War & Speech E1: How Repressive Is This Moment, Really?

Jameel Jaffer talks with Genevieve Lakier, professor of law at the University of Chicago Law School and one of the country’s leading theorists of free speech, about the climate for speech in the United States relating to the war in Israel and Gaza. How repressive is this moment, really? Is the First Amendment failing us? And what imprint will the events unfolding now leave on free speech law and culture?

Read this episode's transcript: https://knightcolumbia.org/documents/79mb6nc1za

FURTHER READING
An Open Letter to the Deans of U.S. Law Schools: https://medium.com/@uslegalscholars/an-open-letter-to-the-deans-of-u-s-law-schools-d7c9ef846c68

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Transcript

Jameel Jaffer  (00:00):
I'm Jameel Jaffer, and this is War and Speech, an exploration of the free speech fallout of the war in Israel and Gaza. This conflict has unleashed a wave of censorship and suppression in the United States, including by government agencies and officials, university administrators, private companies, and cultural institutions.

(00:19):
On this podcast, I'll be talking to scholars, advocates, and others about whether our system of free speech is failing us, and if it is, why that's so. How repressive is the climate we're living in? What can be done to protect the space for protests and dissent? And how might the events unfolding now shift free speech culture and the boundaries of the First Amendment?

(00:39):
My guest today is Genevieve Lakier, professor of law at the University of Chicago and one of the country's leading theorists of the First Amendment. She's also a great friend of the Knight Institute, having participated in several of our past projects and led a major Knight Institute research initiative called Lies in the Law. G.

(00:56):
Genevieve, thanks so much for being here.

Genevieve Lakier (00:58):
Oh, it's really nice to be here talking to you.

Jameel Jaffer  (01:00):
So I want to ask you first to help me with what feels like a kind of paradox. On one hand, there seems to be a wave of censorship and suppression of core political speech and of pro-Palestinian advocacy in particular, people losing their jobs, student groups suspended, university leaders called before Congress and so on. But on the other hand, the debate in the United States about Israel and Palestine is surely more open and uninhibited now than it's been in decades. There are demonstrations and protests every day. There's a ton of political commentary on this topic in the newspapers and on television and on social media platforms, and it seems to me that the range of ideas being expressed now is broader than it was just a few months ago. So I'm wondering whether you can help explain that seeming paradox.

Genevieve Lakier (01:54):
Yeah, I hear you. It is a strange time to be thinking about speech and speech repression. I suppose my response to that seeming paradox is that it's not a paradox at all, that both of those things are in some ways constitutive or a response to one another, that what the war on Gaza has unleashed is a wave of protest in the US, in Europe, around the world incredibly. And I think also, the kinds of advocacy that we're seeing, the range of cultural and political institutions in which people are expressing views on this feels to me ... I haven't only been around so long, but I think it's precisely because there has been such significant outcry and protest against the war and criticism of Israel that we're seeing such significant repression.

(02:39):
I think there has been for a long time efforts both in the US and in Europe to limit the range of permissible views about the conflict, about the occupation, about Israel, and I think those soft norms, the forms of regulation, and maybe we could say repression that operated, much of which was cultural more than legal, those have broken down. And so in response to I think what feels like an unprecedented, and I think to those who are not part of it, scary, mystifying and incredibly intense wave of advocacy and protest, there's just been a mobilization of new forces to try and stamp out what's going on.

(03:18):
And I think part of what we're seeing is generational divide, that those who have the control of the institutions and the ability to engage in speech repression, speech regulation are generally going to have different political views about this than those who are engaged in protest. And so part of it is just the efforts by the, I think, older generation to use the tools at their disposal to try and regulate and oppress the speech of the younger generation. That's not entirely true, but somewhat true.

(03:42):
What's been remarkable to me, though, and I think the thing that I find hard to wrap my head around is how both successful and unsuccessful the repression has been. So on the one hand, there have been lots of instances of individuals who have been sanctioned for their speech rather dramatically and successfully at sort of a person-by-person level. But on the whole, I don't think it is dampening the movement or hasn't dampened the movement, although of course we don't live in the [inaudible 00:04:07] world in which there was no repression. Perhaps it would be much stronger still, but it's largely not working.

