it must mean something differently than if Cornel West is signing it or something,” right? It seems to be an odd criticism at that level from the signatories. But at the same time, my interest in it is, I guess, it does two things: 1.) It describes the sense that we get from John Stuart Mill, who I talk a lot in the book, a 19th-century British philosopher who wrote “On Liberty” and whose argument for free expression is so influential. So, I talk about him a lot. It sort of captures some of his ideas.

It’s how we have good conversations or how we reach the truth or get a better understanding of the truth is through the clash. And in the letter, the language is of caustic ideas, right? I found that as a really interesting phrasing because obviously, if something is caustic literally, it means it is corrosive, right? It destroys things, right? So, I’m interested in how both it describes what it wants in public debate, but at a more basic level, I argue that that’s a plea for a type of free expression that has nothing to do with the First Amendment because the First Amendment is Congress shall make no law that doesn’t abridge freedom of speech. It doesn’t mention any form of government. It’s not talking about that.

It’s talking about something different, right? And that basic confusion happens all the time in the controversies around free speech. So, the other one I use was when Neil Young, a musician who is Canadian and actually went to high school in Winnipeg – that’s an aside; that is not why I used it – but he was very upset with Joe Rogan’s podcast because he argued that it was spreading misinformation about COVID and vaccinations. So, he said he would pull his music off of Spotify if Spotify didn’t cancel the Joe Rogan show, right? Again, on Twitter, a huge controversy because he’s anti-free speech, and then he's hypocritical because he’s supposed to be from the ‘60s lefty generation, and in 2006, he even had a free speech tour.

I normally, as a political theorist, don’t lean to the musicians and Neil Young, but to some extent, he was very articulate and said, “No, by free speech, I mean lack of government interference, and me, pulling my material from Spotify has nothing to do with government interference,” right? But the debate did not function like that. So, the debate was basically people yelling across each other where the defenders...and to some extent, I’m more sympathetic to Neil Young’s point, which is, isn’t it his freedom of expression to say, “I don’t like Joe Rogan’s show, and I’m opposed to the types of things he has on it? So, I don’t wanna be affiliated with him through Spotify.”

Again, it was hysterical partially because there was this notion that Neil Young was trying to cancel Joe Rogan. Well, Joe Rogan – at the time, and I think still is – is one of the world’s most popular podcasters, and it was a fight that Neil Young wasn’t gonna win, but he was using it as an expression, right? So, then, in a certain sense, I think Neil Young was much more consistent than his critics in saying, “By free speech, I mean lack of government censorship, and this has nothing to do with that, and so I’m still in favor of free speech. I’m not contradicting my free speech tour from 2006. I just have a different definition of free speech than you do.”

Nico Perrino: And Joe Rogan survived the controversy, as you know. You could argue that he is at the height of his power right now in the wake of Donald Trump’s election and having him on his show and all the ink that’s been spilled about how that might have contributed to the election outcome. But this open letter came in the summer of 2020 where there was concern around cancel culture more broadly and people who didn’t survive the cancel culture campaigns.

So, in the letter, they write, “Editors are fired for running controversial pieces; books are withdrawn for alleged inauthenticity; journalists are barred from writing on certain topics; professors are investigated for quoting works of literature in class; a researcher is fired for circulating a peer-reviewed academic study; and the heads of organizations are ousted for what are sometimes just clumsy mistakes.” Now, can those outcomes contribute to a culture of free speech, or do you think a culture of free speech is too mushy a concept to really exist?

Peter Ives: I think it’s sorta the latter, right? I think it is something we should talk about. I think there’s a better terminology to talk about it in terms of what is good and productive, acceptable public discussion, right? Free speech, inevitably, and some of its power comes from the constitutional principles of our Charter of Rights and Freedoms and your First Amendment.

The book goes deeper in that and says, “So, why is free speech important?” This is one of the things that I think lots of people will say free speech is important. It’s actually hard to find people who say it’s not important. There are some people on the progressive left who will say, “Well, it’s more often used as a foil or a mask, or it becomes an empty concept. It’s been so weaponized that there’s no point to it anymore.” You’ve had Stanley Fish on your podcast as well, sort of making his argument that it’s a political battle. Everybody just wants free speech to defend their perspective, and if you think otherwise, you’re just deluding yourself.

I do not take that tact, although I do think within those arguments there are some important critiques, but my argument again is that it’s not that it’s empty and there’s not enough there; it’s that there’s too much there. We’re using it to do very different things. Even within the culture of free speech – we’re talked about John Stuart Mill – it was very clear in Chapter Two of “On Liberty” that his goal for free speech is the truth. He says that he’s a utilitarian. He doesn’t see it as a self-evident right. It’s not a natural right like other philosophers argue it is; Voltaire, for example, argues it is.

Nico Perrino: Oh, yeah. I had the Objectivists on this podcast recently, and they do not like John Stuart Mill because he does not see free speech as a natural right.

Nico Perrino: He rejects the concept of natural rights altogether.

Peter Ives: So, Mills' consequentialism has lots of philosophical problems.

Nico Perrino: Sure.

Peter Ives: But he articulates very well and very detailed. I love teaching, and although he is a bit wordy, and he uses counterexamples to the point where my students are sort of: I thought that was his argument. And you’re just like, actually, stop and say, “No, two pages earlier, he said, ‘one might think this,’ and then, he lays out the counterargument really, really well,” which is a good teaching device, but he lays it out very systematically and made a very persuasive argument, which is why it’s so consequential today. But again, the goal for him of free speech is what he would call social progress and the truth, right?

And that’s very different from, I think, what other people argue is the goal of free speech, and then it’s also very different from this sort of implicit notion that we don’t need to say why free speech is important because it’s self-evident; of course, it is, right?

Nico Perrino: Yeah. That’s one issue I might have taken with your book is that it lays out, I believe, four different philosophies or arguments for free expression as if they’re distinct and not overlapping. So, when I think about why I believe in free expression, it’s not because of the search for truth, or its essentiality toward democracy, or the ability it has to create self-fulfillment, or the individual rights component. It's kind of all of those, right? And to say nothing of the role that it plays in fighting tyranny or serving as a safety valve for an alternative to violence.

But it seems like in addressing these discrete arguments, you find the flaws in each one of them without kind of bringing them all together as a whole and asking whether free speech, if you look at it from all those different perspectives, is it good?

Peter Ives: Right. Yeah, but I guess my argument is that there are different concepts, right? So, John Stuart Mill, and it’s sort of interesting because he begins Chapter Two of talking about freedom of the press and –

Nico Perrino: So, what you’re saying is they are not all talking about the same free speech?

