This is Democracy – Episode 292: Free Speech

2025-02-28_this-is-democracy_free-speech_master
===

[00:00:00] Jeremi Suri: Welcome to our new episode of This Is Democracy.

[00:00:04] This week we are going to discuss a topic that’s near and dear to many of our hearts free speech. Free speech is the lifeblood of inquiry, innovation, and open democratic dialogue Without free speech, we cannot have a democracy Without free speech, we cannot have a free society. And free speech is a topic that’s been in the news quite a lot.

[00:00:25] It’s, uh, historically a significant topic and it’s a topic that’s often misunderstood. We’re going to use this week’s episode to discuss what free speech means, where it is threatened or imperiled today, and what we should do as, uh, individuals who care about democracy and therefore care about free speech.

[00:00:44] We’re joined by a longtime friend and the person who I firmly believe has done the most important work on this topic, uh, of his generation. Uh, this is, uh, Donald Downs, the Alexander Mickeljohn Professor of Political Science Emeritus at UW Madison. Don, it’s such a pleasure to have you on.

[00:01:03] Donald Downs: Uh, it’s a pleasure to be here, Jeremy.

[00:01:05] Jeremi Suri: Don Scholarship has dealt with a wide range of issues and I encourage all of our listeners to, uh, read some of his books that I’m going to list. I’m not gonna list all of his books ’cause he’s written so many. Uh, but his books deal with Freedom of Speech, with Academic Freedom, civic Education, uh, a a number of his books that I particularly like and recommend include Nazis and Skokie.

[00:01:26] Freedom Community and the First Amendment, another book, restoring Free Speech and Liberty on campus. Uh, the title tells you what it’s about. And one other I’ll recommend now Arms in the University, military presence and the civic education of non-military students Don received in 2013, I believe. The National Gene j Kirkpatrick Academic Freedom Award for his defensive academic freedom and his defense of the freedom of thought.

[00:01:54] Uh, Don, congratulations on that award. I know it’s a, a decade ago, but that’s, that’s pretty heady stuff.

[00:02:00] Donald Downs: It was, it was fun to do it. And, uh, yeah, and it was, uh, my first speech in front of that many people. I eventually spoke at a graduation at Madison, which is sort of, can’t count that I guess, but yes. Well, that would, that would be a lot of

[00:02:13] Jeremi Suri: people.

[00:02:13] Uh, my graduation at, at, at a university like UW Madison was what, uh, 10,000 people, right? Or so? Yeah,

[00:02:18] Donald Downs: it was, it was the, uh, uh, winter. So it wasn’t quite as big as usual, but you know, there. Call center was three quarters full, two thirds full.

[00:02:27] Jeremi Suri: Fantastic. Fantastic. Uh, before we get into our conversation about free speech, of course, we have Mr.

[00:02:33] Zachary series, uh, scene setting poem. Uh, what’s the title of your poem today? Zachary? Ode to Blasphemy. Ode to bla. For me, that sounds like a description of our family life. Zachary,

[00:02:49] Zachary Suri: let’s hear it. We have given the world. Its martyrs and its blasphemers, its transgressors and the laws to be transgressed.

[00:02:58] And we have said in the state houses, liberty or death, while we have marched the slaves into the fields, it’s true. We have given the world. Its liars and its prophets, its greatest creations and its greatest bombs. And we have said too often to our brethren be gone when we were supposed to say, stay my sister and break bread with me.

[00:03:20] I. We have been told to love and yet let our blood redden into hatred that rusts like iron and tastes like steel. We have lied. We have scoffed. We have rebelled. What is freedom without malice? What is religion without heresy?

[00:03:37] Jeremi Suri: Hmm. That’s a really an ode to not just blasphemy, right? And an ode to radicalism of one kind or another.

[00:03:44] How Zachary?

[00:03:45] Zachary Suri: Not quite, I think it, it’s a poem about the importance of, um, not radicalism, but disagreement. Descent. Okay. Descent difference. And it’s also a, it’s a poem about, uh, I think. It, it, it takes this quote from, uh, Joseph Roth in one of his essays on the Yiddish Theater actually, um, and turns it into, uh, I think a statement about like what it means to be American.

[00:04:08] Um, he’s talking about what it means to be a Jewish artist. Um, and I think in this context it actually really fits well, um, sort of the American ethos of free speech and creativity and the sort of coexisting threads of American society.

[00:04:22] Jeremi Suri: Sure, sure, sure. That makes a, that makes a lot of sense. And there’s nothing, lemme

[00:04:26] Donald Downs: pipe in with my, my take on it.

[00:04:28] And please, of course, your poetry is always wonderful. You can ever read the same poem twice or it’s not putright. You can, when you read a poem, you when you read the second time, it’s not the same poem. Right? Yeah. Uh, because of the different interpretations and you’re a little bit different the next time you look at it, I look at it as in America, uh, does fit this idea.

[00:04:51] It’s, it’s life east of Eden. Yes. And you know, we are full of different impulses. And the light in the dark were the children of Light and the Children of Darkness, which is a, that’s book that Ronald Negro wrote. Yep. And uh, uh, that says something about the American character. And sometimes we have a hard time finding the right balance between them or the right tension between them.

[00:05:14] We’re either naive about something overly idealistic, other times, or overly uh uh. Realistic, or whatever you wanna call it. It’s hard, hard to find that sweet spot. And that’s, I think it’s relevant to a lot of things. Speech has good elements and it’s bad elements. Yeah. Because a lot of speeches be, it necessarily involves ideas that, uh, is Justice Holmes said in one of the most famous cases.

[00:05:38] It’s not just freedom for, uh, ideas that you, you don’t like. It’s freedom for the thought you hate.

[00:05:43] Jeremi Suri: Yeah.

[00:05:44] Donald Downs: Uh,

[00:05:45] Jeremi Suri: what threatens that today, Don, why, why does it seem that this is such a topic of our time?

[00:05:50] Donald Downs: Well, it’s, you know, there’s two different takes on me. One is policy and, and laws and things people are doing.

[00:05:59] And the other is people’s reaction to speech and the the means we have available right now to do a certain kind of censorship, not necessarily by law or by force, but by simply the kind of social bullying that turns criticism into coercion. And I’ll give you an example. You know, fire has done surveys on universities, which is something I’m sure we’ll talk about at some point, or at least about universities and the number of students that are afraid to speak up.

