So to Speak Podcast Transcript: ‘Shouting fire,’ deepfake laws, tenured professors, and mask bans

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

Nico Perrino: Welcome back to So to Speak, the free speech podcast, where every other week we take an uncensored look at the world of free expression through personal stories and candid conversations. I am, as always, your host, Nico Perrino. Today we're going to do something that we haven't done in a couple of episodes. We're going to do a news roundup. We're going to look at the biggest free speech stories of the past few weeks, and we have a busy agenda.

What are we talking about this week? We're going to talk about Tim Walz’s controversial take on hate speech. We're going to look at California's deepfake laws, plural. And we're going to look at the three tenured professors recently fired or suspended for their expression. Plus, we'll cover Nassau County's new mask ban and the legal uproar that's ensued. To do this, joining me today in FIRE’s DC podcast studio is FIRE’s own Aaron Terr, our Director of Public Advocacy. Aaron welcome back.

Aaron Terr: Good to be here.

Nico Perrino: To his right is Connor Murnane, Campus Advocacy Chief of Staff here at FIRE. Connor?

Connor Murnane: Thanks for having me.

Nico Perrino: Is this the first time on the show?

Connor Murnane: First-time listener, first-time caller, all that fun stuff.

Nico Perrino: Very good, very good. It's good to have you. Adam Goldstein, you've been on the show before. You're FIRE’s VP of Strategic Initiatives. I think last time we were talking about intellectual property and copyright and fair use and all that fun stuff, but it's been a couple of years.

Adam Goldstein: It has been [a couple of years]. Glad to be back.

Nico Perrino: All right. Aaron, Connor, and Adam, welcome on to the show. Let's start with Tim Walz's comments on hate speech and free speech. Last week during the VP debate, Minnesota Governor Tim Walz incorrectly claimed there is no First Amendment right to hate speech and cited the widely misunderstood “shouting fire” analogy, which is often misapplied to free speech debates. Let's play that clip.

JD Vance: The most sacred right under the United States democracy is the First Amendment. You yourself have said there's no First Amendment right to misinformation. Kamala Harris wants to use the power of the government and Big Tech to silence people from speaking their minds. That is a threat to democracy that will long outlive this present political moment. I would like Democrats and Republicans to both reject censorship. Let's persuade one another. Let's argue about ideas and then let's come together afterwards.

Tim Walz: You can't yell fire in a crowded theater. That's the test. That's the Supreme Court test. JD Vance: Tim, fire in a crowded theater? You—

Nico Perrino: All right, Aaron Terr, is that the Supreme Court test? Shouting fire in a crowded theater?

Aaron Terr: That is not the Supreme Court test. Although if you stop reading Supreme Court First Amendment case law in 1919, then you might, you know, you might think that it is. But, yeah, that's a phrase that goes back to a case, called Schenck v United States. It was penned by Justice Oliver Wendell Holmes, and the case was actually about World War I protesters. They were encouraging people to peacefully resist the draft, and Justice Holmes used a metaphor to explain that there are limits to free speech. What he actually said was you can't falsely shout, or cry “fire” in a crowded theater and cause a panic.

And he would later reform his views pretty quickly, actually, I think within months and actually became one of the great justices who defended the First Amendment and started to make it into the speech-protective law that it is today. But that phrase, “fire in a crowded theater,” of course, endures on. You often hear recited by people who are trying to justify censorship of things that really have nothing to do with fires or theaters.

Nico Perrino: Well, that's the question, right? So, can you shout or falsely shout “fire” in a crowded theater and have it be protected by the First Amendment? One of the things I learned is that there is a suggestion that Oliver Wendell Holmes when he was writing that majority opinion in Schenck was making an oblique reference to an incident that happened, I believe, in 1913, in Calumet, Michigan, at an Italian hall where a group of union, I believe they were miners, but union workers and their families were having a Christmas party and someone falsely shouted “fire” in the crowded theater. They think it was a union buster, and something like 73 people were trampled and killed.

So can you, Adam, falsely shout fire in a crowded theater and have it be protected?

Adam Goldstein: Well, it gets into this idea of the constructive speech or constructive action [question], where if your purpose in shouting “fire” is to create a panic that will then cause people to be harmed, you can't do that. But there might be other occasions where falsely shouting “fire” would be totally protected.

Nico Perrino: “Fire, fire, fire!” Right? [laughs]

Adam Goldstein: Like if you're — this is an extreme example obviously — but if you're in a play and that's the line and you're on stage, you should probably shout “fire” or else the play is going to drag. So there's nothing inherent about shouting “fire” falsely in a theater that automatically makes it unlawful because falsehood also isn't automatically outside the First Amendment.

Nico Perrino: So you can if there is a fire in a theater, you would probably want to shout.

Adam Goldstein: You should. You probably should. Yeah. It would be antisocial behavior not to shout “fire” at that point.

Nico Perrino: Yeah. But if you're in a crowded podcast studio so to speak, and I falsely shout “fire” like I just did, and nobody is under the false pretense that there is actually a fire, then that's probably not unprotected. So, context matters.

Nico Perrino: Is that how we get to the 1969 decision in Brandenburg, which is the current standard for incitement to imminent lawless action, right? And it needs to be likely to do so.

Aaron Terr: Right. The speech needs to be intended to cause imminent lawless action and actually likely to produce it.

Nico Perrino: So my shouting “fire” just a moment ago was neither likely to cause a panic nor intended to do so.

Aaron Terr: Right.

Nico Perrino: So it wouldn't meet that standard, all right. But the phrase falsely shouting “fire” in a crowded theater is often used almost kind of like a tic or a reflex by people in free speech debates to justify all sorts of censorship. In this case, I think Tim Walz was using it to justify censorship of mis- or disinformation. What other contexts have we seen it come up in?

Adam Goldstein: Well, it keeps coming up a lot because it just stands for the underlying principle that there are things that are not protected by the First Amendment, which is an observation that I think, you know, unless you're a free speech absolutist and a First Amendment absolutist, which there aren't very many of them around, everyone would agree. There are some things that are beyond the scope of the First Amendment, at which point we could move on.

So you could just as easily if you're someone prone to evoking this analogy, you could simply bring up copyright infringement, my favorite topic. Hey, I got there in one. That's not protected by the First Amendment. There are other types of unprotected speech, the location of troops during war, right? So there's no reason to use it because all it stands for is the idea that, yeah, the First Amendment isn't absolute and eternal.

Nico Perrino: So it's substance-less. It's stating something that should be obvious to all people. Although, the problem is that it's just applied in contexts where the speech is clearly protected, such as in the context of hate speech. Right?