Peter Ives: Exactly.

Nico Perrino: Okay.

Peter Ives: So, what they mean by the words and Mill uses the word, “free expression” and what he means is different certainly than what Alexander Meiklejohn...and so he’s the other major figure that I do talk a lot about. He’s a very interesting figure. He was born in England. In 1872, he moved to the US when he was eight, became an educator and university administrator. He was president of Amherst College for a while, but he was also a very strong proponent of the First Amendment. He called himself an absolutist because he argued that Congress shall make no law if it means that wartime isn’t an exception.

So, he didn’t like the clear and present danger test of Oliver Wendell Holmes, to say that well, yeah, we can abridge free speech if there’s a clear and present danger there. He was very adamant that, no, if the writers of the First Amendment wanted there to be an exception for war, they had lived through war; they knew what war was; they could’ve predicted it; they would’ve written: Congress shall make no law abridging freedom of speech during peacetime, and they didn’t.

So, he argues that free speech is absolute, but then, he’s also very clear that by what he means about freedom of speech does not include a whole bunch of things that you and I would probably include under it and certainly that John Stuart Mill would include under it. So, for him, he uses these great phrases: That unlimited talkativeness is not protected by the First Amendment. He does think it’s protected by the Constitution under the Fifth and the Fourteenth Amendments under equal protection laws and due process, but it is like other rights like the right to own property; it is a relative right, and Congress can do things like tax people, but they need to do it fair and equally, and they need to have a reason for it.

Likewise, people can restrict talkativeness and speech in general, but what the First Amendment applies to, according to Meiklejohn, is public speech about public issues, right? So, he would have no interest in commercial speech being protected by the First Amendment, for example. So, that whole notion then of what free speech is very different from even how the First Amendment has been interpreted by the courts since then, right? So, again, that’s a very different notion than John Stuart Mill, who mentions the government.

He’s aware that there’s a distinction between the government and public opinion, but his big argument is that because of the advent of representative democracy, the big concern is the tyranny of the majority through public opinion.

Nico Perrino: Yes.

Peter Ives: He doesn’t want individual geniuses suppressed in their ideas because all of their neighbors think that they are ridiculous ideas, so they suppress them, right? So, the speech involved is very different, and the limits are very different, and the purpose is very different, right? So, sure, you can agree with both of them. I mean I think philosophically there are some problems there because they have very different understandings. Meiklejohn is very concerned with group deliberation.

I argue he comes out of a political theory tradition of Jean-Jacques Rousseau, who’s very much understood as a democratic thinker, but it’s very much about public deliberation where our government ideas need to come from, where our policies need to come from, whereas John Stuart Mill is worried about democracy as a tyranny of the majority is too much democracy. And it’s that notion that Chapter Two of On Liberty is really focused against. It’s the individual’s ideas that are gonna be quashed and not the public discussion. So, I think those are two fundamentally different projects with different definitions of what counts as free speech, what’s actually within the ambit of free speech, as well as what can be regulated.

Nico Perrino: You critique free speech scholar Jacob Mchangama’s book on the history of free speech. And Jacob, I should say, is a senior fellow here at FIRE, and [you] argue that he fails to define free speech and why it’s important.

Peter Ives: Don’t get me wrong. It’s a wonderful book. If I was the editor, I’d say, “You need to define it.” The historical richness of many of his examples is really rich, but again, I think they are describing different things.

Nico Perrino: Yes, and that’s what you do with your four different philosophers on freedom of expression. What are they trying to describe in talking about freedom of expression, and what are the justifications for free expression?

Peter Ives: Right.

Nico Perrino: But you also write, “I repeat, I’m not anti-free speech, quite the opposite,” which begs a question: How do you personally define free speech, and why do you think it’s important?

Peter Ives: I think that there is not one thing that is free speech that you can either be for or against. I think that framework that I think gets us into so many of these quagmires because you’re either for or against it and then we talk about what it is, right? So, certainly, I think there’s a problem with the government amassing too much power, so I think that I’m very much in favor of things like the First Amendment and the Charter of Rights and Freedoms in Canada. The fact that they’re quite different, and the First Amendment is phrased in a very absolutist way: Congress shall make no law abridging the freedom of speech.

I mean it’s nice because it’s directed clearly at Congress, so it should be clear, but you still have people like Donald Trump taking Twitter to court under the First Amendment for canceling him for closing down his account when Twitter is not Congress. Obviously, the courts threw it out, and all the pundits said that it would be thrown out, but in the public realm, even Josh Hawley, who went to Yale Law School, did the same thing with Simon & Schuster on his book. He didn’t actually take it to court; he just tweeted out, “See you in court. This is against the First Amendment,” when it’s ridiculous. It’s not. It has nothing to do with the First Amendment.

I know this podcast has done a really good job of sort of going through the history of the U.S. Supreme Court’s adjudications of: Is wearing a black armband free expression? Yes, it is, according to the courts. What about burning a cross on somebody’s...things that we wouldn’t think of are speech, and yet the classic example of falsely yelling fire in a crowded theater isn’t speech, right?

So, I think the American courts are set up with that notion of: Well, we have this absolutist free speech principle in the First Amendment, but we don’t actually mean it because we do want to exclude some speech from that, and the Canadian sort of does it the other way and says: We set it up as a balancing act.

Nico Perrino: Which is kind of a Millian approach to it, right, to the extent you’re balancing harms?

Peter Ives: I mean, there’s different interpretations of Mill, right? So, there are many of those people who say: The best way to read “On Liberty” is to say that there’s this harm principle and anything that doesn’t harm others, then in that sense, I think you’re totally right that Mill can be seen as a way of thinking through how the First Amendment has been interpreted. There are other people who sorta say, “Yeah, but the harm principle isn’t mentioned that often in ‘On Liberty.’”

It seems to be mentioned at those important points where he’s setting up the framework, but one academic argument says it’s not mentioned in Chapter Two, so you would’ve thought if the harm principle was important for free expression, he would at least have mentioned it once in a fairly long chapter and he doesn’t, right?

So, their argument is he’s much more of an absolutist in terms of free expression than having everything set up to the harm principle. The implication there is because it’s speech, it can’t harm, and then it is the opening of Chapter Three where if you’re saying that corn dealers are starvers of the poor in front of an angry mob, then that sentiment is railing up the mob, and that can be regulated, but not the argument that corn dealers are starvers of the poor or property is theft is his other example.

