The Comedy Cellar: Live from the Table - Lee and the Libertarian

Episode Date: August 20, 2021

Pete Lee is a comic. His new special, Tall Dark and Pleasant is available on Showtime Anytime. Ilya Shapiro is the Director of the Robert A. Levy Center for Constitutional Studies and author of Supreme Disorder: Judicial Nominations and the Politics of America's Highest Court.   

This is live from the table, the official podcast of New York's world-famous comedy cellar, coming at you on SiriusXM 99. And the Laugh Button Podcast Network. Dan Natterman here coming at you in studio. Joining me via Zoom all the way in Wells, Maine, we have Perry L. Ashenbrand and Noam Dorman, the owner of the world famous comedy cellar. We're waiting for Pete Lee to come join us. But meantime, how are things going up in Maine?

Sorry, I wasn't able to join you. It's been sort of a hectic week. Yeah, Dan, we were disappointed that we didn't get to see you. We were hoping that you'd come. You come here. Well, like I said, it's been a hectic week. It's been a lot of well, mainly just obsessing. And but, you know, that's a that's that can be a hectic week. It's been a lot of, well, mainly just obsessing and, but you know, that's a, that's a, that

can be a full-time job. I'm 60% of the way through your book. Okay. And any comments? I'm, I'm, I looking forward every night to reading it. Oh, wonderful. I think it's fantastic. That's the highest compliment you could give, obviously.

Thank you so much. I'm just, I'm, i'm i'm wondering what's gonna happen some i just like i it's pretty good dan i mean you really you really know how to write a book you have analogies and similes and and um and flashbacks and there are actually too many commas for my taste but that's that's the only criticism i have is it's like a lot of commas especially uh i didn't use the oxford comma which um i don't know that might uh may or may not have um you may have not have noticed you know the oxford comma when you're like the third thing yeah and yeah yeah i haven't the first paragraph i know some commas and then there is there's a

typo also i've um with i think you there's some names that are transposed i was i i noted it for you so you could probably fix it or maybe I'm just an idiot. I read it a few times and there's one little part I thought maybe was a mistake, but I'm bad with keeping character names straight.

Other than that, I am so impressed with this book. I can't even tell you. I can't believe it. Number two things, email me those mistakes I am so impressed with this book. I can't even tell you. I can't believe it. Well, number two things. Email me those mistakes because I can't change them. And number two, if you want, you've already gone above and beyond the call of duty.

But if you want to ask Liz to promote it on the Instagram feed, you're certainly welcome to do so. I won't stop you. Oh, I would love to do that. I thought you were going to say I don't have to finish it. I've already gone above and beyond the call of duty. You don't have to finish it. But've already got above and beyond the call of duty. You don't have to finish it, but, but if you want to finish it, obviously. No, Dan, let me tell you, I'm telling you with all honesty, if this were just a book and I didn't know you, uh, I would be really entertaining into this book. Oh, well, thank you. That's, you know, obviously, uh, the highest compliment possible. So I appreciate, I also want to give

a shout out to Aruba Ray Allen. He's the only emcee that can get the name of the book right. Because when I do a set and I ask the emcee, can you plug Iris Spiro? I gave up, by the way. I'm no longer asking. But I would ask the emcee, can you say he's got a book available, Iris Spiro, before COVID? And they didn't never get it right. I won't mention but you know they would say like irish spiro times of covid or irish shapiro you know so i not that it matters necessarily but but a rumor ray gets it right every time so uh i really we need to do a podcast when i finish it where we go through it and i really want to find out um like the backstory on these events like what's autobiographical like was your mom an alcoholic dan no but i also we

don't want to give too many spoilers no well i i don't think that's just that's not a spoiler of like the plot or anything that's just like a basic character well you know what you do will well you'll you'll email me any questions you have and i'll decide whether or not i think it's a spoiler yeah yeah and also email me those mistakes oh i hate to hear it but but if there's mistakes we they should be corrected nobody else seemed seemed to notice, but you know. It could be me. I really do get it. You're saying I get the wrong name? I use the wrong name?

Yeah, it was in the tennis match and somebody insulted somebody and walked off the court, but then it seemed like you had the person who walked off the court still on the court talking about the... That could be. The mother and then the and that's that's in bermuda yeah yeah i mean okay i'll look through that and yeah i hate to hear it but but obviously uh it needs

it doesn't affect anything i saw this i was reading tolstoy and i saw the same kind of mistake well you can't tolstoy is i guess it's too late to correct it, but maybe you can call Penguin Books or whatever. I don't know. Yeah. So, okay. So what else? What else do you want to talk about? Well, until Pete Lee gets here.

What are you obsessing over? Oh, yeah. My understanding is that you couldn't come because you had spots at the cellar. Well, I did have spots at the cellar. I could have come on Sunday, but then I bumped into, on Saturday night, I bumped into Harry Anthony. He told me there's really not a lot of room there. You got to bring your own bedding.