Aaron Terr: Right. Hate speech would be the other big context, I think, where you often hear it, and it's the idea is that you're expressing hateful attitudes that might — might lead at some point in the future to people to act on violent ideologies and result in some kind of physical harm to people. But it's this much more attenuated connection that doesn't satisfy that narrow incitement standard articulated in Brandenburg.

Nico Perrino: Right. That's how we get to the other comment that Tim Walz made during the debate, where he sort of is interjecting there, where JD Vance is talking and saying, suggesting that hate speech isn't protected by the First Amendment. He's made comments like this before in interviews. There's a misconception surrounding hate speech. I think a lot of people think hate speech is unprotected. The Supreme Court has not articulated a hate speech exception to the First Amendment. Hasn’t it, Adam?

Adam Goldstein: No. There absolutely is no such thing. Hate speech comes up in our education work a lot because there is an obligation in anti-discrimination law to ensure that students aren't deprived of the value of their education by creating a hostile educational environment. At that point, that doesn't make the speech criminal, but it does impose an obligation on the educational institution to try to ameliorate the effects of speech that would make someone feel unwelcome, but that's not a crime.

Nico Perrino: Connor, I recall we had a case. What was it? Just after COVID, in 2020 or 2021 at Emerson College where you had a Turning Point USA group that was handing out stickers that said “China kind of sus” on them. For this, the college president sent out a

community-wide email accusing the students of anti-Asian hate and bias. It was pretty clear by looking at the facts that they were just talking about the Chinese government. It was in the context of the COVID pandemic, but for this, they were punished. I think their group was suspended, and they were accused of hate speech, right?

Connor Murnane: Time and time again, especially after October 7th, right? We just saw those decisions from the Department of Education, what the cumulative harassment theory is now. Can any number of these individual instances add up to a hateful or harassing environment for Jewish or Palestinian students?

Nico Perrino: So let's unpack that. Individual instances of speech adding up cumulatively, we're talking about multiple different speakers creating a hostile environment. So you could have one person who says, “From the river to the sea, Palestine will be free.” And maybe that doesn't constitute a Title VI violation, but if you have 3 or 4 people saying it, if you have 10 people who are hostile to Israel or Zionism it adds up to this kind of cumulative hostile environment, which downstream from that suggests that the college or university needs to punish each individual instance of speech, lest they cumulatively become hostile, right? That seems dangerous.

Connor Murnane: Oh, it's entirely dangerous, right? FIRE has been railing against speech police on campus for how long? And this is saying, look, now you need to watch out for the smallest incident because you don't know when we're going to add them up and say that's 10. That's enough.

Nico Perrino: So Tim Walz is wrong about hate speech. Going back to the Skokie case where the Supreme Court sent the case back down to the lower courts and said no, there are First Amendment rights at play here. For those who don't know, the Skokie case, and unfortunately, I found that many people don't know what that is. It’s a 1977-78 case involving neo-Nazis who wanted to rally in a town of 6,000 Holocaust survivors outside Chicago, Illinois. But then you fast forward to Texas v Johnson, where you have the courts say that it's a bedrock principle of the First Amendment that the government may not prohibit speech that society finds deeply disagreeable or offensive.

And then you get to Snyder v Phelps” where you have protesters outside the funerals of dead soldiers with signs that say, “God hates fags,” and the Supreme Court, I think that was an 8 to 1 decision with Alito in the dissent, fact check me on that one, saying, no, this is protected speech. And you have the court saying that if our Constitution means anything, it means the right to say something that we find again, offensive. And then you have Matal v. Tam, where you have an Asian rock group that wants to trademark the name, “Slants” to sort of reappropriate a pejorative against Asians. And the Supreme Court upholds the right to do so. So this is pretty well worn on Supreme Court doctrine, right Aaron?

Aaron Terr: Yeah, how many times do they have to say that there's no exception for hate speech before this canard will finally die? But yeah, it is a bedrock principle, as the Court itself said, a First Amendment law that you can't restrict speech simply based on a judgment that it's hateful or offensive. And, one of the main reasons for that is that the judgment of whether speech is hateful or offensive is in the eye of the beholder. It's subjective and it's strongly influenced by people's political and cultural biases. So it makes it very easy to wield that standard for both sides of the political spectrum, to wield that standard, to shut down opposing views.

Nico Perrino: But because hate speech doesn't have a definition, there are some things that would be unprotected by the First Amendment that might constitute hate speech. Right?

Aaron Terr: Sure, there can be overlap. So, some speech that meets the standard for incitement, for example, could also be considered hateful. If you have the KKK standing with torches in front of someone's house and the grandmaster or the leader or whatever orders them to set it on fire, because it's the house, you know, it's a Black person's house or a Jewish person's house or whatever. I think people would consider that, reasonably consider that hateful. But the reason they can be punished isn't simply because of their hateful views, but because it's speech that is likely to result in the imminent physical destruction and possible injury of people inside the house.

Nico Perrino: So that's kind of like the Virginia v. Black case from the 1990s, where Virginia had a statute that said that burning a cross, even on private property — the Klan does this — would be de facto intimidation. And the Court was mixed on it and it essentially said, no, this is expression and it can't be prima facie evidence of intimidation. But it might contextually if you take it all as a whole be evidence of intimidation, which could constitute a First Amendment exception. Am I right about the retelling of that case?

Aaron Terr: Yeah, and that's a different First Amendment exception, which would be true threats or intimidation, where you have speech that expresses a serious intent to inflict physical harm on an individual.

Nico Perrino: Okay.

Aaron Terr: The circumstances in the context around the cross burning have to send that message of a physical threat, right? And absent that, it's just speech that some would consider hateful or offensive.

Nico Perrino: So closing out Walz here. Is he kind of half right on both of these? Yeah, in certain contexts, falsely shouting “fire” in a crowded theater might be unprotected speech. And yeah, in certain contexts, hate speech might not be protected, but it's his kind of reflexive retort to these two claims, and how we've seen them wielded in the past and in different contexts, that's the problem.

Aaron Terr: I think it can be confusing with, to just, an average member of the general public to hear if you just hear a politician saying there's no First Amendment protection for hate speech, I think in their mind they may easily think that it's not just that there are these, you know, specific, very narrow circumstances where hate speech might meet an established First Amendment exception, and therefore the government can restrict that. But I think they're more likely to just think that, oh, okay, like, if you just say things that seem racist or bigoted towards or hateful towards a certain group, then the government can ban that. And it's just not that expansive of a government power.

Nico Perrino: All right, let's move on now to California's package of deepfake laws. They passed three laws. And it seems like the impetus, at least for one of them, if not all three, stemmed from a unique engagement that Elon Musk had with the governor of California, Gavin Newsom.

