War & Speech E2: Campus Speech in the Shadow of the War

Jameel Jaffer talks with Eugene Volokh, distinguished professor of law at UCLA and soon-to-be senior fellow at the Hoover Institution, about free speech on campus in the shadow of the war in Israel and Gaza. They discuss whether administrators should ban what some students describe as calls for genocide and consider what can be done to protect the space for dissent.

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Transcript

Jameel Jaffer (00:01):
I'm Jameel Jaffer, and this is War & 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. On this podcast, I'm talking to scholars, advocates, and others about whether our system of free speech is failing us, and if it is, why that so? My guest today is Professor Eugene Volokh, distinguished professor of law at UCLA, and soon-to-be senior fellow at the Hoover Institution. Professor Volokh is a brilliant scholar of the First Amendment, the author of more than a hundred Law Review articles, and the founder and publisher of the Volokh Conspiracy, a widely-read legal blog. Eugene, thanks so much for talking with me.

Eugene Volokh (00:51):
Thanks for having me.

Jameel Jaffer (00:52):
One of the reasons I've been looking forward to this conversation is that you and I spoke together about free speech on campus at Cornell just a couple of weeks before October 7th, and I am interested to know how these last few months have affected your thinking about all of those issues. But I want to start by laying some groundwork for listeners who haven't thought as deeply about these issues as you have. In the context of universities, the concept of free speech is closely connected to the concept of academic freedom. Can you explain in the simplest way you can, the distinction between those two concepts?

Eugene Volokh (01:29):
Well, the distinction isn't completely sharp in part because like many important terms, liberty, equality, justice, they're used in somewhat different ways in different contexts and by different people. And part of the thing is that the line between free speech and academic freedom often doesn't need to be drawn because you could say, well, whether it's a free speech issue, an academic freedom issue, it's the same thing. Well, I think the important point is that both free speech and academic freedom protect a very wide range of speech by professors, by students, often by staff, by librarians and such, but usually it's about professors and students on campus and off from most forms of government retaliation. Now, by their nature, they can't protect everything. So for example, if somebody is writing a paper in a class, I would hope they're not going to be graded in a content neutral way.

(02:21):
Maybe the rules about what they can say at a demonstration should be content neutral, but the rules for grading are far from content neutral that sometimes even have to be viewpoint based. If somebody expresses some viewpoint about geology that the earth is 6,000 years old and they do that in a paper, it'll probably be modelled unless they have very, very good art. But as a general matter, the two together protect a wide range of public debate. Both can really academic and really thoughtful and sometimes souveniring as well, that all forms of that are generally speaking protected.

Jameel Jaffer (02:56):
When students demonstrate in a public area of a public university, public universities are constrained by the First Amendment in the way they respond to that demonstration. They can't shut down the demonstration because of students' viewpoints. They can't shut down demonstrations altogether just because they say demonstrations on the whole are disruptive. There are all sorts of limits that public universities have to abide by because they're governed by the First Amendment. But as you note, private universities aren't governed by the First Amendment, and so there's this threshold question for a private university, should we adopt the First Amendment as a set of norms to govern our own conduct with respect to, for example, protests on campus? How important is it that private universities follow the First Amendment in that particular respect when nothing requires them to?

Eugene Volokh (03:49):
Well, so let's just step back a bit. Let's look at what law governs private universities. Well, one sort of law, is contract law, its own promises. If the university says we are going to apply the same rule as public universities more or less, then that could be a binding promise, which it has to comply. Another of those is statutes. In this kind of situation, mostly state statutes. So for example, California has a statute that bars private universities, except for certain kinds of religious ones from instituting campus speech code, that does apply to attempts to punish students for what they say to each other and places where they're normally allowed to be. That's a statute. It applies first amendment norms rightly or wrongly to private universities, regardless of what they promise or don't promise. When you get to faculty members or employees, and about half the states have statutes that protect private employees from retaliation by their private employers for their political [inaudible 00:04:55], which sometimes defined broadly, sometimes narrow.