Nico Perrino: One distinction between America’s approach to free expression legally and Canada’s is the regulation of hate speech. So, if I’m getting this correct, Canada’s criminal code, offenses against the person and reputation apply to speech that promotes or incites hatred against any identifiable group defined as any section of the public distinguished by color, race, religion, natural or ethnic origin, age, sex, sexual orientation, gender identity or expression or mental or physical disability. If that code were passed by a state in the United States or a public university campus, it would be struck down as unconstitutional because, in America, we don’t have a hate speech exception to the First Amendment.

Peter Ives: It's not as if Canada has an exception and says that we have free expression except for hate speech, but it’s that Section One of the Charter that said: If it can be reasonably argued in the democratic society, then we can infringe upon free expression, right?

So, the important court case – and it did have to go through the Supreme Court – was the Holocaust denier, James Keegstra, who was a high school teacher who was teaching holocaust denialism, and he was taken to court, and he defended himself based upon his Charter right to free expression, and the judgment was that it was an infringement upon his free expression but that that was justifiable in a free and democratic society, right.

Nico Perrino: Well, how is someone supposed to know then what speech might follow that balancing test? That’s one of the things about a liberal democratic society that I so revere is that you have a reasonable understanding of what the law is that you could break. Now, if it’s always a balancing test, you never know what side of the balance you’re gonna fall on.

Peter Ives: Sure, yeah. Although I would say the same thing is true of the First Amendment, right? In the cheerleading case, the recent one, would we know whether a cheerleader who’s denied being on the squad, who posted on Snapchat, is that protected by the First Amendment or not? And the Supreme Court couldn’t really decide it, right? They’re very wishy-washy about their final decision. The Mahanoy –

Nico Perrino: Yeah, the Mahanoy case, yeah.

Peter Ives: I agree with you that there’s gray areas. To some extent, in Canadian hate speech, at least it’s confined to as exactly as you read out, that it has to be about those identifiable categories, right? Then, there’s another section, I think it’s 319 or 318; it’s specifically about Holocaust denial, which was written in there.

Nico Perrino: And it leads us to wonder whether even a presidential candidate like Donald Trump, who talks about immigrants entering the country illegally, poisoning the blood of the country, could fall afoul of Canada’s hate speech law?

Peter Ives: Yeah. I mean, immigrants would be a hard category to put in that –

Nico Perrino: Well, national origin, presumably.

Peter Ives: Right, but, yeah.

Nico Perrino: Let’s say for when –

Peter Ives: When he talks about –

Nico Perrino: – he says Mexican –

Peter Ives: – Mexicans.

Nico Perrino: – immigrants, yeah.

Peter Ives: It’s a gray area, and there’s lots of Canadians and lots of Americans who don’t like hate speech laws, although the US is the exception in the world, and that –

Nico Perrino: Sure.

Peter Ives: – most countries, most democratic democracies, have things like hate speech laws, and it’s the US that is the exception, right? But it’s very important in terms of, like, one of the themes of the book is for a Canadian audience to say: You absorb a lot of American media and a lot of American TV and learn a lot through it, and you think that Canada is the US sometimes, sort of in the opposite of Tim Waltz’s thinking that –

Nico Perrino: And so does Donald Trump, apparently.

Peter Ives: Well, exactly. Well, that’s a bit of a different question. It was December last year, there were five prominent liberal MPs who wrote to 20, 15, or 25 of the research universities in Canada with a letter, coming straight out of the US context and the congressional hearings from the university presidents there, demanding to know whether the codes of conducts at these universities prohibited the promotion of genocide against Jewish people. And, of course, it does because it’s against the law, right? So, it was sort of a ridiculous enactment of this thing. And all of the university presidents said, “Yes, of course it is.”

Nico Perrino: It depends on how you define calling for genocide. This is the problem I always have with it, right, which is the allegation from the river to the sea, Palestine will be free is a call for genocide, or intifada is a call for genocide, or supporting Israel’s war in Gaza is a call for genocide, or opposing gender-affirming care is genocide against trans people or supporting abortion is a form of genocide against the unborn. I went on CNN with Jake Tapper and made this argument a couple of days after the hearing, and people were like, “What are you talking about?” And at that point, the argument was that “from the river to the sea and intifada” were calls for genocide, right?

But you see it go many different ways, and it was an unpopular argument to make after that. So, it wasn’t actually clear to me that that simple amorphous call for genocide should be unprotected under the First Amendment. Now, these are private colleges or universities not bound by the First Amendment but to the extent they have free speech policies commensurate with them, as the president of Penn, Liz Magill, explicitly stated the day after the hearing. Then, no, you can call for the genocide of people so long as it doesn’t meet the very high standard in the Supreme Court case, Brandenburg, for the call of imminent lawless action and likely to actually result in that lawless action.

Peter Ives: That’s the key point is that in the US – and I think all of those presidents were listening to their lawyers – I agree they are very prominent presidents of prominent universities, and maybe they should’ve been more eloquent or whatever, but the content of their answer, as you pointed out, I think is correct.

Nico Perrino: That context matters.

Peter Ives: It depends on the context, right?

Nico Perrino: Yes.

Peter Ives: And if it’s just speech, in the American context, it is protected by the First Amendment. If it is just speech in the Canadian context, it can fall under hate speech legislation, and it’s not protected by the Charter and that’s the big difference.

Nico Perrino: It’s not an abstract question necessarily for Canada because I’m looking through my notes here. Isn’t Canada’s Online Harms Act going to punish Holocaust denial or calls for genocide by up to life imprisonment? I don't know where that law stands but I read this earlier in the year.

Peter Ives: Yeah.

Nico Perrino: So, if it’s life imprisonment and you don’t know what calls for genocide or opposing the holocaust means, I mean you’re really not gonna talk, right?

Peter Ives: Yeah.

Nico Perrino: Because I think prior to the proposal or currently, it’s five years in jail if you violate?

Peter Ives: Yeah, yeah, yeah, no, I agree. And there’s lots of discussion around and it hasn’t passed yet. It’s still making its way through and so it becomes very important in terms of how it gets used one way or the other.

Nico Perrino: I guess it’s worth saying because you briefly referenced this earlier. Are Canadian colleges and universities, public institutions bound by the Charter, not bound by the Charter?

Peter Ives: Yes, that’s an excellent point. I’m glad you brought that back up again. So, that was the court case. And it’s actually sort of fascinating. It was McKinney versus the University of Guelph, and the actual issue was mandatory retirement. So, the university had a mandatory retirement policy, and it went all the way up to the Supreme Court, and he said, “That’s discrimination against me based on my age,” and the court said that even though they’re public universities, and another big difference is we don’t have many private universities up here at all, so it’s very different from the US where a lot of prominent universities are private.