[00:06:32] I. And to say things because of the reaction that can others will have, especially if it’s done in a prominent way or gone online. And so social censorship, which is something John Stewart Mill was very concerned about at Tova, was very concerned about, is now probably as prevalent as ever because we have the social media and the technological means to, to give it strength and power.

[00:06:57] Sure. So that’s something we need to talk about too. Absolutely. Uh, but of course we also have, you know, issues matter. We have pressures emanating from authority figures that are always gonna be part of free speech. And, uh, free speech is always an uphill battle. It has to be constantly renewed because of people, as people like Jonathan Roush.

[00:07:18] And, uh, uh, Alan Dershowitz read it has said this, that it’s always embattled.

[00:07:24] Hmm,

[00:07:25] Donald Downs: because it’s freedom for the thought you hate or it’s freedom for the thought that you find really upsetting. And uh, so there’s always gonna be pressures to try to silence it or at least inhibit it.

[00:07:39] Jeremi Suri: So fire, which you referred to as the foundation for individual rights and expression, which, uh, as you, as you refer to don monitors and, and, and rates universities based on their right, uh, protection of free speech.

[00:07:51] Zachary is, is Don correct about the social pressures on free speech on university campuses as you’ve experienced it?

[00:07:59] Zachary Suri: I think, I think so. I think it, it maybe doesn’t have the same silencing effect, um, as, uh, it can have, I think in society in general, just because I think there’s so many pockets on college campuses where people of sort of minority political or, um, political opinions can congregate and there’s so many programs designed to assist with that.

[00:08:22] Um, I, I do think though, it gets at a core. Question about education, which is, um, how important is dissent and disagreement to education? I think it’s vital. I think the, the biggest problem with a sort of social pressure on speech is that it actually limits people’s ability to engage with new and different ideas.

[00:08:41] And it prevents people from learning in ways that they could. I did wanna ask though, um. Where, where does this idea of free speech come from in the United States? It’s a principle that a lot of us take for granted, but really isn’t foundational to a lot of other democracies, uh, countries in Europe in particular, uh, where free speech is less of an absolute principle.

[00:09:04] Um, where does this sort of American version come from?

[00:09:07] Donald Downs: Uh, well that’s, that’s an interesting question. And actually the kind of free speech we know about today with the jurisprudence behind it is really a phenomenon of the 20th century. I. Uh, though free speech as a core principle, of course, it’s, it’s, it’s implied, I think in the Declaration of Independence, uh, freedom of conscience, which is an important aspect of freedom of speech.

[00:09:30] Mm-hmm. Or freedom of thought. And to James Madison, that was really the, the core of the First Amendment. Uh, that goes all the way back to our, you know, the Puritans coming here. The pilgrims and the covenants because they wanted freedom of religious conscience. And of course in our early times, sometimes that meant less freedom for people that had other religions.

[00:09:52] But it’s been a struggle to make it more universal. I. So it does, I, I would say it starts with the quest for religious freedom, and then it becomes more secularized as America becomes more secular secularized. It’s, to me, it’s implied in the Declaration of Independence, certain alienable rights. And of course then it’s enshrined in the First Amendment, which was not the original constitution, it was the appendix of the original Constitution.

[00:10:15] Mm-hmm. Uh, that, that, uh, Madison was the, the author of. And then over time, you know, we often honored it in the breach. And there’s a fa famous line by, uh, uh, mark Twain, that Americans enjoy the precious rights of freedom of speech and freedom of religion, and freedom of conscience in the good sense, never to practice them.

[00:10:36] Uh, and, uh, and, you know, censorship, you go back to the original, uh, uh, first Amendment when it was first put to a real test was during the, uh, sedition acts. Uh, that were passed into, was it 1798? I think Jerry,

[00:10:52] Jeremi Suri: correct. The Adams administration, yes.

[00:10:54] Donald Downs: Yeah. And under Adams. And at that time you, there was very virulent, you know, this beginning of political parties.

[00:11:02] It was the beginning of factions in America at the political level, and the Federalists and the Democratic Republicans ended up kind of hating each other. Sounds rather familiar, doesn’t it? And uh, so Adams. And then the Federalist passed the Sedition Act, along with the Alien Acts, or I think there were three alien acts in one Sedition Act.

[00:11:23] And the Sedition Act basically made it a crime to overly criticize the government. Sort of like what’s what’s happening in England right now or in in Germany where even insulting someone in public can land you in prison, which is really quite remarkable. Uh, and the Supreme Court never dealt with the Alienist Edition Act, but lower courts did.

[00:11:45] And those are all, they had judges that were federalists, they all upheld it. And people went to prison for, right. You know, publishing cartoons about atoms that were highly unflattering and uh uh, so for a long time, sedition type laws were tolerated. I. And the idea of free speech as a particularly a particular liberal notion of individual, right?

[00:12:14] That would allow you to say highly controversial, critical things, especially of the state. I. It didn’t really develop until during World War I. Mm-hmm. And that’s when the first major Supreme Court cases on, on the First Amendment came about. And over time, that evolved into what I call in my work, the liberal, the modern liberal doctrine of speech.

[00:12:38] And at the core of that is a, is are two things. New York Times versus Sullivan case, the one involving, uh, New York Times being found that you, in the famous case where they were sued for a cartoon about some, uh, general and others in the south who were trying to prevent the, uh, civil rights movement, I.

[00:13:01] And, uh, the New York Times said that these people were public officials. The key general in the case was a public official. And that therefore, in order to sue him, you had to meet a really high burden of proof, uh, which is actual malice. So either lied and you knew you were lying or you’re recklessly disregarded the truth.

[00:13:22] Right. No other country in the world has a standard like that for libel suits, and in that opinion, justice Brennan, who wrote it, who was sort of the modern godfather of the doctrine of speech, I. Said that criticism of the government is not just tolerated under the First Amendment, it’s the central meaning of the First Amendment.

[00:13:44] And he drew that statement from Alexander Mickeljohn, who I named my chair after, uh, in his book, uh, political Freedom or Free Speech in his relationship to Self-Government, what Mickeljohn says. So Nick has nickel John’s theories about self-government democracy, which you guys are talking about nickel.

[00:14:01] John says to be afraid of an idea. Any idea is to be unfit for self-government. And you know, Zachary mentioned earlier how crucial disagreement and engaging in dialogue sifting and winnowing is essential to an education. It’s also essential to liberal democracy. And to a constitutional republic, and so we now have this whole idea of this special sphere where free speech should exist.