(04:57):
But you're right that in many states, private employers are generally unconstrained and as private employers, private universities. As private property owners, they generally speaking can restrict speech. The question is whether they should, I think there are plausible arguments and long two dimensions. One is a university could say, "Look, we're basically fundamentally an institution that's about promoting a particular set of ideas." It's true, many institutions are supposed to be set up to promote public debate about a wide range of issues. That's not us. Classic example is some pervasively religious institutions, often theological institutions could say, "Look, we're open to actually a good deal of debate, but within certain boundaries. Our job is to teach this particular set of religious beliefs." There's a second dimension though, which is that dimension of content neutral restrictions.

(05:50):
So you can imagine a university that says, "We're all in favor of all sorts of its, but we don't do demonstrations. You want to demonstrate, you can demonstrate on the sidewalk outside the university. If you want to express any views you want about Israeli-Palestinian conflict, if you want to say Hamas is absolutely right, or if you want to say the Israelis ought to kill more Gaza, whatever you want to say, you are perfectly free to say it in conversations and newspapers and newsletters and such, just not at a demonstration, because a demonstration is especially likely to intrude on the other activity, the other first amendment protected activity at this university. Again, if you want to post something online or if you want to have small group meetings or whatever, perfectly free you to do it." I'm still not wild about that. I kind of like the more speech protective model that the First Amendment provides for, but I do think that that's something that a university can say and still I think maintain a delivered reputation for being a place that's open to a wide range of ideas.

Jameel Jaffer (06:53):
So I actually want to come back to that one, but when I introduced this conversation, I said that there's been a wave of censorship and suppression on university campuses since October 7th, and I want to give you a chance to respond to that. Do you agree that there has been this wave of suppression on university campuses over the last few months? And if you do, I'm curious to know whether you think what we're seeing now is different in kind from what we saw before October 7th, or different in degree.

Eugene Volokh (07:23):
So I do think that there has been more suppression than I think there ought to be. Some things should be suppressed, like if somebody is, for example, as a demonstration in which people are being threatened with violence or blocking entrances to buildings or sit-in demonstrations, there's no right. I think either there's a matter of free speech or academic freedom to sit in somebody's office or some administration building. So those things shouldn't be suppressed, but there are other situations where it appears that people's speech was suppressed based on their viewpoint, based on the message that they were expressing. And I think that's bad. I don't think it's particularly different in kind from some of the suppression we had seen before. There may be somewhat more of it in part because it's layered on top of some of the suppression that we've seen work. I do think that one thing that we're seeing is that the suppression of some pro-Israeli views as well as some pro-Palestinian views, my sense is, at least in the news, there's been somewhat more of the suppression that pro-Palestinian views, which mostly speaking these days are treated as left-wing views.

(08:29):
And before that, while there was suppression both of left-wing views and right-wing views on various subjects in various places, there was probably somewhat more suppression of why be seen as right-wing views. So now I think we're seeing extra suppression coming from different wing of campus, and you could see it played out two ways. You could see it's leading to a new coalition for protecting speech, right? Where we conservatives who used to be actually pretty speech-restrictive back in the day, like in the 1960s, 1970s, generally calls for protecting students. Speech were generally came from the liberal left, and conservatives were often much more in favor of restricting speech on universities and in various ways, not completely, but in some ways. But conservatives have been in recent years embracing free speech. Now many traditional liberals still happen. Now, many on the progressive left might be reawakened to the danger of university power to restrict speech.

(09:29):
So now there could be a new coalition for protection. That's my hope. My fear is there's going to be a new coalition for restriction, as some people on the progressive left say, "Oh yeah, too bad it's Palestinians are being restricted." But we really do need to make sure that we restrict supposed hate speech and various other bad speech at university campuses, and some conservatives saying, "Oh, well maybe we're learning now. Maybe some speech restriction is good." So this could play out both ways.