There was this video created by Christopher Kohls, this, you could call it a deepfake, a deceptive video of Kamala Harris. It's a campaign ad.

Aaron Terr: I wouldn't call it deceptive, but —

Nico Perrino: Yeah, because it's parody and satire. And I think anyone who's watching it, maybe we can cut some clips of it in here, lest we fall afoul of the deepfake law, though it's enjoined and we'll get to that. It's very clear that it's not Kamala Harris. She's talking about how she's a DEI hire and Joe Biden is senile. This isn't stuff that, if you know anything about Kamala Harris, would be in a Kamala Harris ad, but nevertheless, it was put out. It was retweeted by Elon Musk and Gavin Newsom got upset by this video, presumably, and said that he was going to pass a law with the state legislature to make this sort of content unlawful.

And so, you get AB 2839, which is a law that regulates materially deceptive content that is distributed by people, companies, or other entities, with malice. It applies 120 days leading up to an election and in some cases, up to 60 days after it. It creates a private cause of action, which my lawyers, help me out here, that means that people can sue each other over this?

Aaron Terr: That's right.

Nico Perrino: And, it does create an exception, though, for satire or parody, so long as you note, and it's clearly labeled that this image, audio, or video has been manipulated for purposes of satire or parody. Nothing screams satire or parody like a label telling the audience that this is satire or parody. What's the problem with this? People have a huge concern surrounding mis- and disinformation, and the way that artificial intelligence can accelerate the mis- and disinformation in society. What's wrong with the way that California approached it here, or is nothing wrong?

Adam Goldstein: I mean, I agree with the, with the judge who enjoined it. If we want to move on to that part.

Nico Perrino: Yeah let's talk about October 2nd. On Wednesday, a senior U.S. district judge John Mendez, temporarily halted the law and said, “While California has a valid interest in protecting the integrity of the electoral process, this law is unconstitutional because it lacks the narrow tailoring that a content-based law requires under strict scrutiny. Most of the law acts as a hammer instead of a scalpel.” He went on to say, “It's a blunt tool that hinders humorous expression and unconstitutionally stifles the free and unfettered exchange of ideas.”

Adam Goldstein: You know, California went into this conceding that strict scrutiny applied and that it was a content-based regulation.

Adam Goldstein: Strict scrutiny is the highest form of scrutiny the government has to use to review a law. It means that there must be a compelling government interest, and the law must be as narrowly tailored as possible in order to avoid infringing on another’s speech. And the problem here was requiring mandatory labels is not a narrow tailoring thing. There's a narrower tool we have here, which is other speech. And to tell people it's a deepfake and to assume people can’t identify parody.

There's some modification of Poe's Law at work here, where it's sort of like the further opposed two viewpoints become the harder it is for one extreme viewpoint to identify satire of the other because it all sounds absurd to them, I think? The idea that anybody saw this Kamala deepfake and was genuinely confused seems improbable to me. But I guess if you really want to believe that the other side believes anything, then I guess maybe. But, nevertheless, you still have a remedy that is short of labeling, which is you tell them it's fake.

Nico Perrino: But you can't even share this to tell people it's fake, right? Isn't that one of the weird things about this law?

Aaron Terr: That's one of the problems with this law, and a lot of similar laws that states around the country are passing to regulate AI and deepfakes is that they often don't have an intent requirement at all. So, it's sort of like a strict liability where just sharing the content itself is a crime, even if you have the intent to call it out as fake or to criticize it in some way, or if you just have a very watered-down standard, like if you reasonably should have known that it was fake. So then we're just leaving it to the government to decide when someone should have known that this video was fake, and that's enough to bring a criminal prosecution? So it's yeah, it's really, you can just see from that how massive a chilling effect these sorts of laws can have.

Nico Perrino: California does have a knowledge requirement, right? It says with malice knowingly distributing the advertisement.

Aaron Terr: So there's a difference between just knowing that you're sharing something that is – that you're sharing the content. I mean, I guess you always know that you're…

Nico Perrino: Well, if you're sharing the content to point out that it's false and deceptive, you're knowingly sharing the content, right? Are you doing it with malice? I don't know.

Adam Goldstein: In the context of, I hate to keep going back, in the context of copyright infringement, when they say knowingly distribute copyright infringement, they don't mean knowing you infringe. They mean knowing you distributed.

Nico Perrino: Hmm, okay.

Adam Goldstein: So, if that's where they're getting this from this might actually be, I could have no idea it's fake and redistribute it. I have the mental state necessary to violate the law.

Aaron Terr: And by the way, there's also another problem with all these laws, including this one, is that there's also no requirement of actual harm to anyone. I believe the language they use is something like reasonably likely to hurt a candidate's reputation, or reasonably likely to influence the outcome of an election, but it doesn't actually have to do anything about it.

Nico Perrino: Isn’t that what political speech is meant to do?

Aaron Terr: [laughs] Yeah, yeah.

Nico Perrino: You talk about candidates in order to influence the outcome of the election, or learn more about candidates, or harm their reputation?

Connor Murnane: We have had political cartoons for centuries.

Aaron Terr: But even when you talk about exceptions to the First Amendment, like defamation, for example, there's a requirement that you prove that the speech actually hurt your reputation.

Nico Perrino: I need to know what the actual damage was to determine damages, but this wasn't the only law that California passed. There was also one that places requirements on the platforms where this deceptive content might be posted. So, this is AB 2655, and it's under this bill that platforms must block deceptive content about politicians, respond to every single public complaint about deceptive content within 36 hours, and filter and block any content that's substantially similar to that previously removed content. That seems like an incredible burden. I don't know how social media companies or any platforms that host third-party content would be able to comply with that with any sort of consistency.

Aaron Terr: Right. That’s what's going to happen is that they're going to err on the side of caution by suppressing speech that could even questionably violate this law to avoid constantly being dragged into court. That's why this particular law is not only a First Amendment problem but a Section 230 problem, which is the federal law that broadly immunizes platforms from liability for what their users say.

Nico Perrino: That Hillary Clinton wants to get rid of, did you see that in the news?

Aaron Terr: Yeah, yeah, yeah.

Nico Perrino: And I posted about this on social media. It's not just Hillary Clinton that says we need to remove Section 230. It's also conservatives. Conservatives have wanted the repeal of Section 230 as a way to go after tech platforms that they think censor too much. But if you remove this third-party liability shield, they're just going to censor more because they're going to be more risk-averse, right? They're going to take down more content. So, it's not rocket science. It's just incentives.

