 It's 101 Eastern. Welcome to Vision, a show about the trends, ideas, and disruptions changing the face of our democracy. Over the past few weeks on the show, we've been approaching the question of free speech, expression, and press freedom in different ways. We've discussed the unique challenges that digital technology poses for how we think about free speech, both in a legal context and as a bedrock part of our democratic culture. We've also discussed intense debates about what some would call the zone of deviance, what to do with the views that we might consider obsolete outside the mainstream, reprehensible, or some combination of all three. And what action, if any, can or should we reasonably take to curb these views? Or is the mere impulse to restrain the expression of any sentiment and anathema to the basic principles of our democracy? UCLA law professor Eugene Volek has been one of the most persistent and forceful proponents of the First Amendment, and a longtime commentator on these issues whose work is widely cited in a legal context and in mainstream thought. He was also early to capitalize on the power of the internet to spread ideas and discussion, founding the now famous blog, The Volek Conspiracy. Delighted to have him with us today, please welcome to the show Eugene Volek. Thanks very much. Thank you for having me. Yeah, thanks for being with us. I'd love to sort of, I mean, you really are one of the key commentators, observers, and scholars of the First Amendment. And so I'd love to start by just having you give us a sense of sort of the status of free speech, both in the First Amendment context, you know, what's the status of the law of this set of rights, but also culturally, to the extent that the idea that there's a, the marketplace of ideas that free and open discourse is sort of a critical part of the liberal American democratic project, what the state of the culture as well. So just give us a sense of sort of how you see the world of expression and speech. Well, when it comes to First Amendment rules, as enforced by the courts, they're about as broad as they've ever been. The Supreme Court, both the conservatives and the liberals on it are pretty committed to protecting a broad range of free speech against government suppression. There are some dissenters on both the conservative and liberal side, and different cases bring out different dissents. But on balance, it seems quite clear that the court is fully prepared to protect a wide range of speech, including so-called hate speech and speech that may indirectly lead to violence and various other such things. At the same time, very few disputes actually reach the US Supreme Court, and very few reach even the courts directly because First Amendment law is not meant to handle all controversies about free speech. So to take one example, what about free speech for private employees who are afraid they'll get fired if they say the wrong thing? Well, it turns out that about half of the public lives in states that have state laws that protect employees' speech against their private employers. The First Amendment, of course, doesn't apply to private entities, but those laws do. What's the status of free speech under that? A lot harder to tell because there are many fewer lawsuits filed, and it's hard to tell whether it's because actually employers rarely fire employees for their political speech, or whether it's because lawyers don't know how to file those lawsuits, or it's too expensive or too difficult for employees to fight this sort of thing. Likewise, what about free speech in the sense of willingness of college students to speak out about various topics? Again, at public universities, generally speaking, they have pretty broad legal protection against being disciplined for, let's say, saying things in a student newspaper or war in a conversation or what have you. A few, we've seen some examples of universities that I think violate the First Amendment on this, but not a lot do. Private universities, there are pretty strong norms, I think, preventing private universities from outright expelling students for their speech, although, again, it depends on the university and the speech. But when we're talking about social pressure, like somebody saying, I'm afraid, I'll lose friends or I'll lose future business prospects or job prospects, especially if you say at a law school, where in a year or two you're going to be out there practicing law, and maybe the person who is in law school with you a year ahead is going to be helping decide whether to hire you for some job. There, I think people are a lot more concerned, but part of the problem is it's it's a lot harder to figure out what to do about that, because we do choose our friends and choose even prospective employees based on how smart they seem, how nice they seem, how pleasant they are to be around, and what you say may influence people's judgment on them. So there it's a lot harder to talk even in terms of free speech as such. To give another example, I don't think the government should punish Stalinists, but I'm not going to have any Stalinists over for dinner, I'm not going to be particularly keen on helping them out for various tasks, likewise with Nazis. So those things are a lot harder to