Nico Perrino: I’m curious as to why that is, but maybe that’s a separate conversation.

Peter Ives: Historically, there have been attempts and things, but there’s a notion that postsecondary education should be public, and the vast majority of universities are public. But the Supreme Court – and it was a contested decision; it was 5-4 – decided that because universities are very much at an arm’s length and they have autotomy – and this goes into this question of academic freedom – they are not considered part of the government.

It was sort of an interesting discussion because it said that, much like private companies, you might want to have a mandatory retirement policy because it’s important for universities to have newer and younger professors who teach different ideas, and you can only afford that if you can have a mandatory retirement policy, but the long and the short of it is that Charter doesn’t always apply to universities or other institutions. So. it gave a list, and then there’s further jurist prudence that sort of said: Well, hospitals are, they are part of the university; they are performing a direct function of the government whereas universities are sort of at arm’s length; they do not.

So, yeah, it is a gray area, and it becomes really important, and there are lots of legal scholars here as well as activists who don’t like it and think the Charter should apply to universities. There have been cases in Alberta, and most of them have been antiabortion activists protesting on the public spaces of campuses. They have decided that they have Charter rights to free expression, but that has not gone up to the Supreme Court, and there have been cases in Ontario that sort of say the opposite. We saw this summer when they were clearing out the pro-Palestinian protesters at the University of Toronto, and the court said: Well, ultimately, it’s private property. They are public universities –

Nico Perrino: But for purposes of free expression, it’s treated as private property. That’s just gonna strike Americans as odd.

Peter Ives: Yeah, exactly.

Nico Perrino: But so –

Peter Ives: Although some of the same arguments were made at Columbia. Areas of the campus that are very much public, and normally people use them as public spaces, and I don’t know too much about the jurist prudence in terms of other malls and other [inaudible – crosstalk]

Nico Perrino: Oh, yeah, don’t even get First Amendment scholars going on –

Peter Ives: Exactly.

Nico Perrino: – whether private malls and the public space in private malls should be public forums for purposes of the First Amendment. That’s a Supreme Court case from a couple of decades ago that really just rankles First Amendment scholars. But, to your earlier point, to circle back, so these MPs sending these letters to college and university presidents, asking whether their policies would prohibit calls for genocide, these colleges can have policies that say theoretically: No, we don’t unless –

Peter Ives: Well, I mean, they would have to say that we allow people to break the law because the hate speech laws are now protected by the Charter. So, the Charter is immaterial in this question.

Nico Perrino: Sure.

Peter Ives: It’s the hate speech laws which are important.

Nico Perrino: Yes.

Peter Ives: Right?

Nico Perrino: And so, they would be implicated by this Online Harms Act that’s being proposed. I found the language now that would update the criminal code so that “Every person who advocates or promotes genocide is guilty of an indictable offense and liable to imprisonment for life.” The charge again is currently a term not more than five years.

Peter Ives: Five years, yeah.

Nico Perrino: You write in your book you talk at the beginning about how you were born in America, I believe?

Peter Ives: Yes, yeah.

Nico Perrino: You lived here for about 20 years, went to Reed College from the Portland area, spent some time there, and –

Peter Ives: I actually grew up in Colorado, but yeah.

Nico Perrino: Oh, you grew up in Colorado, and then you moved to Portland for –

Peter Ives: Moved to Portland to go to Reed.

Nico Perrino: And you write of Canada that you are glad to be living in a country with laws against hate speech, especially when it’s used to organize white supremacists. And you referenced an incident that you witnessed; you didn’t witness the incident itself, but you were living in Portland at the time where hate speech was essential on trial, and the First Amendment’s protection for even offensive, despicable speech was held to protect the speech at issue in that case.

Peter Ives: Yeah. It’s in the preface, and I’m sort of trying to describe how I got to this, and one of the big themes again in the book is the differences between the US and Canada, right? Questions of free speech were in me, both having grown up in the States and then moved to Canada, as well as this one particular incidence where it was very clear, it was –

Nico Perrino: The acronym is WAR.

Peter Ives: – it was WAR. So, it was White Aryan Resistance –

Nico Perrino: Yes.

Peter Ives: – organized by Tom Metzger, and then later his son. And it was very clear that he sent an organizer up to organize disaffected white youth in Portland to have them go beat up black people, right? And sure enough, they killed an Ethiopian man, Mulugeta Seraw. The interesting thing that really hit me as a 20-year-old was that the civil court case was a huge success for antiracist progressive forces because the family took him to court for damages, and the jury awarded them, I think it was $12.5 million, so it basically put WAR out of commission because it defunded them basically, right?

So, this was seen as a huge success for antiracism, but it just sort of hit me. And again, I was learning about the difference between civil law and criminal law, and I thought, “Well, this guy was organizing white supremacists to go kill people. Isn’t that a crime against the state and society at large and everybody? It’s not just the damage to the family.” So it was that sort of young sense of: What is the law for and where is the justice in this versus the pragmatic notion of, well, we can use civil law to do work because we can’t do it under criminal law because of the First Amendment.

Nico Perrino: Was he not convicted?

Peter Ives: No, he wasn’t convicted criminally.

Nico Perrino: What were the charges in the case? Murder?

Peter Ives: Oh, I forgot the details. I have the footnotes in the thing, but it was the harm that he had caused the family, and obviously, as you know, the bar is much lower in civil cases.

Nico Perrino: What I’m trying to parse out, though, is assault is not protected by the First Amendment. I know very few people who –

Peter Ives: No, the young teenagers who actually did the killing were found guilty criminally.

Nico Perrino: Okay, so –

Peter Ives: But it was the organization, it was explicitly white supremacists that had clearly organized and sort of was looking for young, disaffected white youth to carry out this type of crime. It was their strategy and that was deemed protected, right? And then, when I was in Canada a couple of years later, Tom Metzger had been let in. He had been invited by another white supremacist group to give a talk, and then he was deported based upon the hate speech laws.

Nico Perrino: Yeah, I would have to do a deep dive into the case because there are exceptions to the First Amendment for criminal conspiracy and obviously murder; you can’t coordinate the murder of people and then claim First Amendment protection when that murder happens, even if you are not the one who carries it out. But if you’re mailing pamphlets, arguing for the supremacy of the white race, if you’re holding meetings about that, if you’re giving speeches, arguing for a white master class, and not actually meeting the standard for incitement to imminent lawless action and that action is likely to occur, then it would be protected speech. So, that’s –

Peter Ives: Yeah, it was the organizational thing. Again, it was a long time ago, and I went back and looked at it through the book in terms of refreshing my memory, but if I remember right, it was the organizational piece where it was very clear he sent one of his organizers up to organize the Portland area, but it didn’t meet that criminal standard that you were talking about that it is in Canada.

