 You're listening to highlights from The David Feldman Show, heard nationwide on Pacifica Radio, or as a podcast on iTunes, Stitcher, and now YouTube. Please subscribe to this channel. For more information, go to davidfeldmanshow.com. Thank you for listening. The David Feldman radio program is made possible by listeners like you. You sad pathetic humps. It's Tuesday, so you know what that means. Time once again for Fridays with Corey. Oh, we switched it so that it would be the right thing. It's Fridays with Corey. I don't know. We can't come up with the right name for this segment. Professor Corey Brettschneider is one of our country's leading experts on the United States Constitution. He co-wrote a recent amicus brief that helped strike down the travel ban. He appears on the BBC. His writing can be seen in the New York Times and countless law journals. And for some reason, he's decided to give me a free legal education. And I will return the favor by suing him for everything he's got. Welcome, sir. You might hear some noise in the background. Thank you, and it's an interesting way to welcome people that threaten to sue them. I haven't heard you do that before, but thank you. Well, the words of the jerky boys... Sue everybody! Do you remember the jerky boys? I do remember them, yeah. I do. Should do their podcast next. I love the jerky boys. Let's talk about a couple of things today. We're going to talk about this new trademark case about the slants that I think made it to the Supreme Court. Is that correct? Not only made it, they decided the case today. We'll get to that in a second. We'll talk about separation of powers in relation to our involvement in Afghanistan. And the... Do you hear that in the background? I do, yeah. That's not me, though. Right. That's what I... They're doing something to the bricks outside. Oh. I'm going to sue them, too. Okay. And we'll talk about freedom of speech. And John Stuart Mill. We'll talk about Oliver Wendell Holmes. Alexander Michael John. And do I have everything? Yes. That's a lot. That's a lot. Yeah, we got a lot to do. And I'm reading your book. Yeah. And it's a lot harder. It turns out reading law is a lot harder than BSing about it. Yeah. It's more fun to just give lots of opinions, I guess, than to tell Ben. Yeah. And I had trouble understanding John Stuart Mill. I could not read it. Yeah, that was your main assignment for today, wasn't it? Yeah. On liberty. Yeah, I read Hugo Black's Supreme Court decision on freedom of speech. That was readable. A couple of things in chapter two are readable, but I found John Stuart Mill. We'll get to that later. Let's talk about the Supreme Court they issued a ruling on the slants. Who are the slants? This is a band that is an Asian-American band that took this racial slur and used it in their name as a way of kind of reclaiming it, I think, is the way that they see it. And they applied for a trademark and they were denied. And they contested the denial by claiming that their free speech rights were violated. And this has made it all the way to the Supreme Court. And actually just a few minutes ago, the decision was released in favor of the band. They won their free speech case. Explain that to me again, because I was trying to pot down the drilling noise in the background. So this band used this racial slur as their name. Are they Asian? They are Asian, yes. And they're trying to kind of reclaim the name, I think is the idea. That's why they've tried to trademark it and why they use it as their band name. But the trademark was denied to them on the grounds that there's a statute that says basically that you can't disparage people in a trademark. They fought back saying, look, first of all, we're not disparaging any one. We're using this name to try to reclaim this slur and to use it in a way that robs it of its hatred towards Asian-Americans and that stands up to bigotry. And they also said that we can do whatever we want under the First Amendment when it comes to our trademark. We can express an opinion as we like, not whatever we want, but we certainly are free to express an opinion or as the court tends to talk about at a viewpoint. Now, there's an argument on the other side, which is that when it comes to granting trademark, the government isn't regulating private speech. Some people said they're trying to send their own messages about what's okay or what's not. And in conferring a trademark, you're conferring benefits. And the government doesn't want to confer benefits upon people who are using slurs. That was their argument. So you had these two doctrines opposing one another. The free speech idea of the band and the government's idea that the government itself is speaking. And so they could discriminate based on viewpoints. And the slants won this case just a few minutes ago. They won it. So I don't know anything about copyright and trademark. They're brothers and sisters, right? Copyright and trademark. That's right, yeah. The mark is more about the name in particular and trying to get protection for a particular name or, yeah. So if I were to say print a poster that has the word slants and I would have to put the TM next to it? Now you would. I mean, they were denied the mark. But right, that's the outcome right now, exactly. That's pretty funny. It's got all sorts of complicated issues about, I guess, satire and questions of hate speech. All these things, I think, are mixed in with this one. It's a related case just for listeners to see that it's not just about this one case. Of course, it's about the issue. And the Washington DC football team, of course, has been in a battle about whether or not they should be able to be entitled to use a slur in regard to Native Americans as their trademark. And they've been denied that mark as well. And they might, as a result of this case, there's a good chance that they'll also be victorious. That is not, unlike this band name, an instance of trying to reclaim a slur. To me anyway, it seems like they're just using a slur. So, you know, cases have all sorts of implications that are an issue in the immediate decision. Who is behind this case? It seems to me, I hate to bring up Dred Scott, but wasn't Dred Scott kind of staged to bring it to the Supreme Court? I think that from what I can tell, it's genuinely the band that just wants this trademark and thinks that they think that they're... Well, that wasn't my question, Professor. Yeah, okay, sorry. It seems to me that certain Supreme Court cases are staged by lawyers to get them to the Supreme Court. I think Dred Scott was staged in order to put up before the Supreme Court. I should look into it more, but I think from my understanding of the case, it really, the litigants just want the trademark. And I'm not sure that they would have minded if they just were able to win this at an earlier stage and it wouldn't have required going to this level, the highest level of the American court system. They're making a larger point, though, obviously. Maybe. I'm not sure. I should look into it. I shouldn't speculate about what their motives are. Certainly that's true of some people that they bring cases because they want to make law now because they want to win their particular case. And, you know, it's a dilemma in this travel ban case that we keep talking about in-depth. You know, do you