Well, everybody has to bring their own bedding because the house doesn't provide bedding. Just because of COVID. Yeah, ostensibly because of COVID, but probably people do a lot of things for COVID that charge more money, stuff like

that. It's an all-purpose excuse, but yes, stuff like that. You know, it's an all purpose excuse. But yes, there's no betting, but not a big deal to bring a sheet. But we are out of room now because we replaced you. I was told Galen showed up. I don't know if that's who you replaced me with. No, Galen's gone already. But we have friends of Juanita's here. Well, you know, maybe we can do something at your house,

you know, a get together. I love sleepovers. If you want to come over. Oh, yeah, sure, sure. Absolutely. You know, maybe with Steve and all that. So, Dan, your governor resigned. What's your take on that?

Well, I think he's your governor, too. Don't you live in the state of New York? Yes, I do. Well, you know, it seems sort of shocking. I mean, you know, a governor resigned. He seems like a big deal. Although Spitzer resigned, right, several years ago. Yeah, we haven't had a governor that didn't resign since Pataki, I think.

Did the blind guy resign? No, but I mean, you know, he was a caretaker governor. I mean, like an elected governor that didn't resign. So was so was the blind guy and then Cuomo after the blind guy? Yeah. Pete Lee is here. Good to see you. It's Pete Lee. Hey Pete, how are you?

Hey, good. Good to see you guys. We're discussing Cuomo. What do you think about Cuomo? Honestly, I like, I don't know a whole lot about it. I want to, I want you guys to fill me in, but, and I'm sorry that I'm late in solidarity with Simoneone biles i only do the last part of everything now um your solidarity is how your twisty's doing yeah they're really good they're twisties are amazing and uh don't cancel me for saying that

i wasn't making fun of her i'm really supporting oh no you made fun of her we heard you i we already tweeted it out check out people people making fun of Simone Biles. I'm supporting her. I am. Oh, God. What a what a victim. Anyway. Hi, guys.

Good to see you. So did you see Alec Baldwin's tweet about Cuomo? No. What did he say? He basically called it cancel culture. And he's like, yeah, he did. It's tragic. He did some bad stuff.

But, you know, cancel culture. I don't want to get it wrong did some, it's tragic. He, he did some bad stuff, but you know, cancel culture. I don't want to get it wrong, but I mean, shocking tweet by Alec Baldwin, basically, you know, disgruntled about the fact that Cuomo resigned. Well, yeah. I mean, Alec Baldwin's also a guy that wanted to reach a high status in life so that he could have a ton of sex. And that's something that has been happening since Vikings were around.

You know, like that's just a thing that like I wish that I wish society would realize that men want to become very successful so they can have as much sex as possible. But it sounds like he wasn't just doing that. He was being a total creep. And that's the problem, correct? Absolutely. Well, that's me. I mean, I can read the Alec Baldwin, but the thing that was interesting to me about the Cuomo thing is that he's the powerful, sexy governor of New York. You would think it would be so easy for him to close the deal sexually without

having to do anything offensive. It's not that hard, right? So you wonder about a guy like that, what's going on under the hood? I don't want to compare him to Cosby because obviously what cosby did is in another universe but he also like wonder like well cosby obviously had had no trouble getting sex but he he had to drug them right that was his thing and what is cuomo's thing that he can't just gentlemanly ask somebody out for dinner and you know yeah what what did he like just to clarify what did he do i i'm like so in the dark on this stuff um i uh i just got back from a long vacation and i haven't been i've been like trying to do a mental health break where i

don't i don't like read these articles and stuff and so i like you're you're explaining this to me like i'm a brand new person that just came here from like the jungle and doesn't know anything dan might know the details better because I've been on vacation, but, but, but two things stick out. One, he,

he put his hand under a girl's shirt, supposedly, allegedly, and grabbed her breast. Another one claimed he tried to kiss her. Another one claimed that he was, you know, like touching her on her stomach and her back,

you know, just, just creepy stuff. Now, now the hand on, and her back, you know, just just creepy stuff. Now, now the hand under the shirt, that's I mean, obviously, this is a crime. And I think she filed charges. You do wonder what's the context there? Like, would he just out of nowhere reach a hand up the girl's shirt? Was he just so out of touch, so unsupportive?

Whatever it is, something is up with this dude. OK, just this is just yeah ridiculous and this sounds like it's the this sounds like it's kind of the start of the wave of people telling stories about it you know like whenever you hear stuff like this uh and people come forward it's usually way more egregious than this um you know like i i i don't i don't know the details of it but i mean mean, I do know that there's I mean, there's basically two types of men, right? Like you there are men who get pleasure from women getting pleasure. And then there are men who get pleasure from women feeling uncomfortable.

And usually those men are called predators. And that's that's a thing that that's a thing. And that's a way that that's a thing. And that's a way some people's brains work. And generally speaking, we don't let those men be in society or we make them suppress that. Right. You know, it's just it's just a part of it's a part of whatever our monkey brains are. And it's a it's a slight subsection of men. But it sounds like he has that where being the governor isn't enough for him. He has like like being being like having high status and just getting sex isn't enough for him kink wise. He needs the girl to be

uncomfortable. I'm assuming a lot here. But you are. Yeah, I'm definitely assuming a lot. But if that's the case, that's terrible. You know, there certainly are people like that are in that category that do enjoy making women uncomfortable. There's others that might just be be clumsy and unaware. Well, it could be that his batting average was so high that he just went to his head. If there's 12 women or whatever it is that complained about him, but if he's doing these things routinely, you got to think that maybe four to five times it succeeds.