Jameel Jaffer  (04:12):
So you said to Politico late last year that we're living through a period that's reminiscent of the McCarthy era. Can you talk a little bit about the ways in which this moment is similar to that one and maybe also about the ways in which it's different?

Genevieve Lakier (04:28):
Yeah. So I think it's similar in two very significant ways, I guess three. So one, the scale of the repression is reminiscent of the McCarthy era. I mean, I think we use the term McCarthy era just to remind ourselves that just to talk about any period of significant speech oppression. And so I think the first and most obvious way in which it is significant is that it feels like the mobilization of lots of different kinds of institutions of speech regulation in an effort to repress and restrict speech that is understood to be really scary or dangerous, but it's also quite popular.

(04:58):
And then second, it's the harnessing of both public and private power and their complex intermingling. I think that is what was so effective about the McCarthy era. First Amendment litigators and people who take First Amendment classes will learn about the use of the Smith Act in the Dennis Case, which was the prosecution of the leaders of the Communist party. That's sort of a very classic government censorship exercise of power. But in fact, I think that was to some degree an outlier and a relatively unsuccessful attempted repression during that period.

(05:27):
The things that were much more successful were the house committees of investigation where they would call people in or I think publicly shame denigrate for being communist and anti-American, people who were just on the left or who were artists or who were hippies, and then the publication of the lists of un-American organizations without a formal sanction by the government, but these lists were then taken up by private employers and private groups to stigmatize or fire people who were un-American or who were talking-

Jameel Jaffer  (05:59):
Like the Hollywood studios that blacklisted artists. Right.

Genevieve Lakier (06:02):
Exactly. But it's not just Hollywood. It pervaded many, many different segments of society. There were teachers who were fired, there were government employees, there were private employees. It was quite pervasive. And so it was sort of the government providing the instigation and then the private institutions providing the firepower that I think made the McCarthy era really, really, really powerful.

(06:22):
And then I think the third way in which it's similar, although this is also leading to a way in which it's different, is that the groups that were being repressed had a certain amount of political power on their own. So part of what's going on is it's not simply repressing the total outliers with whom there's not a lot of political sympathy, but think about the Hollywood blacklist. Some of the people who were blacklisted were people who had a certain amount of social and political status already. And so part of the tool of speech oppression was a denigration and shame. You're not only just saying we're going to discipline you for the speech, we are going to say you are a terrible person.

(06:56):
So part of what was going on in the McCarthy era was trying to say there's a range of views that people in society have that are not okay for them to have, and we're going to spend a lot of time, both the government and private actors, explaining, shaming, name-calling, in order to make sure people know that these are not kinds of views that they can hold because we're worried they might not be aware of that.

(07:17):
And I think we've seen a lot of that here too, that there is this intense anxiety about the fact that people are articulating, I guess, anti-Zionist views. They're talking about Palestinian liberation. They're criticizing in very harsh terms Israel's actions. And I think there has been a similar effort to tar those views with the brush of anti-Semitism as a means of saying they're beyond the pale of what is acceptable. There's a range of views people can believe in and can utter in polite society and civilized society, and then there's a range of views that are not. And just as in the McCarthy era, I think there's a lot of disagreement about what the range should be.

Jameel Jaffer  (07:52):
So one of the ways in which things have changed since the McCarthy era is that the First Amendment has evolved, and I think it's fair to say that the First Amendment is much more protective now than it was back then, much more protective of dissent and advocacy right up to the line of incitement to violence. Do you think the debate that we're seeing now would be playing out differently if we still had the first amendment of the McCarthy era?

Genevieve Lakier (08:16):
Well, I mean, this is also a difficult question because it's not obvious to me exactly how the First Amendment is operating sort of directly to protect speech here, because as I said, just as in the McCarthy era, a lot of the agents of repression are private. There are some public universities, but most of what we've seen has been private employers, private schools.

(08:36):
During the McCarthy period, maybe we had slightly weaker protest rules, but already by then, there was this recognition in the cases that you cannot have content-based or these viewpoint-based restrictions of protest. The ways in which the power has been utilized, primarily private actors, and then government hearings, government warnings, government statements, I think the current First Amendment doesn't actually protect us against that.

