Freedom of Speech: Censors working overtime

[Music] Some words have been robbed of all meaning. They've been used, abused, mangled, contorted, weaponized, and stripped of context. If we can't agree on what words mean, then we can't agree on much. This is origin story. In each episode we take a key term for the political cultural discourse and tell the story of where it came from, what happened to it, and what it means today. By exploring history of the ideas, we'll try to get a clearer understanding of where we are now. My name's Dorian Litzky, author of 33 Revolutions per Minute and the Ministry of Truth. My name is Ian Dunton, I'm an economist with the I News Paper and I'm the author of How Westminster Works and Why It Doesn't. This week we're talking about freedom of speech. This is dear to your heart, isn't it? I'm actually a fan, it's done so. We surely live in the stupidest possible era of debate about freedom of speech. It's unbelievably low quality. Even in an era where everything is really quite frankly ironic. The classic example I suppose right now, if we were to think about where we are, is Elon Musk on the one hand. Take it over to us, we'd like the most base, barely comprehended ideas as to what he's talking about. He calls himself a free speech. It literally isn't on the first amendment for one thing. Then shortly before we say, "Oh, but if you take the piss out of me," then that phrase is not allowed. A trend which we'll see through history, over the course of this episode. Then at the same time, you have someone rusty, being attacked, losing an eye. You remind yourself, "Oh, this is what it's actually about." Not these muleing boars banging on about concepts which they've barely comprehended. This is what it's about and this is what's at stake. Of course, the debate is never really pro-anity-free speech. It's about where is the line. There is always a line. I just wanted to use an example here. What a free speech absolutism doesn't really exist. Imagine someone stands outside a random man's house with a megaphone, accuses him of pedophilia, and calls on passes by to join a mob to break in and assault the alleged pedophile. Now, you could say the man should come outside and engage in a lively debate, to prove that he was not a pedophile. Most people would say, "That's not a case of logistical service." There are always exceptions. Really, what you're arguing about is the exceptions. Your example, by the way, is so close to John Stuart Mill and Harriet Taylor's classic example from one of the-- Did they have a pedophile? They did, and they're certainly not a pedophile. They had a grain dealer in a very similar situation. Let's start with the OED. Slightly earlier than I expected, freedom of speech, noun, freedom to express one's opinions without censorship, legal penalty, or any other restraint, especially when regarded as a right. That's 1567. Thomas Stapleton and Count Blast, St John the Baptist, who died for the like liberty of freedom of speech, as St. Quillian and St. Lambert did. In that definition, is any other restraint doing a lot of work? It is doing a lot of work, but you wouldn't know it, right, from a lot of the debate that you see, sort of online and on programs. When you come to those who are making excuses for restrictions on freedom of speech, they will act very often as if state censorship is the only kind of real restriction. You know, so there's this very sort of flippant view of like, well, people are allowed to sack you from a newspaper, and people are allowed to tell you that you're not invited to do a talk at a university, and you're like, yes, of course, they absolutely are. But let's not pretend that someone isn't being stopped from saying what they were going to say, that that does not have moral implications. We can sign up to those. We can say that that's the right thing. But let's not just try and shift it outside of the terms of our debate because it's firmly inside of them. And the debate as it is now is rather different than it would have been say in the 1960s, or probably even as late as the 1980s, where the right wing, you know, has the free speech union and free speech nation on GB news and so on. And perhaps the majority of anti-woven anger is about perceived threats to freedom of speech, so intolerant left. But I think we've been in the same place really for the last 30 or so years. This is Henry Lurth Gates Jr. writing in 1993 about the birth of critical race theory. And he was very progressive to begin to believe that freedom of speech was an obstacle to social justice and should therefore be sacrificed. And he saw sums it up like this. Hate speech is the term of art of a movement most active on college campuses and in liberal municipalities, but of course many civil rights activists rethink their allegiance to the First Amendment, the very amendment that licensed the process, the rallies, the organisation and the agitation that galvanised the nation in a recent bygone era. On the other side are those who invoke the First Amendment like a mantra and seem immediately to fall into a trance. So oblivious are there to further discussion and evidence. A small number of anecdotes about racism on campus or about PC inquisitions on campus are endlessly recycled. Nothing changes. Nothing changes. There. So we're going to talk about all that. We're also going to talk about how emotionally difficult it can be to commit to free speech as a consistent value. I think there is a basic human instinct. Just want to shut up people whose views you despise. You know, this is a muting and blocking on Twitter as a fairly benign version of that. You just don't want to hear that shit. And you have to consciously fight against that urge. In free speech for me, but not for thee, how the American left and right relentlessly censor each other from the early 90s, First Amendment hardliner Nat Hentoff quotes a journalist called Donald Kagan. The truth is that hardly anyone really believes in free speech. We all believe in it for ourselves, for those who agree with us, and some of us, even for those who don't disagree too much. But we are generally not eager to defend the rights of those who's used trouble us or frighten us or threaten us. Do you think that hypocrisy is the real through line in this debate or the kind of not everybody is a hypocrite, but the temptation to hypocrisy is enormous, I think. The whole story of free speech is the story of hypocrites. And the creation of the universal value of free speech irrespective of your tribe or your religion or your nation is the result of hypocrisy on rules around free speech. It was literally developed because it was seen as we will find out that, okay, these guys are oppressing me. I was allies with these guys. Now the guys I was allies with are oppressing me. So we clearly need some kind of universal standard. So ultimately this is the story of hypocrisy and it grounded in hypocrisy and it is designed to try to prevent hypocrisy, something which admittedly at the moment it's not doing a very good job of. I mean now the idea of free speech sort of goes back as everything does to the ancient Greeks. But you're going to start off, I suppose, the modern, the relatively modern history with the hypocrites. John Milton. You're right. So there is history in ancient Greece closed down fairly early on, not so much in Rome. In the dark ages almost none in Europe, but there was free speech in the Islamic world, very considerable free speech, of the type that if you were to say it now in many countries in the Middle East, you would probably be killed for now. Here the development of free speech in the West is primarily the result of two things. The first one is Protestantism and the second one is the printing press. So I mean the printing press developed in 1450 and Protestantism at the beginning really with Martin Luther in the 95 Theses on October 31st, 1517. What did these two things do? The printing press supercharged information without it what was going on with Martin Luther would have been happening in some minor part of Germany for not many people to hear of. It was in a sense the Twitter of its day. I feel the need, the moral need for censorship now. I think I will over the course of this episode, very, very struggling. What Protestantism did, I must say, they didn't mean for this. I mean he he was kind of mortified even by the degree of freedom that was expressed in worship and in sort of theological ideas even in his own period. But as soon as you get rid of authority on earth to mediate the message of God, you're very quickly in the business of interpretation. Right? And that combination of things, the movement of information and a greater liberty and interpretation of religious doctrine led very quickly on to the arguments that we see for free speech. That wave, that long historic wave on the birth of Protestantism lands to create the English Civil War in 1640s in England. Let's go back a little bit. In 1630, you have this situation where you get this sort of agitation against the king, Charles I, suspected to be a Catholic, very, very authoritarian, absolutist monarch, and Archbishop Loud. Loud was extremely authoritarian and they recognised the danger of the printers. So they licensed them, licensed restricted to 20 people, the people that were authorized to cast type, restricted to four, no printing of domestic news. Now, just like in the War and Drugs episode, very quickly as soon as you legislate, as soon as you ban it goes underground. And in London, it went underground around the area around St. Paul's, this kind of a lizard publishing industry. And just like drugs, it had the same effect of making things smaller and more potent. So instead of books, take too long to print, you're too much, you're too open to being caught. You just