Nico Perrino: But you are glad, as you write in the book, to be living in a country with laws against hate speech.

Peter Ives: Oh, yeah, and basically –

Nico Perrino: So, you agree with Canada’s laws on hate speech?

Peter Ives: Well, I do. I mean, I guess –

Nico Perrino: And not only what they say in the statue but also how they’re enforced?

Peter Ives: Well, I guess the point that I make in different ways throughout the book is that the line...and again, it goes back to John Stuart Mill, I think the only way to really read John Stuart Mill is this idea that there’s speech, the sort of sticks and stones argument, that whatever speech is, we can disagree about how to define it and whether wearing a black armband is it or not, but that speech can’t hurt people and actions can.

Peter Ives: There’s a couple of paragraphs where I mention Wittgenstein and Austin, but all of them were arguing that the line between something being speech and something being action is impossible to determine. There’s a whole field of speech act theory based upon the notion that speech is action, right? And I think you see it in American jurisprudence where how do we define this line between speech and action when there’s lots of things that are obviously speech, yelling fire in a crowded movie theater, that are not speech apparently, and lots of things that wouldn’t be seen as speech like burning crosses on somebody’s lawn which are, right?

So, the speech action distinction, I think, fails, and the critiques of hate speech laws are always based upon a speech action distinction.

Nico Perrino: And also, who decides what’s hate speech.

Peter Ives: True.

Nico Perrino: The trust that you might place in Joe Biden’s administration to wield hate speech codes, that trust might not exist for Donald Trump, but Donald Trump’s gonna have access to the very same codes. I think that’s a very core argument to the people, including myself, who oppose hate speech codes.

Peter Ives: Obviously, in the US, you have hate laws like a murder that’s motivated by hate is a different category and is punished more than one not, so you have to make that distinction.

Nico Perrino: And I disagree with that, actually. There are a lot of free speech advocates who say that to the extent there’s a motivation behind murder, and there always is, right?

Peter Ives: Right, right, yeah.

Nico Perrino: It shouldn’t be the viewpoint. It should be the action that’s punished. You do write in the book it’s naïve to try to separate the realm of speech and the language from that of violence and harm. This is where free speech advocates might take issue with even some of America’s First Amendment jurist prudence. For example, fighting words is a category of unprotected speech, theoretically, although, in practice, it’s hardly ever evoked. It’s more or less a dead letter at the Supreme Court, at least, although it might still live some dying breaths at the state courts, but this is speech that rests upon the listener’s subjective reaction to it that creates its punishability if that makes sense.

It’s like the concept of heckler’s veto, right? I might say something, or I might express a viewpoint, but we shouldn’t let the subjective reaction of the listeners determine whether I can speak or I can’t speak. The government has a responsibility to protect the speaker in those situations. But you could see how this speech equals violence equals harm argument can create a slippery slope. I think back to Lisa Feldman Barrett’s op-ed in the New York Times back in 2017 titled “When is speech violence?” and she argues that chronic stress shrinks the telomeres in our chromosomes, which can advance aging, and since speech can cause stress, speech can accelerate death.

Her direct quote is, “If speech can cause stress, and if prolonged stress can cause physical harm, then it seems that speech, at least certain types of speech, can be a form of violence.” Where does that end? My disagreements with my wife or my long-term simmering disputes that I might have with my extended family cause me stress over time. That doesn’t mean that their response to me is a form of violence, but you could see how, if you accept as the logical conclusion of the speech, that theoretically, it could be punishable.

Peter Ives: But this gets back to why is free speech important, right? And John Stuart Mill, I’m critical of him for making this distinction that I don’t think holds philosophical water in his context, but especially in our context. We live in a world of zeros and ones on the internet, right? We’re talking over this medium; everything is speech, right? And for us to limit the concept of violence or harm so much so that all speech is protected when that would be everything on the internet and most things in people’s daily lives, I think, is a very, very radical position and sort of goes back to why would speech be that important to everybody?

It’s such a radical argument for a small government that does so little that I think it doesn’t meet people’s actual realities where people feel they can be much more hurt by verbal violence and verbal abuse in doxing and all the implications that have for their lives and their livelihoods and their emotional wellbeing. They would rather be punched on a public speech than have to live through a lot of verbal and sort of attacks in the realm of speech, right? So, it does get back to this notion of...again, I’m a political theorist, so I’m gonna go back right to Aristotle, and for Aristotle, we’re political animals.

We exist in the polis; we exist in political societies. There’s lots of other positions; I would say Rousseau has a very similar position. I would say many Indigenous world views have this notion that we’re social beings, to begin with, which includes language, and it’s not until the European Enlightenment that we have this idea that we’re isolated individuals and then we form governments out of a necessary evil just to prevent us from harming each other. I think that’s a very particular social contract idea that comes out of Locke. I think John Stuart Mill doesn’t fit that because we talked about he’s a consequentialist, but he does have a notion that we’re individuals first and our social connections are second.

I know those are sort of deep, abstract philosophical points. You’re right; of course, there are some free speech absolutists who do think that there shouldn’t be any limitations anywhere, but I think most people in their daily lives experience their life in which the words that hurt them are much more problematic for their lives than some of the actions. The action distinction is something that I don’t think holds water philosophically, given the linguistic turn in the 20th century, but more than that, I think it doesn’t hold water for many, many people’s daily lives.

Nico Perrino: You mentioned free speech absolutists, and I know that’s often used as a shorthand to describe people who have very expansive views of what free speech should entail. But for my part, I’ve never actually met a free speech absolutist who thinks there is no use of words that can be limited. What we at FIRE like to call ourselves, coined by my colleague Greg Lukianoff, is opinion absolutist. We think there should be absolute protection for the expression of opinion. This would still leave room even for the concept of defamation, at least in the United States insofar as it only applies to statements of fact.

Peter Ives: So, C. Edwin Baker, who I talk about, calls himself an almost free-speech absolutist basically for some of the reasons you’re talking about, but for him, it only applies to the government, right? He basically endorses cancel culture, as far as I see, whereas Alexander Meiklejohn calls himself a free-speech absolutist because he’s confined speech so much that it doesn’t include much of speech, right?

In the book, I sort of point out that philosophically, one of the terms of free-speech absolutists is from the pluralist perspective, where human beings have different fundamental values. We can value justice, equality, security, and freedom, and the freedom absolutists are those who see that relative to the other human goals, it is the top one, right? So, if equality is in conflict with freedom, then freedom should win out. If stability or security is in conflict with freedom...that’s one definition of free-speech absolutism, which is different from the one that you just put forth, but again, different people have different definitions of this word, and I guess FIRE ran into the problem and so coined a different one, right?