(09:01):
I think there's all these ways in which the First Amendment maybe could and should be more concerned than the courts are right now about the ways in which the government has exercised its power in a recent months. But the doctrine per se, it's not an obvious improvement, a very significant improvement over what we had in the 1950s. However, the thing that is different is that all these private institutions have taken up First Amendment or quasi First Amendment kind of rules.

(09:26):
So I think it would actually have played out very differently, but not because you can go to court and the judge is going to order something different to occur, but because as we've seen, Harvard University, University of Pennsylvania, University of Chicago where I teach, many, many other private institutions have adopted rules that, look, they're not exactly a First Amendment. They're not enforced by courts, but they look a lot like them and they're also committed to a certain principle of content neutrality, and that's partly what got the university presidents in trouble at the house hearings.

(09:58):
But that's a consequence of the First Amendment's, I think, cultural power, the success of the philosophical arguments about why we should try and protect this [inaudible 00:10:07] and I think that is true. That has changed in 50 years. I think there's much more commitment to those ideas than there were. But in terms of the doctrine, I don't know, I'm curious what you think. I haven't seen many examples of instances where people could have done something in the '50s that they cannot do today.

Jameel Jaffer  (10:22):
Yeah. I mean, there's certainly some of what's going on now, some of the suppression that's taking place now is taking place at the hands of government actors. I mean, there are these members of Congress who have grilled, for example, university presidents about speech on campus. There are the laws that prohibit boycotts, political boycotts, so some of what we're talking about is state action.

Genevieve Lakier (10:44):
Yeah. The First Amendment doesn't obviously protect us against any of that, though. This is an area where it's not solely that a lot of it has been at the hands of private actors. The ways in which the government has exercised power, the doctrine doesn't easily-

Jameel Jaffer  (10:57):
Yes, I think that's fair.

Genevieve Lakier (10:58):
[inaudible 00:10:58] protect us and should maybe. I mean, I think the anti-boycott laws are unconstitutional, but we know that courts do not agree. And in fact, I think no court of appeals has struck down any one of the anti-BDS laws, and the hearings, I think that those do raise and the threat of Title VI investigations too broad or indiscriminate a standard for when the DOE is going to launch investigations. I think all of this raises really serious free speech concerns that I've written about and I'm writing about, but the doctrine itself doesn't really do much.

(11:27):
And then an important way in which I think we've maybe gone backwards is in the 1950s, we didn't have the material support statutes. We didn't have terrorism speech that was somehow outside of or subject to only limited First Amendment protection. And we've seen how groups have wielded the threat of material support investigations in an effort to restrict or discipline or scare people, chill speech. And that's a new doctrine I mention, and I think a bad one.

Jameel Jaffer  (11:51):
I want to go back to something you said just a minute ago about private suppression versus public. When government officials restrict speech, we are often very quick to characterize it as censorship, but restrictive conduct by private actors raises thornier questions, right, because the First Amendment protects the right of ordinary citizens to criticize or to condemn or to decline to platform speech and speakers that they disagree with.

(12:19):
So I'm wondering, how do you think about drawing the line here between legitimate counter-speech and illegitimate suppression, between sort of everyday participation in the marketplace of ideas on one hand and illegitimate cancellation?

Genevieve Lakier (12:36):
Yeah. I think it's a really good and really difficult question, and I've come up just to make it really concrete, so I helped draft and then signed a letter asking law school deans to agree to not allow to provide protection to students whose job offers from law firms were threatened because of their pro-Palestinian advocacy because they put their name on a statement that the law firm didn't like.

(13:00):
And I sent this out to hundreds of law professors around the country to get them to sign because I knew from my conversations with students that the threat ... I mean, I teach at law school, students go into a lot of debt when they go to law school, they get a great job, they've worked really hard to get it, and then there's this threat hanging over their heads, a threat that was made very pointed when many, many of the top law firms signed onto a letter saying, "We do not tolerate," what they called anti-Semitic speech, but it was clear I think from the letter that they meant pro-Palestinian advocacy that was maybe not quite careful enough in its language, or it wasn't clear what they meant. So students who wanted to engage in pro-Palestinian advocacy but also wanted their firm jobs were very, very worried about this. And I know a lot of my students feel like they cannot really engage in that for fear of the threat of job rescission.