[00:14:31] Independent is a right that can only be contained under very extreme circumstances and special circumstances, but that was not the way it was looked at for a long time. Really until guess the 20th century started going on.

[00:14:44] Jeremi Suri: Right. And I think you’re absolutely right Don, that it is during the Civil Rights Movement and the Vietnam War, both of which are co-terminus during the 1960s.

[00:14:52] Absolutely. That you see in some ways the full flowering of what you’ve described so beautifully, which is this That’s right. This world of Michel Jonh and Mickel John’s idea of a, of a, a real free flow of ideas, including, uh, hypercritical ideas. That’s right. Uh, expressed.

[00:15:06] Donald Downs: Yeah. You can even be, you can even say falsehoods.

[00:15:09] About the government and, and public officials. Next cases went and expanded the concept, uh, as long as you didn’t do so intentionally or recklessly.

[00:15:22] What is reckless, John? Uh uh Uh, Don? Yeah. What is reckless? It’s drawn from the model penal code in criminal law that, you know, in order to be guilty of a crime, except for there are some crimes where you can be guilty just for doing the act. It’s called strict liability. But those tend to be very low level kinds of crimes, uh, or now even misdemeanors.

[00:15:43] Uh, to be guilty of a felony, you have to have the right mental state. And that means you either had to, uh, do it intentionally or purposely or do it knowingly. There’s a difference between purposely and knowingly. I’m not gonna get into it. It’s really interesting, but I think it, we, I don’t think we need to do that right here.

[00:16:02] Uh, and when it comes to, comes to homicide knowingly and, and purposely or pretty much the same thing, the other is recklessly to commit a crime recklessly. And that means that you consciously knew it was highly risky to do so. So it’s a conscious creation of significant risk that led to, uh, the harm that the criminal law, criminal law, uh, recognizes.

[00:16:28] So it applied to the First Amendment and the, uh, Sullivan case. It would mean that either you, if you knew the, what you’re saying, is a lie, but a public official in a way which constitutes liable. Uh, of course then you can be sued. Or if you completely, or people around you were saying, no, no, you better check it out.

[00:16:48] You made no effort to check it out and you could have, then you were reckless Notice it’s not the same thing as negligence.

[00:16:56] Mm-hmm.

[00:16:56] Donald Downs: Negligence means that you just didn’t take due care. The standard for recklessness requires a higher level of mental culpability. It’s very protective.

[00:17:06] Jeremi Suri: So what if you are intentionally telling lies, using them as propaganda for your party or your candidate attacking someone else, and you have been told they’re false.

[00:17:18] And not only have you not checked, you have continued to send out that false information. How does that,

[00:17:24] Donald Downs: that could be potentially. Uh, culpable, but subject you to a lawsuit. Now there’s another Supreme Court case, and I forget the name of it. I used to teach it, uh, but not at great length. Uh, usually in, in a campaign finance situation that someone brought a legal, uh, a prosecutor in Ohio.

[00:17:44] I think it was a case. Against a politician who lied while running. He just lied while running for office. He didn’t carry out his promise. And uh, now that wasn’t the same thing as libeling somebody, but it was lying to get elected. Well, of course that happens all the time and the court re says no. Every politician’s gonna end up being in prison.

[00:18:10] Yeah. Uh, you know, lying and pol, you know, hunter Orant truth in politics are mortal enemies. Uh, so, uh, and you know, remember a few years ago, uh, there was a Supreme Court case where a guy was, um, charged with lying about his military background. I. And, uh, it’s called, it was a stolen honor case. That’s what they call the law, the Stolen Honor Law, and Supreme Court.

[00:18:36] It was eight to one. I think. I’m, I’m really surprised that, I think it was Alito that wrote Descended, just said, well, you can’t. Put someone in prison or whatever, charge ’em with criminality, uh, for lying. Uh, and doesn’t you think about someone trying to pick somebody up at a bar by bragging about what they did in the military?

[00:18:57] Well, you know, ends up, you weren’t even in the military, you’re gonna send that person to prison. Mm-hmm. So the court got it. Right. And in the another liable case in 1974, the Supreme Court said, under the First Amendment, there’s no such thing as a false idea. Isn’t that interesting?

[00:19:15] Yeah.

[00:19:15] Donald Downs: And by that you get, take that in a very qualified way that, uh, because people lie all the time, ideas are often false or even some, you know, Newton has been proved to be partly false.

[00:19:28] Right. You know, by, by by Einstein and Sure. And modern physics. Uh, so laws are protected speech, or excuse me, lies are protected speech. The idea is to counter them, sift in window with them. That’s how you react to speech that matters, uh, unless you lie for some sort of specific person, like, excuse me, some specific reason, uh, like getting a job or lying on, uh, uh, trying to get a government grant.

[00:19:58] Then of course the lies tied very closely to a specific, uh, benefit you’re trying to get fraudulently, it’s tied to fraud, criminal fraud, uh, but otherwise, you know, you have a constitutional right to lie. And I could go on forever about it. No, no, this

[00:20:14] Jeremi Suri: is, this is really helpful. This is really helpful, Zachary.

[00:20:17] Zachary Suri: Um, how do you think it changes our politics that we have such a, uh, an expansive, uh, understanding of what constitutes legal speech?

[00:20:26] Donald Downs: Well, it makes it a lot messier. It makes it more chaotic and you know, lot, I’m thinking that even in the New York Times case I mentioned earlier and other key cases that went along with it over a handful of years, that crafted the modern doctrine of speech, which by the way is quite different from Europe.

[00:20:43] Uh, and, and other democracies, uh, the court stressed the importance of conflict, uh, one case, Cohen versus California, the f the draft case. Uh, the court said that the, the, that the, the public realm is filled with verbal cacophony is not a sign of weakness, but of strength. And in, um, New York Times case, Brandon has famously said, uh, that, uh, the whole idea behind free speech is to encourage robust discourse.

[00:21:18] Uh, conflict can be good. And I’ve written about this in other kind of context in the first amount context, that what you get then though is a distinction. This goes all the way back to Cicero. And Ortega wrote about it, his book on Concord and Liberty, there’s a difference between conflict and Machiavelli wrote about it in the discourses that conflict is a sign, can be a sign of strength.

