Judging Freedom - How bad can cancel culture get with Nick Gillespie

Episode Date: October 22, 2021

Judge Napolitano explores the dangers to personal liberty of today’s de-platforming culture and what the government has up its sleeve with Reason’s Nick Gillespie.See Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

Resolve to earn your degree in the new year in the Bay with WGU. WGU is an online accredited university that specializes in personalized learning. With courses available 24-7 and monthly start dates, you can earn your degree on your schedule. You may even be able to graduate sooner than you think by demonstrating mastery of the material you know. Make 2025 the year you focus on your future. Learn more at wgu.edu. Hello there, everyone. Welcome to Judging Freedom. Judge Andrew Napolitano here. This is my new podcast in which I get to think as I wish and say as I think and talk to whoever I want.

Today, I'm talking to a longtime friend of mine who's well known in the journalism and libertarian areas, Nick Gillespie. Nick is the former editor-in-chief of Reason Magazine, now editor at large for Reason, and Nick hosts the podcast Reason Interview with Nick Gillespie. Nick, welcome to Judging Freedom. A pleasure to be with you. Thanks for having me, Judge. It's always a great pleasure and honor to be talking with you. And I have to point out to those watching and listening to us now, if they detect any edge in you, it's because you're a Jersey guy, not born in New Jersey, raised in New Jersey,

not living in New Jersey, but from New Jersey. Do I have that right? Yes. You know, Brooklyn by birth, Jersey by choice, judge. And now having exited the Jersey by choice. Back now, yeah, I'm talking to you from Manhattan, just a couple blocks from little Italy. So, you know, we're keeping it real. As the judge knows, my mother's family, her maiden name was Guida. So and they were off the boat. So right, right. And I, of course, as those watching us know, I'm talking from my farm in northwest New Jersey, about 75 miles from where you are. Nick, you wrote a fabulous piece for Reason Magazine recently called Self-Cancellation,

De-Platforming, and Censorship. And when I first saw it, I said, yeah, of course, I agree with what he wrote because it's Nick Gillespie, but I'm only concerned with the government interfering with people's freedoms. And then I read this piece and you really got me to thinking, Nick, about the subtle ways in which even private interference with personal liberties can, will, and is about to lead to government interference. So make the case, Nick Gillespie, against self-cancellation, deplatforming, and censorship from whatever source derived. Yeah. So what I was trying to do in that Reason cover story, you can read it at Reason.com, is come up with a taxonomy of cancel culture, because it seems to me, particularly libertarians, we are rightly chiefly preoccupied

with the individual's relationship to the state or a community's relationship to the state, because government has, you know, government has the guns and it has more power than anybody else. But when it comes to things like cancel culture, which, and I use Jonathan Rauch, the great free speech advocate, free expression advocate, talks about cancel culture as an attempt to isolate, to alienate, to de-platform, sometimes to get people fired from their jobs. Kind of a concerted effort that usually to publicly shame people, usually using social media, not to engage ideas, but to punish and silence people without engaging their ideas. You know, it seems to me it operates on at least three levels. And one is the personal level.

The next level up is the corporate or platform level, and then the government level. And if we are only talking about when the government steps in, we're missing these earlier moments where people are policing themselves because of massive social pressure or political pressure. Platforms, places like Facebook and YouTube and Twitter, are responding to, you know, kind of gangs of people trying to silence, you know, free expression. This happens all the time. Let me just jump in right here. The pure libertarian position on this, and you concede this in the article, is that Facebook and Twitter and these other platforms are private property and they can do on and with their private property as they see fit. The cultural argument that you make is the more we accept and tolerate this, the more we will cancel ourselves in anticipation and fear of it, the easier it will be. Now we're getting into a bailiwick in which you and I have lived our entire professional lives. The easier it will

be for the government to threaten, intimidate, coerce, chill free speech, even if it does so without enacting legislation. Right. Yeah. And in fact, that's what we see happening. You have people like Josh Hawley and Ted Cruz, conservative Republican senators calling for legislation that would ban Facebook, Twitter, et cetera, from moderating any content. So they're saying in almost any other case, they would say a private business has the right to do what it wants. You don't have to bake the cake. You don't have to do this. You don't have to do that. But now they are saying in terms of social media, you have to allow people to speak, even if you don't like them. On the flip side, of course, leftists are pushing for more government regulation. People like Elizabeth Warren are pushing for regulation of social media platforms because they don't police enough speech.

