So to Speak Podcast Transcript: Ayn Rand, Objectivism, and free speech

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

Nico Perrino: All right, folks, 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 have a discussion that I've wanted to have for a long time. We're going to talk about Ayn Rand, her philosophy of Objectivism, and free speech.

The impetus for the conversation is a new collection of essays titled “The First Amendment: Essays on the Imperative of Intellectual Freedom”, which was published by the Ayn Rand Institute Press earlier this year and was edited by University of Texas at Austin philosophy professor Tara Smith. Like many people, I first encountered Ayn Rand in college through the reading of her popular 1943 novel “The Fountainhead” and her even more popular 1957 novel “Atlas Shrugged”. Collectively, the books have sold over 20 million copies, which is quite a lot. Ever since reading the novels and devoting my career to defending free expression, I've wondered about the applicability of Objectivism to free speech and what Ayn Rand, who died in 1982, would have thought about some of today's high-profile free speech controversies. In 2016, I actually spoke on a free speech panel at an Ayn Rand Institute conference in Atlanta and found myself in disagreement on some important points with my fellow panelist, DePaul University philosophy professor and Objectivist scholar Jason Hill.

One topic I'm particularly interested in discussing today, and that will be a point of departure for many free speech advocates, is Objectivism's rejection of much of John Stuart Mill's philosophy. Two episodes ago, we discussed Mill and his undisputed influence on American free speech law and culture. But as Professor Smith argues in the book, Mill is a utilitarian and a collectivist who, at a fundamental level, opposes individual liberty. So we'll get into that.

Our two guests today are the aforementioned Tara Smith, who, in addition to being a philosophy professor, holds the Anthem Foundation Fellowship in the study of Objectivism. Professor Smith, welcome to the show.

Tara Smith: It's great to be here. Thanks a lot for having us.

Nico Perrino: And joining her is Onkar Ghate, who is a senior fellow at the Ayn Rand Institute, where he teaches undergraduate and graduate courses on Objectivism. He is also a contributor to the collection of essays we're discussing today. Onkar is in the studio with me. Onkar, welcome to the show.

Onkar Ghate: Hey, great to be here. Thanks for having us.

Nico Perrino: So, Onkar, since you teach undergraduate and graduate courses on Objectivism, I guess I'll start with you. What is Objectivism?

Onkar Ghate: It's a philosophy that is pro-reason and champions the individual's mind's ability to know reality. Your basic guide in life should be what you know, what you can figure out, and what you think. As a result, you come to value reason. It's pro-reason and pro-this world. It rejects any concept of the supernatural. So, it's secular and atheistic. Most controversially, it is pro-selfishness, or pro-egoism. To put it in a less controversial way, it's pro-the pursuit of happiness.

The way the Declaration of Independence puts it, it's life, liberty, and the pursuit of happiness, which means your own personal individual happiness. In terms of morality or the good, it says that what is moral is to pursue your own happiness, your own life. Consequently, in politics, it's pro-free market, pro-capitalism, and pro-individual rights. This stems from the philosophy, which is a philosophy of individualism, and its consequences in politics. You need to look at politics from the lens of the individual and the concept of individual rights.

Nico Perrino: Professor Smith, does the word Objectivism presume there's some sort of objective reality upon which this philosophy is built? Where does the word Objectivism come from?

Tara Smith: Let me flag one thing before I directly address that. I just want to mention something that Onkar said about the pro-egoism aspect of Objectivism, the support of pursuing your happiness. That's very individualistic, and that's going to be one of the points of contrast with Mill, which you brought up. I don't mean to jump to Mill, but I just want to keep that in mind.

Nico Perrino: That’s a good flag.

Okay, but to address your question about Objectivism, is there an objective reality? Objectivism gets its name from what Rand considers the method of using your mind to grasp the reality that truly exists, whatever we think or hope. So, there is an independent reality. Strictly speaking, it's not that reality is objective; it's that human beings can be objective or not in the way they think about their experiences and the world around them. It is only by following the objective methods of using one's mind that one can reliably distinguish the true from the false, what is so from what is not so. In one commonly understood sense, objectivity is the rejection of relativism and subjectivism.

Nico Perrino: I was going to ask you that.

Tara Smith: Rand does reject that sort of relativist idea that, well, the world is what you make it or reality is, or facts are what this society or this culture thinks. No, there's a real world out there, and the sooner we figure it out, the better off we can be in terms of figuring out how to deal with it. How to navigate that, achieve, and so on.

Nico Perrino: So, Onkar, where does free speech play into Objectivism? Presumably, if you want to understand reality, you need to gather facts. And part of gathering facts is hearing what other people have to say and how they observe reality.

Onkar Ghate: Yeah, it's very much about the quest for the truth. So I think of freedom of thought and freedom of speech as going together. One shouldn't make too much of a separation between them. The fundamental freedom is thought; if I'm going to be able to navigate my life, figure out what I think is true, what I think is valuable, I have to do it myself.

And that means I have to have the freedom to do it, to follow the evidence where it leads, to ask questions, to not be too satisfied with conventional answers. I need an aspect of that. As you were saying, in terms of freedom of speech, part of that pursuit is talking to other people, learning from them, seeing what they're saying, and what questions they're asking.

The whole process is, in part, social. It's inherently necessary. You have to do it, but part of that is conversing with other people. And so it's crucial that freedom of thought includes freedom of expression.

Nico Perrino: Yeah. Professor Smith, is that how you see it? Is that how Rand saw it as well?

Tara Smith: Yes, very much. You know, go back to something that Onkar started out with in answering your question about Objectivism. It's pro-reason. It believes that human beings need to use their reason in order to understand the world and figure out how to act in the world. Right? But again, as I was just saying, reasoning is autonomous in the sense that I can only think for myself.

Other people might make me say things, you know, they might, with a gun to my head, force me to parrot certain ideas. But if I don't get it, I don't get it. I don't think it’s right. So, I can't be the sort of robot for coercers of any sort, be it the guys hazing me at the fraternity or the authoritarians in Washington or wherever it might be.

But unless I am free to engage in the kind of thinking that I was just talking about, where I'm questioning and wondering, using other people as well, talking to them to get their ideas, and so on, unless I'm thinking things through for myself, I'm not really engaged in a reasoning process. So freedom, as she sees it, is the precondition for our ability.