[00:21:44] Supreme Court has said that, uh, because a, it shows that we have the strength to handle it. And it can make us even stronger. You know, Machiavelli believed in the conflict of classes in society because it reinvigorates the society. It makes us examine the, the roots of our polity. But at what point does conflict turn into something more cancerous?

[00:22:10] When it’s utter discord and nothing constructive comes out of it? And that’s always gonna be, it’s like what Millville said about the, the, uh, rainbow and Billy bud. We know that red turns to orange, where you never know exactly where. Mm-hmm. When does conflict become harmful Enough? To be problematic for a polity.

[00:22:29] Now, there are two levels there. One is that the Supreme Court over decades has crafted out key exceptions to free speech. I. And those are very carefully defined. They’re molded by logic, constitutional logic, as well as experience in adjudication. Uh, such as, you know, direct incitements to criminal violence are not protected as long as they’re direct and they incite violence, that is also likely to occur.

[00:23:04] If Mother Theresa. Incites violence, no one’s gonna really care ’cause we’re not gonna take it seriously. If a a, a hate group that is very sinister, incites violence, then you got a concern, you got a problem and a breaking of the law. So the First Amendment does have buildin exceptions, which are necessary to order liberty.

[00:23:24] Right. It’s a clear concept in our history, liberty. We need liberty, but it needs to be ordered. And I think that’s a concept that we’ve lost sight of in our country in a lot of different ways on across the political spectrum.

[00:23:36] Jeremi Suri: So, so this brings Dawn to a, a, a very specific example I had in mind that I wanted to talk about with you.

[00:23:42] Which is, uh, about protests on college campuses. Mm-hmm. So where, where, where is the line that protests should not cross? Right. And we, of course, we’re, we’re debating this last year on our campuses with, with campus, well, October 7th

[00:23:56] was huge. Yeah,

[00:23:57] Donald Downs: yeah. For a lot of reasons. I mean, internationally in terms of campus stuff, in terms of speech.

[00:24:02] Yeah. Um, well, you know, you have designated areas on campus where there are, are public forums. First of all, private schools are different from public schools under the law anyway. Though often their policies do not make them different. Uh, first Amendment applies only to the state and to units of the state.

[00:24:21] So it applies to public schools, does not apply to Yale. Uh, but because Yale is such a major university, Yale’s policies ensure or say that they guarantee the same rights as a public university. All right, but if speech is violated, then at Yale, it’s not a First Amendment violation. It’s a contractual violation and, uh uh, and so all most campuses have are open areas where people may come and speak.

[00:24:52] You can regulate those by reasonable time, place, and manner regulations, but people have a right to speak there. Or in other areas in campus, there are, that are functionally the same thing as a public forum. Do

[00:25:03] Jeremi Suri: they have a right to say anti-Semitic and anti-Islamic

[00:25:06] Donald Downs: things? Yeah, you know, this is, this is the, the tough question and the answer is, unless it’s, I.

[00:25:13] Directed kind of harassment or incitement to violence against people. And after October 7th, there were several cases around the country where Jewish students were actually, uh, or mobs were following Jewish students and being incited to do things to them like a, uh, Cooper Union, uh, where they had to hide in the library, uh, behind locked doors and everything.

[00:25:35] You know, that’s a crime. Uh, and but, and I’ll go back to the book I wrote on Skokie, right? That’s outside of campus, but I use it because it’s a nice comparison. Yes. The Nazis wanted to go to Skokie. The problem there was that you wasn’t just that out, out of 70,000 people, 30,000 were Jews. It was at about a thousand or more were Holocaust survivors,

[00:25:59] Jeremi Suri: right?

[00:25:59] Donald Downs: And to them it was the nightmare reborn, at least in many cases. But the Nazis won their right to demonstrate there, though they never, never the interest united itself. Uh, but they never went, but they won their first amendment right to speak there if they wanted to. That was in front of Village Hall.

[00:26:19] That wasn’t in neighborhoods that wasn’t, uh, directed at anybody in particular in terms of conduct. Even though they said nasty things about Jews, it was a general statement they didn’t, didn’t, wasn’t face to face with individual people or anything like that. It was in the public forum, and that’s where the viewpoint neutrality doctrine applies.

[00:26:40] I. Which is the key First Amendment value that once the right to speak has been established, the government may not pick and choose favorites based on their viewpoint. So the Nazis had the right there. Well, what about the libraries at Harvard,

[00:26:55] right.

[00:26:55] Donald Downs: That you may have read about where the protestors filled up the whole library and they had all sorts of anti-Semitic signs and everything.

[00:27:04] Uh, that’s not the same thing as sitting a a 10 minute talk in front of the village hall at Skokie. Does it create a hostile environment, you know, similar to what happened would happen in a classroom that was laden with sexual, you know, innuendo or what have you? Um, those are tough questions and I know that the, uh, fire, which is the leading free speech group in America, they had discussions about, do we have a Skokie like issue on our hands?

[00:27:32] I. Uh, and, uh, you know, they decided that pretty much you should apply the same principles, but, so you need to look at each case and see what is actually being done and how targeted, how directed is the speech. But yeah, in principle, um, you know, antisemitic viewpoints are protected speech, uh, de again, depending on the circumstance, but I tell you, it’s a tough.

[00:27:57] It’s a really tough call, and I think there are cases after October 7th if you have enough people and enough, and the, the thing is Skokie was also a one and off one. One and done, right? Right. Masks were gonna show up. They weren’t gonna be there more than 20 minutes, and they were gonna go, they were gonna come back.

[00:28:16] What if happens? What happens if like at Harvard, they’re there for hours and then the next day they’re there again? What kind of rules can, can govern that? And usually in tough cases under the First Amendment, we haven’t had to really decide definitively because it doesn’t keep happening. It goes away.

[00:28:38] And so what if the Nazis would’ve gone to. Applied to speak at Skokie every single day.

[00:28:43] Right.

[00:28:44] Donald Downs: It would’ve busted the city budget. I’ll start with that. And some schools have had that, had that problem in recent years too, that we can’t afford to keep bringing any of these controversial people because of the security.

[00:28:55] Of course. You know, so what I’m saying is that October, October 7th, which you can tell I haven’t fully worked through myself, it does create situations where we really have to think twice about protecting speech There. Because the harm is different from most other free speech cases. ’cause it’s ongoing and everything else.

[00:29:15] And you can always find the normal exceptions to free speech like harassment. Sure, sure. And, uh, see if they apply. Zachary,

[00:29:23] Zachary Suri: I I want to ask, how do you think universities, um, especially universities that are in a position to make more sort of. Uh, private universities that are in a position to make sort of more expansive decisions about right.

