The limits of free speech

(buzzer) - LA Fisher is a study in contradictions. She's a 26-year-old black woman with liberal politics and a law degree from Texas Tech. - She found the school's first chapter of the NAACP. She leads voter registration drive. She brings exciting candidates to campus like Beto or Work. - Her parents in California were skeptical she'd like Texas, but LA? - To everyone's surprise becomes sort of an adopted Texan. She has a wardrobe full of cowgirl, a kutramon, and becomes a staunch supporter of the Second Amendment. If you're going to law school at Texas Tech like LA is, if you want to have a social life, you have to be friends with the conservatives. And it's not particularly difficult for LA because the conservatives, they love her. - Then on the day Charlie Kirk was murdered, a law professor accused LA of an over-exuberant response and what followed was a free speech nightmare. - Ahead on today, explained from Vox. (upbeat music) - Hey, it's Super, this week on Birds Eye View, I'm joined by Jessica Shepard of the Dallas Wings. Jess and I get into how playing overseas, helped her rediscover her love of basketball. Why Pagebeckers is one of the best teammates she's ever had and what the wings need to do to find success in the playoffs. Plus, in Su's view, I share my thoughts on the 2026 WMBA Awards race, including the contest for MVP between this season's frontrunners, Asia Wilson, Kelsey Mitchell, and yes, Rookie, Olivia Miles. Check out this week's Birds Eye View on YouTube and wherever you get your podcasts. - We all know the Beach Boys, but to really understand them, you have to get to know the genius behind their songs, Brian Wilson. I'm Will Anderson and this week on the Money Music Club podcast, we dive into the history behind two of his masterpieces, the Beach Boys album Pet Sounds and their song Good Vibrations. I was joined by Brian's biographer David Leef and we went through what drove Brian, what it was like in a studio during those sessions and why the pressure of following them up made Brian have to take a step back from music. You can listen to the episode everywhere you get your podcasts by searching for Monday Music Club. - Today, today, explain. - Ben Wofford is a freelance writer. He wrote about Ellie Fisher's free speech fight for The New Yorker. - Ellie is a law clinic student. Ellie dreams of being a public defender and the clinic she works for at Texas Tech is called the Criminal Defense Clinic. So Ellie is working in this clinic on the day that Charlie Kirk is assassinated and as she walks to her clinic work desk, she passes the first of three offices that are going to become the center of this controversy. The first is a professor named Joe Stevens and she steps into his door and she tells him that Charlie Kirk has been shot. She asks if he's heard the news and he seems tired and Stevens says, don't do that, you know, sort of not now and gently chide her and she moves along to the next office after about 45 seconds. The next office about two doors down is the office of her supervisor, her mentor and the other important character in this story, Patrick Metz. Metz is a longtime professor at the clinic and Pat is in his office with two other law students who are energetic and celebrating a big milestone that two other women in the room have just come back from their first day in court. And what happens in this room becomes sort of the center of this hurricane that is going to be the subject of six, seven, eight different varying accounts, sort of like Rashomon of what goes on in this room. But what's agreed on is that for about three to five minutes, there's a brief discussion about the news. One of the other law students isn't aware who Kirk is and says, well, who's Charlie Kirk? Metz, who is a liberal, says, well, he's a racist, he's a misogynist and he's a no good, you know, he's just sort of a no good guy. Over hearing the noise, next door is a professor named Terry Morrison, who is the director of the family law program in the clinic and she addresses the room in sort of a chastising tone and says, tells the room, Trump just said that he's died and leaves and goes back to her office. That's the only interaction they have with Terry. And after a minute or two more, perhaps of conversation, Ellie leaves Metz's office and continues down the hall to the third and final stop in this small clinic, which is the conference room. And in the conference room are about five to 10 fellow law students from the criminal clinic who were all gathering and talking about this event. And they sit around the table and they start talking about Charlie Kirk, the conservatives in this conversation would later say, Ellie didn't raise her voice, nobody raised her voice. That was constructive dialogue generally, people voice their opinions. The liberals said variously that they thought Kirk was racist and the conservatives said variously that they were sad and that they mourned him and that this was a terrible thing. Ellie pipes up to say that she thinks that Kirk was a racist. At one point, a student remembers her saying, she thinks he was a Nazi. She's using sort of hyperbolic rhetoric. But the conversation is civil and courteous according to the conservative students. So in the next days, it emerges that there has been a complaint. It's not clear from who. The next week on Monday, Ellie comes to school and is told in an email that she needs to meet with staff at the clinic because there's an incident that they don't describe. They want to discuss an incident that happened last week. And in a private meeting, she learns for the first time that there's been an allegation that's been raised that she is accused of announcing Charlie Kirk's