Aaron Terr: And by the way, requiring the platforms to respond to 36 hours every complaint that they receive and make a snap decision is just so obviously going to be weaponized by people who are going to file complaints to target satire and political criticism that they don't like, even though, like the Kamala Harris video, it's obviously not deceptive or intended to deceive. It's just satirical political commentary. And I mean, after all, right? That's what Governor Newsom, that was like the whole impetus for him announcing that he was signing this law soon. It was that he was going to make videos like the Kamala Harris deepfake parody illegal. Right? So, you're just going to see much more of that, and if these laws aren't enjoined —

Nico Perrino: Yeah. And the judge —

Aaron Terr: This one's being challenged too, by the way. Nico Perrino: Oh, is it?

Aaron Terr: The Babylon Bee is challenging this one as well. Real quick, they recently put out a video after these laws were signed as a deepfake of Governor Gavin Newsom, another obvious parody where he starts out by saying something like, “Hello, this is a message from Governor Newsom in my 100% authentic non-AI created voice.” [laughs]

Adam Goldstein: I like that it says you have to filter and block any content that's substantially similar to what's been previously removed. Isn't the whole point of a deepfake is that it's substantially similar? So if it's substantially similar to a deepfake, isn't it anything with that person?

Aaron Terr: Yeah, that's a good point.

Adam Goldstein: It just seems like the exception swallows the rule here. Also like, why is it only like things that might negatively influence the election, or if it just says influence the election? Should we be policing photo retouching if something has too much makeup? Kennedy should have been out of there. That was cheating.

Aaron Terr: Yeah. Or you make a deepfake of yourself saving a drowning child, or something like that, right?

Nico Perrino: Well, did you guys see that article in Pessimist Archive, which is this great Substack that I encourage all of our listeners to subscribe to, where he goes deep and looks at efforts in Congress to pass a law in 1912 outlawing photo editing because I guess there was something that was happening around that time where people were doing the analog equivalent of photoshopping themselves into pictures with William Howard Taft?

People were very concerned about this, and Congress even got to the point where they were about to pass a law. They didn't, but this speaks to a larger panic that folks have. I won't go so far as to use moral panic, but any time a new technology comes about, people get anxious and it seems like one of the first reflexes is that the government needs to pass a law to regulate this. Connor, I see you nodding your head there.

Connor Murnane: I mean, we saw it with the printing press. We saw it with social media. Now it's AI, right? People are afraid of a computer being smarter than them. So, they're going to come out, and when I look at these bills — I'm not a lawyer — I'll say that time and time again, I see the government saying, you know, people are morons and can't parse the content themselves. That's a problem. I don't want the government making that decision for me, my future kids, or whoever.

Nico Perrino: Yeah. What we're going to get to at some point after the anarchic period is over is just more media literacy, I think, like we did with Photoshop, like we did with television. I don't think if Orson Welles did his War of the Worlds broadcast today that people would be in Times Square panicking. I am not opening up any emails from Nigerian princes promising me millions of dollars anymore. I think I've gotten the message on what email is credible and what is not, but

AI is new, right?

Aaron Terr: Yeah, but I think already at this point media literacy is improving. Also going back to your point about the government can't just rush in to regulate speech that it thinks is false without showing that counter-speech isn't an effective remedy. And I feel like every time that there has been a deepfake in the last few years of a politician or a prominent public figure, there's been mass media coverage of it. It's been all over, the conversation has been all over it on social media, pointing out that it's not a real video, even in cases where it's pretty clearly not intended to deceive anybody.

So, I think that's kind of speech in action showing that it does work. And, FIRE’s Senior Fellow, I want to give a plug to Jacob Mchangama who recently wrote an op-ed about how despite widespread fears about AI and deepfakes, and disinformation upending elections this year, there's no evidence that they had any significant influence on any of the European Parliament elections or other elections around the world so far.

Nico Perrino: Yeah I think he cited elections in India as well.

Aaron Terr: So, yeah, it kind of is a panic and that the government is rushing to regulate in this space based on the worst imagined scenario of what could happen in the future. But I think right now, there's really no reason to believe that this is going to be the end of democracy or just completely obliterates our ability to discern fiction from reality or reality from fiction.

Nico Perrino: Well, yeah. One of the risks here is, of course, not only that you undermine the First Amendment. You undermine a new tool for communication and creative expression. When I get to the place where AI allows individuals on their own, without any coding expertise, to create video games in their own worlds for themselves — right? But if the government comes in and overly regulates it, that power for this new communication technology will be forestalled.

Aaron Terr: Yeah, there's a lot of positive applications of it too, that we don't have to get into all of them. But just like giving another example in creativity and in TV shows and movies where they might use AI to bring back a character from a deceased actor.

Nico Perrino: Like in Star Wars? Aaron Terr: Yeah, exactly.

Nico Perrino: Princess Leia, right?

Aaron Terr: Right, there's even a really interesting, use of AI to create a deepfake voice of people who have a condition that causes them to lose their voice. And there's actually a congresswoman who has used AI of her own voice so she would be able to reproduce her voice and sort of be able to speak again.

Nico Perrino: Well this allows me to pivot into something that I did want to talk about, which is you can regulate the use, but you shouldn't regulate the technology, right? So, for example, we have exceptions regardless of whether it's artificial intelligence, Photoshop, video editing, or video or audio editing tools whereby you can't appropriate someone's name, image, or likeness for purposes they've not given permission for.

There's a Scarlett Johansson case surrounding the right to publicity, where it is alleged that OpenAI pilfered Scarlett Johansson's voice to be the spokesperson for their new audio tool. There are torts that we have. There are exceptions that are well worn to the First Amendment, such as fraud and forgery, the right to publicity that we can use and apply to new technologies. We don't need to create new exceptions to the First Amendment to apply to these technologies.

Aaron Terr: Right. AI itself is a neutral tool of expression. It can be used for good, and it can be used for ill in the same way that like a pen, you can use a pen to write a beautiful poem, and you could use a pen to defame somebody.

Nico Perrino: Yes.

Adam Goldstein: The same sort of thing that came out when the VCR came out, right? And there was this argument, are VCR burglars’ tools for content? And ultimately the Court said no. There are substantial non-infringing uses. You might just want to watch the game a little bit later in the afternoon after your kid’s soccer game, come home, and watch football or whatever. And so, the question is are there substantial non-infringing uses, non-criminal uses, or

non-offending uses for AI? Clearly, there are. We've just listed a bunch of them. So, the approach of we're going to regulate this technology to prevent people from using it is going to be wrongheaded 100% of the time. We have to focus on the people who are the bad actors.

Nico Perrino: Let's turn now to college campuses. There was a week here, a couple of weeks ago where three tenured professors were punished. Two of them were fired. One of them was suspended for their expression. Let's start with the one that I think is perhaps the most interesting because it's the most unique. This is Joe Gow at the University of Wisconsin-La Crosse. He and his wife had an OnlyFans account or something like that, where they, on the side, would cook vegan food and then have sex on camera. I think their account was called Sexy Happy Couple.

