Advisory Opinions - Superhighways of Foreign Influence

Episode Date: September 16, 2025

In the wake of Charlie Kirk’s assassination, Sarah Isgur and David French explore the evolving battle over free speech and examine modern threats posed by social media. The Agenda:—Rising acceptance of violence in discourse—Student protests and free speech—David’s favorite pro-free speech essay—Understanding stochastic terrorism—Online bots and foreign influence—The implications of Section 230—The assassination’s veto—South Carolina v. Doe Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including access to all of our articles, members-only newsletters, and bonus podcast episodes—click here. If you’d like to remove all ads from your podcast experience, consider becoming a premium Dispatch member by clicking here. Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to advisory opinions. I'm Sarah Isger. That's David French. And we are going to take a break from our regular podcasting to talk the First Amendment. Speech is violence? Is violence speech? We'll talk about stochastic terrorism and incitement under the Brandenburg standard, as well as Section 230 and the TikTok ban, and security fees charge to student groups who want to bring controversial speakers to campus. Is this the assassin's veto? All this is coming up on advisory opinions. And we're back. David, what I don't want to do on this podcast today is rehash the stuff that I think everyone else has said. I don't want to do a eulogy for Charlie Kirk. As I mentioned at the beginning of the last episode, I first met Charlie many, many, many years ago. And I think that any AO listener at this point understands that we have two tragedies at play here. There's the unimaginable tragedy that is being born by Charlie's wife and his two young children who were there who witnessed that and his friends and family. The second tragedy, the one that I think our culture is focused on, is the one that we'll talk about.

And that's the attack on the very concept of liberalism. The idea that you argue about your ideas, that you try to persuade about your ideas, and that violence, isn't an option for a disagreement about the future of the country. And, you know, for folks who didn't like what Charlie was saying, disagreed with what Charlie was saying, I mean, frankly, like, get in line, it'd be really weird if any of us agreed 100% with anything anyone is saying. What I guess I want people to understand, though, is that Charlie and AOC and Ezra Klein and, I mean, any of the people that you can name, David French, we're all engaged in the same project.

And hopefully you as AO listeners are too. That project is to try to make America a better place because we're all citizens of that country and we live in a self-governing country where our opinions on the future of that project matter a great deal because we get to vote on that. So, David, a PBS NewsHour NPR Marist poll that was just released recently also,

one in five adults believe Americans may have to resort to violence to get their own country back on track. It's one in five, 20%. Okay, so this is the fire surveyed now. They surveyed 68,510 college students. One in three students surveyed expressed some level of acceptance for resorting to violence to stop a campus speech. That has gone up since 2022. In fact, if you look at the three questions. When can you shout down a speaker to prevent them from speaking on campus? When can you block other students from attending a campus speech? When can you use violence to stop a campus speech? All of those have ticked up steadily since 2022. Using violence was at 20%. And the answer to that was whether it was ever acceptable, even including those who said it's

rarely acceptable, but yeah, I could think of some example. So that was at 20% in 2022. Now it's at 34%. The blocking other students from attending a campus speech that you don't like was at 37% in 2022. Now it's over half. It's 54%. Think that it's okay, at least sometimes, to block fellow students from attending a speech that you don't like the message of. 62% in 2022 thought it was okay to shout down a speaker, at least sometimes, to prevent them from speaking. That number's now up to 71%. And by the way, they also asked opinions that someone might have

speaking on campus and whether these would be acceptable or not acceptable. For the first time this year, all six of the things I'm going to read had a majority of those 68,000 students say that they would not allow these speakers onto their campus, presumably meaning they would use one of the three,

you know, shout the speaker down, block other students, resort to violence. Here are the six things that a majority of college students would not allow on their campus, this opinion. Transgender people have a mental disorder. Abortion should be completely illegal. Black Lives Matter is a hate group. The Catholic Church is a pedophilic institution. The police are just as racist as the Ku Klux Klan.

Children should be able to transition without parental consent. None of those ideas should be allowed on campus, according to half of the 68,000 students. So, David, before we get into some of the legal niceties, I want to talk about stochastic terrorism and the Brandenburg incitement standard, all of that. Just speech is violence, speech as violence, and violence as speech? Do you have a sense historically, legally, how we got to hear? Well, none of this data at all surprises me. I mean, I wrote a book about how we might be heading towards a session eventually. And I was relying on some four and five-year-old data that was indicating all of these trends.

It wasn't quite as bad. It wasn't like, but it was close when I was writing about it in 2020. And especially what was striking to me is even as early as 2020, we began to see this concept we call lethal mass partisanship. And that was about 20% of Americans would be totally fine if a large number of their political opponents just died, just died. about 20% of America. So you might say, oh, hey, 80% are totally fine with each other being alive. But 20% is a lot of people. 20% of America is, you know, 70 million people.