It's no guarantee that we'll actually use this well or proceed objectively. But freedom is the precondition for our ability to actually exercise our minds in a rational, objective way so that we can understand.

Nico Perrino: Yeah. And did Rand live out this ideal? When I think about Rand, I think of someone who minced no words in criticizing her enemies. Did she ever seek to censor them?

Onkar Ghate: To censor enemies?

Nico Perrino: She was involved in the House Un-American Activities Committee. But I understand that she had some compunction with how that group went about its work over time. Yeah.

Onkar Ghate: So you can read her own thoughts on why she testified before the House Un-American Activities Committee. She makes a crucial distinction that what the government was doing was not policing ideas. It wasn't trying to penalize people just for the ideas or the theories they advocate. Part of what they were investigating was membership in the Communist Party. And I think it was right.

And I think this was her view: the Communist Party was a political organization dedicated to the violent overthrow of the American government, and that the government investigating that is like investigating a criminal plot. So ideas are relevant to that. Why would someone join the Communist Party if they don't have any sympathy towards communism?

So part of that investigation will involve thinking about the ideas people hold, but they're not being penalized because of the ideas. They're being penalized because of their membership in what could be viewed, I think, as a criminal gang, except it's political and financed by another nation that's hostile to the US.

Nico Perrino: Yeah, sure. I recently read Jennifer Burns' biography of Ayn Rand, called "Goddess of the Market." It talks about her involvement with the House Un-American Activities Committee and her text, the "Screen Guide for Americans." Burns writes that in the guide, Rand portrayed Hollywood communists as veritable Ellsworth Tooheys, carefully smuggling small, casual bits of propaganda into innocent stories.

Eventually, these bits will act like drops of water that split a rock if continued long enough. The rock they are trying to split is Americanism, Rand wrote. To resist this, movie producers and writers must understand that politics flowed from moral premises—this was Rand's argument. So after writing "The Screen Guide for Americans," Rand was invited to testify at HUAC, and she did so.

But she later, as you said, was concerned that the investigation was veering off from an investigation into Communist Party membership and into just Communist sympathies, for example, ideological sympathies. So do you believe political party affiliation, to the extent you're affiliated with communists, shouldn't be protected political activity in the United States?

Onkar Ghate: Yeah. I mean, I would say it depends on what the party is. So if you're part of the Democrats or the Republicans, it's not a subject for government investigation. But if it's really a foreign power and it's a party dedicated to the overthrow of the government and violent acts, that's a different issue. In the same way, if you think of other associations, nonpolitical ones, you can be a member of all kinds of different fraternities, clubs, and so on. If you're a member of the Mafia, can the government investigate that? Yeah, because they think this is a threat.

Nico Perrino: Professor Smith?

Tara Smith: I would just add that I think it's not about whether it's a party or not or whether it's a membership or not. It's about the activities of that organization. Are they posing a threat or worse to other people's rights? It's about that clear distinction: you have the right to espouse whatever views you want, to join with others in parties or other sorts of organizations to espouse views, to read, to discuss, and so on.

But you don't have the right to go beyond that insofar as you're actually taking actions to overthrow the government or use violence against, you know, your opponents on abortion issues or immigration issues or whatever it is. So it's really about the activity, I think, as opposed to simply the idea. Of course, she was a staunch advocate of being able to read whatever you want, whether it's communists or others.

She was very harsh on all sorts of views that she disagreed with, but her idea was to read them, think about them, question them, but don't use any force against others in your advocacy of the ideas that you end up supporting.

Onkar Ghate: And here's some of the history that I think is relevant. There was this kind of view that the Communist penetration in the US government and the spying was overblown. But I think what's emerged historically is that it was underplayed. There were more spies and penetration of communists in the government and other American organizations than previously thought. I think that's what historians have discovered in the last 50 years when the archives opened after the wall fell.

So I think there was a real concern. And if you think about, say, the whole atomic program, the atomic bomb, and the spying related to it, this was a major, major issue. The Communists, I view them like the Nazis, on that scale, and the idea that they might get their hands on the bomb was a serious concern. That should have been a major, major issue, and the government is investigating potential communist penetration in this kind of thing. I definitely think the government should have been doing that.

Nico Perrino: The criticism that a lot of free speech advocates lobby against HUAC is that it reached beyond the government into private associations, such as Hollywood. But you brought up the Nazis, right?

The one paradigmatic free speech case, of course, is the Nazis rallying in Skokie. Frank Collin was the leader of the National Socialist Party of America. We take it as dogma that such speech should have been protected. Do you think Frank Collin should have been able to form a political party in that sense?

Or is the distinction for you the existence of this foreign entity and the connection to it, as opposed to an independent, regressive fascist political movement that's United States-born and organized?

Onkar Ghate: I mean, I think the foreign power is relevant because it's an issue of how force is being introduced. But it's partly, as Tara was saying, about what their activities, program, and mission are. If it really is that they are not planning to be voted into power but are planning to seize power, that's a threat and should be addressed. It doesn't really matter what their ideological program is, whether it's fascist, communist, or lacking ideology. If their goal is to seize power and overthrow the government, that is no longer peaceful advocacy of ideas or trying to get elected. It's a threat to seize the machinery of force, and any citizen should view it as such.

Nico Perrino: Yeah, I think free speech advocates look at it as there are a lot of uninformed people saying a lot of uninformed things all the time. The distinction lies in whether there's an actual criminal conspiracy to overthrow the government as opposed to an amorphous call for its overthrow.

Tara Smith: So, do general, amorphous calls to overthrow the government or seize the means of production, for example, deserve protection, or is it the coordination that matters? Yes, I think so. I agree with what was just said. That's not to say there won't be cases where it's hard to figure out what some organizations do; some of these cases have come before the courts.

But, yeah, no, just, you know, the broad advocacy of certain sorts of ideas which would, you know, change our system radically. That's okay. But not the use of force, you know, not the initiation of real force against people or restricting their rights.