Last December, it was revealed that Joe Gow, who was the chancellor of the University of Wisconsin-La Crosse and also a tenured professor, did porn on the side, and UW-La Crosse was very quick to fire him in his role as chancellor. Then it began this long process to fire him as a tenured professor. There are more protections, I guess, I should say, to firing a tenured professor, so it takes longer to do. Connor, was it okay from FIRE’s perspective for him to be fired as chancellor? Let's start with that first decision that the school made.

Connor Murnane: Well, more often than not, administrators don't have the academic freedom, the speech protections that a faculty member would. You, as the chancellor, are representing the institution more than a faculty member. So, we focused predominantly on what you cover there as a teaching role. For us, it boiled down to the fact that there was no impact on his teaching.

And what he was doing in his spare time was, you know, public concern, right? Vegan cooking, I guess that could be a public concern, sex positivity, and adult relationships. And if I remember correctly, it wasn't just the porn account, right? I think he had the porn on one half, and then he had a safe-for-work YouTube where he'd do the cooking and the interviews. So, you know, hitting multiple target audiences. It’s just being a smart businessman.

Nico Perrino: But people have problems with — there's something about porn, right? Is sexuality different? The concern here is that it'll make his job as a teacher hard because you have some segment of the students who have perhaps seen him naked, engaged in intercourse with his wife.

Adam Goldstein: Are you telling me college students are watching pornography? What? Who else knows this?

Nico Perrino: I think something like 60% of Americans have watched porn or actively watch porn at any given time. But—

Aaron Terr: So, at least two people at this table? [laughs]

Nico Perrino: But college students are college students. They are going to go seek this stuff out. It's interesting, presumably. So, does that compromise his ability to perform as a college professor? And does the college and university system have a vested interest in ensuring that his classes stay focused and that his performance isn't compromised?

Aaron Terr: Well, I think, not to use the old term “slippery slope,” but I think it's apt here where you start going down that road of, is what a professor says or the expressive activity that they engage in in their personal lives outside the classroom going to affect students’ perceptions of them? In the other cases, I think we're going to talk about whether they can be treated fairly in the classroom.

You can start applying that to all sorts of political expressions, too. When a professor expresses a certain political view on social media and then people argue that, oh, they can't possibly be an effective or fair teacher given the view they've expressed on this, the kind of students who disagree with that, you know?

Nico Perrino: You could have, for example, a political science professor who's a very big Second Amendment advocate and on the weekends creates YouTube videos at the firing range where he's shooting all sorts of different guns and reviewing them, or he weighs in on Second Amendment issues in the public sphere. You could have students say I don't know why this guy is interested in guns. I don't want to be sitting in his class.

Aaron Terr: Sure, sure. Yeah. I do think there is something about porn and sex that maybe can be traced to deep-rooted Puritan influence, attitudes in this country about sex, where sexual expression is seen as taboo outside of a few narrow contexts.

Nico Perrino: But it is protected by the First Amendment, right?

Aaron Terr: It is, yeah. Yeah, I mean the same way other performances that don't involve fucking would be protected by the First Amendment too. But in this case in particular, I think the way he was mixing it with promoting a vegan lifestyle—

Nico Perrino: Everyone needs their niche.

Connor Murnane: It's educational content.

Aaron Terr: But there's like some commentary mixed in there, on matters of public concern, too. Attitudes, it's interesting to think about whether or not 20 years from now, because attitudes about sexuality have evolved in a more liberal direction in this country over time. In the future, will we look back at this and view these punishments as moralistic and outdated, the same way we now look back at premarital sex or cohabitation? I don't know, but eccentric professors I don't think are a new thing. I don't know. I feel like we all had one.

Nico Perrino: You kind of want them, right?

Aaron Terr: It didn't jeopardize your education. Yeah. Sometimes it was like, yeah, exactly.

Connor Murnane: If you don’t want to, don’t take the class, right? College students are adults for the most part.

Aaron Terr: Sure.

Connor Murnane: Don't take the class, and moreover, I think it was someone on the board who made the argument, is it going to harm our enrollment numbers? And then it's a small sample size. Just one semester so far, but no harm whatsoever, right? So, I have a tough time, and I've thought long and hard about this. Where would the harm come from?

Nico Perrino: So it was a University of Wisconsin La Crosse faculty committee in June that recommended the school take action against him. And then there was a hearing in front of the Board of Regents of the University of Wisconsin system on September 20th. And that's when they decided to fire him. And Connor, correct me if I'm wrong, we've been supplying him with an attorney?

Connor Murnane: Yeah, we hooked him up with an attorney, and they are pursuing this in district court, I believe.

Nico Perrino: Yeah, that would be the first place, if it's a First Amendment claim, for it to go. All right, let's move now to the University of Pennsylvania, where we have had a yearslong effort there to go after Amy Wax, who's a professor at the law school for op-eds, interviews, and allegations of things she said to individual students. She's very conservative. Many people say she's racist, and that's why she's been targeted at the school. Some things she has stated in a 2017 interview, for example, she said, “I don't think I've ever seen a Black student graduate in the top quarter of the Penn Law School class, and rarely, rarely in the top half.” She went on to say, “I can think of 1 or 2 students who've graduated in the top half of my required first-year course.”

She also stated that Black students tend not to graduate at the top of the class, and added, that anybody who teaches law school knows this to be true, stated that no law professor can honestly say that Blacks are evenly distributed through the class top, middle, and bottom. So there she's talking about what she's seen and her experience at a University of Pennsylvania law school, presumably, falsifiable, right? That's something you can look into. Although I think they have blind grading at Penn.

She also invited Jared Taylor, a noted White nationalist, White supremacist, for a mandatory lecture in her law school course. She stated, “Our country will be better off with more Whites and fewer non-Whites,” stated that Asians have an indifference to liberty, lack thoughtful and audacious individualism, and that the United States is better off with fewer Asians and less Asian immigration. She's described some non-Western countries as shitholes and said that women, on average, are less knowledgeable than men. So, that's a litany of commentary there where she's commented on the performance in different contexts of minorities.

Adam Goldstein: We do surveys to see if professors are okay with speaking their minds. I know which group she's in.

Nico Perrino: You're right. But the initial response by the University of Pennsylvania Law School, I believe, in her comments surrounding Black students and their performance in law school was to remove her from teaching mandatory first-year courses.

Aaron Terr: Right, so she was already punished for that.