I mean, it's insane how many people are very deeply radicalized politically. So that is all absolutely consistent with long-term trends that we've been seeing. And then it's also what I said in my book is everything this is back in 2020. Everything is set to make it worse. Nothing is looming on the horizon. Nothing is happening in our culture that is making it better, that everything is pushing to make it worse. And so one of the core elements here that's going on is that a generation or more of college students, American adults, have been taught, especially in elite education and elite institutions, that free speech, rather than being the greatest enabler of justice and social

reform, has become somehow now free speech is an impediment to justice and social reform. It's a tool of the ruling class, right, which is exactly turning free speech on its head. When you think about all of the arguments where free speech is the reason that we accept them today and the lack of intellectual humility by those who want to shut down. on free speech that they feel like they're right, so they must be right, so they don't need to listen to anyone who disagrees. And in fact, listening to them is violence done to them is sort of a shocking, historically shocking statement. It's incredibly shocking. It's also, it also is completely consistent with an atmosphere of hatred historically. When you begin to

have an atmosphere of hatred that says, I don't just disagree with my political opponents, I hate them. Then you begin to see violent acts taken to stop them from speaking. In fact, the most powerful pro-free speech essay in American history, I will fight anyone who disagrees with me, is Frederick Douglass's plea for free speech in Boston that he wrote in 1860. If you read the background to that story, it's ripped from the modern headlines in some ways because he's having an abolitionist event in 1859. And what happens? The speech gets disrupted. The speech got disrupted by pro-slavery forces. Even in Boston, there are pro-slavery forces who could disrupt a speech. It was disrupted. The authorities did nothing to stop the disruption. And so Douglas wasn't

able to speak. So what does he do? He writes a plea for free speech that's about as powerful as the English language can defend a right. And it's set in the context of actions, very similar to our own, in polarization worse than our own. And the key. argument that he makes is that free speech is the great moral renovator of society and government. That's the core fundamental value that he's defending here. He says it's the dread of tyrants. It's the thing that they first will seek to extinguish. But what we saw Sarah was, you know, in the 1960s, 1970s, you began to see a line of thought, you know, Marcuse, Marcusa, however you have heard him pronounce 17 different ways. But I know so one of our commenters will know

exactly how to pronounce it. You know, the concept of liberating tolerance that you have to suppress the speech of the ruling class and elevate the speech of the marginalized is sort of began to really leak into a lot of, not just the academic world, but the wider American world. And it's really leaked into sort of the thinking of a lot of younger activists. And so this idea then has become that along with justice, you can't get to justice unless you're suppressing the bad people and that the bad people speaking is the impediment to justice. And that is now a firmly entrenched mindset along with the idea that the bad people is a very broadly defined term to include anyone I disagree with, essentially, on important matters. And you combine.

all of those things together, and you get exactly where we are. And the way we have to untangle this is we have to extricate ourselves from hatred. And we also have to educate young people that justice and free speech go hand in hand. They are not opposed to each other. And that this idea that they're opposed to each other is poisonous. You know, in the same way that we talked to those law school admissions deans about how they have changed their essays and interview questions looking for activist to looking for people who have shown the ability to enter into dialogue with those they disagree on, to change their mind on beliefs that they may have held. I wonder whether, as an educational system here, we need to start teaching free speech

and the history of free speech at a young age. The same way we teach U.S. history multiple years, that should just be part of the curriculum because none of this works without it, and the Chief Justice in his last year-end report. He told the story of Judge Wearing, who was a federal judge in South Carolina in the decade before Brown v. Board of Education happened in 1954.

And here's his quote. Judge Wearing issued numerous rulings, opening, voting, and educational opportunities for black Americans. Local residents outraged by these decisions, burned across in the judge's lawn, fired gunshots at his home, and hurled a large lump of concrete through his front window. Elected officials called for his impeachment.

There's a few things I take from that story. One, to your point, David, there's nothing new under the sun here. Like, we have had these moments before, and we've come back from them. So, A, there's some hope to be had there. But B, my God, have the intellectual humility not to think that you're judge wearing on every single issue that, in fact, you may be all of the people, all of them in the community who felt really secure that everyone else they knew agreed with them and were burning crosses in his lawn. And like, historically, Judge Wearing wins this. I don't know why you'd think you're the one and not the many. So anything

that I believe right now that I hold as like my closely held beliefs, including I will admit, even about free speech, I at least try to hold it closely and like, listen when I read someone say that this is a tool of the oppressor because I really want to be careful that I'm not the mob that's going to be wrong. David, can we talk about stochastic terrorism? Well, can I put a pen in something just that you said earlier real fast before you move on to stochastic terrorism? There's another factor that I think that you and I don't quite appreciate because even though, at least according to you, you're substantially younger than me, we are older than these college students, both of us,

