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Marty Redish

Martin H. Redish, the Louis and Harriet Ancel Professor of Law and Public Policy at Northwestern University School of...

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Daniel Rodriguez

Daniel B. Rodriguez was appointed Dean and Harold Washington Professor at Northwestern Pritzker School of Law in January 2012. Before...

Whether it’s Milo Yiannopoulos being unable to speak at Berkeley or James Damore being fired for his Google memo, freedom of speech has repeatedly emerged as a topic of controversy, especially in terms of hate speech. In this episode of Planet Lex, host Daniel Rodriguez talks to Marty Redish, a freedom of expression professor, about how the law defines free speech and the right of various institutions, like businesses and universities, to regulate speech. They also discuss what is and isn’t protected by the first amendment, including the defense of hate speech.

Martin H. Redish, the Louis and Harriet Ancel Professor of Law and Public Policy at Northwestern Pritzker School of Law, teaches and writes on the subjects of federal jurisdiction, civil procedure, freedom of expression and constitutional law.

Transcript

Planet Lex – The Northwestern Pritzker School of Law Podcast

Taking a Closer Look at Free Speech

12/20/2017

[Music]

Intro: Welcome to Planet Lex: The Podcast of Northwestern Pritzker School of Law, with your host Dean Daniel B. Rodriguez, bringing it to you from Chicago, Illinois. Take it away Dan.

[Music]

Daniel B. Rodriguez: Hello and welcome to Northwestern Law’s Planet Lex, podcasting from the Northwestern Pritzker School of Law in Chicago, Illinois. My name is Dan Rodriguez, your host.

I am glad to have joined me today my colleague Professor Marty Redish to talk about the ongoing debate surrounding free speech, universities, the role of government and its effects on public discourse.

Professor Redish is the Louis and Harriet Ancel Professor of Law and Public Policy here at Northwestern, where he teaches and writes on the subjects of federal jurisdiction, civil procedure, freedom of expression and constitutional law.

Marty is one of the nation’s leading legal scholars and he is the author or co-author of more than 100 articles and 17 books including ‘The Adversary First Amendment: Free Expression and the Foundations of American Democracy’ published in 2013.

According to my notes, he is currently at work on a book entitled ‘Commercial Speech and the First Amendment in the 21st Century.’ Marty, thanks for joining me.

Marty Redish: My pleasure, Dan.

Daniel B. Rodriguez: So let’s get right into it. Talk a bit about free speech in higher education university setting. Obviously the debate about free speech has been brewing over the course of several months in particular, became a particularly hot button issue after protest erupted at Berkeley. The head of a planned appearance by Alt-Right personality Milo Yiannopoulos, I mean, reached a fever pitch after the tragic incidents in Charlottesville. It seems like everyone has an opinion about free speech, yours matters more than others, given your —

Marty Redish: They all have a constitutional right to have their opinions.

Daniel B. Rodriguez: Indeed, and so, now turning to your opinions, how does the law define free speech and what is the government’s role in limiting or protect it?

Marty Redish: Free speech is the right of the individual or private entity to communicate views, opinions, information to the public, to other individuals for purposes of education, entertainment, intellectual stimulation.

Daniel B. Rodriguez: Is it a right that is granted to individual citizens by the government, by the Constitution, is it a natural right, is it all of the above? Where does it come from?

Marty Redish: Well, I’m not a strong believer in natural rights. A famous free-speech scholar Alexander Meiklejohn back in the 1940s said, “free speech springs from the premises of self-government” that with the individual citizens as the ultimate governors making their governing choices in the voting booth. The performance of their function would be meaningless or at the very least ill-informed absent the ability of individuals to communicate to each other information and opinion about the choices that faced the democratic system.

So once we committed to a basic democratic system the concept of free speech was almost in inexorable axiom that flowed from that initial commitment.

Daniel B. Rodriguez: And it’s inherent in our constitutional system, not so much in other constitutional systems. I mean, I know that’s a bit of a distraction before we even get into American free speech, but I’m curious about how quintessentially American is our concept of free speech.