Nico Perrino: She was already punished for that. And then it was the Jared Taylor invitation and some of her other comments that were subsequent to that, where I don't believe she was necessarily talking about the performance of law students in her classes, although I could be mistaken, talking about the performance of Asians in American society more broadly, where the university picked it back up again, issued this very long report that ultimately ended on the recommendation that the school take a major step. I think they described it as a major sanction against her, and she's a tenured professor. What are your guys's thoughts here?

Connor Murnane: It's kind of outlandish, right? You said unprofessionalism was the sanction, right?

Nico Perrino: Sanctioned for unprofessionalism, and thanks, Connor. I should note what the actual sanction was. It was just announced after a nearly two-year investigation of Wax that she'll keep her tenured faculty role. She'll serve a one-year suspension at half pay, and she'll keep her benefits, which is important because she's currently battling cancer.

Connor Murnane: So they've had a long time to investigate Wax and zero discriminatory conduct in the classroom has popped up, right? So, they use this unprofessionalism standard, and they hammer her for speech outside of the classroom. She wasn't giving these lectures to her first-year law students. She was writing about these, speaking about these topics on the circuit. To me, it seems like a weird justification. They were just looking for something to get her with.

Nico Perrino: If there was evidence though, I think what you're getting at there is her discriminating against actual students based on these beliefs, grading Black students, for example, or Asian students, harder than she's grading her White students. That would be something the university can and probably should take action against.

Connor Murnane: Absolutely.

Aaron Terr: Yeah, absolutely, but this, again, calls back to what we were discussing earlier about do you actually have evidence of the teacher failing to fulfill their professional responsibilities or violating the law by discriminating against students based on a protected characteristic like their race or gender? Or are you just projecting or predicting that's going to happen based on the views that they've expressed on sensitive issues like race and gender? And I think that's what's happening here. And again, the problem is that you can potentially apply that standard to a lot of other faculty members who have this. Amy Wax is not the only one who has said something inflammatory or controversial about sensitive political issues.

Connor Murnane: It's a long history of these kinds of double standards, right? Wasn't it just the past couple of months, a professor posting on social media Zionists drinking blood and all these things, right? You go back all the way to FIRE’s founding with the water buffalo incident.

Connor Murnane: So now they're establishing the precedent that speech outside the classroom is grounds for sanction if students, parents, or donors complain. And I don't see how they can put that back in the bottle in today's environment on campus.

Nico Perrino: But it's still madness, right? Like, why should faculty members be able to speak freely on the issues of public concern, even if it is caustic, even if it is, a little bit racist or a lot a bit racist, or even if it is offensive, right? Why should they have the freedom to do that?

Adam Goldstein: Well, we want colleges to be the crucible of truth, right? And like any other crucible, it's going to get hot. We want people to have the widest range of free expression in this environment, which is sort of a microcosm of our country, a lab for the rest of our country to look at, because that's where, when we have that free, uninhibited expression on campus, we have the broadest possible range of ideas coming out through that process.

And if someone says something that is really outlandish and provably outlandish, well, we prove them wrong. If someone says something that isn't provably true and we don't and we disagree, we express that too. But then having done that, we go out through the rest of the world with that knowledge and comport ourselves accordingly. If we start putting our thumb on the scale in the college context for speech, we're now saying we're not really looking for truth in these places anymore. We're looking for truth within the acceptable window of what we think should be true. And the problem is, humans have a really long history of being wrong about things we thought should be true.

My personal favorite is as a monument outside Case Western Reserve, and it is a monument to a failed experiment. It was scientists who were going to prove the properties of voluminous ether, which is what we thought filled the universe because we knew nature abhors a vacuum, so space couldn't be a vacuum. And they did their experiment, which was trying to measure the movement of light through the waves of the ether. And it turns out, no, actually space is a void. I appreciate the monument, like a monument to recognize our willingness to be wrong, and how important that is sometimes.

Aaron Terr: And I think all the things we were saying earlier, too, about the problem of the government regulating hate, hateful or offensive speech, applied just as strongly—

Nico Perrino: A slippery slope right?

Aaron Terr: In the context of higher education, right? And academia where, yeah, exactly, using, applying a vague standard like unprofessionalism to expression of political viewpoints? It's just very easy to see how that's going to go wrong on campus, particularly when you have a lot of campuses that lean very heavily in one direction, politically or ideologically. That standard is very unlikely to be enforced in an evenhanded, consistent manner against people across the political spectrum. It's going to be much more likely to be enforced against people, faculty, and students who are in the minority and who have dissenting views from the campus consensus.

Adam Goldstein: I mean, for example, let's say for the sake of argument and I have no information at all about Penn's class rankings, what if there was some truth to the underlying accusation that some groups are underperforming at Penn? Well, wait a minute. If that's true, now we need to investigate why that is and try to figure out how we assess these groups. If we instead make a rule that you can't say the groups underperforming at Penn because that is biased, we are actually going to miss when that happens. And essentially we're perpetuating a form of systemic racism because we can't actually say the system is failing people.

Connor Murnane: The concept of settled issues freaks me out, right? Take your topic, everything we know, that's it. We're not going to push the boundaries any further. To me, that's what college is for. If you're saying, you know it's unprofessional to discuss certain things, you're—

Aaron Terr: And remember, the same thing happened at Georgetown with the professor who was caught on a hot mic. She said something about how the minorities in her class weren't performing as well. She was expressing her honest opinion to someone that she didn't think she was being recorded, and Georgetown fired her.

Nico Perrino: Yeah.

Aaron Terr: Instead of, like, you're saying something like, oh, maybe this is a problem. If they look into and see what we can do to ensure that students, regardless of their demographic category, are performing, have an opportunity to perform well in our school. They just said no, let's just fire this professor and prevent this issue from being examined.

Nico Perrino: Yeah, that was ridiculous. I'm looking at some of the letters that we've sent to the University of Pennsylvania Law School around Amy Wax. And it wasn't just free speech issues. I'm looking at a letter from June 1st, 2021 where we talk about due process concerns with the investigation of Professor Wax. We write, despite being notified of the investigation on May 18th and making repeated requests to your office for copies of the relevant complaints, Wax has yet to receive written notice of the charges against her.

Penn Law’s faculty handbook clearly provides that, should a question arise regarding the possible infraction of university behavioral standards, the Dean or provost shall provide a written description of the charges to the respondent if requested by the respondent in writing. This is something we often see, and it's one of the reasons why we got involved in due process work from our founding, which is free speech violations and academic freedom violations are often paired with due process violations. It's hard to defend yourself when you don't have the complaint and the evidence in front of you, but too often that is the case on college campuses.