and we do have a memory of a political era before this era. And so one of the things we absolutely have a memory of is that politics wasn't always so vitriolic. I can't remember if I've told the story before, but I was talking to students who had just seen a video of the 2012 presidential debate. So this is Romney and Obama, and this is so a current college student,

seeing the 2012. So they would have been eight or nine. They would not have followed this at all, right? Maybe they might be seven, six, seven years old. And one of the first things was, I didn't know that Mitt Romney and Barack Obama were friends. And I was like, huh, that's your first takeaway from watching that debate is that they were friends. And then you think, oh, the only debates they have seen have been like and really absorbed have been like the Trump Biden debates. and the single Trump Harris debate.

And you look at Biden, I mean, Obama and Romney, and it's like Lincoln Douglas by comparison, right? And with lots of things like my friend on the other side, or I agreed with much of what Governor Romney said. And so they are growing up almost entirely in an atmosphere of non-stop apocalyptic rhetoric. Just it's all apocalyptic all the time, especially on social media,

where they're more engaged on social media than you are. And the you, I'm talking about, you know, people our age. And so that is a, I think that's a big factor here. You know, you've had increasing animosity. The younger generation has been exposed to nothing less. Tie that to a teaching that free speech is an impediment to justice. And there's no surprise we are where we are. Okay, sorry.

Back to stochastic terrorism. There was one other historical note that I'd forgotten that in Justice Clarence Thomas' book, my grandfather's son, he talks about the day that Martin Luther King Jr. was assassinated, and he had fellow high school students taunting him, telling him how great the murder was. And again, just on that intellectual humility point, if you're cheering someone's murder, I don't mean saying violence is always wrong, I disagree with what this person said, but this is a bad thing. No, I mean saying, you know, one down, however many to go, or too bad the bullet, you know, had to pass through someone's body. So did plenty of people

the day that Martin Luther King Jr. was assassinated. Why do you think, like, if you look back on them with loathing, like, why do you think you're different now? And even if it's very few people, which again, we'll get to the social media aspect of this in a little bit. It's just an odd, an odd lack of humility driven by that hate, David. Yeah. And, you know, there's its popular misconception that I'm just seeing all the time. And that is that somehow humility or saying,

mouthing or thinking, thinking the thought I might be wrong, somehow makes you a squish or not really a person of conviction. But humility and conviction are not opposing values. You can be a person of conviction, but who's also willing to hear from others who lives their life with this underlying sense that, yeah, I'm, I know I'm wrong about some stuff. Now, if I knew what I was wrong about, I would hopefully change my mind right here and now, but I'm wrong about some stuff. And guess what? I don't know what I'm wrong about, but I'm a human being. So I have to be wrong about something.

So that means I need to be able to hear from other people. And then when I say this all the time, I get a lot of blowback essentially saying that's weakness, that's not, you know, that's not real zeal. You're not truly committed. There isn't, but pluralism is not a synonym for moral relativism. It's not. It is a way in which people with competing convictions, convictions can live together. And there is no incompatibility between having a conviction and possessing humility. And so humility is what permits us to have, it's indispensable to allow us to have

humane, thoughtful convictions. And so I just wish people, if there's one message I could get through to a lot of young activists, it's that all of that blazing certainty you have right now, you're going to come to regret some of it. You will. You will, absolutely. And there's nothing wrong with tempering all of that blazing certainty and conviction with just a back of your mind little voice saying, are you sure you're right? Are you 100% sure you're right? Maybe you should listen to somebody else. Okay, and we get back. We'll actually talk about stochastic terrorism and how it fits into incitement law, this idea that if you say enough horrible things loudly enough to enough people, someone will go do the thing. And can we prosecute the person who was out there? saying the stuff when we get back on advisory opinions.

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data today by visiting ExpressVPN.com slash advisory. That's E-X-P-R-E-S-V-P-N.com slash advisory to find out how you can get up to four extra months free. ExpressVPN.com slash advisory. All right, David, let's start at the very beginning here, or if not the very beginning, where I'm going to start, which is shouting fire in a crowded theater. You and I have both laughed at this. We get so annoyed whenever anyone says this online, but you can't shout. fire in a crowded theater, yes, you can. And I can prove it to you. If you will go start a fire

in a theater and then shout fire in that theater, no one will have any problem with you shouting it. It's not even the correct quote. The correct quote from Justice Holmes is that the most stringent protection of a free speech would not protect a man in falsely shouting fire in a theater and causing a panic. But even that quote is from Shank the United States in 1919. So Charles and Elizabeth were socialists who distributed leaflets that argued that the draft in World War I violated the 13th Amendment prohibition against slavery. An interesting idea. I mean, you know, debatable. They were arrested and the fire in a crowded theater line was for upholding their convictions, as in handing out leaflets opposing the draft was the same as shouting falsely, shouting fire in a crowded theater and causing a panic.