figure out. My sense is that we've gotten to a situation where there is a lot less tolerance of views, including ones that are loosely, descriptively mainstream. So let me suggest one thing, especially in educational institutions, but I think also a lot of other institutions, it's really important that if a view is held by 20% of the public, there would be people around who can express that view without fear of being expelled or fired or losing jobs and such, because everybody else needs to hear that view, needs to understand what that view is and needs to figure out how to argue against it. They may think it's a very bad view, but especially let's take an example that I know of law schools, you know, if even if you think that support for sharp restrictions on abortion is completely wrong, even if you want to become an advocate for abortion rights, you especially want to hear what is something that 40% of the public, maybe in some situations 60%, maybe at least 20% of the public believes because otherwise, how will you learn how to effectively argue against that? So that kind of tolerance of rival views both is an ethical matter, but also is an instrumental matter as a means of making sure that people hear these various arguments and even if they think they're totally benighted, figure out what it is that much of the rest of the public believes, that I think there's a lot less of. And I think that's bad, although that may not be something that the law can reach. Yeah, let's talk a bit about that sort of cultural discussion because I think one, you know, to the extent that matters out that there's a view that we are trying to, we have a public culture that supports our democracy. And so even outside the law's reach, it may or may not be important to support that public culture strikes me as worth exploring, but also it certainly seems to be one of the stakes around our debate about expression is sort of the openness of the culture. And it strikes me in thinking about the example that you just gave about views is, you know, there's sort of both sides of this debate to be somewhat reductionist for the purposes of this discussion, are sort of accused the other side of kind of a pretextual argument, right? So I think you've got some that say, you know, there are those on the left who just want to stamp out all views they don't agree with, they want us all to think the same thing about what's just or what's equitable. And so they're using values like a more inclusive environment as a pretext for their view has to be ascended. And then I think you would have someone on the left who would say, look, there are real imbalances of power here. And the idea that we need to cultivate an open marketplace in which different ideas can come can be heard fairly to sort of improve our general understanding to hone our own arguments for why to maybe dismiss those arguments we don't agree with, etc, all the sort of salutary benefits of the marketplace of ideas. That's just a pretext to allow this person to kind of continue to enforce this power imbalance that favors that favors their view. I imagine these sorts of discussions are happening on your campus and certainly in other campuses that you've observed, how do you how do you sort of evaluate these kind of political manifestations of this of this debate? Well, I'm, I tend to be not terribly interested in most situations and questions of whether whether some something is pretext or not, partly because it's really hard to figure out what is it the other side sincerely believes, partly because the other side is a lot of people. So maybe a few of them I can, I find leaked copies of emails from them that say, we're claiming we're in favor of free speech, but really we're just trying to better suppress the other side's views. But then there'll be other people from I can't find those emails, but because no such emails exist because they actually do sincerely support free speech. So what's the point of my making an argument, at least if I'm trying to get at the truth rather than just political victory, what's the point of my making an argument about the person's pretext when it's when that doesn't really tell us what the right answer is. Now, I'm sure there have been times when I focused on pretext and in some situations it's relevant some legal questions, for instance, what the actual basis for a decision is, is relevant. But I'm less interested in what people are really motivated by and more what are sensible rules. So to take an example, there's no doubt that there is a vast range of power imbalances. And they of course operate different ways in different contexts. So for example, Islam is relatively less powerful in the sense of a set of people who hold a particular complex of views in the US, just because there are a lot fewer people who are Muslims than say who are Christians or even who are atheists. On the other hand, in the world at large Islam is of course is a tremendously powerful force. And in some countries Islam is the dominant force and at least the facets of it are an oppressive force. So likewise, you know, are conservatives more powerful than liberals? Well, it depends in some states probably they are to the point where maybe some liberals are reluctant to express their