[00:29:35] These questions. How should they handle these issues? How should they discuss these issues? Are you in favor of institutional neutrality, for example?

[00:29:43] Donald Downs: Yeah, I think, you know, and I realize one of the people, the a FA, uh, who’s on our, our academic committee, Janet Halley from Harvard, she has good arguments for why it doesn’t make sense.

[00:29:55] Some of them are very practical, like, you know what, what is an appropriate. Issue to be political about what isn’t. And she argues about the weaponizing of that policy that something you don’t like what somebody’s saying and you say, well, wait a minute, you know what, if what is the department chair, you should be neutral.

[00:30:13] So, but the basic idea, go back to the Calvin report. It’s, and I think this is for, it’s a practical thing as well as a principal thing. Principal thing as a university, as an institution, should be open to all ideas. And protect all ideas, except when a clear exception to speech arises. And if the universities and institutions speaks out on, say, the Dodds decision on abortion, then that involves the university in not being neutral about ideas and how we relate to them.

[00:30:46] And there’s also an empirical claim that this in a sense, marginalizes those on campus who agree with that decision. And it contributes to kind of the one sidedness that’s already there in a lot of campus discourse. So I think in principle, the, in this, you know, the Calvin Report in Chicago 1967, which articulated this policy of institutional neutrality, I.

[00:31:10] Uh, was author. The key author was Harry Calvin, who was also one of the leading architects of the modern doctrine of speech, who was doctrine of Heck, the Heckler’s Veto in the public forum. It’s a special liberal arena for speech. He was one of the key people behind that movement. From the perspective of scholarship and the Calvin report, also praises groups, organizing on campus, um, associations of professors, voluntary associations speaking out publicly, their views on things.

[00:31:43] That’s okay. But the institution choir institution has a different kind of effect, and that is to be contrary to an institution that encourages. All ideas. That’s the basic idea. That said, instituting it can be a bit of a problem, uh, but a lot of schools are doing it. You find, and each school’s gonna maybe do it in a different way.

[00:32:05] There shouldn’t be any single model. And, uh, it’s also strategically nice, the university, especially after October 7th to say, uh, I, we we’re not gonna take a stand on this out of a matter of principle. So, yeah, I’m for it, but I, I understand that you’ve gotta gotta really work hard on it.

[00:32:23] Jeremi Suri: Right, right. I mean, the, the allure of institutional neutrality is it takes the university from, uh, out of the position of potentially picking winners and losers, right, Don?

[00:32:31] Donald Downs: Yeah, that’s the idea. And the, I think there’s a empirical question. Does that pressure, does that further the, the, um, one sidedness or the, uh, the orthodoxy? Right of opinion that might exist on campus, and it does exist on many campuses. So I think it’s a good idea and, uh, uh, but I, I, I don’t think it’s a, it’s, it is a, most policies are not perfect.

[00:32:57] Jeremi Suri: So now let’s turn to another example that’s prominent in our discussions of, of free speech, uh, fact checking. Um, oh yeah. Is it. Is it appropriate for Facebook or some other platform to, um, print lies but also indicate where they depart from? Um, yeah, from truth. The most extreme example being those who claim that an election was stolen.

[00:33:22] That wasn’t stolen. Yes.

[00:33:24] Donald Downs: That’s a really tough one. Um, and I haven’t thought it through all the way. I just know that. A lot of fact-checkers, fact checkers have themselves been fact checked and, uh, uh, it’s like setting up an independent commission to study, like say Ger gerrymandering.

[00:33:41] Mm-hmm.

[00:33:42] Donald Downs: That might be a really good solution.

[00:33:44] I think in Iowa it’s worked out pretty well. Yep. From what I know and not really all into that even. I think it’s a very important issue. Uh, but the first question is who, who gets put on the commission and, you know, who’s doing the fact checking? Uh. How neutral are they? Or how capable are they? They may not be neutral, but are they able to be operationally neutral?

[00:34:04] Right?

[00:34:05] Donald Downs: Because it’s always gonna be the case. We all have our prejudices. The question is what the role requires, and uh, uh, so. I’m, I’m more skeptical. I, I don’t pay a whole lot of attention to fact checker checkers unless it’s very clear that they’re, Hey, they got a point here, and then I’ll take them seriously.

[00:34:23] But I, I take them with a grain of salt. Uh, and, uh, uh, the issue of censorship, like, you know, keeping Trump off of. Uh, Facebook. Uh, one of my former students is Katie Harbaugh, who was, was one of the, she was the, the key person at Facebook that dealt with Facebook for political figures.

[00:34:44] Jeremi Suri: Wow.

[00:34:44] Donald Downs: And she started it with the United States and then she helped branch it out in the world.

[00:34:47] And she, she retired a couple years ago and she was a great student of mine at Wisconsin and she did a lot of. Research for me, and she was involved in our, our free speech movement there from the student side. It was just, you know, she was wonderful. I knew she had a huge future and, uh, she contact, she contacted me along with other people, you know, should Trump be taken off Facebook?

[00:35:07] And, uh, I said no. ’cause I thought that was, I. Censorship, you know, it goes against a grain of all First Amendment theory, et cetera. Uh, but fact checking is sort of considered a way of not, it’s not censorship, it’s simply providing more information. It’s what Brandeis said. The best remedy for bad speech is good speech.

[00:35:26] Right. Right. Uh, fact-checking can be that. So in principle, yeah, but like anything else, it needs to be taken with a grain of salt. First Amendment theory is premised on the idea that we’re all fallible. That’s the John Stewart Mill side, right? Of free speech, which is a mill, did not influence the, the first Amendment’s writing, obviously, uh, but First Amendment advocates.

[00:35:52] Everyone are, is steeped in respect for mill. Even if they disagree with him on certain points. He’s a foundation of it. And that’s, that’s Jonathan RA’s Sure is, you know, the fallible principle. The fallibility principle.

[00:36:05] Mm-hmm.

[00:36:06] Jeremi Suri: But I, I guess with fact checking, um, so long as you are putting the original statement.

[00:36:13] The fact checking does not have to be perfectly objective. The point is that the fact checking is an objective effort to assess right, though not perfect. Yeah, fair enough. Whether there’s, you know, I mean, and so this is, I mean, what we all do at, at, at some level, someone has to assess facts, right? We do this as professors, judges do this.