Jameel Jaffer (09:59):
For sure.

Eugene Volokh (10:00):
Which may I prefer, but I'm not sure I can confidently predict.

Jameel Jaffer (10:03):
I see the parallel here, and to a point, I agree with you, but I want to push you a little bit. Is there any recent precedent for universities banning conservative political slogans or banning student groups because of their political slogans? I mean, it's possible. I just don't know of those episodes, but were there universities that banned conservatives from saying all lives matter or from wearing MAGA hats? I think some progressives might say that there's an important difference between the kind of suppression that was taking place with respect to conservative speakers before October 7th and the kind of suppression that's taking place now with respect to pro-Palestinian speakers. They would say there's a difference between sanctioning a professor for repeatedly misgendering a student and sanctioning students for controversial political slogans. What's your response to that argument?

Eugene Volokh (11:01):
Well, there may be a difference between those two things, but those are two particular items that one happened to choose there. Just to give an example of a case from a few years ago, there was a student at a medical school who was disciplined for basically posting online some things that very harshly condemn abortion, that say abortion is murder. I can't understand how people can support abortion. Now, it may be true that the particular ways in which people's speech was researched the particular mechanisms, is it a ban on the group or is it discipline of students who are members of the group? Maybe they're different. I don't even know for sure, but I think what we're seeing here is we're seeing here kind of a retreat from what used to be a pretty broad tradition of protecting speech. The retreat came at different times for different kinds of speech, but it seems pretty similar to me when it comes to speech on the left and on the right.

Jameel Jaffer (11:59):
Not all of the speech suppression on university campuses is a result of the university's own actions, right? In some instances, speech is shut down because of the actions of other speakers. Sometimes it's donors, sometimes it's advocacy groups. There was a well-known billionaire who called on universities to release the names of students who had signed a letter blaming Israel for the October 7th attacks. There is an advocacy group that has been running these mobile billboards to publicize the photographs of students who this group deems to be anti-Semitic. And from one perspective, this is participation in the marketplace of ideas. This is counter-speech. They're just responding to other people's speech. And from another perspective, this is really troubling suppression or at least has the effect of chilling students' participation in public discourse. How do you think about that question?

Eugene Volokh (12:59):
No, I think this is a hugely important question, that on the one hand, what somebody publicizes somebody's speech, it could be anti-Semitic speech, could be racist speech, could be unpatriotic speech, could be sharply anti-police, speech could be sharply pro-police speech, that is itself speech, self-advocacy. Hard to see, especially at a public university where when the government is acting how that could be restricted. On the other hand, there's no doubt that culture in which people know that if I say something that some people find really offensive, that's going to be broadcast on the internet and it's going to be forever associated with my name so that anytime somebody searches for my name, they're going to see it, and then people might pressure employers, even one who would be willing to overlook it, refuse to hire me, could be huge interference with freedom of speech.

(13:51):
Let me mention the one case. It's the only case that was really squarely dealt with this. NAACP Claiborne Hardware, it's a 1982 case, though it arose out of a civil rights boycott in Claiborne County Mississippi in the late 1960s, tells us a little bit about how slowly the American Civil Justice system can sometimes. So what happened was there was this boycott organized by local chapter of the NAACP of white-owned businesses aimed at getting them to implement certain various civil rights policies, and the aim for it to work, Black citizens of Claiborne County had to go along with it and some didn't want to, for whatever reason, but they wanted to exercise their constitutional right to shop in stopian, white-owned stores, so not free speech here, but again, right to act without regard to their own race and the race of the owners of the stores.