have one side of a piece of paper, you print both sides, you fold it up, and it's a little eight page pamphlet. These are called paper bullets. And they are the things that later turn into newspapers, by the way. And they're considered by distance the most dangerous thing to the authorities. Eventually, Charles goes to war with Parliament. The English Civil War is actually a series of wars, which also happens to involve Scotland and Ireland. So it's not a very well-named war. But in one of the lous, after the king has had his first defeat, and he's been taken captive, and it feels like the Protestant radicals who'd fought against him are free, but they're not. They're allies turn against them. They're allies of the Presbyterians in Parliament, it's kind of authoritarian faction. And they do exactly the same as the king did, working with the stationers company, which is kind of like a workers guild combined with a militia. They work to just start banning material, any material that's false, forged, scandalous, seditious, or libelous. And they start throwing radicals, anti-king radicalism in prison. And that's when Milton writes. area of Pagetica, which is probably the first document we have, which is just an outright argument for free speech. He says this, "It's as good almost kill a man as kill a good book, who kills a man kills a reasonable creature, but he who destroys a good book kills reason itself. Give me the liberty to know, to utter, and to argue freely according to conscience above all liberties." So you see two things there. First thing that it's required for us species, that it's the only way we get too truth and can use reason, and secondly, that it's a foundational freedom, right? That it's one of these sort of almost sacred freedoms that we have. Now, very quickly afterwards, he says, "Oh, I mean not tolerate popery." So obviously none of this counts for Catholics, and he eventually, in a very tedious and predictable course of events, goes to join the licenses. However, some people are not so hypocritical. The levelers who fought for the radicals in that period, you think about people like William Woolwyn, you think about people like Frigian Lillbin, and you're thinking most of all of Richard Overtum, who was a publisher, he was basically a journalist, a comment writer, a scathing comment writer. He owned his own printer, and he owned the distribution networks. Now, the Presbyterians arrested him very, very quickly, they arrested him in his bedroom. Took him to prison, and in prison, he wrote an arrow against all tyrant in 1646, far superior to Aria Vigettica, as you can tell by the name. He says, "No man has power over my rights and liberties, and I over no man's, for my natural birth, all men are equally and alike, born to like propriety, liberty, and freedom." You see there is the origin of the complexity of the free speech debate. They don't have any rights over me, but I over no man's. Therefore, there are certain things that you can stop me saying, if it starts to impinge on the freedom of another one. Now, that idea, of course, was taken up by John Locke, who says, "By humans, by nature, all free, equally independent, and John Locke's philosophy is taken up by the American revolutionaries and transmitted across the Atlanta." Right, because America dominates the discourse to this day, the first amendment to the US Constitution is at the center of free speech debates, even though it only applies to the US and only to the US government, and in fact, only since the 1930s to stay governments. It protects many things and not protected under UK law, like hate speech and blasphemy, but excludes restrictions on speech by private individuals and organizations. Hello, Elon Musk. And like everything in the Constitution, what exactly it means changes over time. But it's still hugely influential. I think maybe because it's just so simple, it's 14 words. Congress shall pass no law abridging the freedom of speech or of the press. So it starts in the principle that no speech should be restricted by the government and then calves out exceptions. The first amendment was authored by future president James Madison, past as part of the Bill of Rights in 1791, two years after the Constitution. And it actually came out of an election campaign. Madison promised to support Bill of Rights in order to win a Congressional seat in Virginia and stifled demands for a second constitutional convention that would sort of rewrite the whole thing. But he once personally committed to freedom of speech, particularly of those 10 amendments. Because the first American settlers, as you described, came from European countries with very strict censorship, and particularly this penacious concept of seditious libel. When you could be punished, you're publishing anything disrespectful of the Churchill state, even if it was true. Now, back to hypocrisy, the Puritan settlers themselves were very authoritarian. You have seen the crucible. And they imported seditious libel into the US. But over time in the 18th century, there was a pushback in 1776. For the Constitution, the Virginia Declaration of Rights declared the freedom of the press is one of the greatest bullworks of liberty and can never be restrained by despotic governments. Nine out of 13 of the original states had such a phrase in their constitutions even before the First Amendment was written. And the primary fear, as with the Second Amendment protecting gun ownership, was of dictatorship. That's the sort of historical context. Now, if anything is seven years after the Bill of Rights, the First Amendment is basically ignored. President John Adams signed into law the Sedition Act, which allowed for imprisonment of up to two years and a fine of up to $2,000. Quite a lot of money in those days. For criticising the government, led to the prosecution of the editors of all the leading newspapers, the supported Adams's Republican rival Thomas Jefferson, and a Republican member of Congress who had criticised John Adams. Republicans denounced the act as tyrannical and its unpopularity actually helped Jefferson win the 1800 election. He then pardoned everyone convicted under the Sedition Act. And we're talking here about how there are always excuses, right? It's a state emergency. Here, it was this fear of insurrection as we'd seen in France. And James Madison wrote to Jefferson before the Sedition Act was passed and said, "Perhaps it is a universal truth that the loss of liberty at home is to be charged to provisions against danger, real or pretended, from abroad." Which is perhaps a theme of some of the other episodes that you know, as long as there is a threat from outside, you have the space to restrict people's lives. The funny thing is, that argument is almost exactly the same argument that the French were using at the time on the basis of losing the war that they were involved in in order to close down liberty and their own country. Right. So, Ian, I'm going to leave the First Amendment there and sort of rejoin it in the 20th century. While you talk about your liberal faves, John Stuart Mill and Harriet Taylor. Yes, thank you. You've made a terrible mistake walking into this room with me, giving me this time to speak about it. But it's fine. I'll just watch you become increasingly haggard and withdrawn as I go into the early evening. So John Stuart Mill carries the torch of what I think was accomplished by overturned in the English Civil War. So we're talking in the early part of the 19th century in London. He's born to James Mill, who's a utilitarian and very, very close friends with Jeremy Bentham. And they try to turn him into a kind of human machine, a dry, remorseless, logic machine, as Mill later said of himself, to be a pure object of reason. He's subjected to what Alice Rossi, one of his biographers called, "Perhaps the most intensive study regime any child has ever been subjected to," Greek by three, history of Rome by six, Plato at seven, Latina eight, Aristotle by 11. And then you get to eventually the age 15. And that's when they plan to give him Bentham's philosophy to turn him into the perfect utilitarian man. Mill experiences it almost as a moment of transcendence. Now, I've read a lot of people writing that moment of transcendence. Now, usually with communism, you saw the same thing with the way that students would write to iron rand. At the moment, everything clicks into place with the complete system. Mill says, "I felt taken up to an eminence from which I could survey a vast mental domain and see stretching out in the distance, intellectual results beyond all computation." And then at the age 20, he has a complete never breakdown. And consider this killing himself for quite a long time. The thing that gives him hope, the thing that rekindles a capacity to feel in him is poetry. The utilitarian's hate poetry, they think it's a sort of pointless flamboyance. I can't build a bridge of poetry. Exactly, exactly. They need to go to the School of Life. So he really gets a lot from William Wordsworth, Percy Shelley, Alfred Tennyson, for the utilitarian's, especially Wordsworth is sort of considered this kind of reactionary sentimentalist, which again, I think the utilitarian's completely right about that. But it doesn't matter to Mill because it saved him. And once he makes that realization, oh shit, so if it doesn't fit into the complete system, but it gave me a reason to live, what else is there? And he finds it in some conservative thinkers like Thomas Carlisle. He says this, "Even if there were errors, there might be a substratum of truth underneath them. Therefore he concludes the whole idea of universal synthesis is flawed." You can see where this line of thought is going, obviously. He says, "By the end of this process, if I am asked what system of political philosophy I substituted for that which I had abandoned, I answer no system." 