views on certain subjects for fear they're going to be blacklisted in the job market in this particular area. At the same time, at least at my university campus, it's pretty clear that liberals are much more powerful liberals on the left of liberals, let's say the left of the spectrum is much more powerful than conservatives. So, there are obviously these power imbalances. The question is what to do about it when it comes to free speech and suppressing the views of the ostensibly powerful in order to further the views of the less powerful or if you prefer in order to provide a broader balance, is I think a pretty is generally speaking pretty unsan move for a couple of reasons. First of all, all suppression requires some power to implement it. By definition, the truly powerless will not never be able to suppress contrary views or even or even regulate or restrict if you want to use less value in terms of contrary views because by hypothesis, they're so powerless they wouldn't have the power to implement those things. So, when you see restrictions on speech, invariably the restrictions are implemented by entities or movements or people who are powerful in that context. And then, so the restriction is presumed is that non people who are generally less powerful. On top of that, I think sometimes the powerful have really good ideas, sometimes they have bad ideas, sometimes the powerless have good ideas, sometimes they have bad ideas. So, I think the important question is how do we promote a wide range of ideas? Now, one way of thinking about it is when I'm in the classroom, I want to make sure that both sides and maybe more than two sides of each issue are raised. I don't view it in terms of who's the more powerful in class. Maybe in some class it's not that anybody's more powerful, it's just that some particular group of people are more vocal and the others are just not as interested. I'm going to go out of my way to make sure that both sides are presented because it's my job to teach students how to deal with both sides and how to teach future lawyers how to make arguments in both sides. To me, that's not a question of trying to tamp down the powerful voices and amplify the powerless voices. To me, it's just a question of making sure that both sides, both sides are heard and that makes a lot of sense when we're not talking about restricting what is said in the lunchroom or online, but orchestrating what goes on in my classroom. Likewise, if you're putting together a conference, it often makes sense for you to make sure that the panel is balanced, not in a way that you'd impose a speech quote on the public at large or on students at large, but just to make sure that, again, both sides are presented or maybe four sides are presented in a panel of four people. So, I do think that it makes sense to make sure that various arguments are raised. I think just framing it in terms of power is not terribly helpful. How do you respond in particular to arguments that are raised, for example, the classroom would be a good example of the students who say, look, airing X particular view in this way is a really traumatic experience for me. And so, whether you think that's material harm or not, it certainly excludes me from the conversation. And it's traumatic for me because of a context that we all bring in before we get in the classroom. So, even if your idealized classroom is a place where all views can be aired, you have to accept the fact that I don't just exist in this law classroom. I come in this classroom as someone who maybe had been on the receiving end of some, I'm thinking of racial epithets that maybe are used for pedagogical reasons as examples, that those terms were used for a very specific purpose for a very long period of time for the deliberate purpose of oppression. And how can I really feel included in this classroom if I can't divorce my full self from the moment in which the term is being used? How have you encountered or evaluated those sorts of arguments? Well, so I'm a law professor. And maybe analysis might be different to professors and other disciplines. I can't speak for that with confidence, although I have some suspicions. But I'm a law professor, which means I have to train future lawyers. And future lawyers have to be prepared to work in an environment where they're going to hear a wide range of things being pressed, sometimes at great length and with great detail, that they may find offensive, traumatic, if you prefer, whatever. Whatever you want. It's kind of like doctors in blood. And it's natural to be upset at blood and gore and death. But if you're going to be trained to be a doctor, you need to prepare yourself for that. Likewise, if you're want to be a psychotherapist, it's natural to be very upset at people recounting stories of how they were abused or maybe fantasies about how they may want to abuse somebody. It's perfectly natural. And for some people, it's even more so because the would be psychotherapists is going and they're having been abused herself, let's say, as a child or himself as a child. But you have to be prepared for that as a psychotherapist. So likewise, with lawyers, look, if you look, if you do a search on Westlaw for racial epithets, you will find literally tens of thousands