that's no no handing out a leaflet opposing the draft is nothing like that but there's justice homes for you don't forget he's our eugenics guy if you've listened to this podcast enough you know that it is basically dedicated to undermining the um legacy of justice oliver wendell holmes okay so thousands of people spent time in jail during world war one because of woodrow wilson because they criticize the government or they criticize the war or they criticize the draft and criticizing the government or the war or the draft was seen as what we would now look at as incitement, this idea that you were causing a lack of patriotism

that you were going to undermine the war effort so we could throw you in jail for that. Okay, so then you get to Brandenburg v. Ohio in 1969. Charles Brandenburg, not going to be the good guy of our story, just to be clear. In 1964, he hosted a little party where his friends dressed up in white robes, burned some crosses, gave some speeches,

yes, it was a good old Ku Klux Klan rally. I'm not going to even read the things that they said. Let's just, can we stipulate that they said some bad things? Okay, so he was convicted of violating Ohio's World War I era criminal syndicalism law by, quote, advocating the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform. So to take out some of those extra words, he was. advocating the necessity of violence to accomplish political reform. The court overturned his

conviction, holding that inflammatory speech, even speech that advocates violence, is protected unless it is intended to incite eminent, lawless action, and likely to incite such action. So, David, we talked about this vis-a-vis Donald Trump on January 6th, where he is giving a speech And then right after that speech, people go to the Capitol. And the question is, did his speech meet the incitement standard in Brandenburg? I thought no. You thought maybe yes. But now let's put it in this context.

If you are out there saying, I'm making up examples here, okay? I want to be clear. These are theoretical. Charlie Kirk is the greatest threat to transgender people in the United States. Someone needs to do something about him. That would be a sort of quintessential example of stochastic terrorism. You're not telling any one person to do it. You're not really helping them in any way.

But you're riling people up. If you rile enough people up, someone will go do the thing. You don't know who. And so you're not an accessory. But does that count as incitement? Is stochastic terrorism something that we can regulate as speech, David? Short answer to that is no. And we'll explain why in a bit.

At the same time, I do think that the concept of stochastic terrorism, terrorism is quite valid. And just think of it like this. Imagine, you know, imagine you have a governor of a state in a room and he's really, really upset at the Speaker of the House, of the State House. And he says to the 10 people in his room, you know, that guy is really annoying. I really wish someone would kill him. Someone rid me of this meddlesome priest is the definition of stochastic terrorism. Yes, exactly. And he says it to a room full of 10 staffers. The odds that one of those 10 staffers is going to go out and do something are probably 0.00. But let's suppose that this very popular governor, and he says that to 15 million people

in a state, says this person, you know, the speaker of the house is horrific. Then the odds that of that collection of 15 million people, that one or more of those individuals are going to take action in response to that, it just increases exponentially. And so, this idea that no apocalyptic rhetoric doesn't lead to violence. I just think it's just completely wrong. It absolutely does. But the problem is it doesn't lead to it in predictable ways. You can't draw bright lines and direct lines. The way in the Brandenburg incitement standard, it's a pretty easy bright line to draw. And that is, you're standing in front of a courthouse. You've got a mob with pitchforks and you say, burn this place now, and they immediately go burn this place. The reason why

it was an interesting debate about Trump in January 6th was the immediacy. It was the geographic proximity combined with the immediacy. All of those things made it where we could much more easily draw that direct line from speech to action. With stochastic terrorism, it's impossible. It's impossible. Because stochastic terrorism, by its terms, is much more talking about speaking to broad groups of people than it is individual plotting and individual planning. And so I think that stochastic terrorism is an incredibly valuable cultural concept that should allow us to try to persuade our fellow citizens that your super-apocalyptic rhetoric has a cost. But at the same time, it is not necessarily all that.

helpful as a legal concept because the very vagueness of it would empower the most sweeping censorship, the most sweeping suppression. And you're already, and we may transition a bit into this, we're already seeing a bit of that as you're now seeing like databases are being created of people who celebrated Charlie Kurt's death. And the definition of celebrating the death is now grown to include people who say, I wish that had never happened, but he was a bad guy, which is not the same thing as celebrating as death. And so you already begin to see the slippery slope unwinding. So I don't think it's a helpful legal concept in the First Amendment context at all.