(14:47):
But the boycott organizers didn't like that, so the station store watchers outside the stores took down the names of everybody, or excuse me, all the Black citizens who were shopping in the white stores, and then the names were printed out in a Mimeographed newsletter and read out loud at the meetings of the boycott groups at the local black church. And this led to a lawsuit actually brought by the stores, but on the theory that their customers were intimidated by this fear of exposure among other things from shopping at the stores. And the Supreme Court unanimously said no. That speech that essentially pressures people by the fear of social ostracism is constitutionally protected. Now maybe the court got it wrong there, or maybe we should have a different view at universities or who knows what. But as a general matter, that case pretty strongly suggests that when people are trying to publicize the identities of people who are engaged in controversial views, that is protected by free speech principles.

Jameel Jaffer (15:53):
Well, protected by the First Amendment?

Eugene Volokh (15:55):
Well, right. So you might say, well, that's not true free speech principles, and just because the justices thought that it was protected by the free [inaudible 00:16:05].

Jameel Jaffer (16:04):
No, that's not what I meant. I just meant that there's a difference between is something constitutionally protected and is it ethical as a matter of free speech ethics, which is a much luckier-

Eugene Volokh (16:17):
I think some of the people who want to suppress the pro-Palestinian speech may say, "Yes, we are perfectly aware that it's protected by the First Amendment." But we don't think it's protected by free speech ethics. Well, it's a private university. We're going to do everything we can to get it to suppress that speech because we do think the rules ought to be different for private. I'm skeptical of that. Likewise, I think I'd be skeptical of private institutions saying, "No, no, no, Claiborne. The Claiborne Hardware principle. We're going to follow all these free speech principles, but not the Claiborne Hardware."

Jameel Jaffer (16:48):
Yeah, I mean, you could imagine a university writing to its alumni network saying, "Look, students on our campus engaged in all sorts of political speech." Sometimes they regret the political speech they engaged in the day after they engaged in it. And if you remember what your life was like as a student, you might remember having participated in some political project that you had second thoughts about, and that's probably true of people at all points on the political spectrum, and taking that into account, we want to encourage you to think twice about bringing public attention to students' political speech that you disagree with. If you disagree with it, we encourage you to write directly to the student groups, write directly to the administration, but at least at the margins refrain from, and that would be a viewpoint neutral quest to the alumni network. But I wonder whether there are steps like that that universities could take to protect free speech on campus from speech-suppressive actions by a larger university community.

Eugene Volokh (17:55):
So I think that's quite plausible, and I might even endorse that if I were, God forbid, a president, then right before quitting and asking myself, why did I ever take this job? I might put out a statement like that. But then again, I would want to make sure that the universities also did the same when they saw somebody being kind of publicly excoriated for something they said at a party that some people view as racist or sexist or something that they maybe posted at the university that is now blowing up into a massive nationwide war of condemnation.

Jameel Jaffer (18:35):
Yeah, you don't want it to be viewpoint-based on its face or in its application.

Eugene Volokh (18:43):
Exactly. Exactly. One thing that I think people said in the wake of the president's statements about how even advocacy of genocide will sometimes be protected, statements by the way, I entirely agree with is well, wait a minute, they're essentially being hypocritical in this sort of thing that for years we were told that microaggressions, minor insensitivities based on race or religion or sex, including some things that most people wouldn't even view as race, religion, sex based insensitivities or sexual orientation, say based insensitivities, are something that needs to be condemned and also in fact could lead to disciplinary measures because they're viewed as a form of subtle racism or sexism and therefore possibly harassment and such.

(19:24):
And now when people are essentially praising the murder of Israelis, well that's protected speech. Now my view is if you're going to try to equalize, you should equalize in favor of more speech rather than less speech. This is what I call sometimes censorship envy, that some people say essentially, well, the speech that is offensive to other groups is being censored. So now I'm going to ask for the speech that's offensive to my group to be censored too, because I want equality of censorship, envy the protection that the censorship is giving the other groups. I don't want to equalize it to more censorship. I want to equalize it to more free speech.

Jameel Jaffer (20:01):
So I want to ask you about that congressional hearing. Some members of Congress think that universities should be doing more to protect pro-Israel students from pro-Palestinian speech. As you know, a house committee held a hearing in December during which legislators grilled three university presidents about their policies. The exchange that turned out to be most consequential was the one about calls for genocide. I want to play you the clip.