death in, quote, "unoverexuberant manner" and that there is an investigation going on informally to look into these charges, but they're alerting her that someone has brought forward a complaint. Terry Mortison, who remember is the family law professor next door to Metz, approaches Dwight McDonald, who is Metz's number two, and tells him that she heard Ellie coming down the hallway and celebrating Charlie Kirk's death. This is the word that's going to be used over and over again that she witnessed Ellie celebrating or using a celebratory tone, and the second of two key allegations is that while she was celebrating, she announced, while marching down the hallway, they shot the motherfucker. This is sort of the central quote that's, you know, "Marshalled as evidence to show that there was some kind of celebration going on." Okay, so this is an incredibly dramatic chain of events. A chain of events that seems singular, but you write in your piece what happened here is not that singular. In fact, in the state of Texas, in higher education, you're seeing a similar trend when it comes to students and speech. - So in the background of what's going on in Ellie's case, our big sweeping changes to the higher education system in Texas and dozens of other states in the US. And these are efforts to rest public universities away from what are thought to be liberal influences or woke ideology. And these are bills that have been passed in more than 20 states. It's about almost half of states that chip away in some fundamental sense that the fundamental ideas of what a university is and how university protects free speech, whether that's eliminating certain academic departments that are thought to be sort of too left aligned, whether it's banning certain topics from being taught at all in the classroom or even being written about by students or drastically weakening the types of faculty protections that make the university a place at the free exchange of ideas, which is just the fundamental ingredient of First Amendment rights and academic freedoms. And so about half of students in the United States go to one of these schools. And these changes swept through Texas starting in 2022 through a series of legislative initiatives led by the lieutenant governor and governor of Texas Greg Abbott. And he put someone in charge to pass these initiatives to change Texas public universities. And the person he put in charge of this sweeping change was a Texas state senator named Brandon Creighton who was the chair of the Higher Education Committee. And he passes a series of bills, the most important of these is a bill called SB37, which drastically weakens these protections for academic freedom and gives a stakeholder in university politics called the Board of Regents, which are political appointees, unusual powers to regulate if they want to the curriculum of schools and to regulate campus protests and to do all sorts of things that typically political appointees in the university system don't get. And so this was a sweeping change in Texas, but it was actually just a prelude to the most sweeping change perhaps of all, which is that in the aftermath of these big bills that get passed to overhaul higher education, Texas Republicans do something that hasn't really been done before its scale. Previously in other states, in attempts to pass reforms of higher education to make them less left leaning, they would run into the problem of deans and university presidents and university chancellors who would follow the law, but weren't going along It weren't there for the party. I mean, they weren't. drinking the Kool-Aid of a more political agenda to change universities and make them reflect the way that the people who pass these bills, political elected officials would want because they have values of academic freedom. And so what happens in Texas is, I wouldn't call it a purge, but what follows in Texas to solve this problem is a large number of chancellors and presidents at the largest universities in Texas get reappointed and slide it in are the very Republican legislators from the state house that passed these bills. And at Texas Tech, the chancellor is replaced by one of these officials, none other than the chief architect of the policy overhaul himself, Brandon Creighton, is now the chancellor of Texas Tech. Okay, so this is what's happening in the background in Texas when Ellie Fisher and her professor Patrick Metz are accused of inappropriately celebrating Charlie Kirk's death. What happens to professor Metz and to Ellie Fisher? How does this play out? Just like Ellie was called in for questioning, Metz is called to meet with the dean of the law school who angrily accuses him of conducting this celebration and Metz is shocked and stuttering. He's 75 years old and doesn't quite know what he's being accused of. Metz asks what's going to happen. And the dean pulls out a resignation letter that's already been written and dated and stamped and says that the solution to this problem is that we're going to have you resign. And Metz feels like at the end of his career, he doesn't have much choice even though he's tenured. Tenured is supposed to be a protection professor in this moment to be able to express their ideas, even ideas we don't agree with. But to get around tenure, the dean produces a letter of resignation that he's drafted for Metz and tells Metz to sign it and feeling pressured, Metz does so. Meanwhile, the school continues its investigation of Ellie Fisher and about two or three months later, the investigation sort of indicts her, you know, finds the equivalent of probable cause and they bring her before the Honor Council, which is a big deal in law school. This isn't just like a slap on the