Onkar Ghate: And I'm on record that, I mean, the idea that she would think you can jail communists, Marxists, and various fascists. No, you can't do that when it's just an issue of ideas. But you can cross the line to actual action. And when that happens, the government should be very strict in regard to that. And there's a tendency to think, well, because we don't want to intrude on the realm of ideas, they are reluctant to intercede. And I think part of having a distinction between expression and advocacy of ideas and taking actual actions is having a clear line that is very different. We'll make it that, no, we're not intruding on the realm of ideas if we're stopping some kind of criminal plot. It doesn't matter what their ideas are; we're agnostic about that because the issue is now they're plotting to do something illegal.

Nico Perrino: Yeah. Free speech advocates advocate for kind of a high bar in this space. And it goes back to a 1960s Supreme Court case called “Brandenburg v. Ohio,” which says in order for speech to become incitement, it needs to be likely to cause imminent lawless action. And the risk you have if you have a lower bar is the sort of thing that you're getting in Brazil right now, where they're essentially banning a whole social media platform because Elon Musk, in part, wouldn't take down right-wing speakers on the platform.

And so if you have this amorphous standard where it's like, you know, overthrow the government or disrupt the democratic process and you ban speech that might lead to something like that, or is interpreted to lead to something like that, then you have political speech in the crosshairs. And that's just the risk.

Tara Smith: And this is, I mean, what you're talking about is part of why Rand was a great opponent of what today we know as hate speech restrictions or offensive speech restrictions, right? Short of that kind of direct incitement of imminent violence, imminent violation of other people's rights, you could say whatever the hell you want, right?

You know, on your property and your land or, you know, places you have rented, right? Within the confines of property rights, you can say the most offensive things, the most hateful things, and so on, because, hey, those are your thoughts. That's not up to anybody else to keep you from doing so for as long as you're not obstructing their freedom of action.

Onkar Ghate: I make one caution about the issue of imminence. So, for incitement, I think that makes sense that it has to be imminent. So you're inciting people that they're going to take some violent action now versus two weeks from now? They could think about it. Should I really be doing this? And then the insiders are not legally liable in that sense. But plotting occurs over a long period of time.

Nico Perrino: Yeah. Criminal conspiracy. There'll be another charge. Yeah, to the first point.

Onkar Ghate: Yeah. And I don't think it's properly considered how imminent it is. It's about how organized and deliberate they are, and whether there is real evidence of a plot. It might be that it's going to be carried out two years from now. I would consider a terrorist plotting an attack like 9/11. That could be years in the making. So it's not imminent, but you need to have real evidence that there is an actual plot, not just that someone posted on the internet saying, "Oh, I wish we could get rid of the US government." You must have evidence of a plot.

Nico Perrino: Yeah. And you mentioned that Ayn Rand was supportive of the rights of even communists to speak. I think it's important here to provide some of her backstory and what that meant to her, because she escaped from the Soviet Union. Right, Onkar?

Onkar Ghate: Yeah. I mean, she fled the Soviet Union. She witnessed the start of the revolution, was adamantly opposed to it, and knew that she would likely be persecuted, imprisoned, or even killed for her burgeoning views. She was radically opposed. To live, she had to leave the Soviet Union. She came to America because it's the land of the free. So she firsthand saw the destructive nature of communist ideology. And yet, in America, she was supportive of the right to advocate this ideology. You can take up arms in regard.

She was a great student in the USSR, or what became the USSR, and a great fan of film. If I'm correct, Onkar, foreign films included, she got these images of a free world. Yes, she had some idea of what she was getting into, but her thought was not a product of history. Her thought was a product of the exercise of her mind, to the extent that she could exercise it, even in Russia. She was using her mind in a very firsthand way, thinking things through for herself and questioning the dogmas everyone else around her was made to obey.

She thought for herself, and that's what generated her interest and attraction to certain American ideals. The more she learned about many American ideals, including those of the Founding Fathers, particularly their ideas of intellectual freedom, she saw how these meshed with what she was developing in terms of her philosophy.

Onkar Ghate: Yeah, yeah. If people are interested in the early Ayn Rand, she said that "We the Living," her first novel set in the Soviet Union, is as close to an autobiography as she'll write. The lead character, Kira, in that novel, I think, embodies Ayn Rand's ideas and attitudes towards life. In that story, the people who are suffocating in communist Russia get a glimpse of life abroad and what it means.

It's sort of a lifeline, showing that life could be radically different from what it is there. It's a depressing, morbid situation that I think is autobiographical. There's also stories of her going to watch a movie repeatedly just to see a scene with the New York City skyline. Seeing that again gave her a glimpse of something greater, and it reflects some of the emotional atmosphere she experienced.

Nico Perrino: I believe she had a quote somewhere along the lines of "the skyline of New York City is greater than any natural wonder man could ever see." I definitely felt that way. I lived in New York for two years while working at FIRE here in D.C. I told my boss, Greg Lukianoff, "If I die never having lived in New York City, I'm going to go to my grave with regrets."

It's one of those places where I get off the train and feel a rush of energy. Some people get off the train in New York and feel overwhelmed. My wife is one of those. But I love New York City. I lived at 29th and Third in Midtown, with this beautiful view from the 27th floor across the skyline.

And I thought, man created this. It's incredible what the New York City skyline is and everything that went into it. I've always looked back on that Ayn Rand quote, which I have committed to memory, and thought, wow, what she wrote about was so true.

The one other question I want to ask about Ayn Rand—and this is something she often faces from her critics—concerns her group, the Collective, which was the group of students that formed around her in New York City and beyond. There are allegations that she was quite censorial within that group. I'm going to read a passage from John Hospers, who's quoted in Jennifer Burns's biography. Hospers said of his experience, "I felt as if I were in a strange church where I didn't belong, where all the other people were singing the chants they were expected to, and only I did not conform. To deny a single thing was considered heresy. The attitude of the audience in the lecture hall shocked me even more. Rational? Good heavens, an army of the faithful, repeating the same incantations and asking questions only about details or applications, never questioning the tenets of the true faith.”

Ayn Rand responded angrily to Hospers's writing: "Through all the years that I spent formulating my philosophical system, I was looking desperately for intelligent agreement, or at least for intelligent disagreement," she wrote. "Today, I'm not looking for intelligent disagreement any longer." There are passages in Burns's biography that suggest Ayn Rand had a specific conception of her philosophy and did not tolerate much questioning within the Collective. Some people were actually expelled for questioning her views. I want to get your perspectives on how she comported herself in the collective. Do you think she was more censorial than she had been?