[00:36:30] Right?

[00:36:31] Donald Downs: That’s a really important point, and I, I can’t stress it more. Jeremy, uh, in Roush Rouse’s book in 1993. Kindly Inquisitors. Yeah. The, um, uh, just, well, I forget God, I forget the subtitle. I can’t believe that I’m getting old. Uh, but it’s about the suppression of thought on campus, or not on campus in general starts by talking about, uh, thesal Rusty case and how the West did not rise to what his defense like it should have.

[00:37:00] It showed that the West was not serious about free speech and uh, uh, it, I assigned that in my First Amendment class. It’s the one book I assigned over the years that students did not forget. Hmm, that’s great. It had huge impact on it. It changed some of their minds overnight when they read it. But it’s all about the free speech side of things and it’s premised on the idea of, of human infallibility.

[00:37:23] No one should be the, when it comes to general free speech, no one should be the authority that says, this is good, this is bad. You can’t do, say what Biden did with some of the social media companies after, you know, with Covid and everything. Uh, and uh, but his last major book was The Constitution of Liberty.

[00:37:41] Have you heard of that?

[00:37:42] Jeremi Suri: I have, yes.

[00:37:43] Donald Downs: Yes. And it’s a deeper book. It’s a more scholarly book. And, um, uh, he’s, he made the point at which I’ve made it over and over is I word a piece is coming out, uh, about, it’s called the Free Speech Con Chronicles coming out from a i and Rauch is in there, I think too, and I refer to the book and I say, once you have free speech, okay.

[00:38:04] It’s great for individuals to speak their minds as part of the conte and ends in themselves saying of the First Amendment and liberal democracy, but it’s also there to pursue truth. That’s the utilitarian side of it. That’s the mill side. Right?

[00:38:18] Right.

[00:38:19] Donald Downs: And, um, uh, oh, I’m losing my train of thought. Um,

[00:38:24] Jeremi Suri: and, and, and how

[00:38:25] Donald Downs: do we balance that speech with the truth person?

[00:38:27] Yeah. Rauch says, but why? If we just have free speech, everybody, then it becomes like a smorgasburg. Yeah. Oh, this is my opinion. This is your opinion. And we all say, Hey, great. You’re entitled to your opinion. You gotta take the next step and then respond. Especially if you’re, if you’re pursuing truth and knowledge and start sifting.

[00:38:46] Going to use the Wisconsin idea. Sifting the winnowing. Yep. We have to critically evaluate it. Right. Some people say, if you criticize me, you’re violating my free speech rights. No. You have a duty to critically respond to speech, you know, is talking. I, I I’m assume that Zach following the, the tradition of his father is really good at that.

[00:39:10] Uh, he’s very good at it, yes. He’s still wrong sometimes, but he’s good at it. Yes. Right.

[00:39:20] And, uh, so, uh, so Roush says we need to develop critical reasoning skills to make sense of all these ideas we’re being exposed to. Yeah. So it’s a two step process now, especially at a place like a university.

[00:39:37] Yeah.

[00:39:37] Donald Downs: Right. And of course, academic freedom and free speech are a little bit different because you don’t have a right to teach a course if you’re incompetent.

[00:39:44] Uh, you don’t have a, if, if you’re lying in, in class about what you think is a truth and you shouldn’t be teaching. Uh, and uh, so the free, free, free speech ethic is vital to academic freedom. It means all ideas that are relevant to what’s at hand need to be tolerated in terms of their right to be presented.

[00:40:02] I. But then you’ve gotta do the critical thinking process, right. And make sense of it. And of course we all differ in terms of our ability to do that in different courses and things like that. Some people get a, some people get B’s, some people get C’s. Right?

[00:40:15] Right.

[00:40:16] Donald Downs: Uh, so we have to, without that last process, what’s the point?

[00:40:19] Except fulfilling an individual, um, right to speak. Which is good. ’cause the free society gives you free speech is part of human nature. Right.

[00:40:30] Jeremi Suri: So

[00:40:30] Donald Downs: is

[00:40:30] Jeremi Suri: censorship, that’s where we go back to e Exactly, exactly. The, the Jonathan Roush book, by the way, is The Constitution of Knowledge, A Defensive Truth, and that, that subtitle is really important.

[00:40:41] I, I think you said the Co The Constitution of Liberty, which is a, a Friedrich Hay. Oh, that’s, that’s, that’s Hayek. Yeah, it’s Hayek and it’s, it, it, it, those are both worth reading. It’s interesting that you made that reference. Um, did I

[00:40:51] Donald Downs: just look at the tongue?

[00:40:52] Jeremi Suri: Yeah. No, no, no. They’re both, you, you, uh, they’re both worth citing and you, you cited them both.

[00:40:56] Uh, so Don, one other question I really wanted to ask you. Um, there’s so many, but I really wanted to ask you this. What, what are the appropriate protections against the, um. Limits, uh, the over or excessive limits on free speech, uh, within government service. So the, the current administration is trying, and it’s not the first, and it’s not unique to Trump, but the current administration is very flagrantly trying to limit the ability of those within government, from criticizing the president and some of the president’s programs, right?

[00:41:32] How much of that is, is acceptable? What is the line that should not be crossed? How do we protect the free speech of people in the Justice Department and the Defense Depart department?

[00:41:41] Donald Downs: Yeah, that’s really, I, and I’ve been reading about that just in the last few days. Uh, and, uh, I, I’ve given some thought to it.

[00:41:49] Uh, it’s. Working in government and the whole set of free speech First Amendment doctrine on that very question. When you work for a company or the government, it’s not the same thing as you going out there and expressing your views on something, uh, in terms of its impact on what if your speech vi completely dis disrupt, disrupts the operation of the company or the government.

[00:42:21] Uh, so at one time, and Justice Holmes wrote one of the original opinions on this, if you’re a public employee, you have no, no first amendment right to speak about the job. And, but as part of the general liberalization of free speech during the period that Jeremy was talking about, uh, the court developed, it’s a 1968 case public school teacher.

[00:42:45] Published an op-ed in the local paper in Glen Illinois, near where I was brought up, where I was brought up nearby there. And they, he criticized the spending policies of the school. Too much money on sports, not familiar. And he, uh, he was, I don’t remember, I think he was fired or punished anyway, but, um, and uh, the court ruled that you are speaking as a matter on a matter of public importance.