Elise Stefanik (R-NY) (20:28):
And Dr. Gay at Harvard. Does calling for the genocide of Jews violate Harvard's rules of bullying and harassment? Yes or no?

Claudine Gay (20:37):
It can be, depending on the context.

Elise Stefanik (R-NY) (20:40):
What's the context?

Claudine Gay (20:41):
Targeted as an individual, targeted at an individual.

Elise Stefanik (R-NY) (20:45):
It's targeted at Jewish students, Jewish individuals. Do you understand your testimony is dehumanizing them? Do you understand that dehumanization is part of anti-Semitism? I will ask you one more time. Does calling for the genocide of Jews violate Harvard's rules of bullying and harassment? Yes or no?

Claudine Gay (21:09):
Anti-Semitic rhetoric when it crosses into crime-

Elise Stefanik (R-NY) (21:10):
And is it anti-Semitic rhetoric-

Claudine Gay (21:12):
Anti-Semitic rhetoric when it crosses into conduct that amounts to bullying, harassment, intimidation, that is actionable conduct, and we do take action.

Elise Stefanik (R-NY) (21:23):
So the answer is yes, that calling for the genocide of Jews violates Harvard code of conduct, correct?

Claudine Gay (21:33):
Again, it depends on the context.

Elise Stefanik (R-NY) (21:35):
It does not depend on the context. The answer is yes, and this is why you should resign. These are unacceptable answers across the board.

Jameel Jaffer (21:44):
So what's the best response to someone who thinks that universities should punish students who use political slogans or political symbols that other students interpret as calls for genocide?

Eugene Volokh (21:57):
Well, I can't tell you what's the response that would preserve the university president's job, in part because university presidents are politicians, and politicians sometimes lose their jobs even when they're doing the right thing because their constituents don't like it. That's just the unfortunate reality of our fallen world. But I will say that on balance, the university president's position was correct, that there ought to be no viewpoint-based exception to the principles of free speech and academic freedom at the university, not for supposed advocacy of genocide, not for supposed racism or sexism or homophobia or Islamophobia or anti-Semitism or whatever else. And in particular as the genocide, I think one thing that might have made Representative Stefanik's questions so politically effective is when people think of genocide, they may think of something like the Holocaust, where there was a deliberate attempt to kill every single Jew, at least everyone, that the Nazis could get their hands up.

(22:53):
Well, unsurprisingly, we're already seeing people condemning the Israeli actions in Gaza, the incursion into Gaza to destroy Hamas as genocide. I actually don't agree with that under what I think are the plausible definitions of genocide, but obviously people use that label. So under the view that I think Representative Stefanik was suggesting, which is that the university say absolutely not, calls for genocide are unprotected by university principles, then students who support the Israeli incursion into Gaza would also be potentially subject to discipline in the expulsion and such. Students who say, "Well, if Iran drops a bomb in Tel Aviv, Israel ought to drop a bomb in Tehran, they would be calling for genocide because they would be calling for the killing of large numbers of Iranians." You can argue whether all of these things are right, all of these military actions or terrorist actions are right, but I think you have to have free speech protections and academic freedom protections for making such arguments.

Jameel Jaffer (23:58):
So you've argued that universities should protect even the most offensive speech, but you've also said that in certain instances, universities can suppress speech. For example, you argue that universities should prohibit demonstrations that include trespassing on faculty or administration offices or obstructing students' paths to class or loud noise at demonstrations that interferes with studying. And I think obviously there's a really important difference here between viewpoint discriminatory rules and what are sometimes called time, place and manner restrictions.