Tara Smith: A few things: people should read the letters of Ayn Rand. She was a copious correspondent with all sorts of people, John Hospers included. People you've never heard of who would write her about her fiction and sometimes have a question, and what you see consistently is the courtesy and the seriousness with which she engaged people's questions. She was never berating people for asking an honest question.

Generally, you know, she gave some explanations, and at times coupled those with suggestions like, 'I would suggest that you relook at this passage in light of this other passage,' and so on, but definitely encouraging people to do their own thinking. So, I mean, just one thing, you know, the letters occur to me having, about a year or so ago, reread a lot of them. You get, actually, such benevolence, such generosity toward anyone who is seriously interested. A couple of other things: there were many people intimate with Ayn Rand. I mean, who knew her well, who were part of the so-called collective and well beyond that, you know, a certain period of that time, who will tell you about how open she was to criticism and so on.

Now, what she would not tolerate was people purporting to stand for Objectivism, to stand for her philosophy in any way, getting it wrong or misrepresenting it. That's not her fault. You know, her philosophy was, “These are my doctrines, right? We can criticize those, we can talk about those, but we can't call other ideas my philosophy of Objectivism.” So on that, yes, she was very insistent, and I think rightfully so.

Let me also point out one of the central moral virtues in her book is the virtue of independence, which she sees as materially making one's own way in the world and intellectually reaching one's own conclusions. And she was a great, again, explicit advocate of the need to do your own thinking. But it didn't mean that certain thoughts were not going to escape criticism, but criticism on the grounds of evidence.

Nico Perrino: Are those letters available somewhere in a collection or online?

Tara Smith: Yes. Okay. Yes. They're in published books, and I believe they're all available now for free online, aren't they?"

Onkar Ghate: Yeah, a lot of them are available online. It's a thick book, "The Letters of Ayn Rand," edited by Mike Berliner.

Tara Smith: Yes, it's a thick read, but you can look up particular figures or questions. It's got a good index, so you can find what you're looking for.

Nico Perrino: Yeah. You don't need to read it cover to cover. You can use it as a reference.

Tara Smith: I will say that many of her letters aren't just to famous people. There are letters to people whose names aren't particularly well-known, like a housewife in Peoria, for example. Sometimes you get really interesting, extended correspondences, not just one-offs. Real correspondences develop over years between her and, say, a businessman or whoever.

Nico Perrino: I know she was a critic of [Ludwig von] Mises, [Friederich] Hayek, and [Milton] Friedman to varying degrees during her lifetime. I'd love to see some of those correspondences for those interested in libertarian thought.

Onkar Ghate: There's not much correspondence. She had a relationship with Mises and [Henry] Hazlitt, but they often met in person, so there's not that much correspondence. There's another book, "The Marginalia of Ayn Rand," which includes her notes in the margins of books in her library, including comments on Hayek and Mises. That's what I would reference for that. I think censorship should be restricted to government activity, and we shouldn't ascribe it to private individuals.

On the issue of dogma, I think it's clear, as Tara was saying, that Ayn Rand did not treat her philosophy as dogma. She thought of it as a science requiring observation, argument, and analysis. In the letters, there's a chapter where she had extensive correspondence, discussing and debating ideas.

If you read that and think that she treats her philosophy like a dogma, I think it will disabuse people of that notion. However, I would say this is part of, I think, what you brought up, and what Horsburgh was commenting on. You can differentiate between whether Ayn Rand thought of her philosophy and treated it as dogma versus whether some other people treated it like that.

My guess is that, even though I was not around during the time of the collective, yes, there were people who treated the philosophy like a dogma because I've seen it in the present day. There's a reason for that. Most people's model for philosophy is religion, so they bring all their attitudes that they have towards religion to philosophy. They think, well, it's a dogma, and you're the authority, tell us what to do, and we'll follow blindly. She was opposed to that.

Nico Perrino: She was an atheist, right?

Onkar Ghate: She was an atheist, and she was opposed to all the paraphernalia of dogma. She would always tell people, as you can see in her letters, you need to think for yourself and determine if this is right, if this is true. But religion teaches you that you can have a shortcut to these kinds of conclusions, and that's a real phenomenon.

Nico Perrino: Ayn Rand wrote in her 1962 essay "The Fascist New Frontier," that freedom of speech means freedom from interference, suppression, or punitive action by the government and nothing else. It does not mean the right to demand financial support or the material means to express your views at the expense of other men who may not wish to support you.

Professor Smith, can you talk about that belief? She only saw it as pertaining to the government. I mean, "censorial" might be a word in her lexicon.

Tara Smith: No, "censorial" would not be a word. But it's an adverb meaning something akin to censorship in certain respects. But we need to be so careful with language, especially in debates about intellectual freedom and freedom of speech. We use metaphors and parallels a lot that are not literally true. Yes, censorship is government restriction of your rightful speech.

Why isn't this just a linguistic issue? Because there's a fundamental difference in kind between forcing you to do something or to be silent about something and simply saying, "I don't want to deal with you." Government coercion can shut you down. If I propose some deal to Nico or to you, Onkar, and you don't like it, you don't like the terms of employment that I'm offering or participation in my social media platform or whatever it might be.

I offer you some terms; take them or leave them. But if I'm a private company, no matter how large and influential I might be, if I'm just a private individual, I can't shut you down. I leave you free to go and find somebody else to deal with. But I don't want to deal with you. If we think of what the private individual, a private group, or a private company is doing as censorship, and that's not supposed to be allowed, what happened to my right to choose who I associate with, who I trade with, who I speak to, and whose speech I do or do not support, right?

The right to free speech and intellectual freedom also includes the right not to engage with certain people and not to support certain ideas. If you say, "Oh no, Facebook is censoring me; they must be made to allow what I said," you're disregarding the rights of platforms like Facebook.

Nico Perrino: I'm glad you brought up Facebook. I think this issue confuses many people who care about free speech. FIRE has confused some folks with our positions on it because, on one hand, we discuss the NetChoice Supreme Court cases where Texas and Florida are telling social media companies how they must moderate content or what they must post, or what they can't take down. We argue in court that there's a right to free association, and platforms like Facebook and X have their own First Amendment rights to associate around shared values. On the other hand, we're supportive of challenges to the government, such as in the “Murthy v. Missouri case, where the government was jawboning these social media companies to take down speech.