1830, he meets Harriet Taylor. It's not a very good setup for a romantic relationship. She's married, husbands with her, she's got two kids, she's got a third on the way. But they do fall passionately in love. And after a while of this love affair, she says, "Well, I've got to fix this. She doesn't really want to leave her husband. He's in the words of Thomas Carlisle. He's an innocent, dull, good man. She goes off to Paris and she goes, "Right, I've got to find a solution to this problem." And in a very gentlemanly way, her husband and then Mil go over to visit and try to convince her to be like, "Well, make it me, please, pick me." She goes, "The back of this is, "No, I'm not going to do it. I'm not going to leave. I can't get a divorce." If she gets a divorce, she loses the kid, she loses everything and she humiliates the husband that she does rather like after all. So she says, "Look, this is what we're going to do. My husband's going to be the public face of the marriage, the social face, and Mil was going to be the intimate part of the marriage. We promise not to go out with anyone but our closest friends, you know, no societal engagements, but this is how we're going to make it work." And for decades, that relationship works for them. It works until her husband dies decades later and then they marry. But what it also does is it starts the rumor and innuendo and gossip machine and London. Carlisle calls that the "clack of tongues," which is a very beautiful phrase and I think sums up the impact on Mil that led to the creation of liberalism. Because of the two of them sit there, they're mortified. They eventually basically retreat to black. He's just completely to get out of society. He writes a letter to her saying he fears becoming obscure, insignificant, and useless. Of course, I mean, this kind of marriage arrangement, right? If he didn't now, you would raise "I'm proud of something doing it in Victorian London." It's just insane. She writes back to him, "I know what the world is. I have not the least desire either. either to brave it or to court it in no possible circumstances shall I ever do either. And there lies the second part of what they contribute to free speech. It's not just that idea that he had earlier of like, everyone's got a little bit of truth of half truth of a substratum of truth within him. It's something else. They're something hanging on a minute. Like the threat, it's not just the state, it's society. To them is this kind of deadening, and largeening impact, these curtain twitches who will come and tell you how to live, who control your thoughts. So they write together, they, on liberty is written by the two of them. There's no recognition of this in the record. It's absolutely written by the two of them in all of the evidential basis and all of their own words indicate that that is true. It is a joint authored work, even though she was later erased. They wrote, "When society itself is the tyrant, its means of tyranny are not restricted to the acts which it may do by the hands of its political functionaries. Our mere social intolerance kills no one, roots out no opinions, but induces men to disguise them or abstain from any act of effort for their diffusion. The price paid for this sort of intellectual pacification is the sacrifice of the entire moral courage of the human mind." I'd written that down because I actually read on liberty for the first time for this ever. "Durry and what did you think?" "A foyer's pretty good." No, you know. They had a way with words. They do. They do. You know, if all of mankind minus one were of one opinion and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind. It's very nice. Or they basically nicked it from Benjamin Constant, but it's very good. It's still good. And it's full of sort of, it's full of ringing phrases. And my big sort of takeaway from it was that idea that I'm going to sort of come back to it in a bit about seeking truth. Without freedom of speech, you cannot get to truth because all you're going to have is the dogma that is imposed from above. And it's only by having the free exchange of ideas that we're going to get to truth. They ask something I've read that I think is so hard to do in normal life. It's to be confident and humble at the same time. Confident enough to feel the full force of the strongest argument against your position, but humble enough to realize that they might be right. You know, and even if they're not right, maybe there's something true in there in what they're saying. Yeah, it is. I mean, that point, that exact point, I think, is when our modern conception of free speech is really based with the writing of our liberty. Right. Now I'm going to move on to the first amendment in the 20th century, which is really when it becomes what it is now, because during the 90th century is relatively weak, numerous exceptions for libel, insult, obscenity and so on, because those things did not count as useful truth-seeking speech. And it only began to expand really in 1919 when all of the Wendell Holmes changed his mind. Now Holmes was a remarkable man, born in Boston in 1841. He was the son of abolitionist intellectuals, whose friends include like Ralph Waldo Emerson, very eminent. He fought in the Civil War, became an eminent lawyer and judge, and was appointed to the Supreme Court in 1902 when he was 61. He didn't retire until he was 90. It's a real argument for gerontocracy. It's career. So we started in early 1919 in the case of Schenk versus the United States. The court upheld the conviction under the espionage act of a man who'd advocated resisting the draft. It's obviously a war time. Writing for the majority, Holmes used the most famous analogy in the history of free speech to illustrate why there must always be limits. This is his version of the Peter Far House. Yes, otherwise known as the Green Dealers House. Right, 250 years until now. Till now. Move over, Rylantayla. The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. And he thought that Schenk's pamphlets in wartime did qualify as a clear and present danger. So great analogy, we still talk about, sharing fire in a theatre, terrible precedent. But a few months later, there's a similar case of Abrams versus United States. Abrams dissented and argued that a group of anti-war pamphletiers should not have been convicted. He was in his late 70s a time where most people, we know, are set in their ways. But he'd been having these profound conversations about free speech in the intervening months with friends such as the fabulously named Judge Lernidhand and the brushy socialist intellectual Harold Blaske. Oh, wow. Yeah, who was teaching in America at the time. And they changed his mind in a dramatic way. So in his dissent, Holmes introduced the concept of the marketplace of ideas. And he just speak in very effective metaphors. He came up with nothing but bangers. The ultimate good desire is better reached by free trade and ideas that the best test of truth is the power of the thought to get itself accepted in the competition of the market. That at any rate is the theory of our constitution. It is an experiment as all life is an experiment. This has been described as the most important descent in the history of the Supreme Court and the cornerstone of modern free speech rights. Now this seems to be in the tradition of Milton and Mill. Truth must be tested in an argument of what I really like is that it's an experiment. And there is a risk that the truth might lose. Now would Milton or Mill have agreed that there is a risk that in this kind of free exchange of ideas, actually, you won't get to the truth? Then would not have agreed. Milton said whoever knew her put the worst in a free encounter. Speaking about truth, which obviously seems aesthetically naive from where we are right now. Mill would have agreed. Mill was constantly sort of putting out this idea that like when people don't base their arguments on reason or their thinking on reason, it paradoxically becomes much harder to convince them of the weakness of their method of thought. Because that's not where the origin of it is coming through emotions and you're not addressing that part. So actually they would have gotten quite different directions on that. So you notice that these really important cases were about the rights and pacifists. In Swimmer, versus United States, 1929, a Hungarian immigrant refused to say the pledge of allegiance because it required her to promise to take up arms to defend the US. Holmes wrote another classic descent. Some of her answers might excite popular prejudice. But if there is any principle of the constitution that more imperatively calls for attachment than any other, it is the principle of free thought. Not free thought for those who agree with us, but freedom for the thought that we hate. Extremely important concept. So again, he's in the minority defending the right to express unpopular opinions. And the other pioneering justice at that time, which is friend Louis Brandeis, the court's first Jewish justice, crusading lawyer for workers' rights. He is famous for popularizing, actually before he became a justice, the phrase sunlight is the best is in fact. In Whitney, a V. California, 1927, Brandeis wrote a famous opinion that put free speech at the heart of democracy. The framers, he wrote, knew that order cannot be secured merely through fear of punishment for its infraction. That it is hazardous to discourage thought, hope, and imagination. That fear breeds repression, that repression breeds hate, that hate menace's stable government, that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies and that the fitting remedy for evil councils is good ones. This is paraphrased as the answer to a bad idea