want to have the Supreme Court come in and really vindicate your position in a way that will be historic or do you want to just win in the lower courts? And that's, with all this litigation, that's a tension. I mean, ideally it shouldn't be up to the lawyers. It should be about the people who are involved in the cases because in the end that's the people whose rights are at stake. Back to the Supreme Court ruling. If on this show I have a sketch called The Slants, am I allowed to do that or do they own the word? I think they own it. No, it doesn't. You can't trademark an idea or even a word or keep people from using it. My understanding is that the intellectual property rules are really about using it as a name. So if you were to try to call your show that name or to create, I don't know if you play music, but to form a band and use that name, then you'd be in trouble because they now have the mark. But no, just using the word or trying to use it in a sketch or satire, I think your own First Amendment free speech rights would protect you there. What is the significance of this ruling down the line? How will it inform the use of the N word or the C word? One immediate thing is this, I think that the Washington football team will win their case. But it also helps to clarify this pretty complicated area of law. The court, my main interest, if you can believe it, before Donald Trump was elected was in free speech and license plates. It was a huge case that was at the forefront of First Amendment free speech law about whether you could deny the Dixie flag being on the license plate of Texas. Texas had denied the Dixie flag. Now, Texas won that case even though it looks like to some like it was a limit on free speech. And the idea was that the government's got the ability to send its own messages or to speak. And that's what this book that I wrote that we've talked about several times is about. And this clarifies that area of law. How do we know when the government is speaking? For instance, when it's putting up public monuments and where it has to send its own ideas. So the government puts up monuments about Martin Luther King. We have a Martin Luther King Day monument. It's not required to put up monuments for Southern segregationists. It's discriminating based on the ideas and approving of some and disapproving of others. Now, government definitely can't do that when it's putting people in prison. It can't imprison you because you criticize the president or for your ideas. But here, this is a complicated issue. Well, the trademark, what is that? Is that like the monuments case? Or is it like putting somebody in jail? Is it a free speech issue? Or is it the government speaking? And the court has, as it often does, started to clarify what is protected free speech and what's an unprotected government speech. And here, they've said trademark is clearly private speech that's protected when it comes to opinion. Was that clear? There was a lot there. Yeah, yeah. Let's talk about separation of powers. One of the stories coming out of Washington is that Donald Trump, commander-in-chief for the time being, he is leaving the decisions on day-to-day military matters to the Pentagon. Afghanistan, by the way, our involvement there is now 16 years. We've been fighting a war in Afghanistan for 16 years. We have 8,800 troops stationed there. Trump has new policy when it comes to Afghanistan. But it was announced by our defense secretary, Jim Mattis, who says he'll be sending an additional about 4,000 troops into Afghanistan. When I ask you about civilian control, there was a thing called the Mattis waiver. In order for Jim Mattis to become defense secretary, the Senate had to pass what was called the Mattis waiver because he had been a general. There has to be, I think, 7 years between the time a general leaves the military and becomes the head of the Pentagon because we believe in civilian control of the military. Talk to me about the Constitution. Is that enshrined in the Constitution that the army must be supervised by civilians? Absolutely. While the ultimate place that it's enshrined is in the, you know, who is the commander-in-chief? It could be a military general. It could be in charge of an army. And in our Constitution, it's clear that the President of the United States, who is a civilian, is the head of the, not just the army, but all of the armed forces. Now, there are certain traditions, I think, that come out of that to ensure civilian control. One is to really make the Cabinet member who reports directly to the President now, the Secretary of Defense, also clearly a civilian. But the ultimate authority over the military has to rest with the, not with the military itself, but with an elected government official, mainly. In the Emoluments Clause, it seems to me, because I've been studying. I know, you're doing your homework big time. I am. Hard to keep up. Star student. In the Emoluments Clause, as I understand it, you're not allowed to take money from a foreign government, but you're also not allowed to hold two offices if you're the President. You can only be, I'm not sure it's the Emoluments Clause, I was reading about the Emoluments Clause, and this was also brought up, so I don't know where it is in the Constitution, but if you're President, you cannot have another job in the government. Is that... Well, I mean, it's the same logic as the Emoluments Clause. You're not supposed to benefit from foreign or domestic government, and so, you know, your one benefit is supposed to be your government salary as President, and I would think if you're having multiple positions, that does look like a violation of the domestic Emoluments Clause. You're going to look like Charlie Rose. It's like his name. You're going to look like Charlie Rose. Yeah. Does he have multiple jobs? Oh, my God. He's on Channel 2, CBS This Morning. He's on Channel 13. So, I bring this up because General Eisenhower became President. General Grant became President. Were they concerned that a general would become Commander-in-Chief? George Washington was a Commander-in-Chief. Yeah. He was the general. What provisions do they place in the Constitution to prevent somebody in the military from also becoming President? You can't have two jobs, in other words. That's one of them. Yeah. I mean, a lot of what's done is done by tradition, I guess, and although we've had military generals who have become President, they've clearly distinguished between their role as President and their role as the head of the armed forces now. I guess one theme that we've been pushing is there's nothing about this stuff that's written in stone. So could a former military official who becomes President at some point really tie together the military and the government in a way that was dangerous? Yes. I mean, maybe it's happening already, right? That was the famous warning by Eisenhower that there was a sort of informal network of the military and government that were cooperating in a way that was undermining the independence of the civilian government. Now, interestingly, that came from a general, a former general who knew something about this. So all the questions you're asking, I mean, you know, I wouldn't want to pretend that just because the Constitution is set up in a certain way that it protects us from the dangers that you're