of court cases in which racial epithets are quoted from the record. You will find them from judges on the right and judges on the right, judges on the left. You'll find them in opinions by Justice Sotomayor, by Justice Ginsburg, by Judge Preggerson, Ninth Circuit, a liberal titan who died a few years ago. This is what you're going to deal with because the legal system has to deal with this. People testify in court. This is what this person called me. And you need to be prepared for that if you are going to do a good job on behalf of your client. So you may be in a position where right there, you're on the spot and somebody quotes a racial epithet. And if you feel traumatized and if you freeze up at that point, you will be doing a bad job. So the best way we can find trying to figure out a deal that is actually to make sure that when you're in the classroom, you learn to be prepared for that kind of thing when there's a lot less at stake. But it's funny. People mention racial epithets, but think of so much more traumatizing things. I mean, imagine somebody talking about rape. They're probably in every class. There have been some people, predominantly women, but not only who have been raped, whether forcibly or molested as children or whatever else, if it's a criminal law class, they're going to become criminal lawyers. They have to learn to deal with that. What's more, they have to learn to hear arguments saying, oh, that woman, she's lying about being raped. Or we need to be able to introduce evidence of her past sexual history in order to discredit. In fact, sometimes they may need to make those arguments themselves on behalf of their clients. I could certainly see why people might find it difficult in the classroom to make those arguments or even hear those arguments being made, but we can't train them as lawyers if we constantly shield them from these things that are a normal part of legal practice. And again, I think about psychotherapy or counseling or various other kinds of things. If you're not prepared to hear even things that are really quite offensive in various ways from your client, not when the client is insulting you, but when the client is talking about an incident that happened in his life, whether he was the guilty party often, a lot of their clients might be, or that he was the victimized party, if you're not prepared to deal with that, you're not going to be the second therapist, likewise with lawyers. So if we adopt sort of that kind of functionalism perspective, the question is what's the kind of function of the environment. Another place that this debate has come up recently, of course, is in newsrooms. And you have, I think, kind of two competing versions of functionalism. So one is, obviously the most notable example of this is the debate that erupted at the New York Times over an op-ed by Senator Tom Cotton, ultimately led to the dismissal of the op-ed page editor James Bennett. Now there was wrapped up in that questions of whether the sort of the job was done well around editing it. But certainly a big part of what sparked the discussion was the appearance of the op-ed, which for those who haven't followed this, that made the argument for deploying federal troops in order to help quell some of the protests happening after the killing of George Floyd. And you're now seeing, for example, in newsrooms a discussion where it used to be sort of the thought that there's a newsroom, there's an op-ed page, and the whole point of the op-ed page is to get lots of different views, including views that maybe some would find really challenging. And you're now hearing arguments that say, well, look, that's not our job. Our job isn't just to get any view. We haven't been publishing op-eds by leading Klan, Ku Klux Klan leaders for a long time. Our job is to provide the zone of debate that's within some sort of range of acceptable opinions, maybe sometimes to push the boundaries of that. But that really is our job. How have you reacted to what you've witnessed around some of those discussions? Again, an environment that has a sense of its own function in the way that law school classrooms have a really keen sense of what their function is and what they're preparing either lawyers or society for. So I think you're quite right that the frame is a matter of function. And I think one thing that's worth keeping in mind is in the media field, even in the loosely newsy media field, there have long been institutions that have had different functions. So throughout, as I understand in much of the 1900s and into this century, the mainstream newspaper has envisioned itself as being a place which is relatively neutral in its news coverage and broad minded in its op-eds. And the sense was, sorry about that, the sense was that this is what's most valuable to readers. Now that wasn't what newspapers were like in the 1800s and in part was a reaction, I think, to newspapers in the 1800s and 1700s. But it's also not like what magazines, many magazines are like, not all, but many. We don't expect a national review to publish a lot of liberal perspectives, even perfectly sensible mainstream liberal perspectives. We don't expect the New Republic to publish a lot of conservative perspectives. If they did, then stop being