is a good idea. So they're again converging, I suppose, on this marketplace. Now we were talking about how hate speech is really what we're on about. And this Supreme Court considered exempting hate speech in two important cases. You'll know the phrase fighting words. From Chapplinsky, the New Hampshire 1942, Walter Chapplinsky was distributing pamphlets for the Jehovah's Witnesses in Rochester, New Hampshire when a mob tried to stop him. A unbelievable persecution of Jehovah's Witnesses. At that point. Now when a city marshal took him away rather than confronting the mob, basically sort of blaming him for staring them up, he called them marshal a fascist. Among other things, the court unanimously ruled against Chapplinsky saying that the lute and obscene, the profane, the libeless and insulting or fighting words, words that inflict injury or tend to incite an immediate breach of the peace were not protected because again, nothing to do with expression of ideas, not to reach to the truth. Not an invitation to debate whether or not the marshal was a fascist. And that's specifically on that phrase fascist, on using it in that context. I mean, I'm sure there could have been other words, you know, if he'd used various sort of obscenities. Again, that would have been like, well, this isn't real. This isn't useful speech. The other hate speech case was Boane's versus Illinois 1952. Joseph Boane's had been arrested for distributing leaflets, calling on Chicago officials to stop the quote, invasion of his neighborhood by black people. Nobody now would talk about invasion. Everyone's known. I knew, come as the court ruled that authorities could restrict speech that portrays depravity, criminality, unchastity or lack of virtue in a class of citizens of any race, color, tre either religion, thereby exposing them to contempt, derision or obliquely. But the important thing is the neither of these rulings are still precedent. Hmm, not, I mean, I mean, I mean, strictly overturned, but they don't hold. So fighting words was narrowed to words that were produced physically. It's a flag burning and even cross burning were protected. And the idea of group defamation that you got from Boane's was rejected. In the case of New York Times, V. Sullivan 1964, when the New York Times published some factually inaccurate criticisms of the city and its racist policing. They got a couple of things wrong. And they were sued by the police commissioner of Montgomery, Alabama. And it was basically proven that you know you couldn't do that because those kind of suits with silence, legitimate criticism. So the new precedent, the precedent really we're operating under now, and America is operating under, was established in Brandenburg, V.O. higher in 1969. Now, Clout's Brandenburg was a piece of work, a racist and anti-Semite and an actual Ku Klux Klanzmann. But his conviction was overturned because his speech did not invite imminent lawless action, which replaced clear and present danger. It had to be his violence about to happen pretty much in the next five minutes. That's a direct result of these words. Now, the same protections extended to civil rights protesters. And funnily enough, when fighting words did hold, it was most often used against black people. So the alleged protections against hate speech were often used against black people. And we should mention the same kind of legislation that Britain had in India, was very much used against people fighting for independence. The same kind of legislation on hate speech in that case against white people was very much used in apartheid South Africa against those fighting for racial equality. So that is hate speech legislation has typically been used by the dominant group in order to try and hold down the claims of marginalized minority groups. So this Brandenburg case represents this ideal that free speech protection should be both content, neutral and viewpoint, neutral. You can protect racist and anti-racist and exactly the same amendment and protections. Generally, freedom for the thought that we hate. Now, the most controversial test of freedom for the thought that we hate is still the National Socialist Party of America versus the village of Skoky 1977. Now in 1976, the party, which as the name suggests, was a neo-Nazi group. So, a permission to hold a march in the Skoky Illinois as Chicago suburb where more than half the population was Jewish, including an extraordinary number of Holocaust survivors. It first the mayor and the council plan to allow the march and ignore it. So, it was not to generate publicity. But the Jewish community protested and the council filed an injunction and three new ordinances prohibiting hate speech and military style uniforms and requiring expensive insurance and all these ways to block it. So the leader of this party, Frank Colin, announced a different march protesting the ban on the first one with the slogan "Free Speech for White Americans". The town filed another injunction and that led the American Civil Liberties Union, the ACLU, to take on the case on first amendment grounds, which went all the way to the Supreme Court. Sent the case back to the Illinois Supreme Court, which decided that the swastika did not constitute fighting words and the march could go ahead. And after all that, the march never happened. Why not? They demonstrated in Chicago instead. But it was as controversial as could be as many as one in four ACLU members resigned in disgust. But the organisation said the principle was the same as when it was defending civil rights protesters in the South from claims that their marches would incite violence, you know, from white people. That's why the ACLU later defended the trolls of the Westboro Baptist Church in notorious for picketing funerals with abusive black ops. And the best case was put by the ACLU's Aryan Nyer, who had escaped Nazi Germany as a child. And he said, "I could not bring myself to advocate freedom of speech in Skokie if I did not believe that the chances of best for preventing a repetition of the Holocaust in a society where every incursion and freedom is resisted. Freedom has its risks. Suppression of freedom, I believe, is a sure prescription for disaster." Very nice. That, I think, is maybe something that's missing from a lot of free speech debate. It's just assumed in the sort of Miltonian way. That's just what the good arguments were out in the marketplace of ideas. Even, which they say were making a very shoddy, 40-thought-through argument. Yes, exactly. And Nyer was going, "No, you know, it can go wrong. It could go wrong. But it will definitely go wrong if you restrict people's freedom." Now, where I think this is still relevant now, this case, is a lot of people felt and feel now that free speech champions were obsessed with defending the absolute worst people. There was a sort of machismo to it, though. We're so liberal. We're helping the Nazis! Henry Lose Gates in that essay I mentioned earlier writes, "Perhaps we have been overly impressed by the frisson of defending bad people for good causes when the good consequences are at best conjectural and the bad ones real and immediate." Do you think that is a kind of danger that sometimes the people who defend free speech? It seems that we're always talking about absolutely appalling people and that actually a lot of people, as a result, are less aware of this history of civil rights protesters and pacifists, communists, religious minorities. That's just a privilege of our era. That's the privilege of the fact that we got to be, you know, around. And in the period where most many of those battles had been won, right? Like you wouldn't feel that way if you were in the 1960s, you know, US or even the UK. You know, I mean, there, it wasn't just those cases that we're using freedom of speech. Now, you want to say that if we were fighting for independence in India, that just wouldn't occur to us to think, "Oh, this is just about pornography and violent hip hop lyrics." You know, like it's just, that's a privilege, the fact that it's these examples. I mean, it is weirdly sort of good news, the fact that this is where the free speech arguments are taking place. Because nobody would think, you know, that a mob is going to shout down at Jehovah's Witness for handing out pamphlets, or that a pacifist is going to go to jail. Yeah, exactly. Although, very quietly, and they will come to this, that stuff is happening. You know, under legislation, it's just not happening. It's typically happening under the cover, I think, of hate speech, rather than a sort of authoritarian attack on free speech in general. Now, we should say, of course, I mean, I've talked a lot about the First Amendment. I think because it's produced these incredibly resonant phrases, which define the way that people are sort of around the world trying to frame basic concepts of free speech. But of course, like I said, it only applies to America. International human rights law is very different, partly because the Holocaust was fresh in the minds of the people drafting it. It's a great observation by a French legal scholar called Roger Herrera. It says that America's free speech ethos was based on an inveterate, social, and historical optimism that simply wasn't possible in Europe after World War II. That gets difficult. I mean, the US wins the initial skirmish on international human rights law. The UN Declaration of Human Rights, you know, the primary author being Anna Roosevelt, 1948, although, of course, a collection of people from various sort of backgrounds, various countries been together. The US proposal was beautifully expressed, actually. There shall be freedom of speech of the press and of expression by any means whatsoever. So I think we can call that the maximumist position. Yes. I mean, you know, it's very, very