Marty Redish: Well, free speech is a generic matter exists in many other countries as well. The extent to which the First Amendment is speech-protective, the extent to which it’s enforced and protected by a specially insulated and protected judicial branch, is uniquely American.

Daniel B. Rodriguez: Got it. So when I was in law school I suspect this — many years before I was in law school we often discussed the notion of free speech absolutism, and so, Hugo Black — Justice Hugo Black was often held up along with other scholars as well. These individuals are free speech absolutist. What does that mean to be a free speech absolutist, and have you seen one in their natural habitat?

Marty Redish: It actually means basically nothing. I know Justice Black used to take out his pocket copy of the Constitution and point to the First Amendment and say, it says make no law. Maybe I don’t know what “no law” means, but I think I do, it means no law. It was a very effective device, but it’s basically meaningless, even Justice Black himself recognized that there could be limits put on free speech.

The First Amendment doesn’t say there shall be no law restricting speech. It says there should be no law abridging the freedom of speech, and what we mean by the “freedom of speech” is a question that is loaded with all sorts of historical baggage and normative inquiries, so there really is as a practical matter no such thing as an absolutist.

(00:04:57)

Daniel B. Rodriguez: Now you are a constitutional scholar, not a constitutional judge, nor do you play one on television, is most of what we know about the scope and content of free speech delineated in court decisions, is it delineated in law review articles, is it combinations of where we get the — where do we get the content of what we know and think about free speech America?

Marty Redish: I tell my students, the beauty of being a law professor is that you get to overrule the Supreme Court every day of the week. The disadvantage is that no one listens to you. It varies, it’s complicated. There are — ultimately it is the judicial decisions that control what scholars have either directly or indirectly had an important impact starting in the 1980s. There was a wave of very exciting and interesting constitutional scholars who wrote about free speech.

Daniel B. Rodriguez: You are among them?

Marty Redish: I frankly, yeah, I guess I was certainly among that group, and heaven knows we didn’t always agree, but it brought a whole new level of attention to the intellectual issues involved in free expression. And if only by a process of osmosis that change in thought has spilled over into the court decisions and they have reflected some of the concepts of the scholars of the 1980s and 90s worked on.

Daniel B. Rodriguez: Well, the whole new level of attention as you put it is well-warranted now because these issues obviously have not gone away and they have received, as I said in the introduction, particularly prominence in light of recent events. So let’s talk a little bit about those. So the ACLU (American Civil Liberties Union) came under fire after the so-called Unite The Right rally in Charlottesville resulted in the death of Heather Heyer, a counter protester.

The organization ACLU represented Jason Kessler, the rally’s organizer in court when local authorities tried to revoke his permit to hold the event. Can you talk a bit about the ACLU’s decision to defend the rally and guide us through the Judge’s decision to side with Kessler in this matter?

Marty Redish: Yeah, well, I can’t speak specifically from my personal knowledge about the ACLU’s decision, because I am not really connected to the organization, but I can use reverse engineering to figure out what they were thinking, and there was really no other decision for them to make.

The one thing that is absolute in the First Amendment is that government cannot restrict speech for no reason other than it finds the views being expressed incorrect, wrong or offensive.

Daniel B. Rodriguez: So-called content-based restrictions?

Marty Redish: Well, even narrower than that, viewpoint-based restrictions, content-based is a little broader. But that has to be absolute, because if we say, well, we will protect viewpoint regulation except for things that are really bad, well, then it matters who is in power, because who is ever in power is going to find different things to be offensive.

So we have to start from the premise that government can never do that, and that’s what the ACLU was saying, as offensive and disgusting as the views expressed by these people are, government cannot make the decision to restrict them. Government can avoid an immediate danger of physical harm, government can protect against situations where violence may occur, but government cannot suppress a particular speaker or group of speakers because it disapproves of the views being expressed. The system just couldn’t work if we did that.

Daniel B. Rodriguez: And that’s been a statement that of course has been reinforced through court decisions to be sure, but the ACLU itself as an organization has played no small part in advancing that view. So in light of that how curious is the ACLU’s new policy as just announced, on refusing to defend hate groups protesting with weapons? How do you reconcile those?