the national review of the New Republic, right? That becomes something else, maybe something valuable, but then something valuable will be lost. And at the same time, though, the consequences when something is, when we hear something is published in the national review, we know where it's coming from. We know that it's probably going to have certain kinds of biases, likewise again with the New Republic. We expect it to be honest, but we don't expect it to be necessarily quite as fair-minded as what we're hoping to see in the New York Times in its newspapers or in the aggregate of its op-eds. So if the New York Times wants to say, well, a lot of its critics have been saying about it already, which is we're a liberal newspaper. We have a particular slant. This is our slant. You're going to see it in our editorials, which everybody expects. That's fine. You're going to see it on an op-ed page and inevitably you're going to see it in our news coverage too, because it becomes very hard to maintain not just an editorial policy at one side, but also an op-ed policy that excludes some things as being ridiculously evil and not to have that leak into the news coverage as well. So if that's what the New York Times wants to be, I think that's fine, but I think we have to understand that that's going to be both a cost to its credibility or at least to its credibility as a particular organization and a cost to its readership. So what should an op-ed page have? Now, I don't think an op-ed page, even in a mainstream balanced newspaper, can be viewpoint neutral in its coverage or content neutral. It's impossible. In fact, the whole point of an op-ed page is for the editors to select viewpoints that are of interest to the readers that are going to be kind of presented in an interesting way. But I do think one important test is, is this a view that is held by a substantial minority, at least of the public, or, and almost almost of some coincidence in a democracy, by a substantial minority of influential government officials, or maybe not even just government officials, influential people. If it is, then the readers ought to know about it. They ought to hear about it for a couple of reasons. One is it's valuable for readers to see what even the other side is thinking. If a senator and an influential senator is saying something, then you don't want these readers to be blindsided one day when it does become policy. How come I never heard about it? Well, it's because your newspaper is protecting you from it. And also on top of that, there's also the possibility that they may be right and that you may be wrong. That kind of epistemic humility, it seems to me, is a sensible attitude. You're not completely humble. You're not going to publish the young earthers saying, oh, you know, the world was created 6,000 years ago. Yeah, we're pretty confident that's not right. But as to how you deal with mass violence and while protests are many aspects and they're peaceful, there certainly is plenty of violence going on at least in certain places. How do you deal with it, especially if it appears in your nation's capital? And not just sometimes violence, sometimes vandalism of important cultural landmarks. Is it interesting and important question? You might feel pretty confident that the right answer is X, but you ought to have a little bit of skepticism about your conference, the point where if we think that 40% of the public thinks the answer is Y, we ought to hear at least the most interesting and best articulated explanation. So I think that's good. Again, that's not what we expect from the national reviewer in the New Republic. And if the New York Times wants to say, we're going to be the New Republic of newspapers, that we're going to be having a candidly moderate liberal perspective and maybe do things within some zone of this moderate liberal center of ours, which is basically the far left versus and then the center somewhere in between, that's fine. But I think they have to understand that there's a cost to that that they were been trying to avoid by having a more mainstream, closer and more ecumenical view for many decades. So one of the things I wanted to ask about and that sort of flows from this, and it's coming up in our question section, some of the questions we're getting from the audience, which is about sort of the internet and how the internet has changed or influenced our thinking about this is, it seems to me that a key animating part of arguments for making claims on speech, either as a matter of the law or as a matter of norms, is some articulation that the words are causing a kind of harm. Sometimes that's psychic, that's the example of the classroom. I think in the Tom Cotton op ed case, you know, what was reported that some of the staff members felt they felt unsafe. In fact, because he was making an argument to instrumentalize state violence in a way that they felt would disproportionately affect them. And I raise this in the context of the internet, because I think this is certainly the animating idea on the internet. It's that there's something about the experience of being receiving hate speech, being harassed, being trolled at the sort of scale and intensity of the internet, of being exposed to misinformation, you know, at