And he just got into these really bad habits. Look, I don't want to excuse a guy in anything because I'm a boss. And this stuff is just, it's just, it's just reprehensible. But what do I find more interesting though, in a way, is the politics of all. I mean, you had, you had people crying real tears ready to throw themselves in front of tanks like Tiananmen Square, if Justice Kavanaugh were confirmed. And the accusations against Kavanaugh was that he groped over a bathing suit.

He tried to grope a girl drunk on a bed at 17, you know. And at the same time, you know, just like two weeks ago, the Democrats are now putting forth this clean slate bill, which means that anybody who commits a crime, you know, before a certain age, it would be the record would be sealed and expunged, which is proper, I think, and usually what liberals believe. But with Kavanaugh, I mean, they were just, you know, they they just he had to be stopped. Right. And I don't I see people like sad about Cuomo and some people are really furious with him.

But for the most part, they're not reacting with the outrage. They're not ready to throw themselves in front of tanks. Oh, yes. Hi, Alia. People, people like the guy, you know, Kavanaugh seemed like a frat guy and people just didn't like him. And people like somebody once they're your friend or once you like them it's very hard to you know um yeah that's true that's human so so the first

thing i looked up when the cavanaugh thing you'll recall the listeners will recall the first thing i looked up was like what would be the what would be the rule about um a 17-year-old did something like this, assuming he did do it, would this crime stay on his record if it were even a crime? And how long would it be? And in almost every state, a low-level thing like that, if he then put together 10 or 15 years, whatever it is, of no other violation, his record would be expunged and sealed and all that. And so I thought the Kavanaugh thing from day one, I was like, well, even if he did it, I mean, why would we, you know, who would hold a 17 year old's thing against him? We, especially liberals, liberals are the ones who would, you know, want to put a murderer, a romantic story of a inner city kid who, you know, committed assaults and then made his way to the Supreme Court.

That would be a wonderful story. And I and I agree with that, you know, but a 17 year old drunk guy does one thing anyway. So, you know, you just compare it to how the whole Cuomo thing is handled. But it's such a trite observation. I almost. Yeah, I mean, to boot what you were talking about, Dianne Feinstein, the ranking member, didn't consider it to be credible, which is why she sat on it for weeks and weeks. And only when her staff said, let's release this, let's go for it, because nothing else sticking to them that that it became a thing. Should I get an introduction that we are famous for on this podcast? Yes. Vice president and director of the Robert A.

Levy Center for Constitutional Studies at the Cato Institute. Nothing to do with Cato Kaelin, by the way. An author of Supreme Disorder, which is a book about the nomination process. Is that right? On the Supreme Court? Supreme Disorder, the book? He's frozen there for a second.

My book, yes, it's about the... Well, we got the yes out of him. Politics of Supreme Court confirmations and surprise, surprise, politics has been an issue from the very beginning. George Washington had a nominee rejected. There's nothing new. There's little new under the sun.

So it's... Well... Certain things have changed the way that our parties are polarized in the way that different. We got to play a game where we finish your sentences. So actually about that Supreme Court thing, just because we touched on it, but it's not what I want to talk about. How much easier do you think the nomination process would be if the Supreme Court would overturn Roe I mean, there's so many other issues that that that divide nominees that are originalist versus those that aren't. But it would be a different dynamic. And where I think we're the only country where abortion is just debated all the time is at a national level like that. And by the courts as well. My suspicion for a long time has been if the Supreme Court actually overruled it, overturned it, there'd be very, very few states that would outlaw abortion, even the states that claim they would. It's kind of like, you know, they were

going to repeal and replace Obamacare. But when it came to it, nobody could really pull the trigger on it. You know, Ireland managed to do it democratically. It would be such a healthy thing. Ruth Bader Ginsburg said the same thing. The Supreme Court short circuiting the political debate that was going on in the 60s and early 70s really did a disservice to our politics as well as to our jurisprudence. That's so funny. I didn't even consider that they could do that on the federal level and then the states could do whatever they want, kind of like marijuana. So people would be like, dude, Jessica and I are heading to Colorado. Yeah, I mean, already a number of states, you know, New York says no, no restrictions whatsoever until like the baby is 110 percent out of the birth canal.

And others, you know, a handful of states would say none at all. And most would be somewhere, somewhere in between. Have you guys ever been to that bodies, the exhibition thing at like in any, like whenever you remember when they had it down at the South Seaport and they have one in Vegas and it's like amazing. You get to see all the bodies and all the tendons and they like, they break it all apart. And like, it's like real, you know, real organs from real bodies that have been preserved. And you're like this is fascinating and then the last room in the whole thing is just the aborted fetus room and you realize that they baited you into basically becoming like pro-life and like because then you you have to see it. You literally have to see it in real life. And and like whoever created that as a motivational tactic was it's very impressive how they did it.