(24:36):
But still, I see a couple of risks here. The first is that rules that are neutral on their face might be applied in an arbitrary or discriminatory or uneven manner. And the second, is that overly restrictive time, place, and manner rules can have the effect of marginalizing and suppressing dissent. There's a difference between saying that students can't use megaphones in front of the library, and saying that students can demonstrate only between the hours of 3:00 and 3:30 on Saturday afternoons and only if they apply for a permit three weeks in advance. So I'm just wondering, at what point do we need to worry about not just these viewpoint discriminatory rules, but time, place, and manner rules that are having the effect or might have the effect of marginalizing dissent in this way and insulating everybody else from ideas that they don't like?

Eugene Volokh (25:27):
Right, so one reason that I like when universities, including private universities, kind of sign on to First Amendment principles applicable to public universities, is the Supreme Court has been dealing with these questions in pretty intense way for literally a hundred years, and as to content-neutral restrictions, probably let's say for at least 85 years, and it has developed a set of rules. Not everybody agrees with them, but on that, on valids, protect speakers against excessive even content-neutral rules, but at the same time also protect others, including other speakers, right? If somebody decides to exercise their free speech rights by having a sit-in a classroom or by interrupting a lecture, then in that case that interferes with the free speech rights of whoever is engaged in speech in that classroom or during that lecture. Likewise, if the demonstration blocks people's access to their lecture halls that interferes with people's rights to engage in speech.

(26:36):
This issue has come up a lot with regard to anti-abortion protests, and the courts have said, "Yes, speech outside of abortion clinics is protected." You can't just categorically ban such protests, but you can certainly have laws that keep people from having sit-ins in the abortion clinic that would interfere with the abortion providers and more importantly, the abortion recipients, right. Likewise, you can't block the entrance to clinics, so these issues have come up before, and I think there are pretty reasonable lines that have been drawn. Certainly one such line is you never have the right to just sit in on somebody in somebody's office.

Jameel Jaffer (27:17):
I would say that an abortion clinic is very different from a university. A university, the core purpose is speech. Production of knowledge and speech is closely intertwined with production of knowledge, whereas an abortion clinic has a different purpose, and so maybe some of these questions are harder when it comes to universities that we need to tolerate a certain amount of messiness and inconvenience at a university that we wouldn't tolerate in other contexts.

Eugene Volokh (27:44):
Well, Jameel, let me ask you this. Let's say an anti-abortion group animated by this view that they're trying to stop this genocide of the unborn, not in my view, of course, or not of course, as it happens, not my view. Let's say they decide they want to have a sit-in at, not in an abortion clinic, sit-in the ACLU, around the clock, sit in the offices of the ACLU, and every advocacy group that advocates for abortion lights, which they view as genocide. Those groups are sensibly aimed, and not even sensibly, they really are aimed, at least ACLU, I think really is aimed at, generally speaking, protecting speech, but I take it the ACLU would be entitled to say, I think they probably would, and I think they should say, you want to pick it outside us and call us all sorts of names.

(28:34):
You are perfectly free to do that. We'd go to court to defend your right to do that, but it doesn't mean that you can come onto all property when we're engaged in our own legally protected and as it happens for civilian protected activity and interfere with our ability to get that work done by trespassing on our property.

Jameel Jaffer (28:54):
I'd be very sympathetic to the ACLU in that particular circumstance, but you're using the language of entitlement, and I'm not making an argument about entitlements. I'm making an argument about the purpose of a university and how universities should treat students who engage in protests. I'm not actually making an argument that students should have the right to occupy anybody's office, but I do think that a certain amount of messiness is inevitable at a university that is committed to free speech and academic freedom because being open-minded and being willing to entertain ideas that are different from your own is sort of core to the identity of university and core to its mission, and so you don't want to have a situation where the students who engage in dissenting speech are purred only by students who affirmatively seek them out.

(29:48):
You want to have a situation where people are confronted with, and I'm not making an argument here about Israel and Palestine, specifically. On every issue, you want to have a situation where students are confronted with ideas that are different from their own and might even make them uncomfortable, and that means you need to let people protest in places where they'll be seen, and that may not include somebody's office, but it might include lobby of a university building or the space in front of the building, so long as the students don't impede the path of people who want to get by.