the sort of scale and intensity of the internet that makes it a place where I think a lot of people are particularly concerned about whether as a matter of the law, maybe not as a matter of sort of the doctrine of First Amendment of free speech, but as a matter of the law, we ought to do more to create standards of responsibility for the kinds of ideas, content expression that people should be exposed to. And I'm curious to think about how you think about that question of harm, but also the digital dimension of that question. Right. So one thing that I always try to impress in my students is that speech, the protection we offer speech does not come from the sense that speech is harmless. If speech were harmless, then it seems pretty likely it would be benefitless too, that if speech were harmless because speech never leads to people acting badly, then it would be hard to see why it would lead to people acting well. Speech can be quite influential, and it can be influential for good, and it can be influential for ill. And if you want an example of that, let's look at the famous, excuse me, the Supreme Court's most prominent and really pretty much only squarely decided hate crime case. Supreme Court has said you can't restrict so-called hate speech, but you can restrict hate crimes, and which is to say you can impose higher penalties on assault or murder or vandalism or other crimes that are motivated by the target's race, religion, sexual orientation and such. So let's look at the facts of Wisconsin of the Mitchell. So the defendant, Todd Mitchell, was watching together with several other young black men and boys, the movie Mississippi Burning. And then shortly afterwards, there was a group, the group of people moved outside, I'm reading from the opinion, and Mitchell asked them, do you all feel hyped up to move on some white people? Shortly after a young white boy approached the group on the opposite side of the street where they were standing as the boy walked by, Mitchell said you all want to fuck somebody up, there goes a white boy, go get him. They attacked him, they beat him unconscious, he was in a coma for four days. So if you're talking about pure cause and effect, I think it is fair to say that the movie Mississippi Burning, which is of course about an important, I think we're very well regarded movie about a very important incident from the Civil Rights era where there was an attack on I think murder of several blacks by whites. And actually, I don't think it was just blacks, but in any case, murder by white racists in the South. But if you look from a purely causal perspective, the watching of the movie Mississippi Burning almost led to murder and at the very least led to an extraordinarily severe assault. What do you do about that? I think our answer is well, it's true, a lot of speech does indeed help causally contribute to some bad behavior by some small fraction of the audience. But we can't restrict speech simply because of that tendency. Likewise, a lot of harsh criticism of police may lead to a few attacks on police, physical attacks. And I think there's evidence that it has as well as possibly a lot of really very important reforms of police. The same thing is true with all movements, all movements and all speech. There's labor speech, anti-abortion speech, anti-war speech, various other kinds of things. There's going to be some people who act on it in a violent way or a criminal way. And there are going to be other people who don't. So the law has come to the conclusion that you can't suppress speech even when we do see that in some measure it causes violence, except in extremely rare and narrow circumstances. But it's not just because the justices just decided this on high one day through philosophical reasoning. It's because for the 50 years before they've been struggling with similar examples where in fact the government did get away with restricting speech. For example, advocacy of a communist revolution did get away with restricting such speech because of the fear that it would lead to crime and violence. And then the justices and on reflection concluded that allowing those kinds of restrictions was a mistake. And I think it continues to be a mistake today, regardless of whether the target of the restrictions is far left advocacy or far right advocacy or anything in here. But it seems to me, particularly with regard to digital communication, there's two arguments about harm. So one, I think is similar to the case that you cited in which when people talk about certain web forms, 4chan, 8chan, being sort of a place of safe harbor for extremist views, I think that's the more instrumental view. There's a lot of speech here that is riling someone up. And we think that it should be restricted because it enables people to perpetrate some of the acts of violence that we've seen in recent temple of life synagogue and Pittsburgh. There's this debate about whether this is enabled. But then there's another argument around this speech, which is to argue that it's a direct kind of harm. And there are interesting accounts for people who have been the victims of brigading and other kinds of internet harassment, who they described the experience, something about the experience of not one person attacking