clear. It's very, very well written. The Soviets come back with an interesting proposal. They say they want to rule out, quote, any advocacy of racial or national exclusiveness or hatred and contempt, as well as fascism as a quote. And that's really interesting. I mean, the Canadian delegate, Leicester Pearson, says, notice this very quickly what's going on. He says the term fascism was now being blurred by the abuse of applying it to any personal idea, which was not communist. I think a fact that you can well understand given the fact that you see the way that Putin uses the word fascist about Ukrainians right now, you know, very quickly. You say to people, OK, the only exemption we want from free speeches for these guys, really bad guys over here. And very quickly, the lines between those guys and all the other people just happen not to like become very, very blurred. However, the US wins. It's interesting to note, by the way, no one votes against it, but there are eight abstentions among them, the USSR, Saudi Arabia, South Africa. Now, these are guys who don't play well together, right? Like you're not going to sit them down at the dinner party, but what links all those countries, the possession of absolute certainty about the truth. What need does, you know, is Saudi Arabia or South Africa need to go into the challenge of ideas, but they're like, no, we know what the truth is, you know, it's racial supremacy. It's Islam. They're already a kind of a holdout and things then change in 1966. That's when you get the international covenant on civil and political rights. And there, it basically drafted, so drafted in 1954, adopted in '66 ratified in '76. That's some torturous process. When did you do years? I've had some, I've had some difficult articles to get out the door. So at the beginning, you get, you know, the very early part of that process, you get in on the Roosevelt, making the case really hard. Because again, you see the Soviets push for, they want hatred to be banned irrespective of violence. The crucial thing here is it comes back to the example that either comes from you about Peter Files or comes from John Stuart Millenari, it's a great deal. We'll let the listeners decide. Yes, indeed. Which is about context. It's not just the content of the statement. It's the context in which the statement is made. If it's completely peaceful times, you know, if you're Katie Hopkins, you know, writing on the newspaper, everything's peaceful going gumbo the migrant ships. It should be allowed because there's no realistic likelihood that that's about to take place. If you're in Rwanda during the genocide and there's a radio station as there was, which is coordinating and encouraging acts of genocide, then you need to close that radio station down because the context means that it's very likely to be acted upon immediately. historian of the first amendment called Antony Lewis. I'm quite believe in the first amendment, but he mentions the radiopropic and that led to the massacre in Rwanda and by Jihaddi recruitment. He went in an age when words have inspired acts of mass murder and terrorism. It is not as easy for me as it once was to believe that the only remedy for evil councils in Brandeis' phrase should be good ones. And that, the Rwanda example I think is a very potent one if it's even getting somebody like that to sort of rethink. I've actually never heard a liberal say that they wouldn't back the closing down of that radio station. Because then you're within John Schoen Mill or Harriet Taylor's harm principle. Someone is about to get harmed. You know you are authorized in closing down people's freedoms. And in the yeah. I mean that is that's what the harm principle is. It doesn't mean like we never that harm never happens. Of course the whole point is you know that harm does happen and when it does you act. It's just about about putting very high tests on that. Now Ruzfah's response to the Soviet example is we want hatred but we don't care about the finances. This is extremely dangerous quote. Any criticism of public or religious authorities might all too easily be described as incitement to hatred and consequentially prohibited. It is equally difficult to differentiate between the various shades of feeling ranging from hatred to ill feeling and mere dislike. Something which I by the way I didn't think is talked about enough in that it might not be to a group but I feel like I hate certain things in politics. I mean I don't hate Rishisunak or Boris Johnson. I do hate Donald Trump. I mean I'm not going to pretend otherwise. That was hatred. I felt hatred towards it. I still do. And that seems like it's just a blurred weird line when you cross over. Well are we getting you know you could say this is a seditious libel. Yes. You can't criticize the church. So the main article here in this covenant is article 19. Article 20 prohibits propaganda for war and any advocacy of national racial or religious hatred that constitutes incitement or discrimination or stillness to your violence. Now my god that can be to a First Amendment supporter. I mean that just seems absurdly absurdly broad and that can shut down all kinds of kinds of criticism. And I feel like actually it's very educational to look at the covenant and to look at the First Amendment jurisprudence and to sort of work out where you stand because I think a lot of people will actually find that the Supreme Court has gone it's just so expansive and really won't restrict stuff which would seem you know for example cross burning or a Ku Klux Klan speech which would seem to be designed to inspire violence. And you know the other hand you've got this of which which like you said is the result of a lot of negotiation between different nations. Some of them were not particularly liberal. It's just so just seems to be your sense almost anything. And very quickly they do. They do. They have that power. Yes, who would have thought right. So I mean the Norwegian diplomats has at the time it's so easy to misconstrue that those whom the provision was supposedly designed to protect may very well find themselves its victims. In the late 70s in Czechoslovakia, Charter ATA and iconic dissident group is targeted by the Soviet authorities for incitement the same in Hungary, New Yugoslavia, in 1981 several Muslims including an Imam were sentenced to four years imprisonment for provoking national and religious hatred for criticizing authorities and urging parents to raise their children as Muslims. The same with liberal corporations. And then the moment they started the rusty affair. This is exactly the argument that's used the organization for Islamic cooperation on the international level tells the UN General Assembly. Some people have invoked the right to freedom of thought and expression with respect to the publication of the satanic verses but without taking into account the feelings of millions of Muslims. Freedom of opinion and expression was not an absolute freedom existing in a vacuum. Article 20 of the ICCR stated and then off they go. And so really it just punched this whole into international sort of conventions on free speech through which all the enemies of free speech could happily, merrily walk their way through. So we're gonna talk about some of the broader principles. I want to get there via another couple of ideas about the First Amendment which now protects privacy, libel, parody, pornography, comments on ongoing criminal cases, campaign spending as well as hate speech. I mean stuff that I always find the idea of originalists just crazy. You know the idea that well this is what the frame is intended. And it's like, they're really intended. You know not to have dictators, not to have like the Koch brothers spend as much as they wanted on campaigners. Anyway, protects almost everything. But Suzanne Nossal from Penn, America, protects free speech for writers, points out the First Amendment doesn't help with actually addressing hate speech, harassment by online mobs, disinformation, all the responsibility of private organizations. That there's all these things that we worry about. It just doesn't, it can't cover. It ensures a negative right to be free from government interference. But not an affirmative right to speak. And Penn's commitment in her eyes is to open discourse and it's a bigger aim. He goes beyond the First Amendment and Samuel P. Nelson takes his further in a book called Beyond the First Amendment, the politics of free speech and pluralism. And he argues that since the threat of state interference has largely receded in America, not entirely as we can see. There's various attempts to ban books and so on. Free speech has to be more pluralistic and go beyond just the absence of punishment. He thinks that the discussion in America is so dominated by the courts and the First Amendment. And actually internationally, it's crazy how often people just go, you know, Twitter should be governed by the First Amendment or as if it's not privately owned, international company. When it should be about political principles and that actually we've forgotten the principles and it's not really about what nine justices tell you free speeches. So we should talk about that principle and start with the idea of legitimate restrictions, arguably legitimate restrictions, talking about hate speech. So the most famous argument for limiting free speech, so famous that you can see it in cartoon form on the internet is the so-called paradox of tolerance in the open society and its enemies by Karl Popper. We should point out at this stage that the phrase you can see it in cartoon form on the internet is probably as damning as Dorian gets about any single argument on that. This is not Karl Popper's fault. I don't think he hoped for that. He wrote this in 1945 and we saw him at Plato