Marty Redish: I think that makes perfect sense and I would have been very disappointed if they didn’t say that. Once weapons are introduced into the calculus, you have a whole new element. The premise of free speech is just that freedom that willing speakers can convince and persuade willing listeners. Coerced speech is never protected, because it not only isn’t free speech, it undermines the values of free speech, coercing individuals takes away their freedom, and once weapons are introduced the coercion is inherent in the process.

Daniel B. Rodriguez: Now let me ask you about the — press you on the gray areas in that regard. So back in the — it was in 1960s, the Black Panthers were in the Capitol Building, Sacramento, brandishing weapons I guess would be the best way to describe it, with weapons which at the time they had the right to keep and possess, making the state —

Marty Redish: That’s a little anachronistic, because the Second Amendment was basically of no value back then.

Daniel B. Rodriguez: But nonetheless they had their weapons?

Marty Redish: Yes, they had their weapons.

Daniel B. Rodriguez: So, I guess the point I’m getting in, is or in Texas if individuals on the Capitol steps acting as an act of protest. Is it just the fact of having the weapon that takes away the free speech rights?

Marty Redish: I think so, that there is an inherent intimidating effect of just having the weapon, and I think that’s a reasonable decision by the ACLU.

(00:10:05)

Daniel B. Rodriguez: Let me push one more point on that, is there a danger of a slippery slope in the following sense, is the ACLU is getting an enormous push back, particularly from the left in defending acts of hate speech? So I completely understand the position with respect to weapons, but there has been criticism of the ACLU representing these really bad guys, white supremacists, neo-Nazis, it’s not a new issue, it’s an issue the ACLU faced with respect to the Nazis march in Skokie and all of that, but are we seeing a backlash, as it were against the civil libertarian groups like the ACLU defending these really bad guys, and is that a bad thing?

Marty Redish: No more than we saw back in the 70s. I was in Chicago, the lawyer for the ACLU was thrown out of a synagogue; he has since moved out of Chicago and never come back. It was a very difficult time and the ACLU was right then. And I can understand people being deeply offended, there were concentration camp survivors alive at the time in Skokie and the sight of the swastika was deeply offensive, but the ACLU was following the principle that government cannot restrict nonviolent speech because of a disagreement or a dislike for the views being expressed, and they have learned to take the heat.

Daniel B. Rodriguez: Let me play this out a little bit in the university context and thinking of issues like what happened on the campus of University of California Berkeley or Penn State, Michigan State, where the denial of the rights of white supremacist to speak is articulated by the universities, not so much on, as you put it, viewpoint-based grounds, but on security grounds, right, the imposition on the academic mission and the finances of the university and all of that.

Now, maybe that’s a pretense, but nonetheless, I want to ask you, should the universities have some latitude to make the decision, they are not going to allow these kinds of speakers on campus because of the disruption that it accompanies?

Marty Redish: Oh, I think universities have a power even broader than that of the First Amendment. First of all, private universities are not at all controlled by the First Amendment because with the exception of the Thirteenth Amendment dealing with slavery the constitutional protections apply only to government, so we leave out all private universities.

But even state universities have a greater degree of ability to maneuver in this area than would, for example, a local mayor or police department on the streets of a city. A university is not a pure public forum whereas streets of a town are; it’s what you would call a limited public forum. That means the university can limit the use of its facilities on certain grounds that are consistent with the purposes and functions of the university in ways that a town couldn’t. A town cannot make those kinds of determinations.

A university can make some certainly content-based distinctions, if not viewpoint-based distinctions on the basis of its role as a university. A university is not a Bughouse Square, it’s not something that necessarily has to allow all views to be expressed. The university’s role is to further education and intellectual understanding and if it thinks a particular viewpoint that’s going to be expressed will not advance intellectual understanding the way the university feels it’s appropriate, the university can impose some limits.

Now, that doesn’t mean they can say no Democrats can speak.