As a cultural concept, it's very illuminating. Okay, so then let's discuss the role that social media played. Because as you say, you know, you say something, you know, hateful, stochastically terroristic to a group of 10 people, no problem. But if you say it on social media, all of a sudden, you're broadcasting to a much, much larger audience. And I think we will learn more about the role that social media might have played in this actual murder. But there's no question that social media is playing all sorts of a role in the cultural experience of this assassination. In just what you said, for instance, it used to be the case that if one person said, let's go back to the MLK example, right? Glad he's dead or something. They would need to find

people in their community who agreed with that because if everyone disagreed, they were very unlikely to voice that opinion. And if it's a 1 in 30,000 opinion, you're probably not going to find someone in your community. You're going to keep it to yourself or face social reprobation, shame, consequences, social consequences in your community. What social media allows you to do is find the other one in 30,000s, feel like you're in a much larger community and then say crazy stuff. So that's on the one side. On the other side, it also means that all of us, because of the way these algorithms work, are far more likely to see the one in 30,000 person and feel that they represent a much larger cohort than they do. Not to say that 1 in 30,000 is okay. But, you know, we saw this

after October 7th where the loudest voices saying horrible things were amplified and it caused a lot of fear among communities that never would have heard those people otherwise for better or worse. So, David, I want to talk a little bit about Section 230. This is the section of the Communications Decency Act of 1996. I'm going to read you the relevant portion. No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider, i.e. If you run the platform Twitter and someone says something on Twitter that is defamatory or otherwise not protected by the First Amendment, you can't be held liable. That is not constitutionally mandated. That is

statutorily mandated by Congress. So, David, we talked a little bit about Section 230 and about how, basically, without Section 230, you would not have the internet that we know today because, I mean, this statute was in response already to a court case. It superseded a court case that was going to hold platforms responsible. What does this conversation, though, look like. On the front end and the back end, we have both sides of the political debate who want to amend Section 230. They haven't done it. But if the platform providers on TikTok, on Instagram, on Twitter could be held legally responsible for things that people put on their platform, how does it change the conversation, do you think? Oh, it would change it a lot, a lot. But we've got to be

super precise about this, because this is now being unpacked quite a bit in the courts. So, Section 230, as I interpret it, Sarah, and as the Third Circuit was recently interpreting in the TikTok case, that the algorithms are the platform speech. The actual post is your speech. And so the way Section 230 and the Third Circuit and perhaps others would be currently interpreting things is that TikTok or Twitter could not be held liable. for the fact that my post is on the platform. But if the TikTok or Twitter algorithmically boost my post into your feed

without you seeking out my post, that that algorithmic boost is the platform speech. And so where you see this is in this awful, awful horrible thing, the blackout challenge that you had with a bunch of kids who were choking themselves and several died, the evidence in those cases is that a lot of these kids were exposed to that, and we talked about this at length, were exposed to that without ever having searched for it. In other words, it was brought to them by the platform's algorithm. So as of right now, I think if you

hold platforms liable for their own algorithmic speech according to conventional free speech and according to conventional common law and free speech principles, you would see a change. You would see a change, but where you would see a massive change is if you held platforms liable in some circumstances for the actual post itself being on the platform. That would be a really truly significant change.

But I do wonder, Sarah, Section 230 is not constitutionally mandated, but in some circumstances, I do wonder if Section 230-like protections would be. So, for example, it's taken offline circumstance. There are a few areas where speech is more heavily moderated than, say, a classroom. And so a speech, but the fact that speech in a classroom is heavily moderated does not mean that all the student speech in the classroom becomes the professor's speech. that is not the way the law works in that arena. But to some extent, because the professor has authority, the professor is liable for what happens in the classroom if it becomes, say, harassing. But it is just not a straight line shot that repealing 230 would mean that constitutionally

platforms could be held liable for the speech of those who post on the platform. That's not super clear right now. And in fact, I would say in some circumstances, that would not be the case at all. By the way, for those keeping track at home, it's been 238 days of not enforcing the TikTok ban in this country. Also worth noting that the next deadline of the last unlawful extension of the TikTok ban from going into effect is set to expire on Wednesday of this week, September 17th, the president has said, as of this recording,

that they have tentatively reached a deal, but I kind of feel like I've heard that before, and there's been no deal. So, yeah, as many people said online, this week would be a really good time to implement the law that Congress passed and that a president signed into law. The primary reason why the ban is upheld is all of this national security implications of the massive amount of data collection being done by this entity that really, truly, when you dive deep into it, the idea that it's independent from the People's Republic of China is just, laughable, but also the algorithm then becomes sort of the PRCs or the Chinese Communist Party's way of boosting discourse into our, and they don't have the constitutional right to do that.

They don't have the constitutional right, the Chinese Communist Party, the People's Republic of China, to enter into that the First Amendment does not extend to Beijing. And so you're continuing to enable two things at once. One is the data collection of Americans by a hostile foreign power. And the other one is the algorithmic influence on our entire political debate through an entity, we believe, is controlled by hostile foreign power. What are we doing here? I find it so frustrating that more Americans don't know this. My own friends had no idea how much Russia, for instance, has been intentionally fomenting racial divisions online with their bot farms.