Tara Smith: I'm sorry, could you repeat your position on “Missouri”?

Nico Perrino: In “Missouri”, there's the allegation that the government coerced social media platforms to censor when they didn't want to.

Tara Smith: Pressuring these… Yeah.

Nico Perrino: And that this government pressure forced these private associations, which have their own First Amendment rights, to censor. This has had downstream consequences for platform users. The Supreme Court ultimately ruled that the users who filed the suit, alleging government pressure on social media companies, lacked standing.

They didn't have standing. I think if you read the case, and it was Facebook, for example, that sued the government over this pressure, they would probably have had standing and likely would have won. When people think about social media now, they think about censorship, such as what happened during COVID, where platforms moderated content about masks or vaccines, or during the election, where they moderated election-related content.

FIRE has always advocated that these companies have a First Amendment right to do that. From a normative perspective, you might think it's unwise, and we're willing to argue that these policies are rife with double standards. To the extent that platforms like X profess to be the town square, yet censor or deplatform users participating in significant conversations like the pandemic, they're not fulfilling that role.

So there's this lack of truth in advertising. But at the same time, we would defend their First Amendment right to do so. I think that's a distinction that some people confuse. What Rand and you guys, as kind of objective thinkers, are willing to do is make not only the First Amendment argument that the government shouldn't engage in censorship, but also the normative argument that what these social media companies are doing is dumb and wrong.

Onkar Ghate: Before I answer, can you expand a little bit on what you mean by jawboning? You mentioned the government jawboning these companies. What does jawboning mean?

Nico Perrino: Sure. It's when the government comes in, and Mark Zuckerberg talked a bit about this in his letter in response to the House Judiciary Committee's subcommittee on the weaponization of the Federal Government. He essentially said it's like a nice restaurant, and it’d be a shame if something happened to it.

Tara Smith: Or the “Vullo” case was one of the… right? The “New York Vullo” case?

Nico Perrino: Yeah. In that case, you have the insurance regulator in the state of New York pulling in the bankers for the National Rifle Association and saying, "Hey, we don't like your association with the National Rifle Association." This happened in the wake of Parkland. There are all these other things we’re looking into, but we’re going to just turn a blind eye to those if you guys drop the NRA as a client. The Supreme Court said that was unconstitutional jawboning and unconstitutional pressure; it was essentially coercion of a private entity and their free associations. Some social media companies, in the case of “Murthy v. Missouri”, argued that the government was doing the same in the social media context as well. You need to look at each of the conversations that social media companies have with the government in isolation and determine whether it was coercive, if there was a threat, or if it was just the government giving its opinion. Those nuances can get whitewashed when you're discussing it from a broad perspective. But government jawboning does exist.

Onkar Ghate: That separation is really important. Is it the government expressing a certain opinion? As government officials, they have to be able to do some of that versus is there an implied threat? The implied threat here can mean, "Oh, it’d be harder for you to get a permit or a regulation or some permission you need," so this kind of quid pro quo might not be obvious, but it is a violation of the freedom of speech of these companies. But that separation, I think, is very important.

Tara Smith: It's not that the government should never communicate with private companies. If the government has credible information about a certain threat, I think it's perfectly fine for them to bring that to the attention of platforms and others who might be spreading it, but without this implied threat of taking away permissions or imposing regulations. This is often what happens today, so I was very sympathetic with the lawsuit in question.

Nico Perrino: But on the normative question, would you ever feel comfortable criticizing the way these social media companies moderate their content?

Tara Smith: Of course, but not their right to do so, which I think aligns with your position. Absolutely. The right to freedom of action includes the right to exercise it in idiotic ways. I mean, I have a right to be a jerk. I have a right to be immoral in many ways. I have the freedom, and I should have the freedom to engage in all sorts of policies with which I deeply disagree. But what I don't have the right to do is interfere with anybody else's ability to set up their own companies with their own content moderation policies, if that's the arena we're talking about.

However, you can certainly criticize the way that different people exercise their rights while staunchly defending their right to establish their company with whatever asinine policies they choose.

Onkar Ghate: Yeah, I would say for social media companies, most of the criticism I hear is unfounded.

Nico Perrino: And criticism from whom?

Onkar Ghate: From people about how their content moderation policies are implemented. There is a presumption from many critics that what they're doing is easy, and if they were in charge, they could do it better. These critics have never operated an organization at this scale. First and foremost, for social media companies like Facebook, YouTube, Meta, and others, there needs to be recognition of the incredible value they have created. They've innovated on a worldwide scale, making interconnection incredibly easy. The positives that have come from this are immense, such as careers on YouTube that never existed before.

This achievement is something most people couldn't accomplish. Yes, there are issues about content on the platform, and some companies are very sensitive to this. I think Zuckerberg was very aware, striking a balance between wanting the content and recognizing the positives and negatives. Designing an algorithm to help with this is not an easy task. The idea that someone on their couch could do better is simplistic. If someone believes they could do better, they should create their own social media company and try to do it.

Tara Smith: Yeah, I think that's a really important point, and it's worth underscoring the sheer volume of what's posted, what's put on, and what is placed on some of these platforms, you know, around the clock, every day, worldwide. And there are some tough calls, right? Trying to get those right is a phenomenal service that they provide.

And they're going to get it wrong sometimes. But yeah, that presumption of, "Oh, it would be so easy. We could do it, you know, just the three of us together."

Nico Perrino: We had on the podcast a couple of episodes ago, Representative Christopher Cox, who was the coauthor, along with Ron Wyden, of Section 230. Section 230 is the statute that shields these companies from liability for third-party content, in part to address the challenge of the internet and the volume of content that is produced. It essentially says that the creators of the content, the third party, are liable for what they post, and not the hosts of it.

But that's very controversial now. It seeks to address a unique problem with the internet, and I think over time, it's gotten somewhat watered down, in the SESTA-FOSTA debate, particularly surrounding backpage.