But it’s a great example of how we have these public discussions that are people talking past each other because the words they’re using mean different things.

Nico Perrino: Yeah. We have these debates all the time, and often a justification for free speech, as you mentioned at the top of the show, is John Stuart Mill’s marketplace of ideas theory that’s largely adopted by the Supreme Court originally. So, the precipitator of a lot of the First Amendment jurist prudence that started to percolate and begin in the early part of the 20th century.

But FIRE’s argument surrounding the marketplace of ideas isn’t so much that truth is gonna win out in the long run, but that it’s just important to know the world as it actually is even if people believe insane things, right? It’s important to know that your neighbor believes an insane thing rather than to not know, which is often characterized as the information theory of free speech.

Peter Ives: Right. So, I don’t know, but I think John Stuart Mill might roll over in his grave when the idea of the marketplace of ideas is attributed to him because he was an economist, right? So, not only did he not ever use the marketplace as a metaphor for a realm of free discussion. That was Oliver Wendell Holmes. There’s reasons why this sort of –

Nico Perrino: But picking up on John Stuart Mill and –

Peter Ives: – well, and there’s, yeah –

Nico Perrino: – and the search for truth.

Peter Ives: – the notion that the search for truth requires a conflict of ideas and that ideas clash, and this goes back to my interest in the word “caustic” in the Harper Letter. What are these conversations supposed to look like, I guess is the deeper question? The marketplace of ideas is such a prominent metaphor; there’s lots of academic and lots of legal scholars who say it’s a ridiculous metaphor, but lots of jurists who still keep on using it. My argument in the book is that it's a ridiculous metaphor because the whole premise of a market is if I sell you an apple, I can’t eat it, right?

It’s a thing which is distinct, and the market functions because we exchange one thing for another, usually money for an object, and I can no longer use the object once I’ve sold it, and ideas don’t circulate like that. So, commodities circulate like that, as economists know, as John Stuart Mill writes in many of his other books about. Ideas do not circulate like that.

Nico Perrino: I think you’re splitting hairs here, Peter.

Peter Ives: No, but I think it’s very important because it shows what we are getting at with this metaphor of the marketplace of ideas. What is a good conversation, I guess, is what’s going on, right? I understand firm limits in the legal sense and that you’re trying to restrict government, but if you have this enlightenment idea...the big question of the marketplace of ideas is exactly what you just brought up which is it is this notion that the best ideas will rise to the top, right? So, again, the marketplace of ideas, to me...I don't know if you have been to the Dollar Store or Wal-Mart recently, but they’re not the best products, right?

They’re the cheapest products or the products people choose to buy, but the question is, what is the mechanism that Mill talks about? Again, you said that’s not why you defend free speech, but many people do, and they refer to the marketplace of ideas within...I think it was Chaffey who sort of says: It’s like a mixer. You throw everything in the mixer, you mix it up, and then the best ideas rise to the top, right? And I think that is sort of Mill’s idea, and I think Kunz actually expressed in very similar terms earlier that the great thing about free speech is that reason is so powerful that somehow, when people are exposed to reason, they can’t deny it or what Jürgen Habermas called the noncoercive coercion of the better argument, right?

It’s a very enlightenment, optimistic view of the reason that gives us that idea, and I think it’s behind many of the impetuses behind ideas of free speech, and I don’t think it works in our world and especially in the world of social media.

Nico Perrino: Do you think it works in the long term? Is there a certain time horizon by which you can judge whether truth will win out? I think often, in the short term, it loses, but I think in the long term, it wins out more often than not.

Peter Ives: Well, I think not. I think, in my own experience, as well as I would argue philosophically as well, that having a good conversation where you actually have diversity, you have different ideas, is rarely reached by just lack of constraint, right? So, this idea of a negative freedom of you just let people say what they wanna say, right? That’s one of the differences between Meiklejohn and Mill.

For Meiklejohn, his metaphor was the town hall, and he was very clear that he’s a free-speech absolutist, but that doesn’t mean that the moderator at the town hall can’t call the meeting to order, can’t rule things out of order, can’t say, “Well we’ve already heard that point, you’re being repetitive,” can’t construct the dialogue so that information and arguments can actually happen, right? And that’s the same thing I find in my classrooms. Some of my students might disagree with me and I think most of them agree with me that we create an environment where good discussions can happen. I don’t think that the environment is created by just a lack of restraint.

Nico Perrino: So, when you’re talking about restraint, you’re talking about restraints put on a conversation with the goal of arriving at a truth or the best conception of truth? You’re not talking about North Korea shutting down the internet?

Peter Ives: No.

Nico Perrino: Or are you?

Peter Ives: No, I’m not talking about North Korea shutting down the internet.

Nico Perrino: Because those are restraints, a certain type of restraints.

Peter Ives: No, I know, but I’m saying there’s other reasons to say there shouldn’t be restraints, and one of them is to prevent overly powerful government, right?

Nico Perrino: Yes.

Peter Ives: I think there’s other reasons for free speech, but the idea of a good public conversation directed at democracy and self-governance rarely happens with this free-for-all idea that we have free speech, right?

Nico Perrino: But you write in your book that if we view social media as a massive experiment and unfettered free expression, the results currently seem far from positive. In what way and judged by what standard?

Peter Ives: Well, I haven’t done a sort of discourse analysis of media talking about the internet, but certainly in 2010, most of the discussions of the internet was, there was the time of the Arab Spring, and there’s lots of people who were talking about how important the internet was for democracy and social justice and progress, and now you have huge complaints about it. You have millions of people leaving Twitter because they find it is not conducive to a good discussion; whether they’re moving over to Bluesky and they think that’s better or not; there’s lots of discussions about it.

In the book, I sort of focus on the profit motive and saying that it’s not the technology itself, but it’s the business models and the way that we’ve developed those technologies that mean that these private companies, responsible and making profits as social media platforms, that they’re not induced and they’re not likely to create the conditions in which we would have a proper and good exchange of ideas.

Nico Perrino: I hear the argument often that social media is eroding the public conversation. I don’t always buy it, at least in so far as social media. It is how I learn what the public conversation is in most cases. I guess if you revere the days where you had four or five gatekeepers determining what the news is, and you liked getting your news once a day from the 6:00 p.m. broadcast or from the morning broadsheet, then that would be a preferable outcome. I admit that social media is more messy.