(13:46):
So I wrote this letter because I thought this is a real threat to freedom of speech on campus. Many other law professors signed the letter, but many did not because they thought, no, it is the right of the firm to decide who it wants to employ and not employ. When you're at a law firm and in many employment situations, it's kind of intimate. You're working closely, you have to trust and like the people you work with. It's an intimate space, and maybe these private institutions have a lot of freedom to, or have a lot of right, to have a legitimate interest in making sure that the people that they hire have similar kinds of values and interests.

(14:23):
I hear that. This concern about the space of this kind of intimate association and the ability of private actors to set different rules is an important one, and a lot of this is mirroring the debate we've had, we've been having about the social media regulation. Social media platforms have the right to exclude on whatever terms they want.

(14:42):
From my perspective though, when there is significant inequality of power, when the ability of a private employer to threaten the rescission of jobs is going to have a very significant chilling effect on a whole range of speech that is at least arguably legitimate, about which there is significant social disagreement, cultural and political disagreement about whether this is within the pale of permissible expression, I think the right to decide who comes into your firm has to be limited. And I think the same is true with universities. Universities are places that are really-

Jameel Jaffer  (15:15):
When you say the right has to be limited, do you mean that law firms should be restricted from making hiring decisions based on the speech that students may have made or do you mean that as a matter of free speech culture, it's a bad thing when law firms decide not to hire students because of the political advocacy they've engaged in?

Genevieve Lakier (15:33):
I mean both, actually. So I think it is an obligation of law school deans, at least at those institutions that proclaim a commitment to free speech, to push against firm efforts to rescind offers, and I know lots of deans do this to find other offers for their students so the threat of the sanctions isn't so significant, to find a kind of market-based solution. But almost 50% of the states in the country have some kind of legal rule against discriminating against workers because of their political beliefs.

(16:01):
Many of these come out of the Civil War period when in the wake of the Civil War, employers in the south would fire any republican associated workers as a means of payback against their support for the north or support for revolution, and for obvious reasons, the government was not happy about this. It was a very effective tool of trying to get people not to vote or associate with the republican party. And so they can just have a really significant effect on the ability of individuals who want jobs to be able to express and associate as they wish.

(16:32):
So I think there should be some kind of non-discrimination rule against firing people for political advocacy. Now, what's the scope of political advocacy? Does that mean you have to hire the white supremacists? I think probably not. That of course raises really interesting, difficult questions about statutory interpretation, but we've seen courts wrestle with this.

Jameel Jaffer  (16:52):
But take it out of the employment context for a minute and think about some of the other episodes that have taken place over the last few months. So for example, Bill Ackman, the billionaire, called on universities to disclose the names of students who had signed letters criticizing Israel or holding Israel responsible for the attacks of October 7th. There's, I think it's fair to say, a pretty marked imbalance in economic and political power there with this billionaire on one side and students on the other.

(17:27):
Do you feel the same way in this context that there should be not just as a matter of free speech culture, but as a matter of rights, we need to protect dissent by limiting the speech of billionaires like Bill Ackman?

Genevieve Lakier (17:42):
I don't know if we should limit his speech. I mean, there is of course a first-member president that's somewhat similar, the NAACP v Alabama case, in which the court held that you cannot enforce a law that's going to require the disclosure of the names of NAACP members in the south in Alabama if it's going to subject them to tremendous pressure and sanction, so you could imagine-

Jameel Jaffer  (18:04):
That was compelled by government, right? That was [inaudible 00:18:07]. Yeah.

Genevieve Lakier (18:07):
But if we think that private universities are similar kinds of regulators, you could for sure, I think, have a private university rule that says, "We're not going to disclose the names of students," so we're not putting the onus on Bill Ackman. He can say whatever he wants, but the university perhaps has a rule that says, "Part of our free speech policy is no matter how you ask us, we have this rule, Bill Ackman. We're so sorry."

(18:25):
I don't think his speech should be restricted. I do think the influence and the power of these big donors has been made pretty manifest. I mean, I think people have been worried about it for many years now, the ways in which donor influence on universities with the drying up of state funding and with the sort of new economic model of these universities, which is increasingly donor-driven, the ways in which that is shaping research priorities, and I think this is a concern in lots of different ways. But I mean, it's been pretty dramatic the influence that people like Bill Ackman have both wielded and tried to wield quite subconsciously.