you personally or because of your identity, but thousands, tens of thousands of people with a kind of instantanity that feels, some people will say it feels like it's the whole world is collapsing in on me. They're describing a real sort of psychophysical experience. Do you make a distinction between an argument about instrumental harm that just happens to be digitized versus an argument that this is this certain kinds of speech amplified by the internet is really a direct kind of harm on me? Well, I was focusing on the potential of violent action because that's what I think you were getting at with the cotton op at all there. The concern was the government would act in violent ways. Well, the government, its job isn't often to act in violent ways. And then I think it's important to have a debate about which kinds of government violence are proper and which are not. But when the point you're describing is very interesting and important, it reflects the fact that we're all social creatures. We have evolved to care about the views of our fellows. And it's totally understandable if people will be quite upset about this kind of mass criticism. Part of the problem is if you look at the labels people get, brigading, cyberbullying, harassing, those aren't exactly well-defined legal terms. Harassment actually is defined in the law which is defined very different ways in different contexts and sometimes defined quite vaguely. Brigading, cyberbullying, by and large, this is not something in which there's a very, very firm definition in them. So one might want to ask, well, what is that definition and what exactly will it cover? And I think once one gets to that one sees the difficulty of trying to suppress that kind of speech. So for example, you talk about sort of mass criticism. Well, you know, this is what a lot of people experience when they post something online that some people say is racist or Islamophobic or homophobic or whatever else. And they see all of this sharp criticism which ranges from some of it may be actually outright death threats, which are unprotected by the First Amendment. Some of it may be really substantive, calm, polite responses. And much of it may be in between like, oh, this person is a fool. This person is an idiot. This person deserves to be fired. You can imagine a law that says, well, this is all harassment and brigading. And that any time there's a group of people who are sharply criticizing somebody using insulting terms or calling for them to be fired, then that will be a crime. Although then one might wonder, well, when does it start becoming a large group? And what happens? How do you decide who are the ones who get in as the initial critics and who are no longer allowed? You could imagine the situation at that point, the person could get an injunction in order saying enough is enough. You criticize me enough. Now you can't criticize me anymore. You could imagine that it's not consistent with First Amendment law, which we can talk about changing First Amendment law. But at least we have to consider that it's going to end up covering a lot of criticism, including some fairly legitimate criticism, it seems to. Now, you could say, well, only racist criticisms. We're going to ban. But anti-racist criticisms, no matter how brigading they may be, no matter how much they may threaten the person's livelihood, well, that's okay. Well, that's not going to fly under existing First Amendment law. And I don't think the court will be persuaded to change its views because that is over viewpoint discrimination of the sort that the court has expressly and repeatedly condemned. But yes, if you'd like to talk about some such things, it would be nice to do that. Again, it would be good to have a good definition of harassment and brigading, good set of test cases, some from the left, some from the right, some from the center. So our judgment isn't too much influenced by our own prejudices in favor of one group or another. I will say that the most prominent example of this from the pre-internet era is casebook NAACPB clayborne hardware. Decided by Supreme Court in 1982, but the fact pattern was from the 1960s. And that involved an NAACP called boycott by blacks of white-owned stores in clayborne counties. And some blacks didn't want to go along with that boycott. So what happened was their names were taken down outside the stores at which they were shopping. They were distributed in meteorographs and read in black churches in the neighborhood, which in a sense, my sense of that culture at the time was that it was kind of like being posted on the internet because everybody all your neighbors went. And there was a little bit of violence against people who didn't comply with the boycott. And there was certainly social ostracism in the Supreme Court unanimously said, this is constitutionally protected speech. Maybe it was wrong. But again, that's a kind of test case we'd like to think about when we're talking about these proposals. So final question before I let you go. What's a question or principle or idea that you would leave us with to sort of animate or orient how you think we should be thinking about either the law of free speech or culture of free speech? As you think about what kind of the right or