But the common thing here and from a libertarian perspective, the question is, why is the government stepping in on all of this? And what I argue, and if I may, just what I argue in the piece and reason is that one of the reasons they're doing that is because we have lost a culture of free speech. We have lost an understanding of the value of free and open expression. Individuals are taking on cancel culture in their own minds. I go through examples where authors and musicians have canceled themselves they and you know and they sound like they're in the cultural revolution of china i am sorry i upset people and i'm going to withdraw from public conversations right platforms then follow that and then you know you end up with

the government and i i argue that we need to be pushing for as much free expression as possible in the public sphere of kind of debate and inquiry, because otherwise we get this world where we are just trying to enlist the government, you know, as our muscle to push through whatever view of the world and the view of what is acceptable discourse. I think everyone listening to us now or nearly everyone agrees with you, and certainly I do. And I understand the left wing argument, because to the left, putting everybody on the same playing field is more important than personal freedom. I don't understand. And it's funny you mention Senator Hawley and Senator Cruz. They're both lawyers.

They're both clerks for justices of the Supreme Court of the United States. They're both pretty smart guys. I don't understand what constitutional argument they would make. I'm going to have the two of them on the show to discuss this.

Maybe you'll join me. I will be happy to hear what they come up with. What could they possibly come up with? What constitutional justification would there be for the legislation that these two senators have offered? Well, what they're going to do, and they've done this in proposed legislation, is to essentially argue that Facebook is a common carrier like AT&T or, you know, the telephone company for younger people. Actually, I don't even know if people under 40 remember telephone companies,

but the idea that this is either a natural monopoly or a state-granted monopoly, and as a result, you can't discriminate about what kinds of things get said on a telephone network. It sounds like they have forgotten something called the First Amendment. Absolutely. And the worst thing you can do, even more than or arguably worse than suppressing speech is compelling speech. Why should you, Judge, have to have people on that you don't want to have on your show? But that's essentially what they're arguing.

And it proceeds from a bad philosophical or ideological position. But it's also just, you know, kind of pragmatically or in an evidentiary way is false. Facebook is not the beginning and end of public discussion. And the more we start to treat it as such, that it has to be regulated by the government because it's the only place people can talk. It becomes a self-fulfilling prophecy. And it allows for the government to expand to say, well, you know what? This is a monopoly. This is a monopoly.

We need to control all of these different things because, you know, enough people aren that sometimes they say things and sometimes they offer legislation for reasons other than wanting it passed. They may very well be doing this to curry favor with the former president of the United States who has a notorious public animosity toward Facebook because they canceled him. Yeah. And which I go into. You are correct because the Supreme Court has ruled that Congress shall make no law abridging the freedom of speech also guarantees silence. It also prohibits the government and any of its entities. I'm not talking about a witness on a witness stand in a criminal case who saw a bank robbery,

but I'm talking about public speech the government can't compel it it can't silence it it can't modify it it can't compel it now let's go to can it intimidate it you have cited in the article uh cruz and and uh holly's opposite numbers on the other side of the aisle who are threatening speech. Tell us about that. Well, you know, at various points, you know, people like Elizabeth Warren have talked about breaking up and regulating, you know, Facebook, Amazon, et cetera, because they are too big and they're monopolies. In Colorado legislation at the state level,