(18:55):
So I think there should be maybe some kinds of institutional design discussions about the danger to free speech and just to the basic function of the universities if we're going to give a few rich guys this much influence of the institution. But again, I think Bill Ackman can say what he wants. I would like him to have less power when he says it, but I don't think that that is achieved simply by telling him he can't tweet.

Jameel Jaffer  (19:18):
I want to ask you a question about the letter you referenced earlier, the letter you and many other scholars sent to law school dean. One of the observations you made in that letter was that within the academy, pro-Palestinian speech is sometimes received with, the phrase you used was interpretive uncharity. Can you explain what you meant by that phrase?

Genevieve Lakier (19:39):
Sure. So I think one of the characteristic features of the sort of fights about speech over the last three, five months ... it's been so long ... has been when students will utter phrases that could be interpreted to be anti-Semitic or even genocidal by some, like, "From the river to the sea, Palestine will be free," but the students do not intend it that way for the most part, or at least they do not say they intend it. And in fact, there's very little reason to think they are intending it as part of a broader liberation struggle. That's the way that they're articulating it, though it has been interpreted by donors and often by administrators, perhaps under pressure by donors, and then maybe by other students and faculty, very ungenerously as being the worst possible version of itself.

(20:27):
So it does raise this really interesting question. I mean, language is so complicated and subtle and ambiguous. A phrase can often mean multiple things. And at least in the First Amendment context, when we think, for example, about incitement, we generally require pretty strong proof that the person wasn't meaning the other thing, it was meaning the bad thing in order to punish them for their speech.

(20:47):
What I've seen in this context is that it's precisely the opposite, that it is the worst possible version of the phrase that people are taking as the real meaning therefore, and responding to. And one way of reading it is that there is this trauma of anti-Semitism from the Holocaust and before that people are reacting to and there is this concern that things that seem innocuous on their face or could be read as innocuous because of this long history of hatred against Jews and violence against Jews, including genocidal violence, we shouldn't be so naive and so we should read statements that could go one or the other way as genocidal because there's this long history that support it. Given the history of anti-Semitism, the usual kind of interpretive charity that we apply to statements that could be hateful or not, we cannot apply in this context.

(21:37):
My view, though, is that one of the responses to this outbreak of pro-Palestinian advocacy is to try and transform it into anti-Semitism. It's not political speech, it is hate speech. We've seen that transformation occur a lot, and I think that's what the tactic of interpretive uncharity is doing.

Jameel Jaffer  (21:56):
I read this column by Michelle Goldberg and wondered whether there is something akin to this going on on the other side as well with people on the left interpreting the word Zionism in an uncharitable way, because there too, I think it's fair to say that there's a range of meanings that people attribute to that word, and that gives listeners a choice about which meanings to ascribe to the person who's saying it. And I am not suggesting it's an equivalence or anything, but it did seem, it reminded me, of this discussion about the meaning of the political slogans, the pro-Palestinian slogans.

Genevieve Lakier (22:40):
In a very polarized environment where passions are so high, I think there's this natural tendency of people to read the speech of their opponents in an uncharitable manner. I think this is a human tendency, and it's also based on fear, right, you are afraid they're opposing you. You don't know what they think. You don't trust them, you don't like them. You think they have bad views and values. So in some ways, it's easier to read the opponent's statements uncharitably. It makes your job easier. If they're just hateful, then you don't have to confront what they're saying. You can just dismiss them, "Oh, look, what an asshole," right? They're terrible. They're outside the bounds of the permissible.

(23:14):
And so I would buy it that there's uncharity on both sides. I think the difference, though, is that in most cases, those with the institutional power to transform that uncharity not just into a feeling of outrage or horror, but into some kind of economic or institutional sanction are those who are uncharitable towards the pro-Palestinian advocacy much more than those who are uncharitable to [inaudible 00:23:41].

Jameel Jaffer  (23:37):
I think that's absolutely right. Yeah.

Genevieve Lakier (23:42):
So that's the difference, but in terms of the response to the speech, maybe not so different. And I guess this is one way in which this is pretty different from the McCarthy era in that I think in the McCarthy era, it's true that there were people who were being targeted who had a significant amount of social and political status. Everyone was not an outlier to society, and this is one of the reasons it became such a big fight.