And I've always been very pro choice, but it definitely made me think real hard about whether or not I could go through with that. By the way, we've lost Noam and Perry. Oh, here they are. They're back. We lost you for a second. Well, okay. So I don't know. I'm sorry. Maybe we have bad in there. This may, this may be the one, um, most ill fated podcast we've ever done. Um, I appreciate Ilya being such a good sport about it. So Ilya, you, you, one, I had said, uh, in a podcast to Alan Dershowitz that as a business owner, I just wish they would make it illegal for me to fire somebody based on their personal beliefs. And then you wrote something that Tyler Cowen picked up and surprised me, made me rethinking that you disagree with that position. And I want you to, if you would, to talk about that. Where am I going wrong? Because,

you know, like, let me just have one little anecdote years ago i had a musician who came in um right right around the time that farrakhan was uh saying all this stuff about hitler and the jews and poison whatever and you keep this this guy was wearing a farrakhan t-shirt and you know he's making a bold statement. And I just, I just decided to let it go. I said, I really have no right to, you know, get involved with this stuff, but it's not lost on me today that if he were wearing, you know, something opposite of Farrakhan, but equally offensive, uh, people would expect me to take action. The other employees, how can you let this guy, it's, it just seems like an untenable thing. And I was like, I'm just going to have a thick skin. I don't really care what my employees believe. And

I shouldn't, I don't care what they tweet. I don't care if they're Nazis to tell you the truth, as long as they come and do a good job. And I just think that'd be the best thing. I shouldn't even have the option of firing them, but you disagree. So go ahead. Right. So what, what caught your eye, what caught Tyler Cowen's eye was a letter to the editor of the National Review in response to an article by Eric Kaufman proposing it's, you know, it's hard for especially small businesses to navigate these sorts of things, you know, short of Jim Crow, short of true systemic, you know, racism, systemic oppression. There really shouldn't be restrictions on who an employee, an employer can hire and fire and for what reason, you know, I don't like the cut of your jib should be enough of a reason to fire someone if you want, or I don't like your t-shirt for that matter. I

don't like the team you cheer for. This is, you know, purely a Yankees or a Red Sox bar or whatever the case might be. And so if you add political belief, then there's going to be litigation over whether you were actually fired for that, whether what you were fired for was actually political belief. Is it a bona fide occupational requirement? So let's say we won't do it for political parties. Well, what about think tanks? I work for the Cato Institute. We're ostensibly libertarian. Does that mean we, so we can fire people who are socialists? Well, how socialists? What if they're really, really like left libertarian, really, really right libertarian, right? So there's all these things and just it's like I said, it's a lawyer, full employment act. And, you know, a full disclosure, I have a JD. I play a lawyer on TV from time to time. But I just don't think

you need to complicate the lives of private organizations any more than they already are. Well, I mean, as a business owner, I hear you and you're right. I mean, I don't think you disagree with the idea that I shouldn't be able to fire someone based on their race. And yet that law is a Lawyerful Employment Act. You know, people are always being sued for that. I mean, I don't know whether we need that anymore.

You know, you needed it in the Jim Crow South when it was essentially a monopoly and you needed to break the monopoly somehow. But short of that kind of situation, I think the culture, especially what it is, I don't think too many employers would survive very long if they adopted policies of racial discrimination. You consider yourself a libertarian? I prefer classical liberal, but, you know, it depends. It depends how you define your terms. These libertarians that I come across on Twitter all seem to be completely bonkers.

Well, then I'm not. I'm whatever in your mind is defined as non bonkers. Wait, is libertarian basically just like a liberal that it doesn't mind guns? Because I own I have guns cause I have, I have a stalker and then I went out and I bought guns and I still, you know, I mean, I believe in gay rights, but I, I just, I have a gun, you know, but I, you have a stalker. Oh yeah. Yeah. I, he's in trial. I think there's a t-shirt or an internet meme about like a gay couple that

protects their marijuana with, with guns. But it's uh it's it's it's not having you know it's having maximal liberty it's it's you know it's it's the idea behind the behind the u.s constitution we we uh create a government to secure and protect our liberties um because we if we didn't you know i'm not an anarchist if we didn't have government people would be warring with each other all the time. It's just, you know, armed gangs, constantly things like that. And so it's just, you know, let, let the market figure out let let voluntary choice as long as you're not physically or fraudulently fraudulently harming people. You know, let the individual transactions figure out what's what's best for people. Monopoly situations are different. But what about things like the FDA,

things like, you know, licensing a physician? Should we just say anybody can say they're a doctor and let the market decide? Let caveat emptor be the well. Well, look, typically when you're again, I'm a simple constitutional lawyer. I'm not a philosopher, but you typically don't start arguing this stuff with the hardest cases. And obviously, you know, it's much easier to argue against occupational licensing of hairdressers than of doctors. But, you know, with lawyers, the bars are a complete cabal and they're a, you know, they're a cartel keeping lawyer rates high. For doctors, I mean, certification is probably better than having strict licensing and like that. And it's not in anybody's interest to kill people.