It requires a degree of media literacy and perhaps some looking into claims in a way that where, before, you could just trust what was said, but then we learn you can’t always trust what you said; look at weapons of mass destruction, for example. We sent the world to war over that one because the claim was accepted uncritically. But it’s hard to see what an alternative universe looks like where social media doesn’t exist, and is the progress that we see now, to the extent there is progress, still there in a world with a more constrained or narrow conversation?

Peter Ives: Yeah, I don’t think you need to look too far to say that lots of people...and I’m sure that discourse analysts have done some studies of this, although I haven’t come across them, so maybe I should, but between 2006 when Facebook was first taken off to 2014 in that realm where the algorithms were not used to sort people’s feeds, etc., etc., then the public’s sphere was much better in terms of actual discussion. You would actually hear what the people you followed said. You wouldn’t have these algorithms manipulating everything so that you don’t hear what the people you follow say; you hear other things.

Nico Perrino: Well, you can still on X or many of these other platforms now switched to a timeline that’s just people you follow.

Peter Ives: But that came off of pressure because people didn’t like how it was, right? And obviously, what’s driving all of this is the profit motive. These are not all truistic nongovernmental organizations doing this out of the goodness of their heart; they are businesses that are trying to make money, and they make a lot of money by targeting ads, and this is a field where I’m not an expert although I learned a lot writing that last chapter on social media.

Again, I’m very clear that I’m not trying to make an argument about social media per se; I’m trying to make an argument on free speech and whether social media platforms are likely to be places where free speech can be productive and meet the goals – and whether it’s John Stuart Mill’s goals or Alexander Meiklejohn’s goals or C. Edwin Baker’s goals – that social media is not meeting any of them. I think most of the scholars that I cite there, not all, and I do cite Jacob –

Nico Perrino: Mchangama, yeah.

Peter Ives: I cite him to sort of that notion that it’s overplayed, which I think is your argument, right, that the dumpster fire that is now social media has been overplayed. I think it’s hard to describe why all the twists and turns around Twitter and X, for example, why all the ups and downs, even the controversy around TikTok, all of these questions.

To some extent, the basic thesis of that chapter is: Are public debates about social media right now is to regulate or not? And part of what the chapter tries to do is draw on other people’s work to say social media has always been regulated. Section 230 of the Telecommunications Act gives it a very special spot, which is different from other publishers and is different from common carriers, and that structures it, right, but even more basically, language structures things. The idea that we speak spontaneously and freely is always something I’m a bit suspicious of going back to that notion because I think we’re social animals, and we learn from other people, right?

So, it’s more of those questions but coming up to this notion that the internet wouldn’t exist if it wasn’t for the US military backbone and those initial fiber-optic cables that were then privatized in the ‘90s, and it’s that privatization which structures our current social media. And then, it’s the permission of the use of cookies to follow our privacy issues, which enables social media platforms. So, we’ve created this business environment that is aimed at allowing these very powerful companies to make a lot of money, and then, we expect them to sort of somehow create an environment where we can have good discussions about the public issues that can contribute to democracy, and I don’t think that’s gonna work.

Nico Perrino: Yeah. I do think we disagree on this. I think even if you take those theorists at the beginning of your book at face value, and agree with their theories, I do think you get a more robust democratic public conversation as a result of social media. I do think, to the extent one of the theorists, I think it was Baker, talks about it being an individual right. It obviously allows for self-expression, and I do think, ultimately, it helps us arrive at a greater truth. I admit, again, that it’s messier, perhaps, and there’s more sorting that needs to happen, but I think you have more truth claims that are put out that you can sort from, whereas previously, you just had to trust those in power to tell you something was true.

Peter Ives: I think you’re underestimating the importance of small newspapers and alternative media outlets, which, obviously, the vast majority of Americans or Canadians got their news from the big networks and the big newspapers; I totally agree with you there. And there’s a problem of concentration of power, and now that sort of flipped because, as Timothy Wu and the other people I cite talk about, there’s sort of abundance of information. We used to have a scarcity of information, but now we have an abundance of information. It’s a question of cutting through all of the stuff that’s out there, right?

Nico Perrino: But that goes back to the printing press and Erasmus, as you write in your book. There’s more –

Peter Ives: Exactly.

Nico Perrino: – so sort through. I love that quote, by the way. I hadn’t seen that one before.

Peter Ives: Yeah.

Nico Perrino: But Chris –

Peter Ives: I don’t know, sorry.

Nico Perrino: – no, I was gonna say, Chris Hughes, who is the co-founder of Facebook apparently...you only hear about Mark Zuckerberg, but apparently, there were others. He talks about the need to break up big tech and how...and I’m quoting him here, “The biggest winners would be the American people. Imagine a competitive market in which they could choose among one network that offered higher privacy standards, another that cost a fee to join but had little advertising, and another that would allow users to customize and tweak their feeds as they saw fit.”

And I read that, and I’m like, wait, that marketplace exists. Higher privacy standards; that’s Telegram. Another that cost a fee to join but had little advertising; that’s X premium. You pay a fee, and you don’t have any advertising on the platform. Allows users to customize and tweak their feeds as they see fit; that’s Mastodon and Bluesky. So, it’s not like there isn’t any competition happening.

Peter Ives: But I think Chris Hughes and I think other people might do it more explicitly. I think Cory Doctorow is the one who goes into more detail about it. But there’s a huge impediment for if I’m already on Twitter and I have all my followers, I can’t easily move them over to Telegram, right? And so –

Nico Perrino: The network effects, yeah.

Peter Ives: – all of those people are talking about...you’re sort of making protocols that are much more like emails so that we don’t have to have the same email provider, and yet we can exchange emails. Instagram and Facebook, you can go between the two because they are both owned by Meta, but you can’t go to other social media companies, right?

So that’s a vision, which is, again, to me, it’s a technological solution to a political problem, and I don’t think it’ll work, but I think it’s a reformist notion that doesn’t get at the heart of the issue but that sort of technological solution does sort of say that we can force companies, not to get into free speech issues and monitoring their free speech, although I think the companies would fight back and say: Well, it’s how we operate. We wanna run our algorithms like we want, and we’re private companies. We wanna decide what our members can and can’t do and if they can go to another social media website.

I think there’s a robust discussion, which I’m interested in; I’m no expert on in terms of social media now, but to me, part of the point of that chapter was to say there are all of these different sort of approaches to this problem, and unlike you, they all see it as a problem, and I see it as a problem.

Nico Perrino: I admit, I’m a minority here.