actually and Plato's ideas of democracy but you can imagine the context then. Anyway, if we extend unlimited tolerance even to those who are intolerant, if we are not prepared to defend a tolerance society against the onslaught of the intolerant, then the tolerant will be destroyed and tolerance with them. And he says, of course, if you can defeat these notions in the marketplace of ideas, great, go for it. But it's not always possible. We should claim the right to suppress them if necessary even by force. We should therefore claim in the name of tolerance the right not to tolerate the intolerant. That kind of speech he says is like incitement's murder outside the law. And when I wonder whether we're talking here, vaccine disinformation, election denial, incitement to the mob on January the 6th, obviously not on first amendment terms, but on terms of principle. Yeah, no, that's in these are great questions. And surely in answering them, you return to that thing that we just talked about. It's not the content. It's the context. Now, I remember doing the news night on what the hell was like Toby Young, you know, spreading all of his absolute nonsense during the pandemic. And the question on it was, should he be allowed to do it? Obviously, should be allowed to do it. It's not nobody's listening to this guy. You know, it's not making any difference. But on these principles, I think if people were listening, if you were suddenly seeing like 50, 60% of the population not getting a vaccine and therefore, you know, hundreds of thousands of people dying, dying is ultimately the end of all your freedoms. You know, there's no more worse harm than that. Then on that basis, you could legitimately on these criteria step in. I think the same is true with Trump by the way, on that January 6th thing. There was no argument taking him off to it beforehand. I think, but you know, people couldn't challenge on that. But the point that January 6th happens, you're like, the stated aim here is to destroy democracy. Right. It's sorry. It's not I'm not a state of it. It's not a state of it because he wouldn't admit to it. But that's what the clear aim was that he was pursuing. So if that's the case, we can only protect freedom by closing down this rather minimal form of freedom, which is his fucking Twitter account. Well, this that device supposed, you know, if that Rwandan DJ had been saying horrendous genocidal things about cities, but there just wasn't any ethnic tension. And people just thought, this is just ridiculous. Like, it might well have been protected. So it was the context. But I think that some Supreme Court justice is before this big expansion, the big expansion I'm talking about really happens in the 60s and 70s. There's a case here where Justice Robert H. Jackson, who would have been probably an outlier much later, but I think he made a really good point in the case of Terminillo versus Chicago. 48. Terminillo was a racist, profascist priest. But the court found that he was allowed to speak. And Jackson wrote in his descent, "The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is a danger that if the court does not temper its doctrineal logic with a little practical wisdom, it will convert the constitutional bill of rights into suicide pact, which is an amazing line and maybe speaks to a sense of, we're going to get into this more, but a sense of complacency. The possibility of complacency is just low. It's not dangerous now. And I know what you're saying about the context, but there's obviously a lot of people just going, well, at what point? But then the thing is, isn't that where we just we opt out of our response responsibility to deep political thought. You know, because no one's ever gonna be able to tell you. You know, no one's ever gonna be able to say anything. Exactly this point. Now you get to intervene. You know, that's what context is. It's an assessment of the scenario. You know, and that's obviously, that's what you would do in any kind of criminal trial in the same way if someone shouted, I'm gonna get you, you know, and then, the fabulous leader guy was stabbed or it was after lots of drinks and someone had cheated on their wife or something, then that would be different to someone just saying it, you know, in a friendly way, as a joke, like context is everything and it presupposes that you cannot come up with an a priori objective test that exists independently of it. Right. You've got as the values, harm, harm principle, but then you have to engage in the context. Well, one sort of argument for restricting free speech, which is maybe overtaken poppers, 'cause popper is really basically in last resort, you know, they really have to be people, you know, the one to establish a dictatorship essentially. And we should be very clear on that, by the way. He's misused on line rather than-- Oh, yeah, just like if you don't like this person, it's fine. It's like, no, like literally he is talking about, you know, would be totalitarians. But Herbert Marcus, the intellectual godfather of the new left in the 1960s, talked about repressive tolerance, thought that content neutral viewpoint, neutral protections weren't neutral at all. And he thought the marketplace of ideas didn't work and Adam Curtis' voice was all a liberal fantasy. So all points of view can be heard. The communist and the fascist, the left and the right, the white and the negro, the crusaders for armament and for disarmament. Moreover, an endlessly dragging debates over the media, the stupid opinion is treated with the same respect as the intelligent one, the misinformed may talk as long as the informed and propaganda rides along with education. Truth with falsehood. And he says, look, this is a state of emergency. Therefore, liberating tolerance would mean intolerance against movements from the right and toleration of movements from the left. I mean, he came out and said it. If democratic tolerance had been withdrawn when the future leaders started their campaign, mankind would have had a chance of avoiding outfits and a world war. The whole post-fascist period is one of clear and present danger. Now, there's a lot that I disagree with there. But do you think this is, whether or not people are, particularly conscious of Marcus, the idea that underpins a lot of impatience with free speech on the left? Like we cannot fuck around with the nicest he's of debate, because the fascist's are coming. But the fascist, it's not, perhaps, what we define fascism in that episode, you know, it's all kinds of people you don't like. Inevitably, that's true. And I think that's part and parcel of a left-wing view at the moment in which liberalism and general talk about liberty is associated very strongly with neoliberalism. Yeah. And a very right wing sort of stayed, buttoned up kind of business-soot view, which has never had, you know, sort of any sense of loyalty towards women or marginalized people with minorities. It's all nonsense. I mean, it's intellectually nonsense, but it's historically illiterate as well. But nevertheless, I do think it has a sustained sort of impact. What do you think about what you said? Well, having three problems arise from this, right? So one is mission creep. If it's legitimate to restrict the speech of fascists, then you really should be more careful about who you label a fascist. It does not stop with them. You know, secondly, there's a problem with consistency. If you prohibit Holocaust denial, Germany and many other countries do, but not cartoons of the Prophet Muhammad, you know, are you then discriminating between religions? Thirdly, do these restrictions actually work to hold back the far right? And I want to use an example, which, I'm sort of vaguely aware of it, but the details really surprised me. In the 1920s, the Vimer Republic had hate speech laws under which hundreds of Nazi newspapers were shut down. More than 200 people were prosecuted for anti-Semitic speech. Joseph Gerbels and Julius Stryker, the publisher of Dosturma, were prosecuted. Stryker was even jailed. And Hitler was banned from speaking in several German states a couple of years. Now, the Nazis embraced their role as free speech martyrs. One Nazi poster said, why is Adolf Hitler not allowed to speak? Because he is ruthless in uncovering the rulers of the German economy, the international bank Jews and their lackeys, the Democrats, Marxists, Jesuits, and Freemasons, because he wants to free the workers from the domination of big money. And there's a cartoon of Hitler with tape over his mouth. Still used to this day to illustrate articles on free speech. "He alone of 2 billion people on earth may not speak in Germany." And of course, none of these restrictions held back the Nazis. And when they got into power, they built their own censorship regime on the foundations of the Vimer laws. And in tyranny of silence, the Danish journalist Fleming Rose, who is a fairly hardline on free speech, writes, this type of legislation proved ineffectual on the one occasion when there was a real argument for it. I did find that very sobering, because there was only more occasions than that that there's an argument for it. But yeah, sure. Yeah. The assumption is, OK, sure, maybe it's a liberal, maybe it's restrictive, maybe it's inconsistent. But God damn it, it'll work. And that's not a reason not to-- like you said, to censor that Rwandan radio station. But it's pretty sobering that it didn't work. Well, I suppose what's hard about it is you could justify using it in that context, because there would have been plenty of points that trigger the harm criteria. Because as we talked about in the fascism episode, violence was core to the proposition. They wanted violence. They wanted it to set peace violence against socialness and against-- So on that basis, there would have been