Onkar Ghate: It's also interesting because you have the founder of Telegram, who is being detained right now in France for lack of moderation of content or not engaging with the government regarding his encrypted messaging service. I would have a hard time, although a couple of years ago I might not have, believing that such a situation would be allowed to happen in the United States because of Section 230.

Nico Perrino: And you discuss Section 230 a little in your book, and you mention how the questions surrounding liability are difficult. But nobody has suggested a better approach than what Section 230 provides at the moment, given the unique challenges of moderating content on the internet.

Onkar Ghate: Yeah, my basic view is if our government stopped doing so many things that I think it should not be doing, it would pay more attention to things it should be doing. And thinking about liability on the internet is obviously something new. There's something right in considering social media companies like YouTube and Meta as more like bookstores—they're not the creators or authors of the content.

They're much more like a bookstore, where you can find all kinds of things. If there's some kind of libel in a particular book, it's not the bookstore's fault; it's the author of that book. But on the other hand, there are issues about, okay, if you bring to their attention that there's content breaking copyright, what is the responsibility of these companies?

That's the thinking of how that works and how the law should be. That requires new law for a creation like the internet. And Section 230, I think, was a start. But there's a lot more thinking warranted that hasn't happened.

Nico Perrino: Yeah. Well, I mean, in the United States, you can subpoena these companies for access to user information for the person who posted the third-party content that was flagged. So there are ways to do it that don't create an excessive burden or liability for the host, but it would require focusing on the actual creator of the content itself.

Two podcasts ago, we discussed the book “The Supreme Court and the Philosopher” and its arguments, which essentially begin with Oliver Wendell Holmes's dissent in the Abrams case in 1919. John Stuart Mill's philosophy surrounding free speech significantly influences the Supreme Court's approach to freedom of expression. I remind listeners that prior to 1931, no government restriction on speech was struck down by the Supreme Court. I think that surprises a lot of people. There were many dissents arguing for what we now see as the current position on free speech of the Supreme Court, beginning with that 1919 case.

Part of this shift was due to Oliver Wendell Holmes having a conversation with someone who encouraged him to reread Mill. This was between Holmes's majority opinion in a case that imprisoned some socialists in Philadelphia for distributing anti-draft leaflets and his later dissent in “Abrams”, which involved people handing out socialist and pro-Communist leaflets in New York. Something happened that summer; they believe it's because he reread Mill and had this conversation with Harold Lasky. I quoted Professor Smith earlier on Mill, noting that Ayn Rand was adamant that people should not think of Mill as being on the side of individual rights. That might shock many people.

Onkar Ghate: Why? I mean, he's very explicit about that. If you read the start of utilitarianism, it’s clear. I'm not basing this in some kind of abstract doctrine of rights. Both Bentham and Mill were utilitarians. Bentham famously described rights as "nonsense on stilts." The American conception is individualistic, meaning rights pertain to the individual and their pursuit of happiness. Mill’s moral philosophy is not about pursuing individual happiness; it’s about the greatest happiness for the greatest number. That’s a collectivist perspective, not an individualistic one. Therefore, in politics, he's going to apply a collectivist lens, not an individualist one, which should not be surprising. It’s what he argues. If you take that seriously, don’t just group him with the Founding Fathers and assume they thought the same way about freedom. They didn't. Jefferson and Mill, for instance, are very different. Madison and Mill are different too, and Mill is explicit about that. This isn't a complex issue of interpretation; it's about taking seriously what he actually says. He’s not about individual rights; it’s about the collective.

Nico Perrino: Professor Smith, does a lot of this come from outside of chapter two of “On Liberty”? If you look at chapter two, which is his discussion of freedom of expression, I don't think you see much of that. It might be there in some lines, but...

Tara Smith: It is there, but most of this comes from elsewhere. The first thing to underscore is, as Onkar briefly mentioned, to read “On Liberty”. Libertarians or advocates of free speech should note what else Mill wrote, like his influential work on utilitarianism. There are implicit references to that utilitarian standard even within *On Liberty* and the chapter on freedom of expression.

So, I think it's very understandable that Mill has been as enamored as he has been. I'm sorry if I'm getting my grammar wrong, but there are free speech advocates like Mill. And his influence goes well beyond the Supreme Court, which you discussed in the podcast a few weeks ago with those authors. I mean, worldwide, some of the best minds who support free speech see Mill as their man. Why is that? He makes a lot of good points about the great value of open exchange of ideas. I mean, that chapter in “On Liberty”—there are aspects of it that you might even call a tour de force of the tremendous value of not assuming your own infallibility, not taking things as dogma, and hearing the other side.

And if you don't know the arguments for the other side, then you really don't understand. I mean, he makes many good points about the benefits of the practice of freedom of speech. But he doesn't understand that you have a right to free speech, even when what you're saying is asinine or stupid. The right to free speech doesn't come from the usefulness of your speech to others, useful as it often can be. It's rooted in individual liberty. The kind of “right” that you'll get from Mill is a permission—it's conditional. You have the right to speak as long as it is really good for society. But when it's not...

Nico Perrino: Well, Mill is also concerned with what you might call the tyranny of the majority. Now, that's not his phrase; I think that's Alexis de Tocqueville's phrase from his journeys through America. But Mill was very much a transgressor in Victorian England, and he was concerned about the acceptability of playfulness with ideas in that society. So I think that informs a lot of his philosophy and the usefulness, to use your phrase, Professor Smith, that he describes in “On Liberty”. What do you guys think of his arguments surrounding uncertainty? It's like we need to have freedom of speech because there are three possible options with any argument: that it's right, that it's partially right, or that it's untrue. And in all three cases, we benefit from hearing arguments on the other side.

Onkar Ghate: There's something true about what he's arguing, and something false. There are many issues that I think are settled and can be settled in an individual's mind. It's not that you have to keep checking them. Take something like hate speech or Holocaust denial—it's not like you have to spend a day every two years looking at what Holocaust deniers are saying and think about that. It's said that what they say is a fantasy, it has no relationship to the truth, and you can dismiss that and not revisit it, not think you need a continuous check on your thinking. Yet, I still think you cannot censor those people.

But from a collectivist perspective and with hate speech laws—I'm from Canada, we have hate speech laws—they're given many justifications. The harm they create is considered more than the harm of silencing these few individuals, tossing them out of schools so they can't teach, even putting them in jail. It's a balancing of harms and is very much how Mill thinks of it.