alluding to. It's, you know, active vigilance, oversight, tradition, recognition of norms, those are the things that protect us. But there is nothing in the document itself that can absolutely guarantee against it. And here's why. The President ultimately does control the military. So, you know, there are legal limits, but they could be undermined. He can undermine them. Yeah, that's my worry. Sure. I mean, it's such a powerful office being commander of, I mean, take, for instance, we've talked before about the threats, at least, or the illusions by advisors to disregard judicial orders. Imagine that the President of the United States in the future decided, you know what, I'm not going to listen to the Supreme Court. What is it that actually prevents him from having to comply? In the end, it's just a norm that he does comply or she does comply. But a President who really wanted to go rogue and to just stop basically listening to the other branches, including the judiciary, because they control the military, it's why it's such a dangerous position. I don't know in the end what the ultimate check is. I mean, I guess the military could at one point refuse to comply with orders it deemed illegal, but, you know, that's not a great, I don't know, reassurance that it won't happen. Wasn't that one of the tenants established after the Nuremberg trials that just because you're issued an order, it doesn't mean you should obey it? Yes, I mean, it's not an excuse to commit a war crime, for instance, if you're commanded to do so. So the Nuremberg defense of many of the accused Nazis that they were just following orders is not, wasn't deemed an acceptable response. But what I'm talking about is on a large scale, not necessarily involving human rights atrocities, but the idea that, you know, in the end, what is it that keeps the President from just sort of disregarding the Constitution? And I guess I'm trying to be honest that in the end, if a President really wanted to do so and was able to get the military on his side, our system has limits in it, but it's not a guarantee against that kind of welcoo from happening. This isn't so much a constitutional issue as it is a military issue. We received assurances from George W. Bush and now Donald Trump that he's going to take his orders from the generals when it comes to wars. I'm going to trust the guys with boots on the ground who really see the situation and I'll let them decide what we need. And that has always had devastating consequences, whereas you had somebody like Jack Kennedy, the mythology of the Cuban Missile Crisis, I don't know how much of that is Camelot. I think some, even liberals would suggest that he blew the Cuban Missile Crisis or controlled the narrative afterwards. But the mythology is that Kennedy was able to stand up, to Curtis LeMay and the military and not trust them, and Johnson trusted the military and that's what happened in Vietnam. And Vietnam became a debacle. These things are all... Yeah, I agree with you, but I think these things are all dependent too on who's in power. So during Nixon, the Secretary of Defense, evidently I've seen this reported a couple places, started getting nervous about Nixon's ability to launch nuclear weapons. And although the President... I don't remember who it was, it was the Secretary of Defense at the time who basically commanded the military below him to not launch a nuclear attack unless the Secretary of Defense had confirmed it. Now that's a usurpation of the President's power as Commander-in-Chief without question, but if it was right that Nixon was really, I don't know, acting erratic and acting in a way that could be dangerous for the future or existence of the world, I don't know that it was the wrong decision. So ideally you have Commander-in-Chief who has got good judgment and making decisions. But in this case, I guess I'm not sure that it's awful that some of these decisions are being handed to military officials given how erratic Donald Trump has been in his own decision-making. It's really a far from ideal circumstance and maybe this is the best solution given that. How long can a war go before Congress steps? And we have a 16-year-old war in Afghanistan. Obama spoke before the UN, I don't know, about four years ago and acknowledged the state of perpetual war, that America was in a constant state of war and we had to figure out a way to stop this. I thought we had a war powers act, but we're... 60 days. 60 days. But now with drones we're sending... Yep. We're killing people in Yemen and Kenya and the Sudan. I mean, what are the limits on a Commander-in-Chief these days? It's a great topic for us to continue to discuss. The simple... I'll give you the kind of quick answer is that there is a war power act. That's all we're looking for. That's all we're looking for. It says 60 days until a resolution or declaration of war. But the President, I mean, that's a long time, can launch an attack to preempt. Another attack has discretion in the use of the military to defend the nation up until that 60 days. Now, a President is not supposed to launch anything... It's allowed to defend the nation, but it's not supposed to launch aggressive war. I think that's a violation of the Constitution and an abuse of the War Powers Act. But with all these things, I can tell you this is required. That's required. How do you enforce it? The courts have been very unwilling to engage in oversight of the President's power as Commander-in-Chief. So a lot of these issues are issues that are being worked out between Congress and the President without any clear judicial law or oversight. And it can be abused. On the drone issue, I mean, there were cases brought against Obama saying that this was an abuse of power, that it was a violation of due process because if you're on a drone list, you weren't obviously tried in a court. There was no formal judicial procedure of anything like what it would take to convict somebody on U.S. soil. But I don't know, many of us, and maybe myself included, I was not engaged as much in that issue as I probably should have been. It shouldn't just be when there's a President that you don't like that you try to argue for constitutional limits. And I guess I think in retrospect that was probably a mistake. There were people bringing cases. Brought about a person who turned out to be on one of these drone hit lists and the person was an American citizen and brought a case saying that his due process rights were violated. The case didn't really go anywhere, but the Obama administration at least tried to draft memos saying why they thought that their procedures were constitutional. So there was some pushback, but it's probably something we should think more about. Yeah, and it's for a much longer discussion. I want to turn to the possibility of a weakened executive branch because if the military is making all the decisions when it comes to the war on terror, Congress funds that war. Is Trump doing the Constitution a favor by being a weak president? Doesn't the Constitution provide for an ignoramus running the executive branch and the supremacy of the legislative branch? I mean, isn't there supposed to be cycles to American history where perhaps the legislative branch has more power than the executive branch? Yeah, I like the second way that you put it. I