plenty of opportunities to do it. But the basis for doing it would not necessarily have been the takeover of the country or the prevention of spread of ideas. It would have been, we have to do that right now to protect this guy here. That's what it's about. It's quite pedestrian in a way. It's like, this guy here, right now, we've got to step in to help him. It's not about the protection of the group against the sort of sense of libel or against sort of heightened emotions or hatred. Right. And a thing like that. But this is where I think I suppose we have another form of mission creep, where is speech a form of violence, right? We accept that speech can lead to violence in Rwanda or Myanmar or Germany. But many people would argue that it is a speech of-- it is a form of violence that can have physical effects. It can cause-- and I think this is not hard to imagine. This is not contentious, right? I think sleeplessness, depression, anxiety, PTSD, weight loss, drug abuse, heart attack, suicidal ideation. You know, these are all the things. If you are mobbed, say online, if you are harassed, there are psychosomatic effects. And that I think that's another sort of argument. But again, as soon as you start extending that, that every form of intolerance speech is a form of violence, makes people unsafe. Then again, you're expanding out from kind of poppers in a hardcore kind of fascist totalitarians to any bigot. Well, let's be careful about delineating, right? I mean, inevitably, everything you just said is true. And of course, there's parts of it in on liberty, very early on, where they say, we know that nothing-- there's nothing that doesn't affect someone. I mean, like, everything affects everyone. So to that extent, they can be harmed. And we wouldn't have any rights to step in. [MUSIC PLAYING] Let's make the distinction, the very clear distinction between the individual and the group. Now let's say someone does hate speech against-- black people against Chinese people. Now, you can say that it has that impact on someone who reads it. That's one thing. Another is if there's a troll action, a concerted troll action, against an individual themselves. So for instance, if we think about to game a gate, where female video games journalists were pursued remorselously for days, weeks, months, on end, with the kind of commentary, the kind of violent misogynistic hatred, that would just mean that any normal emotional person simply would never be able to use their social media. They are essentially been silenced by these people. Now, the important distinction between these two, I think, is that the cool words violence in the group category is really just a smearing. It maintains the harm principle. It's still John Stuart Mill's stuff. He just reduced-- he made harm so vague and pastel-colored almost that almost anything would hit that criteria. But to do it for the individual, I think-- you don't need to use the word violence, just need to say, under the criteria of the quote you used from Penn earlier, is this person's speech being taken away? Are they being prevented from participating in society and in debate and a free flow of ideas? And in that case, very much yes. But it's on the basis of that, not violence. And it's on the basis of their individual nature, not their group identity. So I want to talk about informal censorship, and I suppose silencing the chilling effect. So on one phrase, you see a lot, this freedom of speech doesn't mean freedom of consequences, which is true. It all depends on the consequences that-- if you look at the case of Sam and Ristio, or Charlie Hebdo, those were indefensible consequences, right? It's sort of a meaningless phrase. And talking of meaningless, I'm sure you will have seen the XKCD Stickman cartoon about free speech, which is popular with the sort of people that think the phrase "freeze" is "heach" is funny. Let me read out what it says, and just sum up. Because it's very, very, very popular online. Yes, huge. It's read by more people than even the Colpop cartoon. If it was almost like a consensus in progress-- Right. --in the kind of people that I socialize with. Public service announcement. Annoying already. The right to free speech means the government can't arrest you for what you say. No, that's the first amendment. It doesn't mean that anyone else has to listen to your bullshit or host you while you share it. The first amendment doesn't shield you from criticism or consequence. is true. If you're yelled at boy-cotted, have your show cancelled or get banned from an internet community, your free speech rights aren't being violated. Not true. It's just that the people listening think you're an asshole and they're showing you the door. So this sort of allows for what seems to me very extensive censorship, as long as it's not done by the government, on the basis that the people doing the censoring are nice and the people being censored are assholes. I knew even said it with the proper American government. Because it is very, it's very, it's very, it thinks that the first amendment is sort of all that matters in this. You know, there are many, many things that sort of bother me about this idea that, you know, if somebody tries to get a book cancelled, dropped, someone lose their job, the same instinct, if they could, they would make sure that nobody could publish that. They're not just going, "I should go to find another publisher." We'll get another job. That's dishonest. Clearly, the idea is like to shut people up and I do worry, there's two things that really worry me on a pragmatic, maybe more pragmatic level than a principle level. I think these restrictions, one risk making the targets look more noble. I said even like, finger that cartoon of Hitler, it'll pour me. And I think it makes the more prone to sort of radicalising. They feel under attacks, they double down and they often become more extreme than if they've been allowed to speak in the first place. What do you think about this? It seems so vague and chilling effect could, it could not be vague. Like we all self-censor, right, to some extent. How do we sort of talk about this stuff? How do we recognise when something is, can be a form of silencing, even though it's very hard to put your finger on, on how? We would, I suppose we would start by coming up with proper sort of hierarchy, to release some differentiation of the social effect, right? Like anything as a professional effect on you, it's quite profound. I mean, it may not be as profound as the policeman knocking on your door, but by the time they, if they were to say to us, okay, fine, well, we've got to rid of your book contracts, you're not allowed to go and podcast any of all. You can't appear in newspapers. What you've just said to me is, I need to have a new career in my 40s now. I mean, that's a very profound impact if that was happened to be. And it's absurd to pretend that that wouldn't have, it's a very profound effect on the manner in which we might use their free speech. Another would be, and this is more nebulous, but it has to be talked about, a sort of social ostracisation, right? Like if you say the kind of thing that makes you profoundly unpopular, especially with your friends, and this is the kind of stuff that, you know, John Stuart Mill and Harret Taylor would talk about the most, of, you know, what does that do to the mind? You know, what does it do when you start being frozen out by people that you consider to be of a high status, or that you are very, very person, sort of have a strong personal effect in four? That's also very profound, much more profound than someone calling you a twat on Twitter, which most people can survive. The lot of these distinctions, I mean, they have been made, they have been discussed. There's a very clear sense example. The idea of counter speech, that you respond to speech with other speech. Which means that, you know, somebody comes along, you know, Miley and Oplett were doing a speech on campus. Now, you are allowed to boycott it. You are allowed to protest outside it. You are allowed to do a silent walk out. But if you are shouting it down, so you literally cannot speak, that is known as the Heckler's veto. You know, so this stuff has been discussed that there is a whole valid range of opposition that just stopped short of shutting people down. Now, I want to come back to this idea of like hypocrisy and you'll know the line, misattributed to Voltaire, you know, I disapprove of what you say, but I will defend to the death you are right to say it. Even as you repeat it there, I just think I might go to sleep. I think I say one more time. Nobody thinks that really. Like, you know, f***ing out. I mean, all world says, even though you declare themselves to be in favor of freedom of opinion, generally drop their claim when is their own adversaries who are being prosecuted, like nobody is really going to defend to the death the right of somebody to say shit they hate, except maybe the ACLU. So let's be real here. And, and, and my God, the, the, the examples say for the Republican Party, if we're talking about how the writers embrace free speech, we discussed in a, I think maybe the cultural war episode, right, famous 1991 speech by George H. W. Bush about political correctness. Ironically, on the 200th anniversary of our Bill of Rights, we find free speech under assault throughout the United States. Two years earlier, he had called for a law against flag burning, saying support for the First Amendment, need not extend to desecration of the American flag, was actually furious when the Supreme Court ruled that it actually did. Right now, we've got Florida's stop woke act. Yikes. Opposed by the ACLU, the campus free speech organization fire, because it prohibits teaching that it contains allegedly racist ideas like critical