So if I had a magic wand, the two things that I would do, if I were running a major platform like Twitter or Instagram, one, I would incentivize people to use their real names. I wouldn't ban anonymous speech. But I would, as I said, like, you should, if you can, like, say who you are. But the thing I would absolutely require is to mark accounts that are American. Or with whatever country that the platform, you know, in America, we should mark. who's American. In France, you should mark who's French, et cetera. Because I think it would shock people how few of the accounts they're seeing are from fellow Americans. You think it's an American because the person says they're from Missouri and has some picture? No, that has nothing to do with anything. Many of these aren't even humans. They're bots. But they're also not bots from the United States. They are being paid for the purpose of trying to cause us to hate each other for exactly this. The stochastic terrorism, the racial divides, all of this. I mean, the Department of Justice indicted 12 Russian intelligence officers in 2018 for this. And nobody

seemed to care because if you were on the left, you were like, aha, they're closing in on Donald Trump with the Mueller investigation. And if you were on the right, you were like, ah, no, just none of this has happened. It's all fake. And you're like, no, the Russia part was very, very it is what they are trying to do. And China's doing the same thing, except they're doing it much better because they actually run the platform. Russia can only do it through bot farms and sort of paid operatives on their end. China owns the whole platform to do it, y'all. And this idea, for those of you who are feeling like there are so many of your fellow Americans who are saying horrible things on one side or the other, frankly, how many of them are Americans? You have no

idea. I actually have seen people say things like this out loud as if it's some definitive proof, which is, well, you know, you might think that's fringe, but 100,000 people liked that post. Did 100,000 people like that post? People? People? No, no, no, no, no, no. Not at all. Not at all. And so there are, we don't even know at this point how organic the rage actually is on any political point, on any one of them. We have opened this super highway of foreign influence, and it's revealing itself to be just ridiculously easy to manipulate American public opinion and American public anger.

And I'm with you. David, do you think it would violate the First Amendment to have a federal law that says that platforms operating in the United States must confirm whether someone is residing in the United States and mark that on their account? Like, you don't have to prove your citizenship. You just have to, like, you know, prove that you live here. My tentative answer is, I don't think it would.

To me, it looks more like commercial, I mean, it is commercial speech, and it looks more like putting the calorie count on a menu. It's a transparency requirement, and transparency requirements are often upheld. but how unless a transparency requirement would result in repression of speech, that's where it gets difficult. So for example, you know, this is NAACP versus Alabama, the state looking at your membership list, right?

That was considered, that was going to be very dangerous and would suppress speech in association. And so it wasn't upheld. That would be, of course, I think one that would require people to real, by law, real name post. I think that would be, that would run a foul of the First Amendment. But to require a foreign actor to have their, say, flag in their profile, I don't think that would run a foul of the First Amendment. It compares a little bit more closely to the California law where, like, you don't have to publicly say you're a donor, but privately they have to be able to collect your information.

So that's where it may run a foul. In some ways, the public part looks more like the calorie count, but the only way to prove it would be to privately keep a database of the real names, potentially, of people who are on the platform. But regardless, I wish that meta and Twitter would want to do this, setting aside, federal law. Okay, when we come back, we're going to talk about what's happening on campuses in the wake of this assassination, and in particular, the assassins veto. So, David, let's go to some campus speech issues, your specialty. because I want to talk about security fees.

This is not new, but there has been settled law on it for a while, and there has been controversy about it of late. And in the wake of what happened now on a college campus, the idea that universities are going to say to student groups, you can't have a speaker like that because we can't protect that speaker unless you pay us $100,000 to invite that speaker as a security fee would really hurt one type of student group over another type of student group and is that lawful? So I want to give you some examples.

In 2017, Berkeley says that they had to spend $4 million on security costs for an event featuring speakers like Milo Yaninopoulos and Ben Shapiro. The University of Florida said that they had to spend $500,000 when white nationalist Richard Spencer was invited to visit campus. And David, this is all going to go back to a case called Forsyth versus nationalist movement. This was decided in 1992. It was a 5-4 case, interestingly, and in short, the nationalist movement applied for a permit to hold a rally on the courthouse steps in Georgia to protest the federal holiday honoring Martin Luther King. Okay, so they're against the federal holiday for Martin Luther King, and they want to hold a protest about the holiday

the county wanted to charge them for the permit and they sued, arguing that that violated their First Amendment rights. Now, we've talked about time, place, and manner restrictions and the idea of permitting being okay. Like, you know, you can't just have everyone try to use the public square at the same time. Check. But what about charging for the permit and how much can you charge if, for instance, we know that it's going to take a whole lot of public resources? So 5'4, Justice Black Declan delivered the opinion for the court, held that that ordinance that charged groups basically a, it wasn't, you know, always $100, it could sort of just be up to the person. Violated the First Amendment and 14th Amendment under incorporation because it contained no reasonable or definite standards to guide the county administrator's calculation of permit fees. Additionally, the ordinance required the administrator to examine the speech content to assess the likelihood of public hostility to the message.