wouldn't say that the Constitution establishes the Congress as the supreme branch. We rejected parliamentary supremacy, for instance. The idea is co-equal branches, legislative Congress, the executive, the president, and the judiciary. But the second thing you said I think really captures it, the idea that at different points in history, basically different branches are going to have to pick up the slack and some will become weaker and some will become stronger. And when you have a president like this who's really such a disaster and so frightening on so many levels, the fact that these other branches need to step up, the Constitution thankfully, it's fail-safe, it provides for that possibility. Also, I've been very interested in the states stepping up and trying to resist the federal government. So that's another way that the Constitution, I think, it doesn't protect us but it provides mechanisms that can be used by citizens and public officials to limit an abusive president. We started working together and one of the first things you said a couple of months ago was, you think this could end up being the Constitution's finest moment? I hope so. We'll see. We're counting on it. It's a brightening experiment that we're in the midst of and we're trying to figure out what's happening in the midst of it and how the history will be written. But I'm sure it's historic. We've never seen a president in recent memory. I think we've both agreed that this goes beyond Nixon who's been this really incompetent and frightening and ignorant of the Constitution. And not just that but also ignorant about basic policy matters about, I don't know, thinking. So yeah, this is a stress test and we're living it. He's destroying the country. He's destroying the planet. He's destroying the lives of undocumented workers. He's grating confusion with DACA. If you're an undocumented worker or if you're a dreamer, he's giving conflicting signals as to whether or not you can stay in this country or not. It's terrifying. But the American people step up in the next two years. We might look back at Trump as a cautionary tale and an example of why we need to pay attention. I'm just being optimistic. It's not like we haven't had dangerous presidents before. We had Nixon, of course, who we keep talking about. We had John Adams who passed the Alien and Sedition Act with the cooperation of a Congress of its own party and that banned criticism of the president of the United States. It's not like we haven't had frightening moments before in American history but in the midst of it, wondering how this one's going to turn out. Yeah, we're hoping that it will be... Well, let's talk about that because I'm reading your book, Civil Rights and Liberties, Cases and Readings in Constitutional Law and American Democracy. It's written by Professor Corey Brechneider. I'm going to admit that I was able to read parts of chapter 2. It's all about free speech. Some of it was way too opaque for me. Very hard to understand. Especially the John Stuart Mill. I'll get to John Stuart Mill in a second. You brought up the Alien and Sedition Act under John Adams. He was the second president of the United States. I believe he was a federalist, right? Correct, yeah. Which means he was in the tradition of George Washington. Was George Washington a federalist? Or he didn't believe in parties, did he? Yeah, he was sort of pre-party but the party originated from his secretary of state, Alexander Hamilton is usually thought to be the first federalist and Adams was the first federalist president who self-identified as a federalist. Tell me what the Alien and Sedition Act was. Was it ever repealed? And tell me who was more dangerous, Nixon or Woodrow Wilson, because a lot of these First Amendment cases in your book, at least chapter 2, a lot of it comes from World War I and Woodrow Wilson. Yeah, Alien and Sedition Acts are this sort of weird period in American history where very early on an act is passed. There's a context too of discrimination against the French and there are these acts limiting the rights of non-citizen aliens in the country. What was going on that precipitated the Alien and Sedition Act? There was a problem with France? There was suspicion that there were French spies basically in the United States and there was an alliance that Adams had formed with England and basically he was suspicious that the French nationals in the United States were undermining American democracy. Even though the French had been our allies in the past. That's correct. Yeah, there was sort of a shift. Jefferson I think still remained in his mind allied with the French but Adams really switched his alliance more towards England. That's one dimension of what's happening but he does this kind of broad thing in general to stop dissent which is that he signs this act that really criminalizes criticism of the President of the United States. It allows for you interestingly to criticize the Vice President that's Thomas Jefferson at the time a member of a different party because the President of the Vice President did not Democrat-Republican, right? And yet you go to jail if you criticize the President. So plausibly the Vice President of the United States could have been imprisoned for criticizing the President at the time. And it's you know there is no Supreme Court to fight back at the time there's no doctrine of the kind that you were talking about of the protection of all viewpoints. It's clearly would be unconstitutional under our current jurisprudence but none of that exists at the time. When was the Judiciary Act passed? It's passed around the same time, I think a little earlier than the Alien Sedition Acts. But the tradition of judicial review hasn't started yet where the courts are striking down legislation and there's certainly nothing like the modern tradition of First Amendment jurisprudence that develops much much later where the courts will say hey that's a violation of free speech you can't do that. And what was it? They have to find other ways of fighting back. What was the Supreme Court ruling that gave the Supreme Court final word on a piece of legislation? Well what comes later is the Marbury versus Madison I think most people think that's the moment where it happens and I think we talked about that at a different time but the court just even though it really doesn't stop the president this is in the next administration from doing anything it announces this power of judicial review and from then on I think it's pretty accepted that the courts can strike things down. What happened to the Alien Sedition Act? It's repealed when the vice president, Thomas Jefferson becomes president I should say the sedition part. The Alien Acts remained on the books, certain aspects of them and throughout American history were used to discriminate basically against non-citizen aliens. Fast forward to World War I Woodrow Wilson the Palmer raids where the attorney general was just breaking into the homes of communists and anarchists There were a couple of big rulings coming down from the Supreme Court What was Schenck? You tell me, you did the reading. That's how this works. Schenck was I think an anarchist who was promoting well I know that the outcome was that Oliver Wendell Holmes who was one of the justices coined the phrase clear and present danger that