Daniel B. Rodriguez: Well, that was going to be my follow-up, I mean, one person’s intellectual agenda of the university is another person’s viewpoint bias, and so take universities in this day and age which are often criticized, rightly or wrongly, as being excessively left-wing. If the University took the position we are not going to allow very conservative speakers, not because we are going to make a statement we disagree with them, but most of our community disagrees with them, and as a consequence they are going to be rabblerousing in a particular way, so we are going to basically regard those kinds of speakers.

So, no Steve Bannon on-campus, not because there will be eminent violence, but because our community will feel triggered, upset, threatened, is that a legitimate role?

Marty Redish: Well, that’s where the concept of a limited public forum comes into play, and the devil is going to be in the details. The university could not, I presume, make a categorical judgment that nobody of a different political view can express his or her view on our campus.

On the other hand, a university could within the framework of its proper function prohibit the Flat Earth Society, for example, from coming and holding a conference on-campus simply on the grounds that that doesn’t further the university’s intellectual mission.

(00:14:52)

Now, that doesn’t mean that they can just ban an entire political viewpoint, but I would defend their right, and I am not 100% sure how it would come out in court, but I would defend their right to keep out neo-Nazis on the ground that that particular viewpoint does not further the views that the university wants to further, that it is beyond the level of acceptability.

Now, that’s a characterization that a city or a town can’t make, but I would argue that a university can make some judgments, and while they couldn’t — where Bannon comes into it we could debate, but probably they couldn’t keep out a Bannon, but a Richard Spencer I would see no problem with the university saying, that’s not appropriate on our campus.

Daniel B. Rodriguez: Speaking as the university administrator, it certainly would be reassuring, maybe tempting is the better way to put it, to have the courts or maybe public institutions, Congress, the State Legislature develop, as it were, a template of what kinds of speech would be unacceptable, if for no other reason than to bolster administrative discretion and choices that the universities make, because as you say, the devil is in the detail and so often these are decisions made on a retail basis by particular colleges and universities at particular moments in time.

Marty Redish: It’s a balance, because on the one hand you have to give some case-by-case discretion and it would be impossible to set up ex ante standards that are going to tell you in every case how to approach the issue.

On the other hand, you are right, I think some official guidance that at least directs the nature of the inquiry, but still leaves the administrator an appropriate degree of discretion would be advisable. My key point is that I see a university as different from a town or a city; one is a complete public forum, the other is only a limited public forum.

Daniel B. Rodriguez: Let me ask you one more question about universities before we move to another medium, and this is sort of a twist of events on what we have been talking about. The University of Wisconsin recently issued a policy in which they will suspend or expel students who disrupt campus speeches and presentations. Is this a policy in your view that strengthens or weakens the First Amendment?

Marty Redish: Well, again, the devil is somewhat in the details, how is the university characterizing a disruption, would counter pickets be considered a disruption, if it would then I would say they are violating the free speech rights of the counter protesters.

If we are talking about unambiguous interference and disruption so that the speaker is unable to communicate or people are coerced or intimidated from participating, then the First Amendment does not protect that behavior. Whether expulsion is an appropriate sanction is not really a matter of constitutional level; that might be extreme, but it would depend on the situation.

I would say the First Amendment drops out. There is never a First Amendment right to disrupt another speaker just for the sake of disrupting the speaker.

Daniel B. Rodriguez: Let me ask about speech in the workplace, again, it has been the topic of enormous controversy in the light of recent events. There was the individual who was fired from Google for making various statements that were regarded by his colleagues and coworkers as racist. I want to come back to the private employer issue in a moment, but maybe take up public employers who are certainly subject to free speech protection.

So, for example, a woman by the name of Lisa Durden lost her job as an Adjunct Professor at Essex County College after she went on Fox News and defended a Black Lives Matter chapter’s decision to host a Memorial Day exclusively for the Black community, or a man by the name of Johnny Eric Williams, Associate Professor at Trinity College was suspended after using scathing language to critique white supremacy on medium, social media site.

Are those within the scope of free speech rights of individuals? I guess another way to put it is, is that within the scope of the employer’s discretion to make those kinds of choices?