So the FDA, which in any event should have approved all these vaccines with COVID months ago based on the amount of data they have and said they're dragging their feet. So lots of problems with the FDA, but it's in no businesses, no corporation's interest to kill off all their potential consumers. And so these kind of horror stories of if we didn't have an FDA, then all of a sudden all of our meat would be tainted, I think is protesting too much. Well, that leads us, I guess, to vaccines. So what do you think of, obviously, you just said the FDA should have approved these vaccines, but what do you think about mandatory vaccinations? I don't like mandatory much of anything. I mean, I think

people should, in this context, get vaccinated. The law says that if you're going to public schools and things like that, then the government can require you to be vaccinated in various ways. And that's probably right. The issue there is that there are so many government run schools, I guess. But I think in the COVID context, yeah, everyone should get vaccinated, but I don't think it's the role of government to to require that. When you said that you don't think that people want their customers to die, it related to that. Like the Republicans for a long time were really pushing like anti-vax and like the Trumpers are like, like, I'm not going to do that. But like if they're if the numbers are so slim that they're gerrymandering districts and doing all that kind of stuff, why would they want their people to die?

Like they're going to have less people that can vote in the primaries if they don't get vaccinated. I mean, what's really well, I mean, it seems like there's as much or more inner city racial minorities that aren't getting vaccinated as kind of the rural megatypes. It's a it's a more complicated story there, too. But what I'm surprised in that whole dynamic is why they're not saying that this is all Trump's vaccine, right? Operation Warp Speed. Look what we gave you. Biden's screwing up the distribution, but we gave you the vaccine, right? I mean, that seems to be like the more straightforward political message. You know, Trump got the vaccine, but he didn't publicize it. Right. It's just a bizarre dynamic. But I mean, that's amazing. You you had said that it's not government's role to say you must

be vaccinated, although you believe people should be vaccinated. But but I mean, isn't that sort of part of the social contract that we every now and again, we're obligated to do things for the greater good? Well, it depends. It depends on the kind of disease, you know, for smallpox or, you know, things that are very contagious and very deadly. You know, maybe there is a role to play, assuming that you're, you know, integrated, you know, you're in society, you're not a mountain man out in the woods somewhere until we have to maintain herd immunity. And so it's okay for not everyone to do it. There are medical or religious exemptions or what have you, but you can't have, you know, 80% exemption when you can't reach herd immunity. So, you know, there can be a role for mandatory vaccination at a certain point, but certainly in something like COVID,

we haven't reached the point because it's not, you know, outside of certain vulnerable populations. It's certainly not that serious. Yeah, you heard's certainly not not that serious. Yeah, you heard it here, not that serious. I'm going I'm butting heads with, you know, some there's some comedians, by the way. No, I mean, people are getting people are getting voluntarily vaccinated. So what is the case for forcing it on even more people? You know, the case is that that there are people that are not being voluntarily vaccinated. They're at this point, but they can at this point, they're taking responsibility for themselves. forcing it on even more people, you know, the case is that that there are people that are not being voluntarily vaccinated. They're at this point, but they can at this point, they're taking responsibility for themselves.

And if they want to die, if they want to expose their loved ones to a higher risk, that's that's up to them. I don't want to be paternalistic about it. Yeah. It's not. Can you hear me? Well, we got you. No. Yeah. You can hear me, right? I don't know if you've been listening. We've been talking about the vaccine. Ilya doesn't feel that mandatory vaccines are appropriate in this case. I want to I want to ask him a question about my particular dilemma, which is that I can I'm vaccinated and I can get a very minor breakthrough infection, which I'm not worried about, but which I will with almost, you know, 100% certainty, then take home and infect my three young children. Young children have a 1% chance of hospitalization, which is low, but you know, I think it's lower than that. I'd rather be my, I'd rather be my unvaccinated five-year-old than vaccinated me.

Right. But right. But I'm saying nevertheless but I'm saying, nevertheless, I don't want my kids to be hospitalized. One out of 100 chance of hospitalization for kids, but the chance of rolling doubles three times in a row like a monopoly is one out of 200, right? So this is a pretty high probability event if we've all rolled three doubles in a row. So I find it a real dilemma.