And it's explicit in Canadian law that this is what they're doing. It's about considering the public good. If we believe that prohibiting certain expressions is beneficial for the public good, we can prohibit it. Conversely, in Canadian law, if we think something is beneficial for the public good, we can permit it. So, the same content of speech can be penalized, criminalized, or not, depending on how it is perceived to affect the public good, which essentially considers the harm it does to society at large, regardless of any harm to an individual.

Nico Perrino: Central to this idea is the harm principle, right? Does something cause harm? When most free speech advocates think about the harm principle, they consider, as you, Professor Smith, discuss in your essay, the distinction between speech and action.

We think of harms as being actions, right? Harms are things like physical harm, for example. But in Mill's philosophy surrounding the harm principle, you might think it could also involve words. That's what, for example, the Canadian government and other more speech-restrictive governments might be seizing on.

Tara Smith: Well, all I was going to say, in connection with what I was just discussing, is that much of the current debate about so-called misinformation is exactly that. Oh, that's bad information for people to have. That's not helpful. So we better label it as misinformation and silence it. It's all from the same playbook.

Onkar Ghate: Yeah, and another very important thing about Mill, which you brought up, is that part of On Liberty is about social conformity. Mill packages together two things that I think need to be dramatically separated. You can see Ayn Rand separating this in her thought. So, was Ayn Rand concerned about social conformity? If you read The Fountainhead, it's about an individual set in a world of conformity. And that's a huge problem.

Nico Perrino: That was her in the Soviet Union.

Onkar Ghate: That was her in the Soviet Union. But in America versus the Soviet Union, in the Soviet Union, conformity is enforced at the point of a gun. If you don't toe the party line, if you don't attend Marxist classes and recite the dogma, you will lose your job, be jailed, or sent to Siberia. In America, that's not what happens. You'd be ostracized; people wouldn't want to deal with you. They'd think you're crazy. That's what happens to the hero, [Howard] Roark, in “The Fountainhead” early on. That is permissible. To fight against that is to advocate better ideas, which is what The Fountainhead was doing. Mill puts those two together, but if conformity is a product of coercion, of physical force by the government, and if it's just people thinking you're wrong and not wanting to associate with you, those are separate issues.

And he's treating them in the same way. They must be radically separated. I want to take a different aspect of conformity. She was against the FCC, and I think understanding the FCC, part of what it did was enforce a sort of mainstream view. It would only grant licenses if certain criteria were met. And that created conformity in America. But that was a conformity through coercion, not voluntary conformity. If, for example, we are all religious and an atheist comes along, we won't elect an atheist or deal with them, leading to a social conformity that has to be fought in a different way.

Nico Perrino: So, to summarize where we’re at with Rand versus Mill: Rand saw freedom of speech as an individual right, something she held to be paramount. Whereas Mill looked at freedom of speech as something useful for living one's life.

Onkar Ghate: Well, but useful for society. I think that’s what's crucial.

Tara Smith: It’s very useful for, in Rand’s view, the individual. And there are great social benefits as well.

Nico Perrino: You told us that it allows you to develop your capacity to reason, I'm assuming.

Tara Smith: Yes. To think, understand, exchange ideas with others, learn from them, and take advantage of the great ideas and products that everyone else brings. The basis of my individual right to freedom of speech, religion, or press is the same as my right to lead my life how I like, including intellectual issues, speaking, publishing, or praying, as long as I leave others free to do the same.

So it is an expression or manifestation of my right to live my life as I like, as opposed to focusing solely on the social good. There were one or two things I wanted to come back to, if we have a moment. The FCC—just consider the very concept.

The Federal Communications Commission. Just think about it. We’re so used to it, but we weren’t always here. Imagine that in the United States of America, we’re going to have a Federal Communications Commission. Isn’t that an interesting idea?

Nico Perrino: I thought the FCC stood for censorship. I thought it was the Federal Censorship Commission, but I must have gotten that wrong.

Tara Smith: Well taken, Nico.[a][b] But I think there's something else worth mentioning. I don't think you actually used the phrase Mill uses, which is "social tyranny." In the spirit of what Onkar is saying, Mill, maybe metaphorically, but let’s be careful here: when it’s voluntary private social pressure, influential as it may be, like boycotting a company or ostracizing a person, that can be powerful and have real effects. But as long as it’s not coercive, as long as it’s not the government or someone else literally keeping you from dealing with others, that’s not tyranny. This is the difference between what’s censorship and what’s not, between action and speech. We’ll leave you free to speak, but that doesn’t mean you’re free from negative consequences or

unwelcome repercussions of the views you express.

Nico Perrino: So you guys have one other contributor to the First Amendment essays on the imperative of intellectual freedom, Gregory Salmieri. Unfortunately, he's not here with us, but I was reading through the book, and there is one criticism of FIRE that I want to read for our listeners and get your take on. Maybe you agree, maybe you don't, but we can discuss it.

Greg writes that “it's a mistake to assume that it's always good to engage in an activity with someone, even if you judge the person to be good. On balance, it's possible that by participating, you may be supporting something negative about them and that particular activity. For example, while I believe that many people involved in the Foundation for Individual Rights and Expression are good people, there are certain conferences, discussions, or workshops that I wouldn't participate in. If I did decide to participate, I would consider the premise being supported and whether it aligns with my values. For instance, if the discussion is about Mill's principle of freedom, I would need to consider whether participating in such a conference is helping to further that premise or if there is a chance to challenge it.”

I'm wondering what you guys think about this idea of engaging with folks who might disagree with you by going to their conferences. What does that say about you as a participant?

Tara Smith: Well, I think it is complicated. That's because I don't think there's an across-the-board answer here. You don't always or never engage with people with whom you disagree. I mean, I think you do have to look at each case: what would this be? In the full context, what would my participation be supporting or telegraphing? You know, broadcasting that I support or not. But I think that's going to vary in different cases.

And it is a hard call sometimes. Certainly, the Ayn Rand Institute, where I serve on the board, faces this kind of question sometimes. And it's not a no-brainer. It can be tough, but I think we have to be careful that in the advocacy of free expression and ideas, we don't sometimes hide behind the freedom of speech to refrain from being properly critical of the content of the speech, even when we're broadly allies and important allies on certain things.