(24:02):
But I don't think there was the same degree of division that there is now. I don't think that the targeted group ever had this much support that Palestinian efficacy certainly among younger people has today. So I think the fight about speech and the fight about Israel has been fracturing families, has been causing division on college campuses and workplaces to a degree that was not true during the McCarthy era. I think there's just much more disagreement between and inside intimate spaces, which is maybe why the fight is so intense and in so many different spaces.

(24:37):
And so I think that also is producing a lot of outrage and hurt, and I see this at the university. You're part of the university community, you think you're all in it together, and then there's this event that occurs and people who you thought were your friends and who you attend classes with or who you're in the workplace with or you're whatever you're in all these different spaces have radically different views than you.

(24:59):
And I think this is really remarkable, the extent to which even among the democratic party constituency, in a polarized time when we usually identify with our party as a tribe and we think they're with us on this, we're safe, this is a nice intimate space, we can hate the other guy, but this is our group, within this supposedly in-group community, there's being profound division of opinion, and I think that's also making this a really difficult time while feeling very betrayed and uncharitable.

Jameel Jaffer  (25:25):
Genevieve, I want to ask you one last question. So the First Amendment evolves in response to political and social conditions, and so it bears the imprint of the First World War and the Second World War and the McCarthy era and the Vietnam War. I know this is a really hard question, but do you have any thoughts about how the First Amendment might evolve in response to the social and political conditions that we have just been talking about?

Genevieve Lakier (25:53):
I'm not sure. I think I have some ideas about how the non-First Amendment law of freedom of speech could evolve. I think there's much more possibility I think right now for universities ... maybe not right now, it's a very difficult time right now, but in a year, two years, and I'm trying to think about this at my university ... to develop better rules to protect students because what we've seen is that these kinds of existing rules don't take account of the social media age, and what I said in that letter, the permeability of the institution to outside pressure and outside forces, the donors, the tweets, the Fox News, focus on students. And I think this is probably true of lots of different kinds of institutions that are needing to think about new ways to protect the internal freedom of speech against these outside pressures and maybe public universities as well, but most of that I think is going to be through non-First Amendment speech policies.

(26:43):
There's lots of ways in which the First Amendment should evolve. I think, for example, we should shore up our rules against politically motivated anti-boycott laws, like the anti-BDS rules. I think what we're seeing is the limits of the very formalistic approach to the First Amendment that the courts have adopted and the ways in which when there's not a lot of political support for the group that's being targeted, we actually allow quite a lot of significant government repression. I think that the ways in which the government uses its spending power to discipline speech, just like the way in which donors use their money to discipline speech, I think it's a real problem.

(27:18):
I'm not optimistic that the courts are anxious to do something about this problem, though. It's not obvious so far that it is a time when there's so much general social outrage about the speech repression that there's going to be concerted political pressure or judicial pressure to do something about it. After the McCarthy era, they emerged in pretty broad consensus, not universal consensus, but pretty broad consensus that what happened was bad, and we want to change that. We don't want to repeat the mistakes of the past.

(27:47):
Part of that was learning that the communist threat in the US was just much less significant and the weighting of that threat and the sort of historical events, and I think part of it was just changing political climate in the country. Right now, I don't think that there's the same consensus. I think there's people like you and I who are worried about the speech repression, and then there are lots and lots of people who think universities and the government are not doing enough to protect students against anti-Semitic speech. And so absent a kind of broad-based political consensus that what has happened is a problem, I don't think we're going to see much judicial change.

Jameel Jaffer  (28:20):
Genevieve, it's been great talking with you. Thanks for making time.

Genevieve Lakier (28:23):
Sure. This was fun. Thank you for having me.

Jameel Jaffer  (28:26):
In our next episode of War and Speech, we'll be joined by Professor Eugene Volokh from the Hoover Institution, who will give us his perspective on some of these thorny free speech questions.

(28:36):
Views on First is produced by Candace White with production assistance and editing by Isabel Adler. Research and fact checking provided by Hannah Vester. The art for our show is designed by Astrid de Silva.

(28:48):
Views on First is available wherever you get your podcasts. Please subscribe and leave a review. We'd love to know what you think. To learn more about the Knight Institute, visit our website, KnightColumbia.org, and follow us on social media. I'm Jameel Jaffer. Thanks for listening.