wrist. An Honor Council charge will follow you for the rest of your legal career and can impunity integrity with judges. And she's now has to defend herself from these charges before the Honor Council. And at this Honor Council hearing, which is quite dramatic, all the characters from this story are brought to testify in the school's account of Ellie celebrating in these three places in the clinic. And almost as soon as the Honor Council begins, the school story starts to fall apart very quickly. The sort of most shocking or surprising thing of this Honor Council is that Terry Mortgason is then asked what she heard or saw Ellie Fisher do and is pressed on her acclaim that Ellie marched through the hallway saying they shot the motherfucker and she takes it back and says, you know, I'm no longer certain that she really said this thing. So the school's case is really on thin ice. And a month later, the Honor Council hands down its ruling in a quits Ellie in Pat Metz's office, but it finds her guilty essentially of being, quote, "loud, happy and celebratory" and therefore caused certain people in the clinic to become uncomfortable and disrupted the workings of the clinic. And so Ellie almost immediately shortly after files of First Amendment retaliation lawsuit, within 24 hours after filing the lawsuit, the law school sends Ellie Fisher's file to the State Bar of Texas, saying something extraordinary, not only telling the State Bar about this investigation, which would be typical and expected, but further recommending that Ellie Fisher be rejected from her admission to the Texas Bar. This is extremely rare. It's so rare that there aren't even any real good statistics about when it ever happens. And Texas Tech takes this extraordinary step of telling the State Bar officials of Texas that even if Ellie Fisher passes the bar exam, which she's studying for, it's a grueling exam, that even if she passes, she should be denied her law license. So it's really an event that is just truly shocking. I mean, you know, shocking is not an overstatement. So Ellie is in a precarious position. She's allowed to graduate, and she begins studying for the bar exam. And while she's studying for the bar exam, as if this isn't stressful enough, the federal district court hearing her case dismisses her First Amendment lawsuit, using a doctrine called Qualified Immunity, which is typically a doctrine that's used to protect government officials from acute civil rights abuses. And so she's lost her First Amendment suit, and she's waiting to see what the State Bar is going to do. If they rule against her and reject her application to study law, it would be potentially a watershed moment in American law. In my reporting, I found great research by Berkeley Law School that looked at cases of State bars rejecting students like this, which are rare, going all the way back to 1909 and found almost no cases ever of any time when a student was rejected from the bar, the ability to be a lawyer strictly and solely because of political opinions expressed that would otherwise be protected under the First Amendment. So Ellie might be one of the first or maybe even the first law student to be rejected from the bar on that basis. And we won't know what they decide until next week. I talked to Ellie last night. She's applying to jobs to be a public defender. She's got numerous job offers. She's ready to be hired. She's waiting for her bar exam results, and she's waiting to hear what the State Bar is going to do and whether they're going to let her start this career serving Indigenous clients in the State of Texas and serving them before courts of law. That was Ben Wofford. He wrote about Ellie Fisher for The New Yorker coming up the worst climate for free speech some say in many years. Support for today's win comes from Framer. Perhaps your business's website needs a glow up. 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It's a big old mess Let me ask you broadly. How would you describe the kind of status of free speech on campus these days? The status of free speech is in great peril both on and off campus And I've been doing this for 25 years and it's about as bad as I've ever seen it Honestly, like what when it comes to the Charlie Kirk backlash cases we saw about 90 of them We were involved in the one in Texas as well, but 90 cases. It's a remarkably high number But off campus we saw even worst cases even just involving Charlie Kirk free speech social media political rage employment decisions all Colliding in the aftermath of Charlie Kirk's murder. Well people from all walks of life Losing their jobs because of these vile posts on social media conservative activists for public and lawmakers and even a doxing website or flagging the comments And what critics say is a campaign to punish those posters We saw an ex cop go to jail for 37 days just for forwarding a Trump meme in response to a request to go to a candlelight vigil for Charlie Kirk Oh, it's not good. We're not in good shape here. No, okay, so let's go beyond college campuses If you look at the last two years, which I'm sure you have So many episodes about this. There was Jimmy Kimmel Jimmy Kimmel's fate at ABC is up in the air after the network indefinitely suspended the late night host Over his comments about the murder of Charlie Kirk. You can call that free speech or not He was fired for lack of talent You know, there's CNN being banned from the White House president said the ban on CNN MS now and Politico is effective immediately and warns that other outlets would soon follow They purposely write negative news and they do that because they want to try and diminish the Republicans and Republican administration their student protesters who are