legislation was introduced that would have created a commission that would make sure that no social media platforms were hosting hate speech. It doesn't really define hate speech in that, but there'll be a commission to do that. On the right side, you know, Republican majorities in Texas and Florida have passed laws that would minimize the ability of social media platforms or Internet providers actually do business. And again, you know, this is the thing is that people on the right and the left will start saying, well, we're not attacking speech. What we're talking about is fairness and all of these arguments that have been recycled ad nauseum as a means of controlling speech. I do think that the way forward on this

is ultimately going to be cultural and not political in this sense. I think somewhere in that article, I know I quote him all the time, there was a left-wing legal scholar named Mark Tushnet who told me once that the Supreme Court and kind of the legal world, we often think that the Supreme Court changes the course of history and law does, but it mostly, he says it mostly follows what happens in the Supreme Court tends to be, you know, sometimes it's a little bit ahead of where the American people are. Sometimes it's a little bit behind, but it's really the American people that change things. And so if we are going to have, you know, a 21st century that has free speech and open expression across all kinds of platforms, it's going to come from a cultural revival.

I was very excited to read. I was boning up a little bit knowing that I was going to be talking to you. But the head of Netflix has just made a very strong free expression defense of Dave Chappelle, who has a controversial new special out on Netflix. And, you know, this is what we need to see more of, of people who run these companies, content creators themselves, individual creators, and fans and readers saying, you know what, I don't even I don't necessarily like everything I read, but I want to be able to read it wherever it falls. I agree with everything you've said, and I agree with Professor Ratushnet, who's a friend of mine, and it's well known amongst constitutional

scholars, it's sort of a de rigueur statement, almost a truism, that the Supreme Court and the courts in general follow society, that first there's a a cultural change and then there's a legal change and then the court decides if the legal change is consistent with uh the constitution and i think you're right there should be the cultural change how did we lose our love for free speech i mean i i know awful things have happened in wartime woodrow wilson prosecuted young men in New Jersey for reading the Declaration of Independence allowed outside you know judge as a Princeton grad you know you you can feel that one you know when I when I wrote my book called Theodore and Woodrow how two American presidents destroyed personal freedom the Princeton University Press wouldn't even accept paid advertising for it. Fast forward 10 years, they removed Woodrow Wilson's name from everything

on campus, not because he suppressed free speech, but because he was a racist. But the point is, from time to time, the government gets away with suppressing free speech. And from time to time, the government gets away with suppressing free speech. And from time to time, free speech is triumphant. I would argue, having read your extremely well-researched and articulately presented article, this is a sui generis situation. This is culture itself making free speech more difficult. And the government is following culture. Ted Cruz and Josh Hawley and Elizabeth Warren can threaten all they want. If the threats get too powerful, then it's chilling. But right now, I don't think the threats have reached that level. Yeah. Well, although I will point out, and I point this out in the article, each of those senators

has issued public letters and warnings to places like Amazon and other things like, why are you allowing this? I demand when Amazon delisted a couple of books about trans sexuality, Hawley and Cruz and a couple of other senators said why are you doing this on the flip side some democratic legislators have done that as well when that when their pet causes get upset and there's something wrong with that why should senators care what is being published or what is being sold on amazon you know it insane. And it's an attempt to bully and harass people. Are there any purists on the left, like you and I are purists who believe that Congress shall make no law literally means no law? I think, you know, this is and you pointed,

how did we get here? There's a generational shift going on. And I look at people and I quote them, older leftists. And by that, I mean people who are north of 50. Thomas Frank, Matt Taibbi, Glenn Greenwald. These are all older left-wing progressives who have basically rejected identity politics, but they are very, very in favor of a robust and essentially absolute First Amendment, as far as free speech can ever be absolutist. I think as people become younger, what they have been told and what they've been brought

up with by people our age, people in the baby boom have started to conflate words with violence. They believe that people, ultimately, this comes out of a kind of ideology that believes that people, readers, consumers of culture are stupid and dumb and they just absorb whatever message is being sent to them and that words are like bullets. And as a result, the younger people are, the more reliably they will say that you need to balance free speech and free expression with other concerns such as making people feel bad, making people feel marginalized. And we are now in a world where more people can say more things in more ways than ever before. We should never lose sight of that and we should always be celebrating it. But that means if you want to control speech, you have to get more and more robust and start employing the state as well as, you know, as well as cultural means.