Marty Redish: Well, the situation in the university context is complicated by contractual arrangements, that short of tenure the individual or academic has very little freedom with which to operate.

Daniel B. Rodriguez: Can I press on that just before you go on, don’t lose the train of thought, but does that mean they are short of tenure if they are in that contractual relationship they can be terminated if the reason the employer gives is because you were speaking out on a controversial issue?

Marty Redish: The law that I can think of that’s relevant here is a case called Snepp v. United States where a CIA agent had signed a contract agreeing not to write anything about his experiences in the CIA and he published a book and was sued for breach of contract and he defended on the First Amendment grounds and the Supreme Court said, no, you contracted that away.

You could argue that at some point these are contracts of not equal bargaining power, but I would think that a university could impose that kind of limitation as long as it’s doing it contractually and it’s signed voluntarily.

(00:20:03)

Daniel B. Rodriguez: And would it follow a fortiori from that that private employers would be able to engage in that decision making, that is in other words, there wouldn’t be any limits on a private employer?

So Google, for example, is not constrained in any particular way for firing someone for making inflammatory statements?

Marty Redish: Short of controlling public accommodations, legislation protecting them, certainly the First Amendment doesn’t apply if the NFL wants to say we are going to fire any player who kneels during The Star-Spangled Banner, they have every right to do that. In fact, the NBA has that rule that you can’t do that.

Daniel B. Rodriguez: And maybe the NFL might move in that direction. There was a commentary last month that had the title, I expect you would agree with, There is no constitutional right to take a knee while you’re at work.

Marty Redish: No, but what actually complicates the situation I think is if the NFL does it in response to significant pressure from the President of the United States, that may introduce a governmental action element and at some point it amounts to coercion even if — as a practical matter even if it isn’t as a formal or technical matter.

Daniel B. Rodriguez: So let’s pursue that, who is being coerced, the employer being coerced or the employees that are being coerced, and does that matter?

Marty Redish: It amounts to both. The way I would envision it is that the employer is being coerced to coerce the employees and take away their rights, and they don’t have any rights vis-à-vis the employer, but if the employer itself is being coerced by the government, then I think you could make a case that there’s governmental action in that.

Daniel B. Rodriguez: But what’s the form of the coercion, why doesn’t the president, this or any other president have the right to the bully pulpit, as it were, to express his views, however noxious about these particular issues?

Marty Redish: That’s a very difficult question. I dealt with that working for some cereal companies who wanted to challenge so-called guidelines that the FTC and FDA issued about advertising, and they were just guidelines, they weren’t binding. And the argument I made was that who is kidding whom here. They are regulated by these agencies and they are appropriately intimidated by the agency’s so-called voluntary guidelines. The whole thing never got actually resolved because the agencies withdrew it.

But I think at some point it’s more than just a bully pulpit or we take the word “bully” to mean what it really implies that I am going to turn the screws on your antitrust exemptions, not that the NFL has an antitrust exemption; baseball does, but I am going to have investigations into whether bribes are being made if you don’t comply with this. I would say that amounts to governmental action.

Daniel B. Rodriguez: So it may be in the process of constitutional adjudication, it depends on the nature of the company, the relationship between the government and the company, in other words very difficult questions of nexus in that regard.

Marty Redish: Exactly.

Daniel B. Rodriguez: Let me shift to the world of social media. So there was a recent controversy — there is recent controversy everyday as we speak, but one that involved President Trump defriending folks on Twitter, blocking folks I guess; sorry, defriending is Facebook and blocking is Twitter. Any free speech problem with that? Is the President perfectly free to block Marty Redish for particular comments he may make about his part and power?

Marty Redish: I was quite hurt when he did that. The argument that could be made is that there is a First Amendment right to petition the government for grievances and if he won’t listen to your Twitter or won’t see your Twitter because he has blocked it, your right has been violated.

Daniel B. Rodriguez: Send him a letter.

Marty Redish: Yeah, I think we have got more important issues to worry about than that, I am sorry.