Yeah, if all the kids could be vaccinated, but listen, you're on your own. If you don't want to get vaccinated, you want to die, go ahead. But I do feel that there are certain populations, particularly children that are caught in the balance here, and they're not actually getting sufficient attention to that dilemma. Again, I'm not a doctor, and I'm not an immunologist, but the studies I'm reading say that for kids, this is less harmful than the flu. I mean, the kids for whom vaccinations aren't indicated at the moment. And so I'm just not concerned about it for those particular populations. Yeah, I've been reading about it and there's contrary information out there. One out of 100 hospitalizations, which was the number in the New York Times, like I think today or yesterday, is high. And then, of course, we don't know the long term effects. two and under are now associated with various neurological problems as adults and cold sores

are now associated with dementia. And, you know, just, there's no parent wants to just assume, oh, my kid will be fine. It's, I mean, you have maybe, are you a parent? So let's, yeah, I have two little kids. And so let's get the FDA to approve the vaccines for, you know, at this point, I'm not sure whether I'd give it to my kids, because again, it's just not that dangerous to them. But different parents can make other choices, and they should be able to make other choices. I mean, if we stop putting, you know, the guy, the guy who put all the sick people in the old folks homes is on his way out. So at least that's a good thing. But, you know, I mean, it's, it's, it, this is, this is a disease and we obviously, we know much more about it now than we did 18 months ago. I mean, this is a disease that, that goes after certain vulnerable populations and, and, and the elderly. And if we'd known that from the beginning, I would have hoped that our policies would have been completely different because, you know, you protect those and let everyone else live their lives. But that's,

we're straying from, we're straying from the, from the idea of mandatory vaccinations. I mean, I think, you know, in certain circumstances, the, the kind of the libertarian ideal of you can have total freedom as far as you swing your fist, but at a certain point, your fist strikes somebody else's nose. And at that point, you don't have that kind of freedom. So similarly, if you're, if you have infectious diseases and you don't know who's carrying it uh at that point certain restrictions can be uh can be allowed but i just think at this point in the pandemic um when when you know we're what 60 or something like that uh of vaccinated you know and whoever can get one can uh you can get one And it's really on them if they don't

if they don't want to. So I just I'm very hesitant to involve mandates. I'm also extremely hesitant to mask the vaccinated. That takes a further argument for those who are who are on the fence about getting vaccinated. I get vaccinated. I still have to wear a mask. That's not a good idea. Well, I agree with you on a lot of this. And I should say that at the same time, I insisted that all my employees be vaccinated. And I have and I was one of the first businesses, if not the first business in New York to insist that every customer be vaccinated. But that's quite different than a government mandate. And that's exactly right. Yeah. And by the way, I'm against state governments telling businesses that they cannot require vaccination.

And I'm against state governments telling businesses that they have to require vaccinations. argument I've made is that there's an awful lot of PTSD to this such that if the current status quo death rate were the initial death rate of the brand new novel coronavirus, what would we have done as a society to react to it? Nothing, right? 300 people dying. I mean, we just, we would have said, like when I was a kid and the Hong Kong. I mean, we would have said, like, when I was a kid and the Hong Kong flu was around, we would have told everybody to be careful. We probably would have done absolutely zero. Just right now, the current number of people dying would not be enough to get us to do anything. But because of what we've gone through, it's hard for us to see it that way. So you agree with that? Yeah, I totally do. And I

think it's terrible that it's gotten politicized. And by the way, you would have predicted ahead of time that, you know, conservatives who are afraid of disease, afraid of, you know, unhealthy, impure things would be the ones who are more protective rather than, you know, so it's unpredictable how the politics and obviously Trump is tied into that. Lots of things are tied into that. But it's it's it's unfortunate and and surprising how things have turned out. The argument that I think vaccines are a good idea, but I don't think they should be mandatory is not the argument I'm usually hearing. Usually I'm hearing people that say mandatory vaccines

are a bad idea and the vaccine is a bullshit conspiracy that doesn't work. Yeah, I see a lot. Those are the arguments I tend to come up against on libertarian Twitter to the extent that I'm. Well, then, yeah, well, like I said, I'm not the I'm not the bonkers libertarian of that kind. I don't go in for for conspiracy theories. I go in for facts and logic and things like that. Is this, by the way, is this the most likely scenario? Trump was hoping to take full credit and go on Mount Rushmore for Operation Warp Speed. But now that he realizes that his constituency doesn't like the vaccine so much. He's keeping a very low profile about it because he wants to run in 2024.

And he's just going to cater to them, even though personally, he probably thinks they're nutty. Do you think that's right? I am not going to try to psychoanalyze Donald Trump. I have no idea what he's thinking. It sounds perfectly logical whether it's right or not. It certainly could be right. And I mean, the thing is, I think at this point he can do anything and that just becomes the position of his supporters.

So I don't think I don't think he needs to calculate that much. He's got he's got this group of people that'll that'll follow him. He could change his mind on something and, and, and his supporters will say, well, yeah, that's, that's obviously always been the correct thing. Well, he bragged about that. He said he could shoot somebody on fifth Avenue. No. Do you think that's true? Do you think of all of a sudden, um, Trump really went hard pro vaccine that all these people would, would,

would fall into line? Uh, I, I think, um, a lot of them would, I think Trump, but I, I think Trump is underestimating the consequences of, I mean, I cannot think of another reason that the guy who wanted to take full credit for the vaccines is now very understated about, you know, promoting them and encouraging people to take them. There's got to be some logic to that, whether the logic is accurate, it's smart, whether he's reading the room correctly. That's a whole other matter.

But he has to have some reason for this. And it bothers me. You know, can I get back to the, because they're kind of like, is everybody still there? I can't hear. Is everybody still there? Yeah, we just had a pause.