[00:43:16] Uh, or a matter of public concern is the word they used as a private employee, but you’re speaking as a citizen of a, on a matter of public concern. The First Amendment will apply to you, but in a different way from the way it would if you were not that employees talking about your work. So there’s two different levels of First Amendment Anelle.

[00:43:44] One is a First Amendment coverage, meaning that you’ve said something and okay, you might have a free speech right to say it, but maybe not. But it raises First Amendment concerns and issues. Therefore it’s covered. And then the court applies the appropriate test to see whether or not the First Amendment indeed does protect it.

[00:44:08] Coverage and protection are not the same thing. They often are, but they’re not necessarily the same thing. First Amendment. This is the first case, 1968. Classic example of that kind of stuff going on at that time in the law, he, the First Amendment covered him. And it ended up protecting him.

[00:44:23] Wow.

[00:44:24] Donald Downs: And uh, uh, basically what you do is you, you say the public, you have a right as a citizen to express your views.

[00:44:29] They don’t disappear. Just like in the famous, uh, school case, tinker Constitution doesn’t stop at the school yard. Gates, the court said, right. Well, the constitution doesn’t stop at your government office door, but you’re right. Is not as extensive as it would be in a normal case. And basically they look at the public concern and then they weigh it with the effect on the office and how you spoke out.

[00:44:57] This was an op-ed, this was clearly this. If he had done like a memo within the, uh, within the, uh, the school, it would’ve been less protected and maybe not protected at all, but he did it in a public form. And the court, of course the court, the court has sort of lowered, that protects a little bit over the years.

[00:45:18] The big case involves a, um, district attorney, assistant district attorney, and he, uh, criticized the way they were granting warrants. And, uh, the court said that when you’re speaking as a citizen, even. If it’s about, if what you’re saying is pursuant to your official duties or relevant to your official duties, the First Amendment doesn’t apply at all.

[00:45:51] This doesn’t even cover it.

[00:45:53] Hmm.

[00:45:54] Donald Downs: And that was a famous con, you know, I just, uh, is just the name of the case escapes me. I led the movement in the Wisconsin, um, university of Wisconsin, uh, faculty senate to explicitly protect professors. I. For criticizing the university. Uh, I, I worked with the university committee and we submitted it at the faculty Senate in 2010.

[00:46:16] And, um, Gar, um, it’s the Garcetti case, right? And the University of Wisconsin Rules. We had one descent out of 200 or 150 faculty members that we are allowed to criticize our own university. And usually that means criticizing something we know about, which can tie it to our duties.

[00:46:37] Jeremi Suri: Right.

[00:46:38] Donald Downs: And, um, but the Supreme, the courts have been divided in how they apply that to universities.

[00:46:44] Uh, so I. The reason though is that universities are there to encourage, we’re different from other kinds of institutions. Right, right. We are there to do the stuff we’re talking about tonight.

[00:46:58] Yep.

[00:46:59] Jeremi Suri: There’s also though, to, to connect this to Zachary’s poem, there’s also an important role descent plays even in Absolutely.

[00:47:05] Um, more focused, more official government institutions. Absolutely true. So there’s a whole dissent channel in the State Department where, uh. Someone can file a dissent with the state department’s official policy through, through official channels, all that. But

[00:47:19] Donald Downs: that’s good to have that. It’s very good to have that.

[00:47:22] And, but the issue is as a, as a principle of free speech and a free society, I think that’s good and should be what departments do. The Garcetti case, however, the exception that. Um, uh, one of the justices, the guy from New England, so suitor

[00:47:40] Yep.

[00:47:41] Donald Downs: Suitor said there should be an exception for universities.

[00:47:43] Mm-hmm.

[00:47:43] Because of

[00:47:44] Donald Downs: our special intellectual role. Yes. You know, we’re not the same thing as like, like a fire department. We’re not better people. A lot of us are a lot worse people than anyone out, than, than police officers and firefighters. Uh, but our institution has a different kind of duty from what they have.

[00:48:00] Jeremi Suri: Right.

[00:48:01] Donald Downs: And that involves descent, protecting descent among other things. Right.

[00:48:05] Jeremi Suri: Right. A firefighter can’t say he’s dissenting from the, his requirement to go put out the fire. Yeah, he has to go

[00:48:11] Donald Downs: where? Yeah, but I don’t, but. Suited to not talk about, say the state Department. Right. So I think that’s up to them to do it.

[00:48:21] And I think they should do it

[00:48:23] Jeremi Suri: right.

[00:48:24] Donald Downs: But then you’ve gotta be, you know, you gotta be kind of careful because of the role and what the implications might be for, you know, national security and all that kinda stuff. So, you know, we’re just talking basics here. Sure, sure. I think it’s good. Do, and I don’t like, you know, I think Trump is being authoritarian on this.

[00:48:42] And it’s just really, uh, it is, it is a concern. And you know, we, the question is, how much does the Constitution require someone to be like, uh, a like FDR was and surround himself with disagreement? Um, apparently, you know, uh, I had lunch with Charles Lane, you know, before you came here, uh, Jeremy, and he was talking about, uh.

[00:49:07] Meeting with Bush and how, you know, Bush invited, this is a second Bush invited people to disagree with him. Uh, I’ve even heard that about Trump, but I don’t, you know, I don’t know enough to really say that he, he does like disagreement around him, but it’s gotta be within, I. Mariel within in-house.

[00:49:24] Jeremi Suri: He certainly doesn’t like public disagreement.

[00:49:26] Yeah. Um, Don, we, we like to always close, uh, when we have a, a, a complex issue like this Yeah. With some, with some tips, ideas, ways in which our listeners can use this to help themselves and help their efforts to protect our democracy. What, what are the, the pieces of advice you have, especially for young listeners, what should they be doing to protect free speech in their own lives?

[00:49:52] Donald Downs: I think the first thing that they should do is, is learn something basic about it. This is like Edie Hirsch’s notion of cultural literacy. Mm-hmm. Um, that, uh, it’s amazing how many things are tolerated because people just don’t know any better. I. And educating themselves as to the foundations of a free society, and, uh, so they can put it in context and try to understand the key reasons we protect descent, uh, in the country.

[00:50:25] Uh, because it makes us all smarter, more knowledgeable and, uh, and tolerant of each other, uh, and all. If we’re intolerant of each other, we’re gonna have better reasons for not tolerating somebody, at least in terms of morality. Uh, so learning, learning the basics and then being, getting, get involved with it.