And this is where the battleground needs to be fought. I begin and open and judge, I will say this partly because we are both proud Italian Americans, but I open and close the piece with a remembrance of Lawrence Ferlinghetti, the great, he was a patriot who fought in World War II and he published Howell the as the the head of City Lights Publishing in the bookstore in San Francisco he published Allen Ginsburg's Howell knowing that he was going to be dragged into court on various obscenity charges we have forgotten what people like Lawrence Ferlinghetti did to open up the ability of people to talk about what they want to talk about in a legal way and in

a cultural way. And one of the ways out of this, I think, is to remember Ferlinghetti, who died earlier this year at 100 or 101, you know, and, you know, hold them up as secular saints for free expression, because we need more models like that. You know, you're again right on the mark, and freedom doesn't come about by majority vote. Freedom comes about by a small group of activists continually agitating for it, like the American revolutionaries who were fewer than 20 percent of the adult white males living in the colonies in 1776. Like the people who said to Woodrow Wilson's precursor of the FBI, you're going to arrest me for reading Thomas Jefferson's words in the Declaration of Independence?

Come and take me away. I can't wait to explain this to a jury. I do hope, you know, I think you're right, Nick, and it takes a determined minority to light brush fires of freedom. I think I'm quoting Sam Adams. Yeah. And to do so persistently and the public will realize they are far better with freedom than without it.

Every, everybody is better off. Everybody is better off. And I also mentioned, you know, Frank Kameny, who was an early gay rights advocate, who was a federal employee, who was fired in the late 50s, early 60s for being gay. And he ended up, you know, using free speech. What is amazing about him is he ended up getting a Medal of Honor from Barack Obama years later, because he won all of his cases. But the point of Kameny is that he was always against any kind of speech code, any kind of speech restriction, because he understood, and we'll talk about this,

you know, at length, that especially if you have unpopular ideas or beliefs, if you feel marginalized, you do not want the government to be dictating what is allowable and not allowable speech. And, you know, you start with cultural change. You start with getting people to understand why it is in their best interest for everybody to be able to talk about what they want. And also, you know, on the social media front, to let more types of platforms exist that might have different rules of engagement or terms of service. And, you know,

that is something we need to, we need to get back to that moment, which I talk about in the piece in post-war America, I grew up in this. So I thought it was universal, but there was a moment where people who wanted to express themselves said, screw it. We are not going along with attempts to censor us, to oppress us, to repress us, to suppress us.

And they won. And that was a glorious moment starting in the late 50s through at least a good chunk of the 90s and early 2000s. And then you have, you know, wartime mentality where we've got to fight terrorists. So we've got to shut down all kinds of communication, as well as all these noxious theories of harm that if you read something offensive, you will be diminished as a human being. We need to fight back on that and recover the energy and the exuberance of a free speech society. You know, Nick, that was such a beautiful summary you just gave. I'm going to forego the other topic we were going to talk about and we'll do it when you're on here next. But I'm thinking if Barry Goldwater were still

in the Senate, he would take those two young whippersnappers, Cruz and Hawley, to the woodshed over what they're trying to do. And in that woodshed would be a tape of Nick Gillespie explaining the values and merits and constitutional requirements of free speech. Nick, it's always a pleasure. Thanks for joining us. We'll have you back on Judging Freedom. You know, you're not only my buddy, you're one of my favorite guests. Thank you so much, Des. I'm here when all you have to do is, you know, tap my, send me an email and I'll be there. All the best, my friend. Thank you. And thanks for listening to Judging Freedom. Judge Napolitano here. Until the next time, my friends.

Resolve to earn your degree in the new year in the Bay with WGU. With courses available online 24-7 and monthly start dates, WGU offers maximum flexibility so you can focus on your future. Learn more at wgu.edu.