he ruled that you could suppress speech if there was a clear and present danger and I think you got shouting fire in a crowded movie theater from this decision. Is that correct? That's right. By reading I can't remember the rest. I think you got two key things. If you say you can't shout fire in a crowded theater now people roll their eyes but when he said that it was a pretty profound thing to say probably the first time anybody had said it the idea is he sort of uses that example to say look free speech is great but sometimes it presents an immediate danger and think of shouting fire in a crowded theater that's an example where you can't have a right to do that or it'll cause death in the immediate result. Now the decision was interpreted later to be a little broader than that to say look free speech is fine but if it's dangerous to the security of the nation it can be limited. Now one thing that Holmes does with that phrase is it looks like he's got a limit in the time between yelling the thing fire and the deaths that might result. They're imminent, they're about to happen but the core of the reason it's able to prosecute communists throughout the century is that they say what's not important is the time limit it's that there's a significant danger that this speech might undermine basically the security of the nation and the court again and again says that communists and anarchists who engage in that kind of speech are really advocating ideas that are dangerous to the security of the country and that continues until pretty late in the 20th century the persecution of communists. You hear that in the background? There it is, yeah, it's back. How are you... this is a serious question. I'm in New York City. I hear that noise. Are you able to concentrate when there's noise like that around you? I'm quiet actually. I'm okay talking to somebody or trying to read or write can be tough. But you're a great reader. They know I'm distracted. You are distracted. This is important to me. I'm leaving this in because so much of my inability to learn stems from not being able to drown out this kind of stuff. Right, right. I just have to focus. Maybe if I challenge you a little you'll forget about the sound and focus on what... So one thing I wanted to ask you now I'm going to shift back to my... we talked a lot about the law and now I'm going to ask you about comedy. One thing that you've been saying throughout the podcast... Come on, let's stick with the... Stick to the law? We'll have to talk about comedy. I'm going to tie it together. All right, go ahead. One thing that you've kind of... You don't like it when people come to colleges who are non-experts but the thing that you're pretty firm on is the idea that free speech should protect all forms of comedy, right? Is that your view that there really is no limit to what you should be able to say or do? So when it came to the depiction of President Trump with his head cut off you thought you know that's... There's no limit to that. I don't like the idea of firing this comic for doing that or even I think criticism of her. I don't know, is that your reaction to all this stuff that when you read it you think in the end there really should be protection at least for satire of all kinds? I'm all for speech that criticizes government, religion public figures. Speech that's pornographic that kind of degrades the conversation I think should be protected. I, as listeners know, I don't care about vulgar speech. I think we've crossed a line where perhaps we'd be better off if there were taboos so that we could talk about more important things. I think all speech should be protected. I had a question about this but I'll let you ask your question. Go ahead. Yeah, well it goes back to the I mean one thing that I know we were going to talk about is the distinction between content and viewpoint and the idea that you're defending that when it comes to criticizing John Adams or criticizing a president all opinions should be allowed you know that's a pretty firm I think First Amendment principle but what's less clear is the vulgarity question Well can I frame this for my listeners? Yeah, yeah please. Before you came on I had a discussion with Scott, not Scott Burgowski with Frank Conif and Buckles who you'll meet there is a comedian named Eliza Schlesinger very successful comedian she made a statement she said I can close my eyes in any comedy club and hear women doing the same material about their vaginas and she said I wish women would talk about something other than their vaginas there's been a lot of pushback from women who are now saying how dare she criticize us we should be allowed to say whatever we want this is censorship I because I have to do an entertaining show and keep people engaged I rolled up my pants and waited into that muck which is I find tiresome but it keeps the conversation going I get tired of hearing this is censorship which we know it's not you have a right to criticize your fellow comedians for being vulgar I think we need women talking about their vaginas but we also need people saying stop talking about your vaginas and talk about how hard it is to get an abortion in America you know so you really don't buy this free speech or anything goes when it's in the service of a joke there's some sort of wider social obligation to try to use comedy for some higher purpose or does that go too far I don't believe in censorship I think you need old farts like me to be an elder statesman or you need Eliza Schlesinger to say hey you know what am I calling for government censorship I'm calling for taste I'm calling for zoning I don't want a strip joint a block away from where my kids go to school it's community standards I don't want it I feel like you did understand John Stuart Mill because in many ways I think that's what he's saying that we're going to have free speech but it's in the service of some higher kind of conversation that we want good things to win out we want ideas of equality to win out not inequality we want well as he puts the truth to win out not lack of truth and the way that you might get there is on the one hand not putting people in jail for their opinions but you need people criticizing each other and engaging each other in arguments for each other alone or that conversations never going to happen I think that's his point that free speech is a dialogue it's not just a bunch of us shouting off in a corner about whatever we want and most importantly it's got a point which is for the common good to win out and that's not going to just happen if people are left to go back to your example to do their act as they want excuse me for one second because what's more important to me than free speech is clear speech and John Stuart Mill does not write clearly and it was very hard so I'm reading it and I'm going I must be stupid because I cannot figure out what the hell he's talking about I know he's the most influential English speaking philosopher of the 19th century speaking philosopher why do they have to write so instead of English speaking I find like it's easy to read the Russians for me because somebody translates it into simple English he obfuscates it's for his time though right I mean it's like he's not writing for us he's writing for his audience and so for the time I think it's pretty clear but you