best paradigm is for approaching these issues, given the kinds of debates that we're seeing, what's sort of a positive idea you leave us with that you think should orient or thinking about what's right? Well, there's I think a general way of thinking about this. In a sense, it's kind of obvious, maybe a little bit now, but I think sometimes it's worth repeating the obvious, which is you've got to keep in mind that both the rules and the social norms that you're developing are going to be used against you and your friends and people on your side of the aisle, even the same, even though you may only want them to be used against the other side. And that's true in part because the country is currently quite divided. You may be in a majority and you could be conservatives or liberals, you could be in a majority in one state and very much in the minority in another state. It's also temporarily divided that, well, you could be in power in Washington, D.C. one year and not the next year. If you want the governments to have more power to restrict speech, that government could be the Trump administration. And even if you're completely confident that President Trump will be voted out of office, and I think it's a mistake to be confident about anything in these kinds of contexts, pretty clear that at some point there'll be somebody else in office who's going to have to use you to prove us. The question is, what is the tool that you are giving them? Another way of thinking about it is one of the strong protections these days for a wide range of speech is precisely the precedent set decades ago and endorsed by the court and enshrined as First Amendment rules by the court involving very different kinds of speech. So now you have some speech which might be viewed as racist or some claim as racist that is being protected because of case law that was developed in the 1950s and, excuse me, especially the 1960s and 70s to protect civil rights speech and to protect extremist speech on the other side, protect communist speech as a reaction to the suppression of the 1950s. But then some of those cases turned in part because of previous cases where there was protection offered to racist speech. So, for example, there's a case NAACP button where the winner was the NAACP, one of the things the court said, look, we've already provided protection for anti-semites and for racists and such in past decisions. Obviously, this applies as much as to the NAACP. Likewise, I think we have an example of cancel culture, read prominently, and I don't like that term because it's so vague as well. But I hope the analogy helps show a specific meaning I have in mind, which is the 1950s Hollywood blacklist, right? A lot of the arguments we're hearing that, well, why should anybody have to deal with and have to keep hiring people who they think have evil views? Why shouldn't they be free to not associate with those people? Those are the arguments for the Hollywood blacklist. Why should we hire screenwriters and others who support a political system in which we might be killed because we're capitalists or at least our rights and property would be taken away? And what's more, a lot of our audience doesn't want to see us supporting Communists either, so we'll just blacklist them. Now, you might think that that was actually a good idea. You might think that the reaction to the Hollywood blacklist was a mistake, but it's important to realize that the tools that are being validated in one era will be easily used against others and not so long from now. And conversely, to the extent that the reactions of Hollywood blacklist was to protect people from this kind of restriction, that's one reason why we are seeing, I think, a lot of pushback against some aspects of, let's just say, calls for firing people for supposedly extremist views that we like today. Well, as expected, provocative and incisive. Eugene is incredibly prolific, so you should check out his work. We'll send you a link to his webpage at UCLA. You can also follow him on Twitter at Voloxy. And you can read the Voloconspiracy at reason.com backslash Voloc. Again, we'll put this out by email, but Eugene, thank you so much for joining us. We really appreciate it. Very much my pleasure. Very much my pleasure. Thanks for having me anytime. All right. Before we go, everyone, I want to tell you about what's coming up on Vision. Next week, we're going to have Jessica Gonzalez, she's CEO of the Organization Free Press and one of the lead organizers of the Stop Hate for Profit campaign that has led to a significant advertiser boycott of Facebook. On August 6th, we'll have Lulu Garcia Navarro, the host of Weekend Edition Sunday on NPR. And on July 13th, we'll have, on August 13th, excuse me, we'll have Yuval Levin. He's a leading commentator, editor of National Affairs and director of Social, Cultural and Constitutional Studies at the American Enterprise Institute. This episode and every episode will be available on demand at kf.org slash vision. Email us at vision at kf.org or visit us on Instagram at vision.kf. Please take the survey on your screen now. As always, we'll end the show to the sounds of Miami singer-songwriter Nick County. You can find his music on Spotify. Until next week, stay safe. Thanks, everyone.