and adjust the fee accordingly to account for security and law enforcement costs, right? So the more controversial your speech, the more expensive your permit was going to be, and the Supreme Court was like, gna dog on that one. Though again, it was 5'4, you had Thomas Scalia, White, and Rehnquist in dissent, and they basically wanted to send it back down for fact-finding that, like, how does this actually working in practice? Because, you know, something that's under $1,000 maybe isn't that expensive. So it wasn't really 5-4, I think, on the...

the high-level part, but it was a 5-4 decision. Okay, fast forward to more recent examples, and this is happening on university campuses all the time, but now we're not talking about $100 or $1,000. We're talking about these universities trying to charge student groups, you know, $20,000 plus. So, in particular, in Young Americans Foundation v. Napolitano, a registered student group had organized an on-campus speaking event featuring Milo Yaninopoulos, and they canceled, the university canceled the event when the protests turned violent. In response, university officials instituted policies that put restrictions on student organizations subsequent speaking engagements

featuring controversial speakers. Under the policies, the university charged $5,000 for one of its events, but for another event, it imposed $16,000. for one event featuring Justice Sotomayor, they charged $5,000, but for another event, featuring obviously a conservative speaker, they tried to charge the student group $16,000. So the district court gnawedogged that one pretty hard and said, with regard to security fees, the government officials may properly impose fees consistent with the First Amendment. However, in the absence of a pleaded explanation for any of the fees imposed and where, here an explanation is not otherwise apparent, such allegations suffice to support an as-applied

challenged to the policy where different amounts are charged to different speakers. And in particular, that Sotomayor event was literally in the same room. Like, there was just no real distinction between them. So, David, what are schools supposed to do? They can't afford to spend $4 million every time a student group wants to invite a controversial speaker. But at the same time, if student groups are only allowed to invite speakers that their fellow students will like, we've given an assassin's veto to the worst actors. I think the bottom line is this. I think that anything that is going to say, this is variable dependent upon our anticipated

potential for violence, is going to incentivize threats of violence because you'll create not just an assassin's veto, but a threatener's veto, that you could have a cohort of students or student groups or members of a community who make noise whenever they hear that there is going to be an invitation that would lead administrators to believe that a disruption is possible, which then leads to deployment of extra security at extra cost, and you know where this ends. So I think the variable set up depending on subjective perception of threat is just not going to fly.

And I had a lot of cases like that that we dealt with when I was at fire, when I was at ADF and ACLJ, you know, thinking through, this was a situation we thought through all the time. However, a university, I think, could very well say, we have a X is our total budget, annual budget for security. And we're going to say yes until our annual budget for security is out. At the same time, these universities don't have unlimited resources. So you couldn't have 15 large scale. Let's say it's a small college and you had a very active student chapter and they of a very conservative or very liberal group and they have 10, 12, 14 big events. The schools don't have limitless pockets. And so I could imagine you could do it along the lines of here's a limited pool. Here's an equal

allocation. If you want to hire additional security yourself, you can do it. But isn't that the same thing? Because if you're a conservative on campus, let's say they allocate both sides $15,000. That means the liberal side on a liberal campus can bring infinite number of speakers who are not under threat from the rest of their fellow students, whereas the conservative group may be able to bring zero speakers to campus for that amount, as long as the liberal students sort of make clear that you need more security. Isn't it up to the universities to provide a safe place where they punish students for violence and heckling so that you can bring any speaker you want without security concerns? I mean, I would love that to be the case, but I also know that these places

don't have unlimited funds, especially smaller colleges. I think it starts punishing students for disrupting speeches, though. Like, as in some of this is that they've allowed students to do this, and so now it's gotten out of hand. So now you need all the security because the students believe that they are allowed to cause violence, destruction, heckle, protest, disrupt speeches. To me, that's the presumed no-brainer element of this, that it should be the no-brainer, punish disruption.