I want to turn now to the third professor, Maura Finkelstein at Muhlenberg College, which is a private Lutheran school in Allentown, Pennsylvania, who was fired for her pro-Palestinian advocacy this past January. Maura Finkelstein reposted an Instagram story from a Palestinian American poet that stated, “Do not cower to Zionists. Shame them. Do not welcome them in your spaces. Do not make them feel comfortable. Why should those genocide-loving fascists be treated any different than any other flat-out racists? Don't normalize Zionism. Don't normalize Zionists taking up space.”

She was fired this past May, and there might have been added pressure from the Department of Education for the university to fire Professor Finkelstein. Department documents released last week state that Muhlenberg received eight shared ancestry complaints about her speech online and in the classroom. And then once the news that she was being fired came out, Muhlenberg resolved a federal investigation with the Department of Education surrounding its investigation into violations of Title VI of the Civil Rights Act of 1964. So what you have, because that might have gotten a little confusing, is a Department of Education investigation, so complaints about this professor.

After this professor learned about the investigation, I believe the next day she tweeted out that that “Do not cower to Zionists” Instagram repost — tweeted out. I'm mixing platforms here. Then she gets investigated. She gets fired in May and we first learn about it. I believe this is the first time since the October 7th terrorist attacks that a tenured faculty member in the United States has been fired for pro-Palestinian advocacy. So, you have a conservative law professor fired at Penn, a liberal professor at Muhlenberg fired as well. Both of them are tenured. What does this say about the state of academic freedom? Connor?

Connor Murnane: It sucks, right? Everyone points to the McCarthy era. It's at least the darkest days for tenure and academic freedom in my lifetime. You know, I point back to the Amy Wax professionalism conversation, right? If we're going to start using these justifications to kick faculty off of campus, where does it end? You know, Amy Wax on race one day, a liberal professor on pro-Palestinian advocacy the next. That can be web-attacked, weaponized, too easily for my liking.

Nico Perrino: But, you know, if she reposts something that says, “Do not cower to Zionists. Shame them. Do not welcome them into your spaces,” isn’t there a reasonable suspicion or idea that she maybe won't welcome Zionist students in her spaces?

Adam Goldstein: There could be, and that there were complaints suggesting maybe there were students who felt that way. What the federal obligation here is, it's very technical. The school has to do something. It has to take some ameliorative steps to ensure that students feel welcome. It does not have to censor anything. It does not have to fire anyone. That's what the legal obligation is.

The school must take some step, and the next step could have been reaching out to those students and saying, hey, we, we talked with her. She understands her obligations. Let us know if things continue. It could be, you know, get everybody therapy. It could be just helping people switch classes if they want to switch classes. The only thing bounding what schools can do here is their creativity, the First Amendment, and civil rights law in general. So, there's nothing about the situation that compels them to take disciplinary action or to censor speech, or to fire anyone.

Aaron Terr: Just to kind of re-make the point again that we can't, if we want to have academic freedom, automatically assume that every opinion that a professor expresses on social media automatically translates into unprofessional conduct in the classroom. Especially when you consider that social media kind of rewards sensationalism and overheated rhetoric. If you have actual evidence of unfair treatment in the classroom, that's certainly something a professor can be disciplined for, or if they’re pervasively using class time as a soapbox for their political opinions that don't have to do with the subject of the class. The university doesn't have to tolerate that either. Otherwise, you just want to be careful not to set a precedent where no matter where any strong opinion a faculty member expresses on social media or outside the classroom can be used against them.

Nico Perrino: Yeah. And we've been talking about Title VI here, which governs, race, color, and national origin. Colleges and universities can't discriminate on that basis. But it's been interpreted since 2004 to expand beyond that towards shared ancestry, national origin that has a kind of religious characteristic to it as well as ethnicity. That's how you get Jewish students covered there. Query whether it would protect Zionism, which is a political movement but has deep connections to the state of Israel, for example.

Nico Perrino: All right. Our last topic for the day is Nassau County's mask ban. New York Nassau County banned wearing masks in public except for health or religious reasons. Nassau County Executive Bruce Blakeman signed the legislation, named the Mask Transparency Act, on Wednesday, August 14th. Blakeman said this is a broad public safety measure. “What we've seen is people using masks to shoplift, to carjack, to rob banks, and this is activity we want to stop.” The law, Nassau County considers it a misdemeanor, punishable by up to one year in jail and a $1,000 fine for individuals to wear face coverings. They conceal their identity in public. As I noted, there are exceptions for those wearing masks for health, safety, religious, or cultural reasons, as well as for the peaceful celebration of holidays or events where masks are traditionally used. Plug for Halloween, which is coming up, one of those holidays where masks are traditionally used.

A lawsuit was filed by the Disability Rights of New York, that sought a temporary restraining order and a preliminary injunction to stop the enforcement of this Nassau County mask law. The lawsuit involved two plaintiffs with different health conditions who wear medical-grade masks for protection. They express concern about being harassed or potentially arrested due to the newly implemented mandate. A judge dismissed the lawsuit last week, stating that wearing masks for medical reasons is expressly excluded from the Mask Transparency Act, reached by its health and safety exception.

This question of masks more broadly, COVID came about. Everyone under pain of punishment in some cases had to wear a mask. And now we're saying, no, no, no, can't wear masks because they're being used in the commission of crimes, or at least that's the justification.

Adam Goldstein: Well, the part that I love is the masks being used to rob banks. Oh, somebody noticed that finally! Well, where's my rope transparency act? It's being used to tie damsels to train tracks. It's like the old-timey-est justification you could find for a mask ban.

Aaron Terr: Also, they've arrested, I think, one person under this law so far. And was he robbing a bank or carjacking? No. He was wearing a keffiyeh over, over his face at a pro-Palestinian protest. And by the way, I guess these exemptions are for health and religious reasons.

Nico Perrino: Yes, and also for holidays.

Aaron Terr: So I guess all Bonnie and Clyde had to do was she puts on a burqa, Adam Goldstein: That's what it was, yeah.

Aaron Terr: And then he puts an N95 mask over his face. And then they never got caught.

Nico Perrino: But these, these laws, some of which had to be suspended during COVID are sort of ancient, right? You had states pass laws to go after the Klan.

Adam Goldstein: Well yeah, in New York the law was from 1845. Tenant farmers were uprising against their landowners and would dress up as women and natives to obscure their identities. And then that law was on the books until the repeal was signed by Governor Cuomo. So, we lived through a long period. There was one big incident in the ‘90s about the Klan wanting to rally in New York, and Giuliani as mayor refusing to give them a permit. And then they sued. And eventually, the court said, you got to give them the permit, but they can't wear the masks. And it ended up being, you know, 18 people standing for 90 minutes silently while a very angry crowd, some of them wearing masks of Mayor Giuliani, assaulted cops. So, it was a very strange energy, but yeah, this has been New York for a long time.