[00:50:47] Uh, Wisconsin, we had marvelous students, especially undergrads that were part of our movement, and they, it, it changed their lives. Uh, you know, at least it were, it changed it. I’m not saying how, you know, such a, you know, big of a way, but it made them feel their strength as citizens and uh, uh, it gave them a certain kind of confidence in themselves.

[00:51:11] Katie would be an example that I was talking about. Yeah.

[00:51:14] Yeah.

[00:51:14] Donald Downs: Um, that’s. So it’s a question of education and knowledge and, uh, commitment. Uh, and, uh, and don’t just talk at others. Listen. Right, right. Listening. You know, Alexander Mickeljohn said the First Amendment’s primary beneficiary is the listeners.

[00:51:38] That’s why he was, that’s why I shouting down speakers is so contrary to the spirit of free thought. Well said,

[00:51:48] Jeremi Suri: well said. You’ve gotta have,

[00:51:49] Donald Downs: they have a right, they have a right to listen and it’s, that’s how you learn. Yep. Uh, and you’re, you’re violating the right, you violate, you go to a talk and people shout down.

[00:52:00] The speaker you don’t get to hear. And so he says The, the rights of listeners is really the fulcrum point of it all.

[00:52:08] Jeremi Suri: Zachary, does this resonate with you? I mean, as, as, as someone on a college campus Now, do you see. What Don is laying out, educating oneself, getting involved, defending free speech itself as, um, as a topic that young people will, will, will be drawn to.

[00:52:24] Zachary Suri: Yes, I think so. I think, um. The one saving grace of, of free speech, uh, as embattled as it might be, is that it’s something that everyone who sh who has, uh, a dissenting opinion or an unpopular opinion, which is these days, probably a lot of college students feels, uh, immediately how important it is. Um, and in that sense, I think there’s room for people who disagree vehemently.

[00:52:49] To come together and at the very least, emphasize how important it is that they listen to each other, um, and even more so to protect free speech as a principle that we all stand by.

[00:53:00] Donald Downs: Absolutely. There has to be defendants, not mana from Heaven, and it’s up to the faculty. I had a, the way I taught, and especially when I had this undergrad seminar, I draw my best students into criminal law and juris jurisprudence.

[00:53:13] It was a class I died for and, uh, I had did one class. I had the leading progressive radical on campus. Yes, I think

[00:53:22] Zachary Suri: so. I think, um, Ron Barrow’s son, the one saving grace of free speech, as embattled as it might be, is that it’s something that everyone who has. A dissenting opinion or unpopular opinion, which is sort probably a lot of college students leader, uh, immediately how important it is had.

[00:53:43] And in that sense, I think there’s room for people humanly to come together. At the very least, emphasize how important kids in there and you create even more common ground speech as a principle that we stand commitment to

[00:53:57] Donald Downs: thinking through these issues we were dealing with. And, um, you create this common ground of educational pursuit as a community.

[00:54:06] I, I’ve always looked at it as a little college within the university. At least that’s how I felt about it. And you think about what brings people from different backgrounds in different races, et cetera, together, it’s common activity. Like people in a play, people working, uh, in some sort of business inventor in in Endeavor, they have a common purpose and that brings ’em together in terms of purpose.

[00:54:37] Then they can then think that, then they take that with them when they go out. And I think we spend way too much time in higher education. This is the identity politics issue, which right now is being contested so strongly, uh, is that it divides rather than unites. We know it divides us and there’s always gonna be a division.

[00:54:53] That’s when the descent goes into respects, people that are different. Uh, but we also need sufficient common ground. This goes back to my point about Concord and discord. That, uh, in order for conflict to prevail in a healthy way, it has to take place in a common ground of concord where we agree on certain fundamentals and community and, uh, if it.

[00:55:23] Takes place without that foundation. I mean, this was Tocqueville too. You know, Tocqueville said American democracy will fail if it’s civil commitments and communities don’t cohere. Uh, and we end up getting too, the majority, or we intending, we get isolated and excessive individualism. Everyone didn’t say it, but might have, you know, someday people are gonna go bullying alone.

[00:55:49] So that contributes to the silo problem we have. We find community, but we find it is, uh, Richard, um, uh, great book called The Fall of Public Man. Hmm. Uh, in which it compares positive community from negative. Negative community is withdrawing into the kind of solidarity that shuts off the rest of the world,

[00:56:14] right?

[00:56:15] Donald Downs: And positive community is more liberal in nature, but it still has to maintain elements of community. But it’s liberal, it’s open-minded. I. And, uh, universities should be that they need to create a community of common ground, but a special kind. And that is pursuing the truth together with the leadership of the people that know the, the best way to, you know, professors who supposedly know more than the students.

[00:56:40] That’s our endeavor and we’ve lost sight of that.

[00:56:42] Jeremi Suri: Don, I think that’s, that’s so well said. And, uh, you’ve articulated so beautifully how central free speech is to, um, to making community possible. And this connects to Zachary’s point about how in descent I. We can actually find not a agreement on the substance of policy, but at least a consensus on the need to, to talk, to share ideas, and to have the right to listen, as you said, as well as as to speak.

[00:57:11] I think this is so essential to democracy and often forgotten, and I’m glad that we can articulate this, understand it and, and hopefully think more about it in our daily lives. Be before we try to shout someone down or before we try to. Cut. Cut someone. Cut someone off. Yeah. Um,

[00:57:27] Donald Downs: I think it takes constructive leadership to put help point the way there.

[00:57:30] Jeremi Suri: That’s right. That’s right. I think that’s, that’s a perfect, a perfect note to, to close on. Uh, Don, thank you so much for, uh, sharing your, your lifelong wisdom on this with us. Uh, really thank you, Don.

[00:57:41] Donald Downs: I enjoyed it. I probably talked too much. Um, yeah, not at all. Hope you didn’t get too tied up in First Amendment, you know, doctrine.

[00:57:48] That’s, you know, I think I try especially toward the end to get it into more. Absolutely,

[00:57:55] Jeremi Suri: absolutely no. And, and actually on, in a, in a, uh, podcast, uh, episode on free speech, you should speak a lot and we, we should listen a lot and, and we did, uh, Zachary, thank you for your, um, scene setting poem and for your excellent input.

[00:58:10] Thank you, most of all, to our loyal listeners and readers of our Substack newsletter for joining this episode of this is. Democracy.