Daniel B. Rodriguez: Well, let me ask you whether this is a more important issue, still sticking with Twitter, but also with the social media sites, recently GoDaddy; I am not sure exactly what GoDaddy does, but a company called GoDaddy ceased hosting the domain provided to the neo-Nazi website the Daily Stormer, just said they wouldn’t host it; PayPal cut ties with the KKK and other neo-Nazi affiliated groups, and even OkCupid, a dating site, has banned members of these movements from their sites? All okay, raise any particular First Amendment issues that we ought to be concerned about?

Marty Redish: Well, the First Amendment argument can go two different directions here. On the one hand the different sites could say, and for other legal strategic reasons they are not saying this, but they could say we are a speaker and we have a right not to speak, there’s a First Amendment — the Supreme Court has recognized the First Amendment right not to speak, and they can say we don’t have to communicate views we find offensive as a speaker.

So, on the one hand they could say they have a First Amendment right not to do it. On the other hand, while they are technically private parties, they have an enormous amount of power, and we are really getting into the state action doctrine here, at some point their power could be so overwhelming as to be deemed equivalent to that of the state. That was a popular theory back in the 60s and 70s and seems to have disappeared more recently though.

(00:25:09)

Daniel B. Rodriguez: Are companies like Facebook, just given the scale and scope of its operation maybe particularly vulnerable to that because, for better or worse, they become the forum, as it were, for news, fake or otherwise, and so many millions of Americans are part of that site, are they particularly vulnerable at risk to be regarded as a state actor or maybe a softer way to put it, at least subject to the kind of constraints that might be imposed on their ability to just act as they —

Marty Redish: My guess is probably not. There was a case in 1946 where the Supreme Court held that the First Amendment applied to the owner of a company town. They said it was privately owned but it acted as a town and therefore it was exercising state like power. So if that were still considered controlling precedent, you might play with that.

But starting in the 80s the conservative Supreme Court really pulled away from the theory that private power could ever amount to state power. They use a more —

Daniel B. Rodriguez: Because of the slippery slope argument, the concern that there would just be too much?

Marty Redish: You could say that or you could say they didn’t really want to extend constitutional rights any further than they had to do it, depending on how charitable you want to be to the conservative justices, but I don’t think this court would ever go that direction.

Daniel B. Rodriguez: What is the current state of debate about regulation of hate speech, in particular? You have recently written an article proposing a new hybrid category of speech called Terrorizing Advocacy, are you meaning that to basically track whatever the modern doctrine is on hate speech and what is the modern doctrine on that? That’s a compound question. If I were in court you would object to that question, but I think you know what I am getting at.

Marty Redish: I never object to anything the Dean says. Hate speech is protected under the First Amendment when it is communicated in the third-party sense. When I say to a willing listener this particular minority group is terrible, even if that demoralizes members of the minority group, if I am talking — I am a willing speaker talking to a willing listener, the Supreme Court has held that protected by the First Amendment.

What’s not protected is first party hate speech. When I am speaking to a member of a minority group who doesn’t want to hear what I have to say and I still insist on saying it, that’s not protected by the First Amendment. And what I have done in the Terrorizing Advocacy article is try to synthesize two totally different doctrines of free speech.

One is the so-called true threats doctrine, where the court has said if you directly threaten somebody, that is not protected by the First Amendment, it’s coercive. On the other hand, if you advocate illegal conduct absent a danger of literally immediate harm, that’s protected by the First Amendment.

Daniel B. Rodriguez: Even if what you are advocating is conduct that could result in violence?

Marty Redish: Absolutely, absolutely. That’s the Brandenburg v. Ohio case from 1969, and what I have said is sometimes what looks like advocacy, because it’s communicated to a third person, if heard by the intended victims can have the effect of being a true threat. Websites saying kill these abortion doctors and it names them, well, that’s technically advocacy of illegal conduct, but that’s protected by the First Amendment, except it amounts to a true threat.

So it’s this hybrid terrorizing advocacy category which has to be treated in a different way and I set up a whole new model to deal with that hybrid form of speech.