Nico Perrino: Well, are there problems with mask bans from a First Amendment perspective? Adam Goldstein: Yeah. Oh yeah, I think so.

Aaron Terr: From two angles. One is that masks themselves can be expressive, so I would argue.

Aaron Terr: That if you had a surgical mask as a keffiyeh over it, that would be a political expression, I think. And then, so that's one way in which I think the bans implicate the First Amendment. The other way is that they implicate the right to speak anonymously. So you might want to wear a mask, like, for instance, if you're a member of the Ku Klux Klan, but not only that. People really focus on that, and that's where a lot of the case law and the plaintiffs or the defendants in criminal prosecutions are Klan members. I actually think that's unfortunate in that it influenced some of the bad decisions, the “bad facts make bad law” old expression.

The idea is that you may want to disguise your identity if you're expressing a particularly unpopular viewpoint that can result in you facing harassment or retaliation from the government, from your employer, or just from people putting up a video of you on social media. And I think that that threat is even more acute today where you have a government using facial recognition technology because we have social media, and everyone's walking around with a phone in their pocket. A lot of these decisions, including the ones that upheld mask bans, there were some from the early 2000s, from the '90s. I do wonder if maybe some of those courts would come out differently today, given the kind of changing landscape and the greater threat of retaliation and harassment for speech in public.

Nico Perrino: Could you have a mask law that makes wearing a mask in the commission of crime an aggravating factor, for example, like let's say you have a law against robbing a bank, theft, I guess?

Adam Goldstein: We should do that if we haven't, by the way. Nico Perrino: Yeah, yeah, we should.

Adam Goldstein: We should definitely make that not legal.

Nico Perrino: But if you do it wearing a mask the punishment is greater, right? Aaron Terr: Yeah, I think that's perfectly constitutional.

Nico Perrino: Okay.

Adam Goldstein: And that might actually be a deterrent for the crimes in particular that they're concerned about, where if it's 30 days to smash a window and 90 days if you do it wearing a mask, I might just prefer to throw the brick and see if I can’t run faster than the cop.

Aaron Terr: Yeah.

Adam Goldstein: I mean, but the hypothetical person.

Aaron Terr: In that, in that situation you're describing, you're not you're not doing collateral damage to protected speech. And the problem with a lot of the existing mask bans is that they'll just more broadly say you can't wear a mask to conceal your identity for any purpose.

Nico Perrino: Gotcha.

Aaron Terr: Then that's how you get, I give you another example of an older case that struck down mask bans under the First Amendment from the late ‘70s. Iranian American students who were protesting the Iranian government, and then one of the cases they put pamphlets in between their glasses and their faces to conceal their identities because they were, I would say, reasonably afraid of retaliation from the Shah of Iran, or against their relatives who were still living there. The Court took that into account and said, yeah, this is a burden on your right to anonymous speech.

That grows out of earlier Supreme Court decisions like the NAACP v Alabama, which said that the State of Alabama couldn't force the NAACP to disclose its membership list to the state, and they provided evidence that they would likely face harassment and retaliation, right? This is like back in the 1950s, where that was a very unpopular view. So, again, don't get fixated on the fact that this is often in force against the Klan because they could just as easily enforce against other views that people won't find as abhorrent. It's even more recently also been enforced against people protesting racism and police brutality.

Nico Perrino: Yeah, political speech has a deep connection with anonymous speech here in the United States. Obviously, the Federalist, the Anti-Federalist papers Common Sense. People didn't know that it was Thomas Paine who wrote that initially. I think the byline was just “An Englishman.”

Adam Goldstein: Precisely because of the fear of seditious libel. These were things people could be executed for. So, fear of retaliation from the government for their speech was what the Founding Fathers were trying to avoid, in part, when they crafted the First Amendment. So, it's just an inseparable thing, anonymous speech and freedom of speech. To see how anonymity has been treated poorly, both in the case of people who think you can regulate online speech and require people to identify themselves, people who want to wear masks as part of their protests, it's kind of depressing because it's a piece of the First Amendment doctrine that needs to be understood better by the public. It's up there with fire in a crowded theater.

Aaron Terr: Yeah, It'll be, it'll be interesting to see if the Supreme Court will ever take a decision that it hasn't spoken on this issue of whether or not mask bans are constitutional. There are just various conflicting lower court rulings, some of which extend NAACP v. Alabama, and other cases where the government is forcing people to disclose their names or addresses or identities, requiring people to unmask themselves. As some courts have said, that also implicates the right on speech just as much. Some have said no, it's different when you say you have to disclose your name or address versus just saying you have to appear in public with your face exposed. So, we'll see if the Supreme Court ever settles that issue.

Nico Perrino: We’ll see, fingers crossed, right? We need to get some clarity on that. But I think if you extrapolate it as existing First Amendment principles, you arrive at the conclusion that you can speak anonymously. We've seen this being used in other countries. For example, during the Hong Kong protests you had the protesters carrying yellow umbrellas to help prevent the facial recognition technologies that are prevalent because the Chinese government very much wanted to target political dissidents in—

Aaron Terr: Occupy Wall Street protesters wearing those Guy Fawkes masks, V for vendetta, which again you could argue is both expressive and a way to remain anonymous.

Nico Perrino: Can I call out my T-shirt before we wrap up here? FIRE just relaunched our store on our website. You can find it at the top of the website, thefire.org, or go directly to it at shop.thefire.org. This is our Free Speech Makes Free People T-shirt, which is incredibly popular. We've got this and much else in that store.

So if you're interested in getting the FIRE swag and signaling your support for free expression and supporting the organization by shopping at our online store, please do go to shop.thefire.org or just go to our website, thefire.org. Go to the shop button at the top of the web page. I want to thank you guys for joining us every couple of weeks if not months. It feels like lately, we do this news roundup, so we'll try and get another one in before the end of the year. Thanks again for joining us.

Aaron Terr: Thanks.

Connor Murnane: Thank you for having me.

Nico Perrino: All right, that was FIRE’s news roundup with FIRE employees Aaron Terr, Connor Murnane, and Adam Goldstein. I am 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 can subscribe to our YouTube channel or our Substack page, both of which feature video versions of this conversation.

We also put the full video up on X, and you can find our handle there by searching for free speech talk. You can also find us on Facebook, and you can send us feedback at SoToSpeak@FIRE.org. And please, I ask you every episode, if you enjoyed this episode, please consider leaving us a review on Apple Podcasts or Spotify. Those reviews are the single best thing you can do to help us attract new listeners to the show. Until next time, I thank you all again for listening.