Like, you know, in normal conversation, there's just a pause where we all listen and take in what you just said. And we all think about it. Yeah, this is an unusual podcast. We're actually thinking and we're considering what everyone's saying. This is amazing.

Yeah, on a podcast, that pause was unreasonable. Look, I mean, this is the issue of mandatory vaccines. I don't mean with respect to COVID, but in general is one that libertarians debate all the time. There was an issue of Reason magazine, which is the most prominent libertarian publication a couple of years ago about whether mandatory vaccines are ever proper. I don't mean, again, not for COVID, but like, you know, mumps and measles and all the kind of the standard ones. Rubella. Right. Right. All of those.

The social norm also used to be quite tolerant of people's wacky opinions and defending people's opinions and, and, uh, being a criminal defense attorney, defending sex offenders and all, and all these things, which, which Twitter, uh, descends on and makes people capitulate. And, um, uh, what we really would like to see is the social norm turned back into kind of a spirit of the bill of rights, uh, that we've kind of used to internalize in our everyday life. And that's just gone. And, you know, I was desperately trying to find some quick fix

with some law, but Ilya's right. You know, you're not going to be able to fix it that way, I think. I mean, there are certain jurisdictions in this country that have political opinion or ideology as a protected class and they tend to be the most left-wing cities seattle madison wisconsin washington dc berkeley i think um it's it's this um it's a progressive idea of what's uh what's appropriate uh um uh to think and and to you know, to restrict employers in various ways. Noam is unique among, I don't know, he's not entirely unique, but he's somewhat unique among club owners in that the more he doesn't like

what you think, the more he disagrees with you politically, the more you're likely to work here. Yeah. I agree with that. Yeah, I like that. Think about the diversity of thought just on stage here. That's actual diversity, not just, you know, different colored people of the same. We have that too, though. We have the other kind of diversity as well.

But yes, you know, no one because in part because no one just likes to argue with people. So the more you disagree with him, the more he wants you here so that he can berate you yeah but listen real diversity that comes about through uh uh in it i hate to use the word organic way is a beautiful thing and it and is actually the cliche true is america's strength i i actually do believe that. But this manufactured diversity, which is not diversity at all, is, I think, the death of this country. It's it's tearing us apart, you know. Anyway, Elia, what can we talk about right at the end? What's what's on your mind is the hottest you facing the nation right now? What's on my mind? You know, comedy question. You can ask that too. You have a question about my special tall, dark and pleasant.

We have to talk about tall, dark and pleasant. Let's get that in tall, dark and pleasant. Just watch it on Showtime. On Showtime. Pete Lee's special. Yeah. And I guess you've just described it. It's tall. He's dark and he's pleasant. I'm tall, dark and unpleasant. Yeah. There's a new move over Ray Donovan. There's a new badass on Showtime. That's my line. That's my line that I came up with. He's also a favorite of Jimmy Fallon's. I don't know if you guys are friends.

I mean, I know you're on the show and I recently saw I said you didn't. He's howling loud. He loves you. But can you get him on the phone once you leave the studio? Yeah, I communicate with him outside of The Tonight Show. And he's a really great guy. And for a long time, he was producing my sitcom with NBC, executive producing it. And then COVID happened. And then the climate of buying sitcoms changed. And now we're not in business together.

So, but he's still a friend and I, he's a dear friend of mine. And I, everybody always asks me, they're like, is Jimmy as nice as, you know, we get to ask about all that, all the famous people that we know, like, are they as nice in person as they are? And he's amazing.

He's the best. The way that he got me on the show was that he came out personally and saw me because a friend recommended that he come see me. And, uh, I, I was, I have a really hard time getting on the show. Uh, the, you know, the, they had a series of bookers that weren't into me. And then, uh, a mutual friend, uh, Dave Kimowitz, who's now passed away. He actually asked Jimmy to come see me and he came and saw me in person.

And he's a great dude. Awesome dude. Let me tell you that I met him one time and long story short. And by the way, long story short is an expression which is almost is always used after the story has gone long. It is never used accurately, but I'm going to actually say long story short, he was incredibly gracious with me in a way that I could not imagine somebody of his position would endeavor to be. He had no reason whatsoever to be gracious as he was to me, and he was. So I'm going to second that. I mean, he's from upstate New York and I've had nothing but good experiences with upstaters, whether it be Jordan Jensen or Moody McCarthy, the list goes on.