Eugene Volokh (30:21):
Right. I would say though, and I think you and I agree, Jameel, is people have to be prepared to have the same rules for [inaudible 00:30:28]. So the same rules for a pro-Palestinian or even pro-Hamas rally.

Jameel Jaffer (30:32):
Of course, yeah.

Eugene Volokh (30:32):
We would be for an anti-abortion rally or an alt-right rally, whatever else.

Jameel Jaffer (30:38):
Anti-dei rally, let's say, or something.

Eugene Volokh (30:40):
Something else that people one might disagree with would want to put up.

Jameel Jaffer (30:43):
Yeah. That goes without saying.

Eugene Volokh (30:45):
Well, it goes without saying, you and me, Jameel. I think human nature is the exact opposite, right? Human nature is always just sort of, you see the best in people on your side and the worst in people on the other. And people on your side. "Well, yeah, it was a little loud, but that's because they're impassioned by the call for justice." Whereas people on another side, "Oh, I could hear this from somewhere else, that's huge intrusion. Speeches, violence, it totally ruined my day." Right? It's human nature to do that, that's why it's so hard to get viewpoint neutrality rules implemented because while we're very good, I think, they're not natural for people to accept.

Jameel Jaffer (31:29):
Right. That's a fair point. Last question. You and I participated in that debate at Cornell just a few weeks before October 7th.

Eugene Volokh (31:37):
Wasn't even a debate. I don't think it was a debate.

Jameel Jaffer (31:39):
Well, it turned out to be a conversation, but I think we were invited because the organizers knew that we come to a lot of these issues with very different perspectives. You and I probably have very different views of the Israel-Palestine conflict, for example, and they assumed that we would have different views about free speech on campus, and it turned out that there were differences in our views. They were not that great. I think that's fair to say, but you can disagree.

Eugene Volokh (32:07):
That is exactly correct. We're getting the all bait and switch there.

Jameel Jaffer (32:10):
Right, right. But now I'm interested to know whether anything that's happened over the last few months has made you think differently about the issues we were talking about. Then, have you come to any different conclusions about free speech or what's necessary to protect it or what the biggest threats to free speech are today? Has anything in the last few months since October 7th, changed your mind about any of the things we were talking about then?

Eugene Volokh (32:38):
No. No. We agreed and we were right and we continue to be right. I think that if anything, I think the events in October 7th are a reminder of how important it is to protect a wide range of speech, including speech that one very much disagrees with. It's also a reminder that calls for restricting supposed hate speech and supposed against speeches, violence, and this and that, are never going to be just limited to a very narrow range of speakers. That it's a human nature to broaden these for any such narrow restrictions to become broad. The old view, which I should say was very much the old view of the center left, of the liberal left. I'm a man of the center right.

(33:22):
I come to this view, but I have to acknowledge my intellectual debt to the Brennan's and Marshall's of the world, who were the leaders in getting this view adopted at a time when many conservatives were not on board. I think that view is the right approach to free speech, broad protection for all sorts of viewpoints, including against certain kinds of content neutral rules as well, and I'm just hoping, again, I feel the opposite, but I'm hoping that what's been happening recently will reinforce to people the importance of that respect.

Jameel Jaffer (33:56):
Eugene, always a pleasure to talk with you. Thank you.

Eugene Volokh (33:59):
Likewise. Very great pleasure.

Jameel Jaffer (34:01):
In our next episode of War & Speech, we'll be joined by Radhika Sainath, senior staff attorney at Palestine Legal, and someone who's been at the very center of the most heated recent debates about free speech. Views on First is produced by Candace White, with production assistance in editing by Isabel Adler. Research and fact-checking provided by Hannah Vester. The Art for our show is designed by Astrid de Silva. Views on First is available on Apple, Spotify, and 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.