know I take your point he tries to lay it out in ways that are clear you also read my edited version maybe I hacked it up in a way that made it well let me ask you a question about intelligence because we hear the noise in the background this is the story of my college years there was noise everywhere I went except the library people were blasting music and screaming I could never focus I could never concentrate you know I can pot down when I'm not talking the drilling sound but this is this to me is everything that's wrong with America it's so noisy I can't get peace and quiet it's fine we're all quiet now now they're quiet I can't focus so I feel stupid I've always felt stupid do you find yourself reading paragraphs of John Stuart Mill and going what did he just say I don't understand I cannot figure out what the hell he means by this do you ever find yourself reading the same paragraph over and over again I have with some thinkers I have that experience a lot but I've read that book so many times I teach it every year and that I think the first time I did read it I had that sense but you know another thing is maybe read it again that with a lot of these kind of classic works they really don't make sense the first time but as you reread it you know you have to believe that you'll get something out of it but I guess I'd say in this case you're really saying something that's so close to what you're saying and he's giving this pretty broad framework for it that if you go into it with this discussion of mine that maybe I'm wrong and you know let me ask you this is important to me this is important to me because you are I want to remind our listeners you have a law degree from Stanford you have a PhD from Princeton you have a Masters in Cambridge and a degree in mathematics from DeVry which you never talk about trying to forget those words okay so we hear about auto-didex I'm an autoerotic didac I self-educate with a belt around my neck and by the way hey I listen if I can anytime I can do that kind of joke it's to prove a point professor it's in the service of the common good yes it's but the the self-educated man are there really because I don't buy into this I don't believe that there's some guy who can pick up John Stuart Mill and start reading it and understand it I just don't you need a guide you know you need somebody to talk to at least I don't think that these things are interesting if you just pick them up and read them but if you have a puzzle that you're trying to answer which you are I mean not just in this conversation but in lots of the ones that you're having over the course of a week about what the purpose of the profession of comedy is and what the use of free speech and pushing the boundaries are there is no better text I mean it's the no you're not answering my question sir yeah you won't get it on your own no you need to have a conversation but I I read about these people who go to prison and they read the great books all by themselves and come out as these fully informed intellectuals I don't believe that there are people who can by themselves read these great books and understand them but apparently there are right I think in those I don't know we should look at those cases like in the Malcolm X case in the autobiography I think he talks about being turned on to reading by fellow inmates who were educated themselves and yet Alex Haley had a right as autobiography for him right it's with Alex Haley I think he you know you look at his speeches and listen to him speak you clearly was a somebody without a formal education who was extremely educated and you know he debated people from every Ivy League right college in this debate team and often want so he was self educated well I guess that's what I'm trying to say I don't think that he just picked up a book and read it I think that he has somebody to talk to him about what he was reading and that it was through this sort of maybe informal system of education but that the combo of reading on his own and talking to them so that's what you and I are doing I mean hopefully I've gotten you interested in this book you'll go back and look at it again and see what it has to do with the limits of comedy and why free speech serves a purpose which is you know to ultimately get to some kind of truth now that's not a theme that's unconnected to what you're talking about and by the way I mean I was talking about public conversation and in the world now for better or for worse and people can talk about it comedy is the public conversation in many many ways so it's not a by the way you know example it's it's maybe the primary example of what he's talking about so I think if you go back to it with that that idea the sort of looking for what the art you know the overall argument is simple it's that free speech not limiting people because of their viewpoint only protecting people from harm will result in the truth and how can that be given that people say things all the time that are false or ridiculous or silly and he's trying to defend that simple proposition that if people engage in argument and the government doesn't censor them that what will happen is that the truth will went out and you know I think that's ultimately what you think too but I know that in skimming him and pretending to read John Stuart Mill I did he coin the phrase marketplace of ideas it's taken from the that's I think a famous way to characterize the argument my understanding is he never used the phrase but it's a simple idea that if you have a clash between false and true or partially false and true that the result will be true ideas went out you might think like how could that happen part of the idea is that in every even bad argument there's some truth to it so think of the Green Nazis this is a real example the Green Nazis are Nazi Nazis they deny the Holocaust but they're also environmentalist and there's a real group and you know they're pretty good on global warming but the Green Nazis right are this heinous group and under European standards German standards you go to jail for being a Green Nazi they don't burn books they boil them oh my god that's a good joke yeah that's okay I like that yeah okay I'm not going to comment on that they boil books I'm not going to do the humor part I'm just going to do the let's see you know in a classroom you can just do a weird example and that's humor enough the professional comedian they're going to just take it to the next level aren't they that's why you have the Emmy why allow it right and the idea is there might be some truth that comes out of it and you know maybe the environmental part sticks around and we get rid of the disgusting Holocaust denial and that's why you don't put these people in jail now what about an idea that's totally false so the Nazi Nazis not the Green Nazis the idea there is that you know you and I are going to learn by engaging that kind of argument responding to it and trying to clarify what's right in the world now comedy is some mix of all these things it's some true some false some satire but I guess the idea that no I imagine what he would say about comedy is that you want to allow it but for a higher purpose and that's why you need people to kind of engage it and not just leave it alone but also not censor it well I've always found with my comedy I never felt a