One time this guy from upstate New York stuck his hand up my shirt and grabbed my breast, but that was it. He's from Queens, but he lives in Albany. Yeah. You can't trust those. I was in Western New York earlier today in Buffalo. I was visiting my dad for his 85th birthday in Toronto yesterday and came back through Niagara Falls in Buffalo and flew home. Those are some weird rules up there. One last question for you. So what would you then do about the very real problem of people being deplatformed and then parlor taking down off Amazon and the way the whole thing? interlocking together to really put a pressure on the free expression landscape that previously only government could even consider having that kind of influence? What would you do about all

that? I haven't figured all that out yet. There's, in certain ways, the interlocking tech platforms might be somewhat akin to public accommodations or common carriers like the old railroads or something, but not quite. I don't want to make the exact analogy, but there's been some interesting writings by libertarian luminaries like Randy Barnett and Richard Epstein and Eugene Volokh making the case that there's something weird about this, particularly as it relates to the regulation of speech and political opinion, which after all is the basis of our democracy, of our rights, of our system of government. So I'm uncomfortable with what's going on, but oftentimes government is even worse than whatever the problem you've identified. So I don't think antitrust law is the right way to do it. I don't think those who are going on about Section 230,

the immunity from liability for libel, I don't think that has anything to do with it. But I'm still working through it. It's obviously a new challenge. And by the way, not all tech companies are the same. So hosting Parler is a different sort of thing than having a forum for discussion like Twitter,ler is a different sort of thing than having a forum for discussion like Twitter, which is a different thing than selling books like Amazon and, you know, de-platforming a particular book that's politically incorrect about transgenderism or something like that. So you don't, you can't lump all of it together and it's a moving target. And I just, sorry to disappoint. I don't have a quick, clean answer, whether it's whether you agree with me or not.

It seems to me that it's the kind of problem which a brave, selfless leader of one of these companies could have a big impact on. If he would just dig in and say enough of this, I'm not doing it, except for, you know, the following scenarios which track current first Supreme Court jurisprudence. And you don't like it. Tough shit. Look, Zuckerberg has invited Zuckerberg has invited regulation because he knows that he's the incumbent. He knows that he's the big boy. And if you have regulation, he'll easily comply with that with his team of lawyers and accountants and everybody else, while would-be competitors get shut out. That's what big established incumbent firms always do. So I'd be wary of taking the buckling. None of them believe it. I'm sure in their private conversations, they're not actually offended. It's not just tech. What about Pepsi? What about the airlines? What about banks, right? Yeah, yeah. That's what I meant. I meant all that. Yeah. Just stop. This gets back to the

social norms. They just got to say, no, we just don't believe it. We you know what? We could survive it. Yeah, we didn't like what he said, but we'll survive. It's all right. Or even The New York Times, right? The the editors are quailing at their 20 something staffers in their in their Slack channels who demand various people's heads when they're when they're politically incorrect. Ilya, they feel unsafe. All right. Well, I guess we got to go. The lobsters are here. Ilya, you're located in D.C. Where do you actually hang out? Falls Church, Virginia. You're from Toronto? Virginia.

I was born in Russia. We came to we immigrated to canada when i was little and then i came to the us i'm one of the few people you'll meet who's naturalized twice in his life and i like to say that like most immigrants i do a job that most native-born americans won't defending the constitution well spasiba for coming on the show my pleasure is like that too right Volokh is like that too, right? Volokh is what, Ukrainian or something? Yep, yep, yep. Yeah. Well, I guess, and there's a bunch of people who have firsthand experience or directly hear from their parents with how things can be horrible, who seem to value freedom more than those of us who take it for granted having the privileged lives. I'm also a first generation American.

My parents are from Montreal. So I guess I don't get full credit for being a son of immigrants because it's just Canada. I went to Montreal for my bachelor party. That's a fun town. You're allowed to do stuff there. So anyway, we we'd love to have you. We'd love to host the comedy seller sometime. If you ever get to New York, that would be great. And I, as you were talking about Jimmy Kimmel, I've never met him, but I must say one of my the pinnacle of my career, as it were, as a professional libertarian, as a think tanker was when I got to go on the

old Colbert report about, gosh, 11 years ago. That was a that was a good experience. And people were cautioning me that he was going to like slice and dice and edit me and make me look bad. But it was it was a good experience. That was a good show. I much preferred that show to his his current show. He was kind of a.

Absolutely. Also. Yeah. Yeah. All right, sir. Well, it of a, yeah. All right, sir. Well, it's a pleasure to meet you.

I'm sorry that you couldn't spend more time looking at Perry L, but our internet, a phone, a phone tie-in seemed to be much better. And Mike, you'll have to figure out some way to edit out all the, the funny stuff in the beginning to, to make a podcast out of it.

Mike, I know you got access to a microphone, but I've been listening to. All right. Well, thank you very much. I hope you enjoyed the conversation. I didn't know what to expect but yeah this is this is good and uh you know hope i hope i wasn't uh the uh the the the type of uh whether

libertarian or lawyer or which other other whichever pejorative you want to come up with that that uh that you were uh that you were hoping for no wait we lean libertarian big time at least i do not carry out leans whatever perry gets the firmware download from whatever the whatever you know the democratic progressive party believes today you know i was just looking at like the but the biden administration you know they've adapted some of trump's uh immigration policies and defending him in court. And it really occurs to me, Biden can take any position on immigration he wants, 180 degree range. And whatever position he takes, everybody will fall in line. And even the New York Times will hold its fire because nobody believes anything.

It's all part of the ship. All right. Anyway, thank you very much, everybody. And don't forget to watch Pete Lee's special. And check out Ilya Shapiro at the Cato Institute. And I'm sure you can find him on Twitter. Good night, everybody.