Daniel B. Rodriguez: Can I be clear, is the advocacy that you are targeting as a necessary, but not sufficient condition that it be illegal conduct? So here is what I am getting at, so a bunch of Internet trolls get together and terrorize, as it were, individuals by threatening to fire them or boycotting, threatening boycotting.

One of the things we saw after Charlottesville that was remarkably effective was folks going on to social media and outing, as it were, the individuals who were marching, putting their pictures up and then proceeding to insist that they be fired by all of their employers, which the employers had every right to do, and it apparently worked. Top dog, which is a hotdog place, which is very good place by the way, you should go there, in Berkeley, actually fired one of their employees because he was on one of these sites. Is that terrorizing in someway or is it really violence?

Marty Redish: No, we are talking about illegal violence. I would say that’s a perfectly legitimate response. The individuals who picketed have a First Amendment right to picket. That doesn’t mean we are promising them a rose garden. Others have an equally applicable First Amendment right to reject what they say and to criticize them for it and to urge that they be legally punished for it. Everybody has got a First Amendment right here.

Daniel B. Rodriguez: Right, there’s protections for individuals in the form of defamation laws and others, but that operates. I am not saying that happened in this case.

Marty Redish: Yeah, and really privacy laws wouldn’t be applicable here because you are out in the public view at a major nationally covered demonstration, so how can you be shocked that your face was seen.

(00:30:03)

Daniel B. Rodriguez: Let me ask just as a last question to take a step back from the debates in particular about free speech and more sort of the status of speech and the deterioration of speech, as ushered in by our current president and so many of this, and attack on the media and fake news.

I’m not sure there’s a question of all this except what do you think of the state of public discourse these days and what can law do to help us out?

Marty Redish: I’m quite concerned about it. Once we get to a situation where we’ve clouded what’s the truth and what’s not the truth, you have set the ground for moves towards authoritarianism. I mean, I don’t mean to suggest it’s an immediate danger, but that is one of the first prerequisites, one of the first necessary conditions for establishing authoritarianism, where we purposely clouded the truth calling true things false and calling false things true. And I don’t know what law can do about that. I think it’s a political problem more than a legal problem.

Daniel B. Rodriguez: And I think the First Amendment doesn’t truly bear on that because First Amendment is about advocacy and speech. So it’s not going to put the government nor should it, right, the possession of adjudicating between attacks on the media or attacks on truth or any of that.

Marty Redish: No, and what is concerning is when the president suggests that the private press be penalized for doing their job, I think that’s a serious concern.

Daniel B. Rodriguez: That I take a law can do something about —

Marty Redish: If he actually tries it, but to say it is intimidating in and of itself. So I think that’s a concern. I am not sure there is much you can do about. He is just saying it, if he actually tried to do something, yes, there’s quite a bit hopefully that the courts could and would do about that.

Daniel B. Rodriguez: Well, on that sober note, thank you. There’s not a day goes by where there is not another issue that may bring our commitment to free speech in peril, and on that particular happy not, let me thank Marty for joining us. That’s our show for today.

Thank you listening. I am Dan Rodriguez signing off from Planet Lex at The Northwestern Pritzker School of Law.

[Music]

Outro: If you would like more information about today’s show, please visit  HYPERLINK “http://www.law.northwestern.edu/planetlex” law.northwestern.edu/planetlex or  HYPERLINK “http://www.legaltalknetwork.com” legaltalknetwork.com.

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[Music]

Episode Details
Published: December 20, 2017
Podcast: Planet Lex: The Northwestern Pritzker School of Law Podcast
Category: Law School , Legal News
Podcast
Planet Lex: The Northwestern Pritzker School of Law Podcast
Planet Lex: The Northwestern Pritzker School of Law Podcast

Planet Lex is a series of conversations about the law, law and society, law and technology, and the future of legal education and practice. In other words, a bunch of interesting stuff about the law.

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Taking a Closer Look at Free Speech

Marty Redish talks about how the law defines free speech and the right of various institutions, like businesses and universities, to regulate speech.