Peter Ives: And the differences aren’t gonna solve what is ultimately a question of how do you create a good discussion. That’s why I quote Jack Belkin and the legal scholars who say, “Well, actually, the First Amendment doesn’t really help here,” right, because again, it goes back to this model of a good discussion can happen by just getting rid of the restraints, allowing people to say whatever they want.

Nico Perrino: Let’s talk about solutions then. At the end of your book, you say, “Those of us engaged in these dominant free-speech debates need to seek out and learn from diverse perspectives, especially those people in traditions that have and continue to experience colonialism and racist oppression. Such dialogue needs to include a general diversity of perspectives and positions, and more specifically, it needs to include the viewpoints of people who have diverse experiences. The recent push towards what is labeled viewpoint diversity is a backlash that tries to obscure differences and experiences and elevate conservative voices that feel unheard or unsuccessful in convincing others of their ideas.

Thus, by inclusive, I do not only mean that each of us as individuals needs to feel included, but that people who have been and continue to be discriminated against, oppressed, marginalized, and exploited need to have their perspectives taken seriously.” The question I was left with at the end of this is: What does it mean to take perspective seriously?

Peter Ives: Yeah, and that’s a good question. It does seem to me that in free-speech debates, obviously, the new examples and the new context and social media changes a lot, so I don’t wanna say that nothing has changed in the new Supreme Court cases or whatever, but really, the basic ideas, the notion that there’s this line and it’s a question of where the line is drawn about free-speech and what’s permitted and what’s not, and that they tend to circulate and repeat themselves, and yet one of the things that free-speech promises is that new ideas will come up, and yet, I’m not seeing a lot of new ideas.

I think part of the reason is sort of this hubris that free-speech is a monopoly of the so-called Western tradition or sort of the European tradition that goes from Mill to Oliver Wendell Holmes up to us and there’s no broader looking at other ways to think about a good conversation, and how important decisions are made where people disagree with each other, where critique is not only allowed but fostered and accepted. And again, it’s an area where I’m focusing on what I know, which is this Western tradition and the cracks within it, and it’s a self-critique against me as well that I should know more about Indigenous scholars.

I use the fairly prominent John Burroughs, who’s a Canadian Indigenous scholar who writes about legal frameworks. In his descriptions, he doesn’t talk about free speech per se’, but he has very rich descriptions about how to handle disagreement, right? Similarly, I draw on David Newhouse’s work and what he calls academic freedom through a Cree lens, where he describes exactly what people who relish free speech say: You need to be able to have disagreements and speak honestly. Those values are there but it's articulated in a way that seems to be much more conducive. It’s not as combative. It’s not as caustic.

It’s not this sort of John Stuart Mill model where in order for me to infer my truth, I need to have it tested in battle against the falsity. It’s not a good or evil contest. I don’t agree with it fully, but John Durham Peters’ description of this history of free speech is really a righteous protestant notion, I think, really gets to so those views, right? The reason why the apocryphal Voltaire quote, which he never said [inaudible – crosstalk] –

Nico Perrino: Evelyn Beatrice Hall, yeah.

Peter Ives: – and it’s interesting that people point out he didn’t say that? But it’s as if, yeah, but he should have, or he would have. Whereas if you read much of Voltaire, he’s very ironic and cynical, and I don’t think he would ever be that sort of righteous and earnest to say, “I detest what you say, but I will fight to the death of your right to say it,” seems like a very un-Voltaire thing to say.

Nico Perrino: Yeah, I liked that in the book, and I’m just trying to find it here very quickly because you do take that on, and it’s Evelyn Beatrice Hall, who I guess is his biographer –

Peter Ives: Yeah.

Nico Perrino: – trying to summarize his perspective, but I think you make a particularly strong case that given Voltaire’s nature, he would never say something as righteous as that directly.

Peter Ives: And you know he was ironic. I have my students read his argument for freedom of the press, which is sort of funny because he basically says it’s not worth focusing so much on this, and often, the point that lots of free-speech advocates make that trying to suppress free speech often has the opposite effect and the Streisand Effect, those types of ideas is exactly what he’s saying. Spinoza’s book that was burned is now more popular because everybody’s asking why it was burned. So, he captures that dynamic very well. But again, it’s ironic because he must believe that writing has some import on the world, but he’s an ironic writer, right?

Nico Perrino: Yeah. I guess that passage that I read out previously from you struck me because some of the most vociferous advocates for free speech – and now you might say this might be related to government censorship rather than a culture, although I think many of these people would argue it in both directions – come from people who experienced censorship in the Soviet Union or experienced it in Hong Kong recently under their national security law or one of my colleagues who’s from Venezuela and had their family members imprisoned because of their expression contrary to the dictatorial government.

So, some of the most vociferous advocates – and we have a joke within FIRE that it’s the immigrants who understand free speech and appreciate free speech more than we Americans – and often, these immigrants are non-Western as well. So, it depends, I guess, who we’re talking about; maybe the Indigenous population is a unique case, but I hear these arguments all the time from people coming out of non-Western countries.

Peter Ives: Again, I do think the distinction between whether free speech means freedom from government censorship or a vague notion of culture is hugely important.

Nico Perrino: Yeah, but, you know, even if you don’t fear the government, the government can create a culture where it’s stifling. So, I believe John Stuart Mill was right in making his arguments in Victorian England, where the way he wanted to live his life, you couldn’t even talk about it without being ostracized. Now, that’s an expression of free speech, ostracism.

Peter Ives: Oh, yeah.

Nico Perrino: But it doesn’t give you the sense and feeling of freedom when you live in such a society, if that makes sense.

Peter Ives: Yeah, I tell my students that we shouldn’t over-psychologize it, but his relationship with Harriet Taylor Mill was seen as terrible, and his father was very upset about it. I think that it is that sort of personal level that he’s writing from.

Nico Perrino: This was fun.

Peter Ives: Yes, very fun.

Nico Perrino: And I do think your book is great in raising some very important and critical questions about what we actually mean when we’re talking about freedom of speech. So, I would urge our listeners to check it out. It’s a fairly quick read at about 150 or 160 pages. And again, the title is "Rethinking Free Speech". Peter Ives, thanks for coming on the show.

Peter Ives: Thanks for having me.

Nico Perrino: I’m Nico Perrino, and this podcast is recorded and edited by a rotating roster of my FIRE colleagues, including Aaron Reese and Chris Maltby, and co-produced by my colleague Sam Li. To learn more about So to Speak, you could subscribe to our YouTube channel or Substack page, both of which feature video versions of this conversation. We’re also on X by searching for the handle Free Speech Talk. We’re on Facebook and you can send us feedback at So to Speak at the fire.org. If you enjoyed this episode, please consider leaving us a review on Apple podcast or Spotify.

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