responsibility to explain what I mean with my jokes that I guess it's a bad joke right if you have to explain it or it can mean two things at the same time I like jokes that have like a cognitive dissonance where people are laughing at it for two different reasons and that's especially the kind of satire that I used to do where I would take a conservative point of view and the conservatives would laugh because it had the right amount of hatefulness in it and the liberals would laugh because of the absurdity of it well that's kind of Colbert right or Colbert I was doing Colbert before before Colbert did you trademark that no he just did it better than I did it and I you know I stopped doing it because people and Colbert ran up against us a lot of Republicans were watching you're not going to believe this unless you actually read this because it's true so unless you read this you're going to say no but I found it in the clubs Republicans were watching Colbert and they couldn't tell the difference between him and Bill O'Reilly they thought he really was a funny conservative host did you know that I have never heard that before you just saw how do you know about this they did studies that Republicans are so stupid that they would watch Colbert and think he represented them that he wasn't making fun of them something else that's really disheartening about Archie Bunker they studied Archie Bunker and all the family more Americans were laughing with Archie Bunker than at him so much for satire that's one of the dangers of free speech but you say and I guess John Stuart Mill says because you've said this on the show before the prescription for hate speech is more speech yeah I think that's his view and it's especially interesting given this thing that people aren't getting it the onion I guess is like that maybe there are people out there reading these lines or reductress which is I think a great feminist version of the onion and people are thinking wow you know this is real they're reading it literally now one thought is well we could censor these things because they're falsehoods I mean they literally are what Colbert is doing is pretending to be somebody's not saying things that are false the onion is all false basically or 80% false and what it says and one response to that is let's not have any kind of fake news even the funny right but yeah my instinct is not that it's that you know people need to be included in the joke maybe or educated about what's going on with this kind of humor I don't I don't know how you do that I mean maybe I'll leave that to you what do you do with the person that doesn't get your you know did you just leave leave them alone the Republicans that thought you were really doing this character and I found it I found it depressing so I stopped that's why you stopped doing it yeah and I found it to be a psychological defect of not saying what I really meant I found it cowardly to say the opposite I will find though in dealing with divorce attorneys I'm not bringing up the divorce but I am finding that and I can't tell if it's irony or satire on the occasion that I've had to correspond with a divorce attorney sarcasm saying what I don't mean is so powerful you know I wish for you the happiness peace and prosperity you deprive all your clients one of my closing sentences with some of these attorneys well you know it's anyway I mean if it works it works right I mean you watch some of these shows and I feel like watching John Stuart or Colbert or any of these you often get more truth than you do with the straight news let me ask you about John Stuart Mill he didn't quite know that he didn't get that part of it but as I understand it it was John Liebowitz Mill but John Stuart Mill changed it from John Liebowitz because he was a self hating Jew and a coward who hates unions that's what I heard about John Stuart I'm confusing John Stuart is that your former employer you talking about do you used to work for John Stuart Mill I used to work for John Liebowitz he hated unions he hates the writer's guild but I was anyway that's neither here nor there before you go you did very well thank you so did you this is getting B plus A minus by the way this is getting much better and more fun and I live for this and I don't know how I'm going to sue you but I will just be prepared do us a favor do your Columbia mentor as a favor the court curriculum you're supposed to read this book in college when you're 18 go back and when you read it though read it with this lens what does this have to do with allowing people like me to make these jokes and to go on stage and pretend to be somebody that I'm not and say things that are false in the interest of humor and that in that book or in those pages just the edited version that there's an answer to that it might not be written to your taste but it's got a deep idea there that this is a project that we should allow the only reason why you can do what you do or any comedian can do what he or she does is because we have these enormous free speech protections and before Mill that wasn't the case I mean throughout America throughout the world history Mill for mocking the leader but Mill wasn't a supreme court justice he was just a philosopher look we don't have a first amendment free speech jurisprudence of anything like what we have without Mill homes who did more to bring the law of free speech into American government and give you the protection that you have was a devotee of Mill and that's what he's trying to do is to try to take it and give it legal effect so it's the most influential piece of writing on the topic he is your great grandfather and that he made it possible for you David Feldman to do what you do every day can you create supreme court precedent based on the great books and not the constitution if you're Oliver Wendell Holmes yes not everybody can do it but he certainly did he's remembered sometimes for this clear and present danger rule which was quite oppressive sometimes it was used to justify putting communists and leftists in jail but before homes there really was no protection at all for free speech so it was an important starting point to getting where we are now and he got it from Mill I think pretty directly actually Oliver Wendell Holmes was he the one who said one Cretan in a generation he uphold eugenics he had an awful decision in a case called Buck V. Bell that's not the exact quote but he allowed for the sterilization of law that had for sterilization Oliver Wendell Holmes not a good decision awful and this was before the Nazis right yes there was a sort of eugenics movement in the United States and Holmes there's debate about whether he was a defender of eugenics but he certainly didn't intervene to strike down that for sterilization and yes this is before the rise of the Nazis so we were doing eugenics before the Nazis I mean there's some different people argue about it but one view of historians is that there was an influence on the Nazis by American eugenicists as upsetting as that is to hear and the Germans had social security before we did just thought I'd mention that which before you go this was very good I'm going to read John Stuart Mill I'm going to find a quiet place not a crowded place let's see if I can I can understand it but do it with the question of mine try to engage it in