You know, like at Vanderbilt, you had a lot of speech, and a lot of anger over running in both directions post-October 7th. But then the instant, and they protected all of that discourse, they protected all of that speech, but the instant that students broke into an administration building shoving past a security guard, they arrested those students almost immediately, which is the right way to do it. And had more institutions acted that way, we would not be, we'd be in a much better free speech position right now. No, I'm 100% in agreement, but let's presume for the sake of argument the school's already doing the responsible thing and punishing people who disrupt. What is it that they

can do without violating the Constitution when they don't have unlimited resources? And I think there you could perhaps say, okay, we just don't have the capacity to secure a large outdoor space. Like that could be, we just don't have that capacity. And you could say no large outdoor rallies. That could be potentially constitutionally acceptable in the face of limited resources. But that's the tension here. The tension is how do you protect free speech without variable security fees in an atmosphere where almost all of these universities are not going to have unlimited or quasi-unlimited funds for security?

What do we do? And there's not a, I don't think there's a, I don't think there's a, easy answer here. By the way, as a warning to those university administrators that may be listening to this, not only is the law fairly settled on having neutrally applicable security fees so that the group that wants to bring Justice Sotomayor doesn't have to pay one third of the amount as a different group that wants to bring a speaker that is controversial on your campus, it cannot be a controversial speaker test, but also a lot of these universities that have been sued. I mean, I mentioned that one case, there was another college Republicans versus costs. The universities

ended up settling as soon as the district court ruled. That's why I don't have a circuit court decision to read you, or definitely not a Supreme Court case, because the second they lost a district court, the universities ended up paying the lawyer's fees for those student groups, basically acknowledging that they had violated their First Amendment rights by either blocking speakers or charging exorbitant security costs to bring speakers that were controversial on their campus from going. So in the end, it may cost you some money in security to protect free speech events on your campus, which it shouldn't, by the way, if you're running a campus that actually you've taught free speech to your students really shouldn't be a problem

to have controversial speakers. But it could cost you a lot more if you try to violate the First Amendment by blocking them. All right, David, before we go, we did get one Supreme Court Emergency Docket ruling that I thought was worth a brief mention. In South Carolina v. John Doe, the application for a stay pending appeal was denied. It was six, three justices Thomas, Alito, and Gorsuch would have granted the application. This was about a single person who had gotten an injunction against bathroom law in North Carolina. This person is a transgender boy who wants to use the boy's bathroom despite a state law that requires students to use bathrooms based on their biological sex. So the court issued, the lower courts issued an

injunction that that person could use the bathroom that that person wanted to use. And so South Carolina went up to the Supreme Court, trying to get the Supreme Court to reverse. To reverse, that to allow the state law to go into effect against everyone. And the Supreme Court just didn't do it, even though three justices said they would. So, David, there's a few things here. We did not get anything from the majority of justices, of course. One, for everyone complaining about how we don't get stuff from the majority of justices on why they decide the way they decide, everyone seemed really silent about this one. All of a sudden, you don't care why the majority decided an emergency docket case the way they decided it? Why is that, everyone? Even, you know, Justice Sotomayor and

Kagan and Jackson who had been saying that? Like, no, they didn't write anything saying, why isn't the majority writing something here? Okay, two, it seems interesting to me that a state law not going fully into effect does not seem like as big a deal to the Supreme Court as a federal law not going into effect. But flag, this was an injunction against a single person, sorry, against the law being enforced against a single person. And so the underlying rationale by the lower court is probably cert worthy, meaning the Supreme Court may want to answer this question. In fact, they're going, they are hearing a case on these issues more generally this term. But, you know, they're sort of doing the injunction the way you're supposed to do it, right? It's

not a universal injunction. It's not a statewide injunction. This is for a single person. And I think here the court probably wants to reward district courts that are doing it the right way, is my guess on why the majority actually decided it the way that they did. It has nothing to do with the underlying merits. It is fascinating. This whole thing is fascinating to me. I thought about the very same thing that you thought about, Sarah, once again, you had an emergency docket case. It was six three and the six don't don't write, but the six was not the six normal six that you're thinking of when you think of six three with this court. The six was the three liberal justices and three of the Republican nominated justices. So and then the other thing that's interesting

about this is I, it's an interesting data point for those who presume that when the Supreme Court grants a stay, it's going to rule on the merits in the same direction that it granted the stay. And do very many people think the Supreme Court will say that there is a right for a trans person to go into a bathroom of the opposite sex from which they were born? I don't think the Supreme Court's going to do that. So I don't, this is an indicator that, hey, maybe some of these stays are not really as illuminating on the merits as we might think. And then the third and related thing to that then tells you lower court confusion overstays might be warranted in some ways. Because what's the takeaway from this stay?

Is the takeaway from this day is that you should be striking down these various like bathroom bills or regulations and rules? I don't think so. I don't think that's the takeaway from this day. So it does give me a little bit more sympathy for some of the lower courts. Is there, what does this stay mean outside of this case? Well, on the next episode of advisory opinions, we'll talk about all those things we need to get to. Like, is there a sharp partisan divide on the court's emergency docket? And did originalism cause our current constitutional crisis? Lots of interesting writing out there for us to get to, David.

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