protesting what's going on in Gaza universities are rolling out new rules as they prepare for more protests over the Israel Hamas war this is evolved way further than it has because of the free speech I've talked to a few kids here my friends like I was like, oh, I didn't know you were like, you know, you know supporting Palestine And they're like no, I just saw all the arrests and think this is crazy It really does seem like we're at a moment where so many different types of people claim that their speech is being Restricted in so many different types of ways What is happening in the country My worry is I'm very much a small L liberal I come from an old ACLU background That's where I interned in law school. I went to law school to do first them in the law I hyper specialize in it. This is my passion my whole life But for most of my 25 year career you could rely on a sort of civil libertarian aspect of the left And a libertarian aspect of the right that would often agree on almost nothing except for things like freedom of speech And right now I think we've become all culture world of time and we have more of a progressive left and a more of a populist right the only way that you show you believe in freedom of speech is by saying I hate that guy But I think you should have freedom of speech if you're saying I think my side should have freedom of speech That's just self-interest that doesn't even count I mean like all the worst people in history wanted free speech for their side So I'm afraid we're losing it as a or maybe even I hate to say this Stramatically, but maybe even have lost it as a shared value as a society Huh, oh, that's quite grim. Yeah, and I feel a little grim The trumpet administration you will recall came into office with a promise Yeah, and I remember it sounding something like this Woke one was crazy. No, that's a OC. The woke left went too far. We cancelled people. We restricted speech We got out of control President Trump is going to come back in and we are going to restore Sanity to the country and as part of sanity that will include your right to freely express yourself How do you square? I think I think I know what you might say here. How do you square the promise versus what we've seen? I think Trump is constantly frustrating everyone around him by being Trump And I think there were probably were people in the administration who were like, yeah, we're gonna we're gonna be pro free speech and then you know Trump decides to declare I mean, I think the recent White House press pool cases hysterical like in a lot of ways because He had to get his team to give a sort of constitutional justification for why he was kicking out the press pool But on true social he's like, it's because of their viewpoint, which is by the way like something you can't do under the Constitution Social media outlets shouldn't be able to constantly write a report fiction and lies when they're covering the president of the United States The Trump administration or the United States of America other fake news media outlets to follow So his instincts are very authoritarian. They're very top down So maybe there were people in the administration who in their heart of hearts are good on free speech But Trump isn't and it's the reason why when it came to The new administration there were a lot of people on the right But also people on the sort of like heterodox left who Were kind of like, oh, this is gonna be good for free speech and I was like don't kid yourself guys. This is gonna be Bad although I will say it's even worse than I was expecting. Huh There have been these moments where Americans seem very galvanized by free speech I was surprised by the Jimmy Kimmel stuff like he's a guy from TV I was kind of shocked by how angry Americans on both sides of political aisle got about this sort of like attempt to repress him I think about well President Trump at some point will be out of office and What happens then what what do you think is there an optimistic scenario where we're like okay? We're we're kind of tired of this crap. Let's just go back to the way it was in the 90s Yeah, it has been cyclical to a degree it is that we you know the American society gets out of whack and usually one of the things that does bring us together Is that we were lucky enough to have you know, I'll just say it we have a brilliant constitution It is it is unusually clever about human nature on it and it's something it it like the constitution itself You can have whatever pin you want about the founders, but it is something to be proud of and a lot of times Those values kind of bring us back together. That's my hope But another thing I will definitely say about Trump. He has played havoc with my ability to predict Anything So what actually it's gonna look like over the event horizon of 2028 I hope it will be better and we will fight like hell to make sure it's better here at fire But will it be better? I'm not sure and it definitely won't be better if we think of Free speech as only it belongs to my side not yours One other reasons why I do have hope for free speech in the long term is that free speech works really well It's how you know what your fellow citizens think. It's how you get ideas out there It's how you actually be your authentic self So societies that actually have freedom of speech are always going to have advantages real and serious advantages over ones that don't So I'm hopeful for the long-term future of free speech, but in the short term. I'm worried Greg Lucianoff of Fire the Foundation for Individual Rights and Expression our fire team today Dustin DeSoto-Avashai-Arty-Amenel, Saadi Gabriel-Dunnitov, David Tatashorem, Richard Dunnegan, and me Noelle King. It's today explained [Music]