race theory and affirmative action. Florida's defense is the First Amendment does not compel Florida to pay educators to advocate ideas in its name that it finds repugnant, similar justification for book bans. Like there is always a fucking excuse. And, maybe this is one thing that annoys me is that of course the, the right will, with some justification point to, to efforts to censorship from the left, but they don't talk about Ron Santis. They don't talk about book bans. And this shit is happening all the time on both sides. And I, the left, the left sort of needs to kind of like claim, I think, reclaim free speech to some extent. You see it in the same pages of the same edition of the Daily Mail, the latest OWC woke students hate free speech. And then demanding that a BBC presenter is thrown out because they did criticize a British flag that was in the background of an interview with a politician. Yeah, yeah. You know, there's almost zero sense of self-awareness in the manner in which people would discuss things here. And that by the way, you know, you'd see that in the US, you'd see it in France. I mean, in France, not so long ago, there was actually a conviction of several dozen pro-Palestinian activists for discrimination, for wearing t-shirts like Long Live Palestine, Boycott Israel, and buying Israeli products means legitimizing crimes in Gaza. Like the fact that the left, speaking very broad, cannot see the threat that comes when you start chiseling away at the standards of free speech. I just find absolutely extraordinary. And the fact that I think, probably honestly, the views that we've expressed over the last hour are currently really quite unpopular. I think honestly, 30 years ago, there were a bit considered boring, truest sort of, you know, at the moment, they're profoundly unpopular. And that in itself, I think, is an issue. Well, what I was looking for was sort of a way forward through all this research, because obviously, I was very tired of, say, people on the left making more and more exceptions to just bancer. Just as if not more tired of people on the right just going free speech versus amendment. As if there is not like a long history, you know, centuries of people talking about how do we, how do we solve this? Now, you know, there are these wonderful sort of famous quotes by, by, all well, by learned hand, about half-free speech, you know, lives in the hearts of men. And if it dies there, then no law can protect it. Now, I do think you can reasonably demand that people should commit to freedom of speech, right? But I think that's too easy. I read a lot of columns going like, you know, come on the left, believe in freedom of speech. But I do think the legitimacy, like has to be earned. If you, if you see it is a fact, a lot of people think free speech is in conflict with social justice. The defenders of free speech have to work harder to sort of prove that it's not, and to move beyond the first moment to recognize sort of power imbalances, some great books by Stanley Fish and Sam Mosquit, so put in the notes. You know, I agree that it's easier to talk about the right to say racist or homophobic things than it is to address racism or homophobia. And I think that's why people end up resenting free speech rights, because they think, oh, this is just a cover, but not fucking doing anything. And in Susanne Nostle's book, she talks about the importance of courage on the part of institutions, and so many times we see kind of failures of courage there. So you don't cave intercourse with censorship, but you consider where they're coming from. There's an example of the white supremacist Richard Spencer wanted to rent a hall at the University of Florida. And the president denounced Richard Spencer, said, hey, you know, don't agree with him at all. Encourage students to ignore the event completely instead of protesting it, which worked, it was a half full, but no publicity. And then the president also made an effort to promote race relations at the university, and consider why people were right. And therefore the controversy was diffused. He wasn't just going, the Nazis coming in. And I think if people have faith in a university or a publisher or any other employer on an issue like racism, hopefully there will be less demand for speech restrictions, you know, because you've given, you've shown that free speech is not just this sort of glib thing where you just go, well, nothing we can do about it. You go, look, this is an important right. However, we understand all of these sort of larger issues. And actually, if you look at so many of the things that come up as free speech controversies, the free speech issue crowds out like, is there systemic racism on this campus? Was this university administrator doing a bad job? You know, is this book any, you know, should this publisher have sort of signed this book like, is this just sort of trolling, etc, etc. And that doesn't mean that it overrides bad motives overrides free speech. But you've got to kind of consider them rather than like turning everything into, everyone into a martyr. In other words, seek the half truth in your opponent's position. Is that the kind of thing you're suggesting? I would, I would, again, the mill of the mill of my day. Just, just, bit of sophistication to say like Joe Rogan right when people incised him for having some narrative access on right now it was people were not censoring him you know it's totally legitimate to boycott Spotify or ask why they're hosting a show asking why he books so many people like that pushing him to be a tougher interviewer when he does book them you know all of these things are bigger than free speech and that's actually weirdly that phrase just shout it out seems like a way of shutting down debate but every time I'm looking at bad arguments on one side I see bad and what arguments on the other do you know what I mean I do what gets me know is is that sense of certainty that we see sort of everywhere right now just frenzied moral certainty I think that's why so much political debate out there just feels sort of hopeless and tired and jagged and redundant because it's just these sort of battling primary colors just smashing into one another over and over it feels to me like the story the story of free speech is the story of doubt it's the story of people who start from the position of we can't be certain can't be certain how to worship God can't be certain of an intellectual proposition can't be certain that I myself am even right about the hydrogynergy that I hold and by virtue of having that sense of doubt you go to this space of well we have to have everything allowed now you look at what we do in this show which is which we wanted to be sort of an antidote to that sense of certainty in the world that crazed sense of certainty and every time you look at something you just find it's like oh shit that's really complicated but every bit of research you know I do I feel like on the second page like with the satire thing I'm like oh Jesus Christ so I don't even know what the fuck satire is now you know and soon as you do the second you start learning lesson it becomes complex becomes difficult and you lose that certainty and you learn or certainly we've learned during the during this series is that these these complexities these debates have been around for a very long time that is what people have been wrestling with that is why it is never settled that the two quotes that really stuck with me from this episode which I think it's just wonderful life is an experiment and freedom has its risks and this idea that you can reach the perfect policy the perfect equilibrium and you go well this is it now it's going to protect all the good speech but not the bad speech and then we need never discuss it again and decades now people look back and go do you remember that day when when freedom speech was just saddled you know it is fluid and complex and I would probably make some of the if if somebody tries to make their case using a cartoon on Twitter they probably simplified it a bit in order to sort of put a ribbon on it there's a quote by one of those hypocrites and one of those authoritarian bastards in or ultimately became an authoritarian bastard in the English Civil War it's crumbwell but in the end just like Jacopero Noschic said in the Ascent of Man it's crumbwell that ultimately says it best because I besiege you in the boughs of Christ think it possible you may be mistaken well if we were in fact mistaken you can email at origin story at podmasters.co.uk thank you for the feedback you've sent so far because that is the end of this episode and of season two thank you so much for listening and supporting the show if you want to help us put together season three you can share episodes on social media as many people have done give us a nice review on iTunes that really helps us to get new listeners in the Apple ecosystem draw a little cartoon with a Dorian looking out a door with a little stick man going don't be an asshole you can back us on patreon where you can find bonus material priority tickets to live events merchandise and other goodies it makes a huge difference to us when we're in need deep in ian rand or history of fascism back as you stay tuned for bonus episodes and live sooms in the coming months all the books articles and podcasts we consulted during our research are listed in the show notes on our patreon page open to wall and a special thanks to apple jay bayley who ensures that you never hear the bad bits thank you guys thanks for sticking with us and we'll be back in the spring season two of origin story was written and presented by eandunt and dorian lintsky with music and audio production by me jay bayley the great better to is andry harrisson an origin story is a pod masters production