Okay, but sorry, I can't get into this Mill [stuff]. I don't think Mill is really the solution. I think ultimately, he's only going to hurt the cause. So, you know, you've got to be that voice if you'll let me talk about my Mill criticisms. Right. But, if I may. I mean, thank you, Nico, for bringing up the criticism of FIRE, very much in the spirit that Rand would approve. And I hate to say it, Mill would probably approve, too, but, you know.

Nico Perrino: Well, I'm glad you brought up the content of the speech because that's one thing that distinguishes FIRE from groups like the ACLU. We are a one-issue group. We defend freedom of expression, so we don't comment on the content of the speech we defend. We don't take a position on the content of the speech we defend, nor could we.

We're a nonpartisan organization with people from across the political and ideological spectrum who come together in support of this one broader concept of freedom of speech, which is embodied in the First Amendment. So, when we're going to different conferences and participating in different panels, we have two reasons for doing so. We wouldn't decline participation in a panel because of what the speakers might think, as that would be akin to commenting on the speech.

Additionally, we're a big tent organization, and we want to engage even in hostile environments where people might disagree with us to make our arguments in hopes that we can convince them and bring them around to our position. Now, of course, the big question is, would FIRE participate in a Holocaust denial conference if there was a panel on free speech?

That's the hard question. I don't know. We haven't had those discussions or received those invitations. But there is a generation of old-school civil libertarians who would say, "To hell with it, I'll go into any room and make my arguments. What am I afraid of?" This idea of moral pollution, by even being in the same room as people who believe bigoted, offensive, and hateful things, is something they reject. They would say, "To hell with those folks; I'm here to make arguments."

Tara Smith: But I think it's not so much about moral pollution as it is about what I would be implying I support or agree with. If it's a free speech event and you're talking about even the most atrocious speech of Holocaust deniers or whomever, the issue is the freedom of speech, not the propriety or validity of any views espoused by any group that wants to exercise free speech.

So, there would be no such implication. I think that insofar as people are having events about free speech, even a group like FIRE would be concerned, even with neutrality regarding the content of the beliefs espoused, about the grounds of advocacy for free speech, because those could really impact your mission as effective advocates for free speech. All I'm saying is that should be on the radar of considerations. There are people with really poor arguments for free speech, and we just want to collaborate with them because they're for free speech. If the arguments aren't good, I mean, I'm speaking very crudely here and quickly, but it's like…

Nico Perrino: Are you going into these environments and tailoring your message to support whatever cause they believe in? Or are you staying true to yourself and making your case?

Tara Smith: Well, that's a crucial aspect of all this, for sure. I mean, there's no point in just preaching to the converted. You want to engage with those who have disagreements where we can have constructive dialogues and really do some good.

Onkar Ghate: I don't think it's just an issue of disagreement and voicing one's disagreement. One way to think about it, as it will be put colloquially, is that actions speak louder than words. It's often easy to say, "I disagree with X" or "I disapprove of Y," but do your actions actually show that you disagree with X and disapprove of Y?

Part of why freedom of association is so important is that you should associate with people you think are good, where there's some value to gain. You also need the freedom to say, "I don't want to associate with these people." If you truly have that freedom, then whom you associate with conveys something, just by the very action of association.

One has to really think about what their actions convey in association with this. I'll give a different kind of example than freedom of speech. One can say they're against Russia's invasion of Ukraine, but if you think it's legitimate for them to be at the UN and you're going to attend the UN and have conversations with them, treating them as a permanent member of the Security Council, are you really opposed to Russia? Do you really think of it as a criminal regime if you consider it just another legitimate member of the United Nations? One has to really think about that. The easiest thing to say is, "Oh, I'm against Putin and I'm against this invasion of Ukraine." But do your actions actually back that up? That's a real issue in life that one should think carefully about.

Nico Perrino: Well, one could argue that in the realm of realpolitik, it's important to keep them engaged because you can influence them against doing illiberal things. But then, at the same time, they're members of the Security Council and can sometimes chair it, potentially blocking measures that would support a limited government or Republican order.

You mentioned, "What does the association convey?" I think this is where Greg and FIRE might have some disagreement. There's the reality of the association and the perception of the association. Like when lawmakers work across the aisle to do things I support, I like that happening. Their work on this discrete issue does not suggest support for all of Bernie Sanders' policies, for example.

And then I also exist in the space as a leader of FIRE for 12 or 13 years. We have been accused of being a liberal organization or a conservative organization because we defend speech, you know, on this side of the aisle or that side of the aisle, or because we take money from this group or that group. It's like, look at our record. You know, we're nonpartisan. We defend speech from every walk of life. You have to be wary of taking people's perceptions of your social associations at face value. You need to do what you internally think is right and know to be right. Yes, and to hell with the politics.

Tara Smith: Well, that's about right. You know, I very much agree. You can't just be hostage to anyone's perception, shall we say.

Nico Perrino: Well, oh guys, this is fun.

Tara Smith: Definitely, this is terrific. This is a lot of fun.

Nico Perrino: The book is "The First Amendment: Essays on the Imperative of Intellectual Freedom." It's edited by Tara Smith, featuring essays from Onkar Ghate and Gregory Salmieri. There's also this really interesting conversation that there's a transcript of at the end that dives into Objectivism, Rand, and some of the questions surrounding Big Tech and Section 230. So I urge people to pick up the book and check out what we weren't able to get to today. Professor Smith, thanks for coming on the show.

Onkar Ghate: Thanks for having us.

Tara Smith: Thanks a lot.

Nico Perrino: I am Nico Perrino, and this podcast is recorded and edited by a rotating roster of my former colleagues, including Aaron Reese and Chris Maltby. It's also co-produced by my colleague Sam Li, who's here in the studio with us. 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.

I will say, if you want to get an email anytime a new podcast comes out, you can subscribe on Substack. There's also an option to subscribe on our website. You can follow us on X by searching for the handle Free Speech Talk. You'll also find us on Facebook. If you have any responses to this conversation, we take emails at sotospeak@thefire.org. If you enjoyed this episode, please consider leaving us a review on Apple Podcasts or Spotify. Reviews help us attract new listeners to the show. Until next time, thank you all again for listening.