a conversation and the question that you're asking is what is the purpose of free speech and does it lead to the common good and why would anybody I mean think about it right that's we hear that marketplace of ideas thing all the time now he's trying to actually give an argument for why false ideas of the kind that we've been talking about I'm going to argue that and in a meticulous detailed argument to make that case most people think you have false ideas that's going to result in more falsehood not result in truth and he's trying to show the opposite is true the ultimate defender of comedy first there were falsies and they led to breast implants so do you understand the point I'm making I know it's a good joke in there but I'm bringing up the slippery slope before you go the argument that we have on the show before you came on was the slippery slope the more I read about the constitution the more I study law with you the more fallacious the slippery slope argument becomes especially when it comes to the first amendment because this is what I hear cocktail parties people who are as stupid as I am which is when Eliza Schlesinger says women shouldn't talk about their vaginas on stage it's a slippery slope you'll pardon the pun it's a slippery slope pretty soon you won't be able to criticize the president and in reading your book civil rights and liberties cases and readings and constitutional law and American democracy written by professor Cory Brechneider in reading chapter 2 I did not know until I read your book that the supreme court has differentiated between first amendment violations that involve content and first amendment violations that involve opinion in other words there isn't a slippery slope the supreme court has demarked the difference between content and opinion what's the difference between content and opinion the first amendment when it comes to punishment for instance protects certainly all opinion, all viewpoints that's the highest level of protection think about criticizing a president for instance that's almost certainly protected but when it comes to certain kind of I would say content or another word for it is topics there are some exceptions to that protection there are some instances where you can limit one of the most famous ones which is relevant to your profession is obscenity and if the court has deemed a statute to be regulating obscenity and it's done carefully the definition of obscenity then that can potentially be limited one of the definitions of obscenity by the way is that it has no political value no viewpoint in it no scientific value you can't just be faking it or no scientific value that's part of it in a literary or artistic value and that's meant to guarantee that this isn't a slippery slope into the realm of viewpoint but yes obscenity for instance can be limited now there are all these famous cases that we can talk about where those two things did get tricky think of it's George Carlin with the famous routine in the nation Pacifico KPFK with these words and you know in Carlin's monologue when you listen to it he's making a point about free speech and he's using the words in the service of free speech and he's trying to challenge I think this sort of idea that there might be decency exceptions where there might be obscenity exceptions that are allowable but the court has said at least when it comes to obscenity there's a realistic literary scientific value that they can be limited but I think the deeper response though like if you want a take on this discussion that you're having is that sometimes people use free speech to say I can say whatever I want if you try to criticize me or stop me from doing so that's the slippery slope and I think you can say back to them rather than citing the law is you might be protected you've got a podium you've got a place that you're standing up in front of people try to use it to affect the good in a way that's positive that's the purpose of free speech that's why we have it in the first place so I think that's a kind of really what you're up to rather than just denying you know citing distinctions in the law it's about the obligation of comics to try to use their audience and their moment in the spotlight to do something good rather than that might be done in interesting ways for instance using satire or using falsehood or characters but I think it has to be in the service of not to get the protection but to be worthwhile it has to be in the service of some higher ideal right and I think a civilized well educated culture can differentiate between speech that's important and speech that's trivial we don't need to pass laws if you've been accepted to Harvard this just happened and you join a chat room of new members of that club of the trilateral commission Harvard and you start doing holocaust jokes and racist jokes Harvard has every right to say we don't want you to be part of our school if it were a state college that's for next week right yeah that might be that's an issue for next week well you did very good I'm going to read John Stuart Mill I'm going to try this was great and we didn't get to Alexander Mikkel John maybe next week great thinker equally good maybe better and probably the second most influential person in the law and we didn't get to Hugo Black who I did read in your book he writes very clearly Hugo Black no relation to Justice White did Black and White serve? that's a good comedy routine right there I don't know how to do it but it's a good premise when I first started doing comedy I used to do a joke about Justice Burger and Justice Felix Frankfurter I like that already you could really be a hit if you come to conference with me do some of this stuff did Black and White serve at the same time? I have to look you know there was Black there was Black men and there was White and I don't know what the dates were I don't feel confident saying okay and no Black woman just Black men Justice Burger and Frankfurter did they serve at the same time I would relish an answer that's an example so you laugh at that that's great I gave you like a premise and then you had to look oh this is terrific I always want somebody to come I imagine that I could kind of sometimes it would just be nice to be able to make an argument then I'd have a kind of assistant that would give the facts or the argument with you it's sort of I give a premise and then you make the joke funny I can't do that on my own it doesn't go anywhere and you get that blank stare from everyone but I have you around well Solomon when he was going to cut the baby in half he had a beautiful assistant who was going to cut the baby in half so people could applaud but the mother decided to give the baby up she didn't want the baby cut in half but it would have been much more entertaining had Solomon had his beautiful assistant cut the baby in half beautiful well anyway that one went over my head you know what I should take take that one out no we're going to keep everything in Professor Corey Bretschneider you kept it clean I tried I'll talk to you next week thank you David you're listening to highlights from the David Feldman show heard nationwide on Pacifica Radio or as a podcast on iTunes, Stitcher and now YouTube please subscribe to this channel for more information go to davidfeldmanshow.com thank you for listening